It's un-American to force kids to say pledge

August 19, 2003|By Jim Spencer

DENVER - Sitting in front of a huge American flag, federal Judge Lewis Babcock taught a lesson in civics last week.

It was a lesson a majority of the Colorado General Assembly and governor never learned in their lame - and probably unconstitutional - attempt to force the state's schoolchildren and teachers to say the Pledge of Allegiance.

It is beyond the power of government, said Judge Babcock, to compel anyone to say the pledge.

The judge read extensively from a 1943 U.S. Supreme Court decision that affirmed his position. He said that decision still stands.

So Judge Babcock delayed implementation of the state's new pledge-recitation law in several Denver-area school districts. He was responding to a lawsuit brought by the American Civil Liberties Union in behalf of students and teachers in those districts. The judge will decide the constitutionality of the law in a forthcoming hearing that will affect schools throughout the state.

Based on the judge's comments Friday, chances of the mandatory pledge law passing First Amendment muster are remote.

"When I read this statute, I don't see ambiguity," Judge Babcock said. "It is directly compelling teacher and student speech."

That's not the American way. It never was.

Still, the judge's action brought predictable knee jerks from the juggernaut of jingoism.

"This ruling insults the patriotism of most Coloradans," said state Senate President John Andrews. "The judge seems to think he's a sociologist, and there is no constitutional basis for his ruling, so I'm confident it won't stand."

Just watch, senator.

Gov. Bill Owens pitched in with a little patriotic piety of his own.

"The court's action is dramatically out of step with the desires and practices of most Coloradans who value and respect the Pledge of Allegiance," the governor said. "It is important to note this order is temporary. When the trial begins, we look forward to arguing the case on its merits and establishing the constitutionality of this simple and common-sense law."

Bring it, governor.

The constitutionality of this law depends on its usefulness as an educational tool.

Judge Babcock challenged government lawyers to explain how chanting the pledge on a daily basis teaches anything.

"The state tells students and teachers they must stand and pledge," he told Assistant Deputy Attorney General Maurice Kinaizer. "What's instructional about that?"

"Whether this is good education or bad education, we can't decide," Mr. Kinaizer replied. "Consider the entire statute, and it is educational."

Oh, really?

The law doesn't say that students and teachers must deconstruct the pledge, phrase by phrase, plumbing wisdom. The law says they must offer the pledge aloud as a daily incantation.

Although the school systems that got sued pledged not to take action against anyone who refused to say the pledge, Judge Babcock found that the threat of discipline would make students and teachers afraid to exercise free speech, which in this case means saying nothing.

The judge called the law's "opt out" option for those with religious objections "divisive."

Those with nonreligious objections face more explicit discrimination, the judge said. Students must get a note from their parents to skip the pledge for nonreligious reasons. Teachers are simply out of luck.

"There's no question the pledge has educational value," Judge Babcock noted. "One need only look at the clause `with liberty and justice for all.' The word `republic' shows our unique form of democracy. `Indivisible' brings to mind the Civil War.

"But standing alone as rote repetition, there is no educational value to it."

There's the rub. Rote repetition is all there is to this law.

Forcing hundreds of thousands of students and teachers to stand, salute and offer a loyalty oath doesn't count.

This is Colorado 2003, not Berlin 1938.

Jim Spencer, a columnist for The Denver Post, can be reached via e-mail at

Columnist Steve Chapman is on vacation.

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