to Plaintiffs' Motion for Summary Judgment, attached affidavits. All three affiants state that Richard Sherman was never required participate in the daily pledge and that he was never punished or threatened with punishment because of his refusal to participate. Id.
Robert Sherman attempts to rebut these affidavits with his own affidavit in which he states, "Defendant Garrett, principal of the school attended by my son, asks my son to stand with one hand over his heart and participate with the other pupils in reciting the pledge." Affidavit of Robert Sherman, para. 5. However, Mr. Sherman does not allege in his affidavit that this statement is based on personal knowledge, as is required by Fed. R. Civ. P. 56(e). He does not state that he attended his son's school and saw Principal Garrett asking his son, in particular, to stand during the pledge. Without a properly supported affidavit, plaintiff cannot create a genuine issue of material fact as to whether Principal Garrett, or any other school official directly forced his son to participate in the pledge.
Not only does Mr. Sherman's affidavit fail to create a genuine issue of material fact regarding direct coercion, but it also is insufficient to create a genuine issue of fact regarding indirect coercion. Mr. Sherman may not rest on the allegations of indirect coercion in his complaint, but must put forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). Mr. Sherman states in his affidavit that his "son has been knocked down by other children who are angered at his opposition to pledging" and that his son has suffered "embarrassment and humiliation . . . when the pledge ceremony is conducted." Affidavit of Robert Sherman, paras. 8, 10. However, Mr. Sherman does not explain how he knows that the reason his son was knocked down was because of his refusal to recite the pledge - Mr. Sherman just expects the court to take his word for it. Similarly, Mr. Sherman does not state how he knows that his son feels embarrassed during the pledge ceremony. If Mr. Sherman's son told him that he was knocked down for not saying the pledge or that he felt humiliated and embarrassed during the pledge ceremony, Mr. Sherman should have so stated in his affidavit. Mr. Sherman should have also stated that his son is incompetent to make an affidavit on his own behalf and explain why. See, e.g., United States v. Jones, 157 U.S. App. D.C. 158, 482 F.2d 747, 752 (D.C. Cir. 1973) (test for competency of child witness depends upon intelligence of the child and whether the child understands the difference between truth and falsehood). In short, Mr. Sherman's affidavit, in its present form, does not create a genuine issue of material fact regarding whether Richard Sherman feels indirect coercion to recite the pledge.
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 Richard Sherman'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. See, e.g., Barnette, supra. (students who refused to participate in the pledge were expelled and both the students and their parents were subject to prosecution for the student's "unlawful absence"); Lipp, supra. (student was "threatened" by school officials when she refused to stand during pledge); Goetz, supra. (students opposed to pledge had to either stand in silence, leave the room, or face suspension); Banks v. Board of Public Instruction, 314 F. Supp. 285 (S.D. Fla. 1970) (student suspended for refusing to stand during pledge), vacated, 401 U.S. 988, 28 L. Ed. 2d 526, 91 S. Ct. 1223 (1971). In the case at bar, it is undisputed that Richard Sherman was not punished or threatened with punishment by any school official for failing to participate in the pledge. At most, Richard faced indirect pressures because all the other children were conforming and saying the pledge and he was not.
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, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963), "Children 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 of 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, 62 L. Ed. 2d 659, 100 S. Ct. 689 (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 Richard 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 Hartigan's motion for summary judgment regarding plaintiff's Free Exercise claim.
Finally, the court finds that there is no genuine issue of fact regarding plaintiff's claim that the Illinois pledge statute violates the Equal Protection Clause of the Fourteenth Amendment and the court grants defendant Hartigan's motion for summary judgment on this claim as well. In order to determine whether a law is violative of the Equal Protection Clause, a court must first determine what level of scrutiny to apply. See Faheem-El v. Klincar, 841 F.2d 712, 727 (7th Cir. 1988). If the law infringes on a fundamental right or discriminates on the basis of a suspect category, the law is reviewed under either a strict or intermediate scrutiny standard. Id. "If no fundamental rights or suspect categories are involved, a court must simply determine whether the differential treatment of similarly situated individuals is rationally related to a legitimate state interest." Id. The court has already found that the statute does not violate the religion clauses of the First Amendment, so no fundamental right is involved. Also, the law does not discriminate on the basis of any suspect category. Therefore, the court must determine whether the law is rationally related to a legitimate state interest.
As the court stated above, Ill. Rev. Stat. ch. 122, para. 27-3 is rationally related to the legitimate state interest of instilling knowledge of and appreciation for patriotic values in public school students. As the Seventh Circuit stated in Palmer, 603 F.2d at 1274, "there is a compelling state interest in the choice and adherence to a suitable curriculum for the benefit of our young citizens and society." Learning the Pledge of Allegiance can certainly be considered part of a "suitable curriculum" for students. Therefore, the court finds the pledge statute is rationally related to a legitimate state interest. Defendant Hartigan's motion for summary judgment on plaintiff's Equal Protection Clause claim is granted.
For the aforementioned reasons, the court finds that all defendants were proper parties in Count I of the complaint. Therefore, the court denies the school defendants' motion to dismiss Count I against them. The court further finds that that there is no genuine issue of material fact as to whether Ill. Rev. Stat. ch. 122, para. 27-3 is constitutional under the First and Fourteenth Amendments to the Constitution. The court grants summary judgment in favor of all defendants and denies plaintiffs' motion for summary judgment.