Elk Grove v. Newdow (2004)

The US Supreme Court chose Flag Day, June 14, 2004, to issue a ruling in the controversial case Elk Grove Unified School District v. Newdow.  This case had challenged the use of the words  "under God" in the Pledge of  Allegiance as a violation of the First Amendment's Establishment Clause.  The words had been added to the Pledge by federal statute on Flag Day, June 14, 1954 to distinguish the US from its Cold War enemy, the Soviet Union , which rejected all organized religion. 

The case was brought by a professed atheist, Michael Newdow, who said his nine-year-old daughter's religious liberty was violated because she had to hear the Pledge in class, even though she did not have to participate in it.  A district court ruled against Mr. Newdow, but then the US Court of Appeals for the Ninth Circuit agreed that the words "under God" in the Pledge and the school's policy of requiring the Pledge on a daily basis both failed the Lemon test – the standard established by the Supreme Court for deciding when a practice violated the Establishment Clause.

There was an immediate outcry against this ruling in both the US Congress and across the country.  Then the legal picture got more complicated.  The mother of Newdow's daughter – who had custody of the child – publicly stated that she disapproved of the lawsuit.  She said that as a born-again Christian, she did not mind the girl being exposed to the Pledge in school. 

The Supreme Court had to decide two things: whether the Pledge in schools violated the Establishment Clause because it contained the words  "under God," and whether Michael Newdow as a non-custodial parent had legal "standing" – an identifiable interest that gave him the right to speak for his daughter before a federal court.  The court ducked the Establishment Clause issue, so we still don't know whether the words "under God" violate the Constitution.  On the matter of Newdow's right to bring the case, it ruled that because of family law principles, Newdow did not have standing to bring the suit in federal court.

  1. Listen to the oral arguments:
  2. Read the decision:

In August 2007 the US District Court for the Southern District of California ruled that a student could not be barred from wearing a T-shirt calling homosexuality "shameful," since the message neither substantially disrupted the school nor invaded the rights of others.  This was the second time the District Court had ruled in the case Harper v. Poway Unified School District.  It got the case again after the US Supreme Court vacated (set aside) as moot (having no legal significance - in this case because the student was no longer in school) the decision of the US Court of Appeals for the Ninth Circuit upholding the action of Poway High School officials in barring the shirt.  The Appeals Court judges decided that the school "need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."  However, a dissenting judge on the panel said banning the shirt was an example of "viewpoint discrimination" which was not justifiable, and that the lone message was not so demeaning that it interfered with the ability of homosexual students to get an education.  The District Court later agreed, stating: "Of course, schools have the right and duty to protect students from unlawful harassment.  But they may not prohibit the expression of an idea merely because it is offensive or repugnant to some or many...Though a school may advocate its own position, it may not ban student speech merely because it disapproves of the student's viewpoint.  To ban ideas from public schools merely because they are controversial is to strike at the heart of the First Amendment."

(The US Court of Appeals for the Ninth Circuit is the largest of the federal circuit courts. It has jurisdiction over Alaska , Washington , Oregon , Ohio , Montana , Nevada , Arizona , Hawaii , Guam, the Northern Mariana Islands as well as California . )

The US Court of Appeals for the Ninth Circuit in the early 1990s ruled in favor of students in a California high school who were suspended for wearing buttons to school saying, "I'm not listening scab" and "Do scabs bleed?" during a teachers' strike.  A lower court had said that the buttons were "offensive" and "inherently disruptive."  However, the Circuit Court ruled that they were neither vulgar, lewd nor plainly offensive (within the meaning of the Supreme Court's 1986 Fraser ruling), were not school-sponsored (in the sense of the Supreme Court's Hazelwood ruling), and did not meet the Tinker test of causing substantial school disruption.


In 2009 a federal district court ruled that school officials at Beverly Vista High School violated the free speech rights of a student whom they suspended after she created a vulgar video about another sutdent on her home computer and posted it on YouTube.  The court said the video was not likely to cause "material and substantial" disruption at the school and there was no evidence that it had any impact on classroom activities. 

On July 2, 2007, a California Superior Court judge prevented the Napa Valley Unified School District from enforcing the strict "Appropriate Attire Policy" in Redwood Middle School.  The policy prohibited any words or patterns of any kind, including stripes and flowers.  Students turned to the ACLU after they were prevented from wearing "Tigger" socks, an American Cancer Society ribbon pin, and a t-shirt declaring "D.A.R.E. to keep kids off drugs."  In its decision, the court ruled that by barring all expressive messages, the dress code policy violates students' First Amendment rights and also California state law, and that parents must be given the opportunity to opt of out participation with the dress code policy.  The judge cited the US Supreme Court decision handed down a week previously, Morse v. Frederick, which upheld the suspension of a student for expression "that it reasonably viewed as promoting drug use."  The judge pointed out that expression promoting drugs was an exception to the broader Tinker principle that had been upheld by the Supreme Court in its Morse v. Frederick ruling: that student expression is protected as long as it does not "materially and substantially disrupt the work and discipline of the school."

Students who belonged to a peace and justice club at Deer Valley High School had planned to hold a peace rally in February 2005, which would include speeches, a singer, leaflets and banners.  The principal felt the anti-war message was disrespectful and refused to allow it to go ahead.  Students then revised their plan for a rally and planned to hold it in March, but then the principal would not allow them to use a sound system.  The day before the event was to take place, he withdrew permission for it altogether and put two of its student organizers on two-day in-campus suspension.   After the ACLU intervened, the school agreed to allow the students to hold a rally in September during the lunch period and to use the school's sound system for music and speeches.  The suspensions were removed from the students' records and the school also agreed to withdraw the policy requiring students to get prior approval for literature they pass out on school campuses.

In May 2007 the California Court of Appeals overturned a lower court decision and ruled that a student at Novato Unified School District had been wrongfully punished for an editorial he wrote in the school newspaper about critical of immigrants. The court declared that “speech that seeks to communicate ideas, even in a provocative manner, may not be prohibited merely because of the disruption it may cause due to reactions by the speech’s audience.”

In June 2006, a senior at Jurupa Valley High School in Mira Loma sued his school district in state court, claiming his free speech rights were violated when he was suspended for distributing flyers about an off-campus rally against illegal immigration.  The student, Joshua Denhalter, said he was also told he couldn't wear a T-shirt with a slogan against illegal immigration in the school.  The school  district responded by saying students do not have the right to free speech when that speech incites other students or disrupts the running of the school. 


The ACLU has brought a lawsuit against the Fallbrook Union High District, after the high school principal censored two articles in the school newspaper, The Tomahawk, and subsequently eliminated the position of faculty advisor to the paper and the journalism class at which the paper was produced. The articles concerned the use of the school as an evacuation center during the area’s wild fires in October 2007, and the Bush administration’s abstinence only policy. After the paper was effectively killed, it won first prize in the 2008 American Scholastic Press Association’s High School newspaper competition.

The California Supreme Court in 2004 unanimously overturned the felony conviction of a 15-year-old Santa Teresa High School student who served 100 days in a juvenile jail after showing a classmate a "dark" poem he had written.  It contained this passage: "For I can be the next kid to bring guns to kill students at school.  So parents watch your children cuz I'm BACK."  The court ruled that "can" does not mean "will" and that the poem did not constitute a threat.  The court did rule on whether the student's expulsion from the high school was permissible.  He had only attended the school for two weeks before being arrested and expelled for his writing.  Several prominent writers – including Nobel Prize winner J.M. Coetzee and Pulitzer Prize winner Michael Chabon -- weighed in on his behalf. 

The ACLU of California brought a lawsuit against police and officials of James Logan High School in Union City who, in 2002, rounded up 60 students to question and search without any kind of reasonable suspicion that they had broken a law or school rule.  After being removed targeted during the lunch hour, they were sent to separate classrooms based on their race or ethnicity where they were searched, interrogated and photographed.  The police took the photographs back to the police station.  The suit says they were searched for evidence of possible gang involvement because of their racial or ethnic background or how they dressed and who their friends were.  In 2005 the city and New Haven Unified School District agreed to a settlement which put in place new rules governing interactions between police and students.  The police agreed to destroy the photos and other documents taken during the search, and not to engage in racial or ethnic profiling on or off campus.  School officials agreed that that they would not again detain students for the purpose of searching, photographing or questioning them based on race, appearance, or associations.  They also agreed only to search students and their lockers when they have specific reason to believe the law or a school rule has been broken, and only to involve the police when the safety of people on campus was threatened or when they have reason to believe the law has been broken.

A vice principal at Rancho Bernardo High School in Los Angeles was reassigned to a teaching position for violating the school district's search and seizure procedure in 2002.  She had lifted the skirts of female students to check what kind of underwear they had on before allowing them to attend a school dance.  Girls who refused to undergo the underwear check were barred from the dance. The search took place in front of male students and teachers. 

Washington Preparatory High School in Los Angeles reached a settlement in 2005 with students and the Gay-Straight Alliance Network that had sued to stop harassment on the basis of sexual orientation.  The lawsuit had charged administrators, teachers and security guards with harassing gay and lesbian students and operating "a climate rife with hostility towards and discrimination against students and staff based on their actual or perceived sexual orientation."  The suit also said teachers had threatened to "out" students to their parents.   The settlement mandates staff training and student education on diversity, discrimination and harassment. 


In 2009, the ACLU sued officials in an Orange County school district, alleging they allowed sexist and homophobic harassment and bullying at Corona Del Mar High School. The lawsuit concerns the school’s failure to respond to the harassment of a female student who was threatened in a video featuring three male students who talked about assaulting and killing her. The video was posted on another student's Facebook page.