News: Rights Watch
Supreme Court Says Yes to Vouchers, Drug Testing

Despite a legal setback, NEA's voucher battle will continue. On another front, the Supreme Court upholds student drug testing and nixes privacy lawsuits.

It came down to a single vote. In a 5-4 decision, the Supreme Court in June upheld private school vouchers, rejecting NEA's argument that such schemes violate the First Amendment's Establishment Clause.

Addressing the NEA Representative Assembly on July 2, outgoing NEA President Bob Chase vowed that the battle over vouchers is just beginning.

"To the voucher ideologues, we make this promise: We will expose your false promises. We will lay bare your lies," Chase said. "And as we have done in California, Michigan, and everywhere else that vouchers have been on the ballot, we will defeat you!"

NEA General Counsel Bob Chanin, who argued the case before the Supreme Court, declared, "This does not end the legal battle," in part because voucher programs can still be challenged in state court. According to the Congressional Research Service, 38 states have clauses in their constitutions prohibiting the use of public money to aid religious schools.

In fact, NEA is sponsoring a state court challenge to Florida's statewide voucher program on the ground that it violates the religion clause of the Florida constitution, which provides that "no revenue of the state" can be used "directly or indirectly in aid of...any sectarian institution."

And, under a continuing new business item, NEA is committed to initiate a court challenge to any voucher plan enacted into law.

In an all-too-familiar pattern, the Supreme Court justices in the Cleveland voucher case, Zelman v. Simmons-Harris, were sharply divided along ideological lines. Chief Justice William H. Rehnquist wrote the majority opinion for the conservative bloc, including Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, and Sandra Day O'Connor.

The majority reasoned that the voucher program is permissible because it does not provide direct government aid to religious institutions. Rather, the money flows through parents and thus "reaches religious schools only as a result of the genuine and independent choices of private individuals."

Writing for the four dissenters, Justice David Souter warned that using taxpayer funds to pay for religious indoctrination will increase tensions among religions.

He also suggested that this decision could be overturned by a subsequent Supreme Court, writing, "I hope that a future court will reconsider today's dramatic departure from basic establishment clause principle."

In another June decision, the Supreme Court ruled that school districts can require students to submit to random drug tests in order to participate in extracurricular activities.

In this case, students covered by a drug testing policy included members of the Future Farmers of America, Future Homemakers of America, Academic Team, band, and choir. The court reasoned that the school's interest in deterring drug use outweighed students' rights to be free of suspicionless drug testing under the Fourth Amendment.

In addition, the court ruled that students do not have the right to sue school districts, colleges and universities, or school employees for violating their rights under the federal privacy law, known as FERPA.

That statute prohibits educational institutions from disclosing a student's "educational records" to a third party without the student's permission.

The court held that Congress intended that the only remedy for a FERPA violation should be the cutoff of federal funds, and not lawsuits for damages by individual plaintiffs.

--Michael D. Simpson
NEA Office of General Counsel

Federal Appeals Court Bans Pledge of Allegiance in Schools

In a decision that stunned the nation, a federal appeals court in June ruled that reciting the Pledge of Allegiance in public schools is unconstitutional because the pledge contains the words "under God."

In a 2-1 ruling, the U.S. Court of Appeals for the Ninth Circuit said that the phrase violates the First Amendment's prohibition on the establishment of religion.

Said the court: "A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' because none of these professions can be neutral with respect to religion."

The court added, "The coercive effect of this policy is particularly pronounced in the school setting, given the age and impressionability of schoolchildren."

If allowed to stand, the court's ruling would ban classroom recitations of the pledge in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

To date, however, the decision has had minimal impact; the court postponed the ruling from taking effect pending appeal.

Atheist Michael Newdow-who has a law degree and is representing himself-filed the lawsuit because he didn't want his second-grade daughter to be pressured into saying the pledge at her Sacramento, California, school.

Newdow's lawsuit challenges Congress' decision in 1954 to add the words "under God" to the pledge, which originally contained no religious references.

The Ninth Circuit concluded that the sole purpose of the 1954 law was to "advance religion" as a means of differentiating the United States from the "communist" Soviet Union.

This decision conflicts with a 1992 Seventh Circuit decision upholding classroom recitations of the pledge, finding that the pledge's reference to God was mere "ceremonial deism," akin to the motto on coins "In God we trust."

The case, Newdow v. U.S. Congress, will be appealed to the full Ninth Circuit or the U.S. Supreme Court. Most legal experts anticipate that the ruling will be overturned.

At the 2002 Representative Assembly, the NEA Board of Directors voted to support the current version of the Pledge of Allegiance.

--Cynthia M. Chmielewski
NEA Office of General Counsel