Doe v. Acton-Boxborough Reg. High. Sch. Dist., No. SJC-11317 (Mass. May 9, 2014)
Abstract: The Massachusetts Supreme Judicial Court has upheld a state law requiring the daily recitation of the Pledge of Allegiance in schools. It concluded that the Pledge does not violate the state’s equal protection or anti-discrimination laws because the Pledge is a patriotic exercise, whose nature is unaltered by the phrase “under God,” and participation in recitation of the Pledge is voluntary.
Relying the U.S. Supreme Court’s decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the Massachusetts Supreme Judicial Court confirmed that no Massachusetts student may be compelled by law to recite or participate in any ceremony of which the Pledge is a part. It found the equal protection claim failed because there is no classification, much less a suspect one, created by the practice of reciting the Pledge. In regard to the argument that the law is stigmatizing, marginalizing and exclusionary for students who are nonbelivers, the court concluded that such feelings are “not legally cognizable for purposes of the equal rights amendment.” Finally, it concluded that recitation of the Pledge did violate the state’s antidiscrimination law for the same reasons that it does not run afoul of the state’s equal protection guarantees.
Facts/Issues: A group of students and their parents, all atheists and Humanists, and the American Humanist Association filed suit against the Acton-Boxborough Regional School District (ABRSD), claiming that ABRSD’s daily recitation of the Pledge of Allegiance violates the state constitution’s equal protection clause and its statutory equivalent. The plaintiffs sought declaratory and injunctive relief.
The Pledge is recited, in ABRSD’s schools and in schools across Massachusetts, pursuant to a state statute that provides that “[e]ach teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the ‘Pledge of Allegiance to the Flag.'” ABRSD does not require participation by teachers or students. The school superintendent’s affidavit stated that “[f]or both students and teachers, participation in the Pledge of Allegiance is totally voluntary. Any teacher or student may abstain themselves from participation in the Pledge of Allegiance for any or no reason, without explanation and without any form of recrimination or sanction.”
The plaintiffs’ case can be summarized as follows. They know that they have the right to refuse to participate in the flag-salute ceremony, but they want to participate in it. As atheists and Humanists, they “do not believe that the United States of America or any other country is ‘under God.'” The Pledge “suggests that all good Americans believe in God” and that others, like them, “who don’t believe in God, aren’t as good as others who do believe.” The parents claim that “[i]t is inappropriate for [their] children to have to draw attention to themselves by not participating, possibly leading to unwanted attention, criticism and potential bullying,” and that at their children’s ages, “‘fitting in’ is an important psychological need.”
There was no evidence that the children have ever been subjected to any type of punishment, bullying or other mistreatment, criticism, condemnation, or ostracism as a result of not participating in the Pledge or not reciting the words “under God.”
The plaintiffs claimed that the Pledge violated the state constitution’s equal protection clause and the state’s parallel statutory guarantee of equal protection because of the inclusion of the phrase “under God” in the Pledge. The plaintiffs did not raise any claims under the establishment or free exercise clauses of the U.S. or Massachusetts Constitution.
The Massachusetts Constitution provides that “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” (Declaration of Rights, as amended by art. 106 of the Amendments (art. 106), commonly referred to as the equal rights amendment.) The Massachusetts Supreme Court noted that “Article 106 does not expressly mention religion. The plaintiffs treat the word ‘creed,’ which is found in art. 106, as synonymous with ‘religion.’ Neither the parties nor any of the amici claim that the difference in terminology is significant for present purposes, and we find no reason to differentiate between those terms here.”
Chapter 76, § 5, of the state’s general laws provides, in relevant part, that “[n]o person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation.”
Both sides moved for summary judgment. The trial court concluded that based on the legislative history of the Pledge law, the inclusion of the phrase “under God” had not converted the recitation from a political exercise to a religious exercise.
Ruling/Rationale: The Massachusetts Supreme Court unanimously affirmed the lower court’s decision, with one justice contributing a concurring opinion.
The court reviewed the history of the Pledge of Allegiance, condensed as follows from the text of the court’s opinion (citations omitted):
The pledge first appeared in 1892 in a nationally circulated magazine for American youths….The magazine proposed that students recite the following words as part of a flag-salute ceremony that would take place in the Nation’s schools, designed to instill a sense of national unity and patriotism: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.” The phrase “one Nation indivisible” was particularly meaningful at that time, in light of the fact that the country had, in its recent past, fought and survived the Civil War with the national unity intact.
The pledge was first adopted by Congress in 1942, during World War II. The pledge was one part of a joint Congressional resolution establishing “a detailed set of ‘rules and customs pertaining to the display and use of the flag of the United States of America.'”…In 1954, Congress amended the pledge to include the words “under God.” The amendment came during the escalation of the Cold War, and there is some indication in the legislative history that the amendment was intended to underscore that the American form of government was “founded on the concept of the individuality and the dignity of the human being,” which is grounded in “the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp.”
While conceding that the phrase “under God” has a “religious tinge,” the Massachusetts Supreme Court emphasized that courts “have consistently concluded that the Pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.” It stated that because of the patriotic nature of the Pledge, “all of the Federal appellate courts that have considered a First Amendment challenge to the voluntary recitation of the pledge in public schools, with the words ‘under God,’ have held the practice to be constitutional.”
The court noted that as a matter of Federal constitutional law no student can be required to recite the Pledge, based on the U.S. Supreme Court’s decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). The court stated:
Although this court has not been called on previously to so state, we take this opportunity to confirm what has been obvious and understood to be the case for the decades since the Barnette case was decided: no Massachusetts school student is required by law to recite the pledge or to participate in the ceremony of which the pledge is a part. Recitation of the pledge is entirely optional. Students are free, for any reason or for no reason at all, to recite it in its entirety, not recite it at all, or recite or decline to recite any part of it they choose, without fear of punishment.
The Plaintiffs’ argument was based on Article 106 of the Massachusetts Constitution, which states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” In Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655 (2011), S.C., 461 Mass. 232 (2012), the Massachusetts Supreme Judicial Court ruled that the classifications in Article 106 are subject to strict scrutiny. The plaintiffs argued that the Pledge practice treats them differently because of their religion (both parties agreed that the term “creed” in Article 106 encompasses religion) and that the difference in treatment could not withstand strict scrutiny analysis.
The court rejected the plaintiffs’ argument, finding that the recitation of the Pledge did not create any classifications, much less one based on religion (creed):
Here there is no discriminatory classification for purposes of art. 106 — no differing treatment of any class or classes of students based on their sex, race, color, creed, or national origin. All students are treated alike. They are free, if they choose, to recite the pledge or any part of it that they see fit. They are entirely free as well to choose to abstain. No one is required to say all or even any part of it. And significantly, no student who abstains from reciting the pledge, or any part of it, is required to articulate a reason for his or her choice to do so.
The court also relied on the holding in Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 4-5 (1st Cir. 2010), cert. denied, 131 S. Ct. 2292 (2011).
Regarding the plaintiffs’ contention that Pledge law denies them equal protection because it stigmatizes, marginalizes and excludes students who are nonbelivers, the court determined that the evidence did not support a finding that the students “actually have been treated or perceived by others as ‘outsiders,’ ‘second-class citizens,’ or ‘unpatriotic.’” It explained that “this very limited type of consequence alleged by the plaintiffs — feeling stigmatized and excluded — is not cognizable under” the state equal rights amendment. The court concluded:
Where the plaintiffs do not claim that a school program or activity violates anyone’s First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school’s even-handed implementation of the program or activity, and the plaintiffs’ exposure to it, unlawfully discriminates against them on the basis of religion.
Lastly, the court disposed of the plaintiffs’ claim under the state’s anti-discrimination law finding that it failed for the same reasons that their equal rights claim did.
Doe v. Acton-Boxborough Reg. High. Sch. Dist., No. SJC-11317 (Mass. May 9, 2014)
[Editor’s Note: In April 2014, Legal Clips summarized an article in the Asbury Park Press reporting that a family filed suit in state court against the Matawan-Aberdeen Regional School District (MARSD) charging that the inclusion of the phrase “under God” in the daily recitation of the Pledge of Allegiance violates the New Jersey constitution. The family, who is not identified in the suit, is being represented by the American Humanist Association (AHA).
In June 2012, Legal Clips summarized the Superior Court decision in Doe v. ABRHSD which held that the state law requiring the daily recitation of the Pledge of Allegiance in public schools does not violate the state constitution’s equal protection clause and statutory guarantee of equal protection, or the school district’s anti-discrimination policy because of the inclusion of the phrase “under God” in the Pledge.]