Excerpts from the District Court Decision:

Sherman v. Community Consolidated School District 21 of Wheeling Township (1991)

The following excerpts are from 758 F.Supp.1244, 1245-1248, 1250-1251 (N.D. Ill. 1991) (Sherman v. Community Consolidated School District 21 of Wheeling Township) (Ann C. Williams, District Judge), the district court decision that upheld the constitutionality of public school recitation of the Pledge of Allegiance in 1991.  (Footnote is omitted.)  This decision was affirmed by the United States Court of Appeals for the Seventh Circuit in Sherman v. Community Consolidated School District 21 of Wheeling Township, 980 F.2d 437 (7th Cir. 1992).  (For the background facts behind this case, see the above-cited Circuit Court decision.)

In United States District Court

758 F.Supp. 1244 (N.D. Ill. 1991)

SHERMAN v. COMMUNITY CONSOLIDATED

SCHOOL DISTRICT 21 OF WHEELING TOWNSHIP

No. 88  C  9205.

United States District Court,

N.D. Illinois, E.D.

February 28, 1991.

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MEMORANDUM OPINION

AND ORDER

    ANN C. WILLIAMS, District Judge.

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Establishment Clause

    In its first opinion in this case, the court discussed the viability of plaintiffs' claim that the Illinois pledge statute violates the Establishment Clause of the First Amendment to the Constitution.  See Sherman, 714 F.Supp. at 934-36.  The court noted that a case from another circuit specifically held that the recital of the pledge of allegiance in a public school does not violate the Establishment Clause.  See Smith v. Denny, 280 F.Supp. 651 (E.D. Ca. 1968), appeal dismissed, 417 F.2d 614 (9th Cir. 1969).  The court also cited cases holding that neither the singing of the national anthem in public school nor the use of the motto "In God We Trust" on coins violates the Establishment Clause.  See Sheldon v. Fannin, 221 F.Supp. 766 (D.Ariz. 1963); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); Hall v. Bradshaw, 630 F.2d 1018 (4th Cir. 1980) (in dicta the court stated that "[r]eferences to the Deity in our ceremonies and on our coinage and seals do not violate the Establishment Clause because they merely reflect this fact of our history and no longer have any potentially entangling theological significance"), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981).  Finally, the court stated that although the U.S. Supreme Court has not expressly ruled on whether a pledge statute like the one adopted in Illinois violates the Establishment Clause, "[t]he Court has expressed its implicit approval of the Pledge ..."  Sherman, 714 F.Supp. at 936.  Based on this review of the case law, the court stated that "the failure of the plaintiffs' Establishment Clause claim is all but a foregone conclusion."  Id. at 935.

    However, the court did not dismiss plaintiffs' Establishment Clause claim pursuant to Fed. R. Civ. P. 12(b)(6) because to do so, the court would have had to examine documents outside the pleadings, and that is forbidden in the context of a motion to dismiss.  Now that the court has been presented with motions for summary judgment, the court may look at documents outside the pleadings and perform the necessary analysis to decide whether the Illinois pledge statute violates the Establishment Clause of the First Amendment.  In performing this analysis, the court will use the test developed in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), for determining whether a statute comports with the Establishment Clause.   The three elements of the test are as follows:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion' [citations omitted].

Id. at 612-13, 91 S.Ct. at 2111.

    The court finds that there are no genuine issues of material fact as to whether the Illinois pledge law passes all three prongs of the Lemon test.  First, the legislature adopted the law for the secular purpose of instilling patriotic values in elementary school students.  Plaintiffs point to the comments of one legislator to try to show that the pledge law had a religious purpose.  Senator Mitchler stated,

You should teach your children to pray and you should teach your children to respect your Country.  For God and country, because that's the basis on which this nation was founded.  I think this is a training period in grades one through six and I'd even be having some sort of a prayer in the schools and ... and I don't think that that's being over-burdensome or anything because I think it's teaching them patriotism and I don't see anything wrong with that ... to be able to stand up and recite the Pledge and have a prayer ....

Plaintiffs' Memo. in Support of Motion for Summary Judgment at 6.  However, Senator Mitchler was the only legislator who tried to link the pledge and prayer.  Moreover, his comments about prayer in school are not relevant to the purposes of the pledge statute because the statute does not provide for prayer in school. 

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    In contrast to Senator Mitchler's comments, the sponsors of the pledge law, Senator Nimrod and Representative Pullen, stated several times that the purpose of the law was to instill patriotic concern and knowledge of American ideals in elementary school students.  See e.g., Ill. Gen. Assembly, Senate Floor Debates, May 22, 1979, pp. 273, 275; June 28, 1979, p. 92; House Floor Debates, June 25, 1979, p. 65. [* * *]  The secular, patriotic purpose of the law is clear when one examines the statute as a whole.  The statute not only requires the pledge to be recited daily, but also requires that students be taught and tested on the principles enunciated in the American Declaration of Independence, the U.S. Constitution and the Constitution of the State of Illinois.  The statute also provides that students must learn about the proper use and display of the American flag, and voting methods.  In sum, the text of the statute and its legislative history reveal that the purpose of the pledge law is to teach secular, patriotic values and not religious values.

    The statute also passes the second prong of the Lemon test because the primary effect of the statute neither advances nor inhibits religion.   As noted above, the primary effect of the statute is to teach students about the principles under which our government operates and not to advance any particular religious beliefs.  The recital of the pledge, like the singing of the National Anthem, "is not a religious but a patriotic ceremony, intended to inspire devotion to and love of country.  Any religious references therein are incidental and expressive only of the faith which as a matter of historical fact has inspired the growth of the nation."  Sheldon, 221 F.Supp. at 774.

    Finally, the statute passes the third part of the Lemon test because it does not cause excessive entanglement of government with religion.   The statute at issue in this case is a far cry from the statute which the Lemon Court held would create an excessive entanglement between church and state.  In Lemon, the Court examined two state statutes which authorized using public funds to subsidize teachers who taught secular subjects in non-public schools.  The Court found that the statutes would cause excessive entanglement with religion because the majority of the non-public schools which would receive the funds were parochial schools.  Therefore, the state governments would have to constantly monitor the programs to insure that public funds were not being used for any religious purposes.  In this case, the statute requires the teaching of secular subjects in public, non-parochial schools, so no entanglement with religion is involved.  Based on this analysis, the court finds as a matter of law that the Illinois statute does not violate the Establishment Clause of the First Amendment.

Free Exercise

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    Moreover, even if Mr. Sherman had presented competent evidence that his son feels indirectly coerced by peer pressure to recite the pledge, it is doubtful that this would have been sufficient to prove a violation of [* * *] Sherman's [son's] Free Exercise rights.  This is because no other court has held that the mere recital of the pledge, without any direct coercion by school officials, violates the First Amendment.  In previous cases in which school pledge laws or policies were found to be unconstitutional, the school officials "punished" the children in some way for refusing to participate. 

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    The court recognized in its first opinion that these indirect pressures can be compelling.  As Justice Brennan stated in Abington School District v. Schempp, 374 U.S. 203, 290, 83 S.Ct. 1560, 1607, 10 L.Ed.2d 844 (1963), "[C]hildren are disinclined at this age to step out of line or to flout 'peer-group norms.'"  However, Justice Brennan made this remark in the context of a case involving state laws which required reading passages from the Bible or the Lord's Prayer at the beginning of each school day and these laws were found to violate the Establishment Clause.  In contrast, reciting the pledge in public schools does not violate the Establishment Clause.  Moreover, a state legislature is entitled to establish a curriculum for its schools which includes the teaching of the Pledge of Allegiance to those students who have no religious objections to reciting the pledge.   In Palmer v. Board of Education of the City of Chicago, 603 F.2d 1271, 1274 (7th Cir. 1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980), the Seventh Circuit held that a public school teacher who was opposed to the pledge and other patriotic exercises on religious grounds could not "require others to submit to her views and to forego a portion of their education they would otherwise be entitled to enjoy."  Similarly, even if the Shermans had made a proper showing regarding the peer pressure [* * *] [the son] no doubt feels, the court believes that that alone would not be a sufficient reason to deny the other children their right to learn how to participate in this patriotic exercise.  For these reasons, the court grants defendant['s] [* * *] motion for summary judgment regarding plaintiff's Free Exercise claim.

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