Sunday, September 21, 2003

Kindergartners and first-graders may not distribute to their classmates gifts that bear a religious message, according to a ruling by a federal appeals court.

The 3rd U.S. Circuit Court of Appeals recently ruled in favor of a New Jersey elementary school in forbidding a boy from giving out pencils with the message “Jesus loves the little children” with a heart symbol substituted for the word love.

The classroom is not a place for student advocacy, wrote Chief U.S. Circuit Judge Anthony J. Scirica, speaking for the court in Walz v. Egg Harbor Township Board of Education. The school, he said, has a “legitimate area of control” regarding speech within school confines.

And the younger the student, “the more control a school may exercise,” he added.

But the Charlottesville-based Rutherford Institute, which is representing Daniel Walz, now 9, plans to appeal the case to a full bench of 12 judges of the 3rd Circuit, and, if necessary, to the U.S. Supreme Court. The recent unanimous ruling, which was handed down Aug. 27, was made by three judges.

At stake, said Rutherford President John Whitehead, is constitutionally protected speech. He called the 3rd Circuit ruling “a dangerous trend.”

“I call it the 9/11 fallout,” he said. “The court says the schools have complete authority to decide what they want said. If they do not like a kid’s religion, they can pick on the kid. Or if a black kid says Martin Luther King was the greatest person alive, if a teacher didn’t like that, he could just kick the message out.

“This idea that we have to watch everything and give the authorities power contradicts a long line of Supreme Court cases,” Mr. Whitehead said. “Even if the First Amendment is involved, the 3rd Circuit is saying control, control, control” goes to the schools.

The case began in April 1998 when Daniel, then 4, and his pre-kindergarten classmates attended a party at school. All of the children brought treats to share. Daniel came with the pencils, which the teacher confiscated. Daniel’s mother, Dana Walz, who was in the classroom at the time as a chaperone, immediately appealed the matter to the principal.

The principal, assistant superintendent and superintendent said Daniel could distribute the pencils only during noninstructional time because they did not want the school to be held responsible for endorsing Christianity.

In December 1998, when Daniel and his kindergarten classmates had another party at school, Mrs. Walz contacted the school’s lawyer beforehand to obtain permission for Daniel to distribute candy canes with a Christian-themed story attached to it. She was informed that Daniel could do so only outside the building during his free time.

In December 1999, Mrs. Walz informed the school that her son wanted to distribute more candy with a Christian message attached to it. Again, she was turned down. The child ended up giving out the candy in the hallway.

In May 2000, the Rutherford Institute filed a suit on behalf of the child, saying his First Amendment rights had been violated.

In February 2002, U.S. District Court Judge Jerome B. Simandle, a federal judge based in Camden, N.J., sided with the school district, blaming the mother for being “the driving force behind the distribution of these items and this lawsuit.”

It was “highly unlikely,” he wrote that then-4-year-old Daniel was “able to independently read and advocate the dissemination of the message on the pencils.”

Joe Betley, the lawyer representing the Egg Harbor Township School District, also said the mother’s influence was a problem.

“The parents were using the classroom to proselytize,” he said. “There is a difference between a kid’s ability to understand the difference between what’s endorsed by the school and what’s allowed because the school is taking a neutral position.

“If the school board wants to publicize a prayer meeting with a disclaimer, a high schooler can understand that, but a kid in kindergarten does not.”

Daniel was given the option of distributing the pencils and candy during recess or before and after school, he said.

Judge Scirica made a similar point, saying that schools can restrict speech in class or during school-sponsored events but should hold off when the speech occurs in hallways between classes or during free time.

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