Petition for Writ of Certiorari — Walz ex rel. Walz v. Egg Harbor Township Board of Education
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van Ne Court, U.S.
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a, FILED
03-982 DEC 2 9 293
No. ;
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IN THE
SUPREME COURT OF THE UNITED STATES
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DANIEL WALZ,
By His GUARDIAN AD LITEM DANA P. WALZ,
Petitioner
V.
EGG HARBOR TOWNSHIP BOARD OF EDUCATION, ET AL.,
Respondents.
¢
On Petition For Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
¢
PETITION FOR WRIT OF CERTIORARI
_ @ ee
Michael P. Laffey John W. Whitehead
Counsel of Record Rita M. Dunaway
Cassiday, Messina & M. Casey Mattox
Laffey, P.C. THE RUTHERFORD INSTITUTE
961 Holmdel Road 1440 Sachem Place
Holmdel, NJ 07733 Charlottesville, VA 22901
Tel. (732) 332-9300 Tel. (434) 978-3888
tah em tN NE A NR SINE NR rt APE
QUESTIONS PRESENTED
Petitioner Daniel" Walz was prohibited from distributing
small gifts to his classmates at classroom holiday parties
solely because the gifts included simple religious messages.
Petitioner presents the following questions:
I. To what extent does the Supreme Court’s First
Amendment jurisprudence, particularly that dealing
specifically with student speech, apply in the context
of a public elementary school?
Il. May student religious speech be censored solely
because it is religious?
PARTIES TO THE PROCEEDING
The Petitioner in this matter is Daniel Walz, a minor
individual. Daniel Walz proceeds by and through his next
friend, Dana P. Walz, his mother.
The Respondents are Egg Harbor Township Board of
Education and Dr. Leonard Kelpsh, who is sued in his
official capacity as Superintendent of Egg Harbor Township
Schools.
ili
TABLE OF CONTENTS
QUESTIONS PRESENTED ....000.....sccscccsscssssssssssccescoeseeseoses,. il
PARTIES TO THE PROCEEDING ........ccsccccscsessscoseoseesees.. ill
BGE OP AUTHORITIES .cscecceesesssccssssessessuesseccessseeee.., vi
PETITION FOR WRIT OF CERTIORARI .oeeececceecoesceeeseecss.. l
FREI BOE IOW .....scnscossnessvssusssessvsssesseessesesesecosees: aeiana 1
STATEMENT OF JURISDICTION. ......-ccsecsssscssessecscoeeooeeces. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
I hts saiickcriadteaoasgbaeirosssvneinescasissece cocsoda.c..e 1
STATEMENT OF THE CASE............ceccssessssssssosessoeecosecessss,. 2
Fe GINO oc ssscscsnnnanncssicuescenssostecsseshecc 2 ‘
ee Sesser eta essnshaschusssieslaansendiccsenecaan dace 2
C. The District Court’s Opinion. ....cecccccccccccccseeecessseeccccsc. 4
D. The Third Circuit’s Opinion .0.......ccccccccsccsssesecoseeeecsossccc. 6
REASONS FOR GRANTING THE PETITION................... 8
I. THE COURT SHOULD GRANT REVIEW TO
RESOLVE THE SPLIT BETWEEN THE THIRD
AND SEVENTH CIRCUITS AS TO WHETHER OR
NOT PUBLIC ELEMENTARY SCHOOL
OFFICIALS MAY CENSOR STUDENT
EXPRESSION SOLELY BECAUSE OF ITS
RELIGIOUS VIEWPOINT. ..02...cccssvcsssssssccssssosessecessoecossesa... 8
iv
i i
II. THE COURT SHOULD GRANT REVIEW TO
RESOLVE CONSIDERABLE CONFUSION AS TO
THE APPROPRIATE FRAMEWORK FOR REVIEW
OF STUDENT SPEECH RESTRICTIONS IN THE
PUBLIC ELEMENTARY SCHOOL CONTEXT........... 10
Ill. THE COURT SHOULD GRANT REVIEW
BECAUSE THE THIRD CIRCUIT’S OPINION”
BELOW REPRESENTS A _ SUBSTANTIAL
DEPARTURE FROM AND/OR UNWARRANTED
EXTENSION OF THIS COURT’S — FIRST
AMENDMENT JURISPRUDENCE. 0.0... ccesssssssseeeseeees 14
IV. THE COURT SHOULD GRANT REVIEW
BECAUSE THE THIRD CIRCUIT’S DECISION
ESSENTIALLY ELIMINATES FIRST
AMENDMENT RIGHTS OF FREE EXPRESSION
FOR PUBLIC ELEMENTARY~ SCHOOL
Be a ie niciipsektansincionstainipsilibanapicaibinieanaldpaatnantseattin 18
COMCTEUISIOINT seccciscacesoxeacessncovesacesnceanesiucavecinssostisssnceavssnvenstlll
TABLE OF AUTHORITIES
CASES
Bethel School District No. 403 y. Fraser, 478 U.S. 675 .
EIU stcniscscitieiisansclasidiidelanabainiiliesia isa Sea een erie 10
Board of Educ. of Westside Community School v. Mergens,
SIG UG. TIE CE ei eaicssssesiccosinsibtinskctninanerisonatitivmorsiner 23
C. H. v. Oliva, 990 F.Supp. 341, 352 (D.N.J. 1997), aff'd in
part, rev ‘d in part, 226 F.3d 198 (3d Cir. 2000), cert.
denied, 533 U.S. 915 (2001)).......0.cecesesssscoeceseses ee
Cornelius v. NAACP Legal Defense & Education F und,
Incorporated, 473 U.S. 788 (1985). ...cccccsecscsesecssoseeees 14, 18
| Edwards v. Aguillard, 482 U.S. 578 (1987)....c..secsessessse 7, 11
| Good News Club v. Milford Central School, 533 U.S. 98
CTE A vvinininrnastintocceatanncddeiansiaie sae nee 14, 16, 17
Hazelwood School District v. Kuhlmeier, 484 U.S. 260
EPRI Dh sesh cei soehepatleshdedaishahadsotaicneaea ace passim
Hedges v. Wauconda Community Unit School District, 9
FE DOS Ce. PEE, scvnnccinisen h 8,9
Jeglin v. San Jacinto Unified School District, 827 F.Supp.
eg te Se. amas ie en AS: 11
Johnston-Loehner v. O’Brien, 859 F Supp. 575 (M.D. Fla.
SSEP: :novnconssssunusinnnsoiiiilehaieaiGisilaliatats aaeaaie ee aaa 11
Lamb's Chapel v. Center Moriches Union Free School
District, 508 U.S. 385 (1993). ....cecccccecesssesesseee 8, 14, 16, 17
vi
pe eee:
Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7" Cir.
1996), cert. denied, 520 U.S. 1156 (1997)...8, 9, 12, 13, 16
Newsom v. Albemarle County School Board, 2003 U.S. App. ~
I DERE Cie, DOIN cnisssitecteosssintcrictexsaenentenittnns 13
Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819
TIFT crkxhhxiennnnchsncepneinphinieioinanessansehsentinsdemmalabaseiaiacaaane 14, 16
S.G. v. Sayreville Board of Education, 333 F.3d 417 (3d Cir.
BIE ‘iiss stiesersesavstssranssniiiilitasibnntaestuaciaapdaeaaaa 24
Sonkowsky v. Board of Education, 327 F.3d 675 (8" Cir.
ED icinnliecéstunenssnnssantsinintineieuiioisasicsaintileiaaoamcaiadaaanites 13
Tinker v. Des Moines Independent Community School
Sorat, SIS FS. SIS CUPID) ovneisccsnsesnvssesseensstsavinsens passim
Walker-Serrano v. Leonard, 325 F.3d 412 (3d Cir. 2003).
dhesaeneeineenenveansees jreniienieninenianeeniies ipeiegemnmeianaiaintiite passim
Walz v. Egg Harbor Township Board of Education et al., 187
F.Supp.2d 232 (D.N.J. 2002)........sssccccssceee 1, 2, 5, 6, 11
Walz v. Egg Harbor Township Board of Education, 342 F.3d
FE ale Be iicstinsssciripneinacutonminoneinkeannel passim
West Virginia State Board of Education v. Barnette, 319 U.S.
Be IPE cininvcsscnsinincatnisesineauastanainasaigunsimmininaimadmamnnal 20
Widmar v. Vincent, 454 U.S. 263 (1981). ........csssecseeeseseees 17
CONSTITUTIONAL AND STATUTORY PROVISIONS
UNITED STATES CONST., AMEND. I ..............+++++++- passim
UNITED STATES CONST., AMEND. XIV............cceeeeeee cee foe
es A 0a h ssicinsinsincsensacdilaeiliacennnneniaadiccancienilialaa 5
PS eS Nd a Lia ee a la
PETITION FOR WRIT OF CERTIORARI
TO THE HONORABLE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT OF
THE UNITED STATES:
Petitioner Daniel Walz respectfully petitions for a writ of
certiorari to review the judgment of the Third Circuit Court
of Appeals in Daniel Walz v. Egg Harbor Township Board of
Education, et al., 342 F.3d 271 (3d Cir. 2003).
OPINIONS BELOW
The decision of the Third Circuit Court of Appeals is
reported at 342 F.3d 271 and is set out hereinafter as
Appendix (“App.”) Al. The district court’s judgment, App.
Bl, is reported as Daniel Walz v. Egg Harbor Township
Board of Education, et al., 187 F.Supp.2d 232.
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was entered on
August 28, 2003. See App. E3. Daniel Walz’s petition for
reconsideration, or in the alternative for rehearing en banc,
under Third Circuit Rules 35 and 40, was filed on September
10, 2003 and denied on September 30, 2003. See App. D2.
CONSTITUTIONAL AND STATUTORY PROVISIONS '
INVOLVED
This case is brought under the First Amendment to ihe
United States Constitution, which provides in relevant part:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech...”
This case also involves the Fourteenth Amendment to the
United States Constitution, which provides in relevant part:
“(NJlo state shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”
STATEMENT OF THE CASE
A. Nature of the Case
Petitioner, Daniel Walz, by and through his guardian ad
litem, Dana P. Walz, brought this action under the Civil
Rights Act, 42 U.S.C. § 1983, challenging Respondents’
deprivations, under color of state law, of his federal
constitutional rights to free speech, free exercise of religion,
and equal protection pursuant to the First and Fourteenth
Amendments to the United States Constitution.
B. The Facts
Daniel Walz was a pre-kindergarten student in the spring
of 1998. 342 F.3d at 273; App. A2. Several times a year, his
class held seasonal parties that typically included snacks,
games, activities, and an exchange of small gifts among
students. Jd. Although students’ parents were generally
encouraged to donate small gift items to the local Parent
Teacher Organization (PTO) for distribution at the parties,
some students usually brought their small gifts to the party
and gave them to their classmates directly. Jd; 187
F.Supp.2d at 236, 239; App. B8, B14.
Just before the Easter holiday in 1998, Daniel’s class
held a seasonal party. 342 F.3d at 273; App. A2. During
this party, Daniel distributed pencils to his classmates that
bore the message, “Jesus [heart symbol] The Little
Children.” Jd.; App. A2-3. When Daniel’s teacher noticed
the imprint on the pencils, she confiscated them and brought
them to the attention of the school principal. /d.; A3. The
principal contacted Respondent Kelpsh, the school
2
superintendent, who determined that Daniel would not be
permitted to distribute the pencils because of the possibility
that some children and their parents might perceive the
religious message as being endorsed by the school. Jd.
Six months after the party, Respondent Egg Harbor
Board of Education adopted a written policy providing, in
part, that “no religious belief or non-belief shall be promoted
in the regular curriculum or in district-sponsored courses,
prograrns or activities, and none shall be disparaged.” Jd.
The policy further stated that religion could be
acknowledged in the course of school activities “if presented
in an objective manner and as a traditional part of the culture
and religious heritage of the particular holiday.” Jd. The
school also maintained an unwritten policy prohibiting
students from distributing items with political, commercial,
or religious references in class during school hours. Jd.
In December of 1998, Daniel’s kindergarten class held a
seasonal holiday party. Jd. At this party, Daniel sought to
distribute candy canes attached to copies of a religious story
entitled “A Candy Maker’s Witness.”! Jd.; App. A3-4.
' The story read:
“A Candymaker in Indiana wanted to make a candy that would
be a witness, so he made the Christmas Candy cane. He incorporated
several symbols for the birth, ministry, and death of Jesus Christ.
He began with a stick of pure white, hard candy. White to
symbolize the Virgin Birth and the sinless nature of Jesus, and hard to
symbolize the Solid Rock, the foundation of the Church, and firmness of
the promises of God.
The candymaker made the candy in the form of a "J" to
represent the precious name of Jesus, who came to earth as our Savior. It
- could also represent the staff of the "Good Shepherd" with which He
reaches down into the ditches of the world to lift out the fallen lambs
who, like all sheep, have gone astray.
Thinking that the candy was somewhat plain, the candymaker
stained it with red stripes. He used three small stripes to show the stripes
3
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When Dana P. Walz, Daniel’s mother, contacted school
officials to seek permission for Daniel to distribute these
items to his classmates at the party, she was informed that he
would only be allowed to distribute them before school,
during recess, or after school. Jd. at 274; App. A5. She was
told that he would not be permitted to distribute them during
the classroom party. Jd.
In December of 1999, Daniel, who was now a first-grade
student, attempted to distribute the same candy canes and
story to his classmates during the holiday party, but school
officials again prohibited him from doing so. Jd. Daniel was
allowed to distribute his gifts in the hallways, at recess, or
after school, but not at the party where others were permitted
to distribute “generic” gifts. Id; A5-6. To this day, Daniel
is still prohibited from distributing gifts with religious
messages to his classmates at in-classroom holiday parties
where others are permitted to distribute “generic” gifts.
Daniel is now in the 5" grade. -
C. The District Court’s Opinion
On May 2, 2000, Daniel Walz, through his guardian ad
litem, Dana P. Walz, filed a complaint against the Board of
Education and Superintendent Kelpsh, in his official
of the scouring [sic] Jesus received by which we are healed. The large
red stripe was for the blood shed by Christ on the cross so that we could
have the promise of eternal life.
Unfortunately, the candy became known as a Candy Cane [sic] a
meaningless decoration seen at Christmas time. But the meaning is still
there for those who "have eyes to see and ears to hear." I pray that this
symbol will again be used to witness to The Wonder of Jesus and His
Great Love that came down at Christmas and remains the ultimate and
dominant force in the universe today.”
342 F.3d 271, 273-74.
Moat, cur
capacity, invoking federal-question jurisdiction under 28
U.S.C. § 1331. 187 F.Supp.2d at 236; App. B9. In the
complaint, Daniel alleged that school officials’ censorship of
his expression based on his religious viewpoint violated his
rights under the First and Fourteenth Amendments to the
United States Constitution. Jd. The complaint also raised
parallel claims under State law. Jd.
The parties submitted cross-motions for summary
judgment. Jd. On February 11, 2002, the district court
entered its order denying Daniel’s motion and granting the
school officials’ motion. Jd.; App. B25.
The court began by noting that there was no dispute that
the classrooms where Daniel attempted to distribute his gifts
were non-public forums. Jd. at 238; App. B11. The court
then recognized that speech in a non-public forum may be
subject to time, place, and manner restrictions that are
viewpoint-neutral and reasonably related to a legitimate
governmental purpose. Jd. (quoting C. H. v. Oliva, 990
F.Supp. 341, 352 (D.N.J. 1997), aff'd in part, rev'd in part,
226 F.3d 198 (3d Cir. 2000), cert. denied, 533 U.S. 915
(2001)); App. B13. The court also recited the rule from
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266
(1988), that educators may exercise editorial control over the
style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns. Jd. at 239
(quoting Oliva, supra); App. B14.
The district court rejected Daniel’s argument that the
speech restriction imposed by school officials was
viewpoint-based, despite the fact that the restriction required
Daniel to distribute his gifts in the hallways or after school
because of their religious messages, while allowing Daniel’s
classmates to distribute “generic” gifts at the classroom
parties. Jd. at 239; App. B14. The court found instead that
5
the “minor” restriction was “viewpoint neutral and extremely
reasonable.” Jd.; App. B14.
The court based this finding of viewpoint neutrality on
the curious reasoning of the district court in Oliva that
“(vjiewpoint neutral ... does not mean that any regulation
that relates to the viewpoint of the speech is prohibited, but
rather that the regulation must be based solely upon larger
pedagogical concerns rather than a particular point of view.”
Id. (quoting Oliva, supra, at 353); App. B14-15. The district
court below bolstered its conclusion that the restriction on
religious messages was viewpoint neutral by pointing to the :
fact that the school had not opened a forum for the exchange
of views about a subject. Jd.; App. B15.
Finally, the court found that the restriction was
“reasonably related to the school’s pedagogical concerns.”
Id. at 240; App. B17. It is not clear from the opinion,
however, what specific pedagogical concerns the court found
to justify the restriction.
D. The Third Circuit’s Opinion
The Third Circuit affirmed the district court’s decision.
342 F.3d at 281; App. A20. While the court’s analysis of the
constitutional issues is rather convoluted, it begins with the
principle that elementary schools are responsible for teaching
young children basic social, behavioral, and academic
lessons in a structured environment and that “age and
context” are key to an examination of speech restrictions in
the elementary school context. Jd. at 275-76; App. A8. The
court relied heavily on this proposition throughout the
opinion to support its reasoning in developing a nearly non-
existent bar for elementary school officials to pass in
justifying restrictions on students’ religious expression.
The court stated broadly that “[t]o require a school to
permit the promotion of a specific message would infringe
upon a school’s legitimate area of control.” Jd. at 277 (citing
Hazelwood, 484 U.S. at 271); App. All. In an elementary
school classroom, the court explained, “the line between
school-endorsed speech and merely allowable speech is
blurred” for students and parents alike. Jd. at 277 (citing
Edwards v. Aguillard, 482 U.S. 578, 584 (1987)); App. A12.
These considerations led the Third Circuit to announce the
following rule: “[W]here an elementary school’s purpose in
restricting student speech within an organized and structured
educational activity is reasonably directed towards
preserving its educational goals, we will ordinarily defer to
the school’s judgment.” Jd. at 277-78; App. A13.
In an elementary school setting, explained the court, the
“appropriateness” of student expression depends on the type
of speech, the age of the audience, the school’s control over
the activity in which the expression occurs, and whether the
school has solicited individual views from students. /d. at
278; App. Al3. In the context of an organized curricular
activity, the Third Circuit held, an elementary school may
properly restrict “student speech promoting a specific
message.” Jd.; App. Al4.
The court then went on to make a curious distinction
between student expression that implicates religion “out of
personal observance” and student expression that is an
“outward promotion” of religion, apparently considering the
former to be deserving of greater First Amendment
protection than the latter. Jd. at 278-79; App. Al4-15. The
court did recognize that elementary school students retain
certain First Amendment rights of expression, stating that
“where the school solicits individual views in a classroom
assignment, students should be able to respond in a non-
disruptive manner.” Jd. at 280; App. A18-19.
4
5
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*
i
~ REASONS FOR GRANTING THE PETITION
I. THE COURT SHOULD GRANT REVIEW TO
RESOLVE THE SPLIT BETWEEN THE THIRD
AND SEVENTH CIRCUITS AS TO WHETHER
OR NOT PUBLIC ELEMENTARY SCHOOL
OFFICIALS MAY CENSOR STUDENT
EXPRESSION SOLELY BECAUSE OF ITS
RELIGIOUS VIEWPOINT.
In Hedges v. Wauconda Community Unit School District,
the Seventh Circuit clearly stated that “no arm of
government may discriminate against religious speech when
speech on other subjects is permitted in the same place at the
same time.” 9 F.3d 1295, 1297 (7™ Cir. 1993)(citing Lamb’s
Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
385 (1993)). The court emphasized that the prohibition of
viewpoint-based discrimination applies with even greater
force when the speech in question is religious in nature
because “the free exercise clause of the first amendment
singles [religious speech] out for protection.” Jd. at 1298.
While the policy the Seventh Circuit was addressing in
Hedges governed both elementary and junior high students,
the Seventh Circuit applied this reasoning directly to the
elementary school context in Muller v. Jefferson Lighthouse
School, 98 F.3d 1530 (7" Cir. 1996), cert. denied, 520 U.S.
1156 (1997).
The “marketplace of ideas,” an important theme in the
high school student expression cases, is a less
appropriate description of an elementary school, where
children are just beginning to acquire the means of
expression. Grammar schools are more about learning,
including learning to sit still and be polite, than about
robust debate. And yet we have held that religious
speech cannot be suppressed solely because it is
8
religious (as opposed to religious and disruptive or
hurtful, etc.), a principle that makes sense in the
elementary school environment.
Muller, 98 F.3d at 1538 (citing Hedges, supra)(emphasis
added)(footnotes omitted). Later the court noted that the
child’s “right not to have his expression suppressed solely
because it is religious” was vindicated in the district court.
Id. at 1545.
The Seventh Circuit in Muller pointed out that
suppression of religious speech solely because it is religious
is not only prohibited because it constitutes viewpoint-based
discrimination but also because such restrictions are “per se
unreasonable.” Jd. at 1543-44. Thus, in the Seventh
Circuit’s view, even under the lenient Hazelwood standard
for evaluating student speech restrictions, a policy restricting
religious expression solely because it_is religious can never
be acceptable.
This understanding of First Amendment law, which
Petitioner submits is consistent with this Court’s decisions, is
in stark contrast to the view that prevailed in the Third
Circuit below. It is undisputed that the only reason
Respondents refused to allow Daniel Walz to distribute his
gifts was because they included religious messages. 342
F.3d at 273-75; App. A3. It is also undisputed that Daniel’s
classmates were permitted to distribute “generic” gifts inside
the classroom at the same time that Daniel was prohibited
from distributing his gifts. Jd.; App. A5-6. Nevertheless, the
Third Circuit upheld Respondents’ actions and the policy
supporting them. The Third Circuit opinion does not clearly
explain its reasoning in determining that this type of
viewpoint-based discrimination is permissible.
Petitioner respectfully submits that this Court should
grant review to resolve this dramatic split between the Third
9
:
£
ES
|
re
and Seventh Circuits as to whether religious expression may
be censored solely because it is religious in the public
elementary school context. Until this Court provides
guidance on this issue, lower federal courts will continue to
chart their own uncertain courses in response to the increase
in litigation likely to be sparked by the uncertainty that now
surrounds this issue. Some courts will likely follow the
Seventh Circuit’s approach while others will choose to adopt
the Third Circuit’s framework, which represents a dramatic
departure from this Court’s First Amendment jurisprudence.
II. THE COURT SHOULD GRANT REVIEW TO
RESOLVE CONSIDERABLE CONFUSION AS
TO THE APPROPRIATE FRAMEWORK FOR
REVIEW OF STUDENT SPEECH
RESTRICTIONS IN THE PUBLIC
ELEMENTARY SCHOOL CONTEXT.
There is a considerable amount of confusion among
lower federal courts as to how this Court’s student speech
jurisprudence should be applied in the context of a public
elementary school. While this Court has, on at least three
occasions, squarely addressed the constitutionality of school
officials’ restrictions of student speech in the context of
public secondary schools and has created a recognizable
framework for analysis of such restrictions by lower courts,
the Court has yet to clarify the extent to which this
framework is applicable in the public elementary school
context. See Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260 (1988).
In the face of the vacuum created by a lack of clear
Supreme Court guidance, the Third Circuit and U.S District
Court for the District of New Jersey have relied upon dicta
from this Court’s opinion in Edwards in assuming that a
10
Rr eae
much greater degree of speech restriction is permissible
where younger students are concerned. 187 F.Supp.2d at
240 (citing Edwards for proposition that age and grade level
of child should be considered by courts in determining
whether speech restrictions are appropriate); App. B17; 342
F.3d at 275-76 (citing Edwards for proposition that in
elementary school classroom, line between school-endorsed
speech and allowable speech is blurred); App. A8. Edwards,
of course, did not address student speech restrictions at all,
but rather addressed the constitutionality of a statute
requiring schools to teach creation science along with the
evolution theory. See Edwards, supra.
In another 2003 Third Circuit decision, the court stated
that the significance of age in the analysis of student free
speech claims had “called into question the appropriateness
of employing the Tinker framework to assess the
constitutionality of restrictions on the expression of
elementary school students.” Walker-Serrano v. Leonard,
325 F.3d 412, 416 (3d Cir. 2003). The court observed that
while no other court of appeals had ruled specifically on the
application of Tinker in this context, district courts
considering the issue had generally applied the Tinker
framework in considering elementary students’ First
Amendment claims. Id. (citing Johnston-Loehner v.
O’Brien, 859 F.Supp. 575 (M.D. Fla. 1994); Jeglin v. San
Jacinto Unified Sch. Dist., 827 F.Supp. 1459 (C.D. Cal.
1993). In Walker-Serrano, as in Walz, the Third Circuit
resolved the uncertainty surrounding this issue in a way that
virtually stripped elementary school students of all
meaningful First Amendment protection.
In any event, if third graders enjoy rights under
Tinker, those rights will necessarily be very limited.
Elementary school officials will undoubtedly be
able to regulate much—perhaps most—of the
speech that is protected in higher grades. When
11
officials have a legitimate educational reason—
whether grounded on the need to preserve order, to
facilitate learning or social development, or to
protect the interests of other students—they may
ordinarily regulate public elementary school
children’s speech.
Id. at 417-18.
The Seventh Circuit has been less willing to depart
entirely from the Tinker line of cases in evaluating speech
restrictions at the elementary school level, while confessing
its uncertainty as to the appropriate analysis.
Especially considering the important role age
plays in student speech cases, ... it is unlikely
that Tinker and its progeny apply to public
elementary (or preschool) students. But
because the Supreme Court has not directly
decided this question, the following analysis
will assume that grade schoolers partake in
certain of the speech rights set out in the
Tinker line of cases.
Muller, 98 F.3d at 1539. The court in that case concluded
that the traditional prohibition of viewpoint-based speech
restrictions is not “hard and fast” with elementary schools
but, rather, is only as extensive as the special characteristics
of the school environment permit. Jd. at 1542. However, the
court was careful to affirm the principle that speech could
not be suppressed or discriminated against solely because it
is religious. Jd. at 1544.
A reading of the concurring opinions in Muller reveals
the confusion among the members of the three-judge panel
regarding the applicability of this Court’s student speech
jurisprudence to the public elementary school context. Judge
12
Eschbach concurred for the sole purpose of stating his view
that it was unnecessary for the court to speculate that the free
speech rights elaborated in the Tinker line of cases do not
extend to elementary school students. Jd. at 1545 (Eschbach,
concurring). Judge Rovner expressly disagreed with the
suggestion that the Zinker standard was inapplicable to
elementary school students. Id. at 1546 (Rovner,
concurring). Judge Rovner pointed out that the Tinker
analysis is to be applied “in light of the special
characteristics of the school environment,” which allows for
some consideration of the younger age of the students. Id.”
At least one other federal court of appeals has similarly
indicated a sense of uncertainty as to how to evaluate student
speech restrictions in the elementary school context. See
Sonkowsky v. Board of Educ., 327 F.3d 675, 677 (et Cir.
2003)(“assuming” that fourth-grader has right to free
expression at school).
The Fourth Circuit, on the other hand, recently applied
the Tinker framework to a sixth-grader’s First Amendment
claims without pausing to express any doubt as to whether
the Tinker analysis was appropriate in light of the student’s
age. Newsom vy. Albemarle County Sch. Bd., 2003 U.S. App.
LEXIS 24295, *19 (4" Cir. 2003)(“[T]inker is the most
relevant of the three Supreme Court cases concerning school
speech and sets forth the legal framework that we will use in
our overbreadth analysis.”).
Petitioner respectfully submits that unless and until this
Court considers and resolves a case involving a free speech
claim raised by an elementary school student, lower federal
? Interestingly, the Third Circuit made this same observation in Walker-
Serrano. 325 F.3d at 417 (“That elementary schools require a greater
degree of control, or a different kind of control, over students might be
accommodated within the Tinker analysis.”).
13
courts will continue to stumble in the dark in attempting to
resolve such claims.
Il.THE COURT SHOULD GRANT REVIEW
BECAUSE THE THIRD CIRCUIT’S OPINION
BELOW REPRESENTS A_ SUBSTANTIAL
DEPARTURE FROM AND/OR
UNWARRANTED EXTENSION OF THIS
COURT’S FIRST AMENDMENT
JURISPRUDENCE.
The Third Circuit’s opinion in the instant case is a
perfect example of the type of confusion and inconsistency
that will characterize lower courts’ decisions in this area
until clarity is brought by a reasoned opinion of this Court.
The opinion follows no identifiable framework. Rather than
building its decision upon the firm foundation that this Court
has laid for the analysis of student speech claims under the
- First Amendment, the panel chose to depart entirely from
that foundation and to instead create an entirely new set of
standards for student speech in the elementary school
context. In this case, the application of the new standard
invented by the Third Circuit panel yielded a result that is in
direct conflict with numerous decisions in which this Court
has consistently held that government officials may not
discriminate against speech on the basis of the speaker’s
viewpoint. See, e.g, Lamb’s Chapel, supra; Rosenberger v.
Rector of Univ. of Virginia, 515 U.S. 819 (1995); Good
News Club v. Milford Central Sch., 533 U.S. 98 (2001);
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473
U.S. 788 (1985).
The rule that the Third Circuit appears to establish is that
“where an elementary school’s purpose in restricting student
speech within an organized and structured educational
activity is reasonably directed towards preserving its
educational goals, [the court] will ordinarily defer to the
14
school’s judgment.” 342 F.3d at 278; App. Al3. A
charitable reading of this statement suggests that the panel
has attempted to fit Daniel’s expression within the rule of
Hazelwood— that a school may regulate school-sponsored
speech (speech that a reasonable observer would view as the
school’s own speech) on the basis of any legitimate
pedagogical concern. |
But the Third Circuit does not explain in its opinion how
or why it reached the unstated conclusions that: (a) Daniel’s
speech was in the context of a “school-sponsored expressive
activity” within the meaning of Hazelwood,’ and (b) a
reasonable observer would have perceived Daniel’s message
as the school’s own. In fact, the Third Circuit did not even
use the all-important phrase, “school-sponsored expressive
activity,” but instead sets a new precedent that brings
elementary school students’ expression within the
Hazelwood rule whenever it occurs within an “organized and
structured educational activity.” Jd. It is difficult to
conceive of any activity in the elementary school setting that
could not be classified as such. This rule, then, is in tension
with the court’s later statement that students retain rights of
expression where the school solicits individual views in a
classroom assignment. 342 F.3d at 279; App. A15.
Petitioner respectfully submits that the Third Circuit’s
holding represents a dramatic, unwarranted extension of
Hazelwood. If Hazelwood-is construed to allow restrictions
on any expressive activity in the classroom (because such
activities are “organized and structured educational
activities”), subject only to the requirement that such
restrictions be reasonably related to legitimate pedagogical
concerns, then it cannot be reconciled with Tinker. Tinker
specifically addressed expressive activity (the wearing of
3 The examples of “school-sponsored expressive activities” given in
Hazelwood were limited to school-sponsored publications and theatrical
productions. Hazelwood at 271.
15
armbands in that case) that occurred in the classroom. See
Tinker, supra.
This Court also limited application of the lenient
Hazelwood standard—that a speech restriction merely be
“reasonably related to legitimate pedagogical concerns”—to
speech that can reasonably be perceived to bear the school’s
imprimatur. Hazelwood at 271. But the Third Circuit’s only
mention of this factor comes in the last full paragraph of the
opinion, and even then is merely stated in a conclusory
fashion with no hint of explanation or analysis.* 342 F.3d at
280; App. Al9. The Third Circuit’s application of the
Hazelwood standard absent a finding of the two prerequisite
factors represents a substantial and illegitimate extension of
Hazelwood.
Perhaps the most disturbing aspect of the Third Circuit’s
decision is the lack of any explanation as to how or why it
concluded that school officials are entirely free to make
viewpoint-based restrictions of student speech in the
elementary school context. Neither Hazelwood nor any other
Supreme Court precedent sanctions this practice. Rather,
this Court has consistently stated that government officials
may not engage in viewpoint-based discrimination against
religious speech. _ See, e.g Lamb's Chapel, supra;
Rosenberger, supra; Good News Club, supra. Moreover, at
least one other Circuit Court has indicated that the Supreme
Court’s prohibition of viewpoint-based speech restrictions
applies in the elementary school context, at least to the extent
of precluding officials from censoring religious speech solely
because it is religious. See Muller, supra, at 1543-44.
* The opinion reads: “In the context of its classroom holiday parties, the
school’s restrictions on this expression were designed to prevent
proselytizing speech that, if permitted, would be at cross-purposes with
its educational goal and could appear to bear the school’s seal of
approval.” 342 F.3d at 280 (citing Hazelwood at 273).
16
While the Third Circuit’s decision to allow viewpoint-
based speech restrictions signals the start of a new era in
First Amendment law, the Third Circuit went a step further
by not requiring any compelling interest to justify such a
restriction. Ordinarily, where religious speech is involved,
the government interest asserted to justify the restriction is
the interest in avoiding an Establishment Clause violation.
The Third Circuit panel, however, did not even consider
whether allowing Daniel’s expression at the classroom party
would have implicated the school in an Establishment Clause
violation, aside from its opaque, conclusory statements that
“the line between school-endorsed speech and merely
allowable speech is blurred” and that Daniel’s message
“could appear to bear the school’s seal of approval.” 342
F.3d at 277, 280; App. All, A19.
In Good News Club, this Court noted that it remains
unclear whether even a legitimate interest in avoiding an
Establishment Clause violation can justify viewpoint
discrimination. Good News Club, 533 U.S. at 113. This
Court’s holdings make it quite clear, however, that school
officials’ desire to avoid a mere appearance of endorsing
religion is not a sufficient government interest to justify
censorship of protected speech. The Court has routinely
dismissed claims that censorship of religious expression is
justified by the Establishment Clause where allowing the
expression to occur would not actually violate that provision.
See Widmar v. Vincent, 454 U.S. 263 at 272-73 and n. 13
(1981); Lamb’s Chapel, 508 U.S. at 395; Good News Club,
533 U.S. at 113. Writing for the Court in Good News Club,
Justice Thomas noted that the Court has not suggested that
the impressionability of students is even relevant to the
Establishment Clause issue when the school is not actually
advancing religion. 533 U.S. at 116.
It is difficult to ascertain why the Third Circuit chose to
disregard not only this Court’s entire line of cases
17
concerning student speech, but even the Court’s more basic
jurisprudence regarding speech on government property.
Even once the court below had completely sidestepped the
established framework for student speech cases, forum
analysis alone indicates that Respondents’ actions were
unconstitutional, as viewpoint-based discrimination is
prohibited in any forum, including a non-public one. See
Cornelius, supra.
Petitioner respectfully submits that the reasoning of the
Third Circuit in this case went far beyond the bounds that
this Court has set for lower courts’ consideration of
restrictions of speech on government property in general and
student speech at public schools in particular. Petitioner
respectfully submits that it is essential for this Court to
review the Third Circuit’s decision, inasmuch as it sets a
precedent that is inconsistent with seminal decisions of this
Court and results from a complete departure from the
established framework for analysis of cases involving
student speech and viewpoint-based speech restrictions.
IV.THE COURT SHOULD GRANT REVIEW
BECAUSE THE THIRD CIRCUIT’S DECISION
ESSENTIALLY ELIMINATES FIRST
AMENDMENT RIGHTS OF FREE
EXPRESSION FOR PUBLIC ELEMENTARY
SCHOOL STUDENTS.
Petitioner respectfully submits that this case is
particularly appropriate for consideration by this Court
because it involves a question of exceptional importance—
namely, whether elementary school students retain any
meaningful First Amendment rights inside the elementary
schoolhouse gate. The Third Circuit’s decision establishes a
precedent whereby the expression of elementary school
students has lost virtually all First Amendment protection.
18
The Third Circuit’s opinion states that students may
properly express themselves when “the school has sought
students’ personal views,” but that an elementary school
“may properly restrict student speech promoting a specific
message” in the context of an “organized curricular activity.”
342 F.3d at 278; App. A13-14. In effect, the Third Circuit’s
rule is that elementary school students may “speak when
spoken to.” If a classroom party such as the one at which
Daniel Walz sought to distribute gifts to his classmates
constitutes an “organized curricular activity,” then it is”
difficult to imagine any activity at an elementary school that
is not an “organized curricular activity.” The Third Circuit’s
opinion, thus, effectively creates a rule that elementary
school students may not express any “specific message” at
school except on the rare (if not purely theoretical) occasions
when school officials explicitly inquire as to a given
student’s viewpoint on a particular matter.
Unwilling to stop with the creation of this draconian
standard under which children are effectively told to “speak
when spoken to,” and-even then only to respond to the
question precisely, the Third Circuit goes so far as to indicate
that it is “perhaps even unnecessary” for school officials to
allow students to express their opinions to classmates in the
school hallway after class or at recess. Jd. at 280; App. A18.
It is peculiar that the Third Circuit quotes the familiar |
statement:
That [schools] are educating the young for
citizenship is reason for scrupulous protection
of Constitutional freedoms of the individual,
if we are not to strangle the free mind at its
source and teach youth to discount important
principles of our government as mere
platitudes.
19
Id. (quoting West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 637 (1948)). For then the court goes on to strip the
“rights” of these young being trained for citizenship down to
this slender reed: that “where the school solicits individual
views in a classroom assignment, students should be able to
respond in a non-disruptive manner.” Jd. at 280; App. A18-
19. Petitioner respectfully submits that this Court’s First
Amendment jurisprudence indicates an intent to preserve a
far more substantial right for our nation’s young citizens. It
is difficult to comprehend how the rule set forth by the Third
Circuit does anything less than allow young minds to be
“strangled” at their source.
If the Third Circuit’s opinion provides scant breathing
room for elementary school students’ expression in general,
it essentially delivers a knockout punch to students’ religious
expression. The opinion states:
For a student in “show and tell” to pass
around a Christmas ornament or a dreidel, and
describe what the item means to him, may
well be consistent with the activity’s
educational goals; likewise, a lesson that
includes a mock debate invites individual
student expression on the relevant topic. In
those scenarios, the student speaker is
expressing himself in the context of a school
assignment or activity where the school has
sought students’ personal views.
Nevertheless, in the context of an organized
curricular activity, an elementary school may
properly restrict student speech promoting a
specific message.
Id. at 278 (footnotes omitted); App. A13-14. Based on this
reasoning, the Third Circuit upheld the lower court’s
decision that school officials were justified in prohibiting
20
Daniel from distributing small gifts to his classmates at a
classroom party, even though other children were permitted
to distribute similar gifts, because Daniel’s gifts included
religious messages.
The court’s assurance that students retain the night to at
least respond to school officials’ invitations to express their
viewpoints is little more than a desert mirage. An equally
divided Third Circuit, en banc, previously affirmed a
decision upholding school officials’ refusal to allow a first-
grader to tell a “Bible story” in precisely the type of
situation—the only type of situation—in which the panel
below would apparently allow student religious expression to
occur. In C.H. v. Oliva, the Third Circuit affirmed a district
court holding that school officials could properly prohibit a
first-grader from telling his classmates a story from a book
entitled “The Beginner’s Bible,” even though his teacher had
invited him to share a story of his own choosing as a reward
for reaching a certain level of reading proficiency. 990
F.Supp. 341 (D.N.J. 1997), aff'd in part at 226 F.3d 198 (3d
Cir. 2000), cert. denied, 533 U.S. 915 (2001). The teacher’s
sole objection to the story was that it was adapted from the
Bible.
Against the backdrop of Oliva,:the Third Circuit’s
assurance that elementary school students retain at least a
modicum of freedom to express their religious faith rings
hollow. When one views the panel’s decision in Daniel’s
case and the Oliva decision together, as lower courts in the
Third Circuit must, it becomes apparent that elementary
school students within the states comprising the Third
Circuit may simply be prohibited from expressing their
religious views, whether they are invited to speak to their
classmates or do so on their own initiative.
: Interestingly, the story was about Jacob and Esau, and it contained no
mention of God, Jesus Christ, or even the Bible.
21
While the Third Circuit indicated a willingness to
provide greater protection for student expression that
“implicates” religion “if done out of personal observance,”
than for expression that constitutes “outward promotion” of
religion, this aspect of the opinion cannot withstand careful
examination. 342 F.3d at 278-79; App. Al4. Putting aside
for a moment the fact that there is no legal basis upon which
school officials may prescribe a wholesale prohibition of
students’ “promotion” of their personal religious beliefs, the
policy upheld by the court below does not appear to provide
the protection for even “personal observances” of religion
that the court would impute to it.
The policy upheld by the Third Circuit provides that “no
religious belief or non-belief shall be promoted in the regular
curriculum or in district-sponsored courses, programs or
activities...” Id. at 273; App. A3. Under the policy, religion
may be acknowledged in the course of school activities only
“if presented in an objective manner and as a traditional part
of the culture and religious heritage of the particular
holiday.” Jd. Nothing in this policy would protect a
student’s right to wear a cross on a necklace, a practice of
which the panel would apparently approve. See id. at 278-
79 (“There is a marked difference between expression that
symbolizes individual religious observance, such as wearing
a cross on a necklace, and expression that proselytizes a
particular view.”); App. Al4-15. This is because a student
undoubtedly “promotes” Christianity by wearing a cross
necklace, notwithstanding that the necklace is also a
“personal observance” of religion.
While the policy would likely be unobjectionable if
applied only to school officials and teachers, it has been
applied, with the Third Circuit’s approval, to preclude Daniel
Walz from “promoting” his religion. The policy essentially
applies the Establishment Clause’s requirement of neutrality
toward religion to students, prohibiting them from promoting
22
any religious belief as part of any district-sponsored
activities, including classroom parties. Little need be said
about the extent to which such a policy distorts the entire
First Amendment. In the words of this Court, “[T]here is a
crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and private
speech endorsing religion, which the Free Speech and Free
Exercise Clauses protect.” Board of Educ. of Westside
Community Sch. v. Mergens, 496 U.S. 226, 250 (1990).
The Third Circuit issued two other decisions this year
that fail to recognize any meaningful protection for the First
Amendment rights of elementary school students. In
Walker-Serrano v. Leonard, the Third Circuit affirmed a
district court’s grant of summary judgment for school
officials who denied a third-grader the right to circulate a
petition to her classmates during recess. 325 F.3d 412 (3d
Cir. 2003). -The student sought, through the petition, to
convince school officials that the third grade class did not
wish to take a field trip to the circus because the students
were concerned about the treatment of animals.° Jd. at 414.
In this case, the Third Circuit held that “[w]hen officials
have a legitimate educational reason—whether grounded on
the need to preserve order, to facilitate learning or social
development, or to protect the interests of other students—
they may ordinarily regulate public elementary school
children’s speech.” Jd. at 418. The court went on to find
that there was “no evidence that [school officials] acted
_outside the permissible scope of their authority over third
grade students, even if [the student’s] petition caused no
disruption.” Jd.
The Third Circuit also affirmed a grant of summary
judgment for school officials in S.G. v. Sayreville Board of
° The actual petition read, “We 3™ grade kids don’t want to go to the
circus because they hurt animals. We want a better feild [sic] trip.”
Walker-Serrano, 325 F.3d at 414.
23
‘Education. 333 F.3d 417 (3d Cir. 2003). In that case, a
kindergarten student was suspended for saying “I’m going to
shoot you” to his friends as they played “cops ‘n robbers” at
recess. /d. The suspension was upheld despite the —
conspicuous absence of any showing that the statement
constituted a true threat—a showing that surely could not
have been made under the circumstances. The court stated
that “the determination of what manner of speech is
inappropriate properly rests with the school officials.” Jd. at
423.
Upon reading the Third Circuit’s decisions in Walz,
Oliva, Walker-Serrano and §.G. together, as lower <ourts in
the Third Circuit must, it becomes apparent that elementary
school students in the Third Circuit are permitted only such
“rights” of expression as school officials may choose to give
them and that these students’ expression may be censored for
any reason, including a viewpoint-based reason. Essentially,
the Third Circuit has indicated that elementary school
students are to be “seen and not heard.”
The Third Circuit has invented a draconian new rule
under which elementary school students’ expression,
particularly religious expression, enjoys no meaningful First
Amendment protection. Petitioner respectfully submits that
such an extreme precedent, affecting such a precious bundle
of rights, warrants review by this Court.
CONCLUSION
The Third Circuit opinion in this case represents a
dramatic and unwarranted departure from and extension of
this Court’s First Amendment jurisprudence. The court
below has opened the door for public elementary school
officials to engage in blatant viewpoint-discrimination by .
censoring religious expression, solely because it is religious,
and has held the lenient Hazelwood standard applicable to
24
ri re ee eee
any student speech in any “organized curricular” activity. In
so doing, the Third Circuit necessarily abolishes the Tinker
framework in the context of public elementary schools and
leaves elementary school students to cling to an anemic
version of the First Amendment that will allow them only to
“respond in a non-disruptive manner” when asked for their
individual viewpoints. Petitioner submits that this inventive
holding is too important to go unreviewed by this Court,
especially in light of this Court’s seminal opinions in this
arena and the considered judgment of the Seventh Circuit,
which all indicate that the Third Circuit has gone far off
course.
For these reasons, Petitioner Daniel Walz prays that the
Court grant certiorari.
Respectfully Submitted,
Michael P. Laffey (Counsel of Record)
Cassiday, Messina, & Laffey, P.C.
961 Holmdel Road
Holmdel, NJ 07733
Tel. (732) 332-9300
John W. Whitehead
Rita M. Dunaway
M. Casey Mattox
THE RUTHERFORD INSTITUTE
1440 Sachem Place
Charlottesville, VA 22906
(434) 978-3888
25
TABLE OF CONTENTS
Opinion in Walz v. Egg Harbor Township Board of
Education, et al., United States Court of Appeals for
the Third Circuit, No. 02-1665, August 28, 2003 ..... Al
Opinion in Walz v. Egg Harbor Township Board of
Education, et al., United States District Court for
the District of New Jersey, No. 00-2149, filed
PRRUNG FE, DOOR siétsennnmodudadteenaee ee Bl
Order Granting Defendants’ Cross-Motion for
Summary Judgment and Dismissing Plaintiff's
Motion. for Summary Judgment and Dismissing
Plaintiff's Complaint With Prejudice, United States
District Court for the District of New Jersey, filed
February 11, 2002, Walz v. Egg Harbor Township
Board of Education, et al., No. 00-2149 ......eeeeeeeeee. Cl
Order Denying Petition for Rehearing, filed
September 30, 2003, United States Court of Appeals
for the Third Circuit, Walz v. Egg Harbor Township
Board of Education, et al., No. 00-cv-02149 ............ D1
Judgment in Walz v. Egg Harbor Township Board
of Education, et al., United States Court of Appeals
for the Third Circuit, No. 02-1655, August 28, 2003 . El
Page 1 of 1
Al
DANIEL WALZ, by his Guardian Ad Litem DANA P.
WALZ, v. EGG HARBOR TOWNSHIP BOARD OF
EDUCATION; DR. LEONARD KELPSH, in his OFFICIAL
CAPACITY AS SUPERINTENDENT OF EGG HARBOR
TOWNSHIP SCHOOLS; Daniel Walz, by his Guardian Ad
Litem Dana P. Walz, Appellant
No. 02-1665
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
342 F.3d 271; 2003 U.S. App. LEXIS 18148
_ January 9, 2003, Argued
August 28, 2003, Filed
JUDGES: Before: SCIRICA, Chief Judge *, BARRY and
SMITH, Circuit Judges.
* Judge Scirica began his term as Chief Judge on
May 4, 2003.
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this appeal, we address whether an elementary school
student has a First Amendment right to promote an
A2
unsolicited religious message during an organized classroom
activity.
I.
Daniel Walz was a. student in pre-kindergarten in the
spring of 1998. His school, like other elementary schools in
Egg Harbor Township, held seasonal, in-class parties several
times a year. Organized by teachers and students’ parents, the
parties generally consisted of a parent-provided snack
followed by games and activities. Significant for our
purposes, there was usually an exchange of small gifts.
Just prior to Easter, Daniel's class held a seasonal party.
The children's parents were encouraged to donate gifts to the
local Parent Teacher Organization, which brought the gifts to
the holiday party. Explaining why the PTO undertook this
role, Dr. Leonard Kelpsh, the Egg Harbor Township school
superintendent, said:
Socially, economically, [our student body is]
very diverse, and we just don't like to take the
risk that, one, kids would see other kids doing it
and feel they have to do it, and they can't afford
to do it; and two, you know, sometimes kids
don't get everyone in the class something.
According to Dana Walz, Daniel's mother and one of the
parents in charge of collecting gifts for the PTO, the PTO
generally would mail out requests for "candy, pencils,
whatever" from parents. Parents and children generally
would respond to those requests with generic donations.
At this particular party, Daniel brought his gifts directly
to class where he distributed pencils to his classmates with
the imprint, "Jesus [Loves] The Little Children" (heart
NE een aa
A3
symbol). Mrs. Walz had purchased the pencils at a local store
because she thought the pencils were "pretty . . . and [Daniel]
liked them. . . . We both thought that [the pencils] would be
his little gift at Easter, at the Easter party or the spring
party."
Daniel's teacher noticed the pencils' imprint and
confiscated them. She brought this matter to the attention of
the school principal, who contacted Dr. Kelpsh. School
superintendent Kelpsh determined the pencils could not be
distributed because the young children and their parents
might perceive the message as being endorsed by the school.
On October 13, 1998, six months after the party, the Egg
Harbor Board of Education adopted a written policy on the
recognition of religion in its schools. It provided, in part, that
"no religious belief or non-belief shall be promoted in the
regular curriculum or in district-sponsored courses, programs
or activities, and none shall be disparaged." Religion may be
acknowledged in the course of school activities "if presented
in an objective manner and as a traditional part of the culture
and religious heritage of the particular holiday." —
The school also maintained an unwritten policy on
student expression. According to Dr. Kelpsh, items with
political, commercial, or religious references were not
allowed to be distributed in class during school hours. A
school's job, said Dr. Kelpsh, was "to develop curriculum,"
not "endorse" a particular viewpoint. Under the school's
policy, according to Dr. Kelpsh, a student would not be
allowed to distribute pencils that stated "Home Depot" or
"Support the [New Jersey Education Association]."
In December 1998, Daniel's kindergarten class held a
seasonal holiday party, where Daniel sought to distribute
|
A4
candy canes to his classmates. Attached to the candy canes
was a religious story, entitled "A Candy Maker's Witness."
The story read:
A Candymaker in Indiana wanted to make a
candy that would be a witness, so he made the
Christmas Candy cane. He incorporated several
symbols for the birth, ministry, and death of
Jesus Christ.
He began with a stick of pure white, hard
candy. White to symbolize the Virgin Birth and
the sinless nature of Jesus, and hard to
symbolize the Solid Rock, the foundation of the
Church, and firmness of the promises of God.
The candymaker made the candy in the form
of a "J" to represent the precious name of Jesus,
who came to earth as our Savior. It could also
represent the staff of the "Good Shepherd" with
which He reaches down into the ditches of the
world to lift out the fallen lambs who, like all
sheep, have gone astray.
Thinking that the candy was somewhat plain,
the candymaker stained it with red stripes. He
used three small stripes to show the stripes of
the scouring [sic] Jesus received by which we
are healed. The large red stripe was for the blood
shed by Christ on the cross so that we could
have the promise of eternal life.
Unfortunately, the candy became known as a
Candy Cane [sic] a meaningless decoration seen
at Christmas time. But the meaning is still there
for those who "have eyes to see and ears to
AS
hear." I pray that this symbol will again be used
to witness to The Wonder of Jesus and His Great
Love that came down at Christmas and remains
the ultimate and dominant force in the universe
today.
According to Mrs. Walz, she made the decision to attach
the story to the candy canes because of its religious
significance. She contacted Daniel's school before the
holiday party and was informed that Daniel could distribute
the candy canes and the attached story to his classmates, but
only before school, during recess, or after school, not during
the classroom party itself. Daniel planned to give the candy
canes to his classmates as they left school for the day, but a
rainstorm caused him to distribute them in the hallway
outside of the classroom.
A year later, in December 1999, a memorandum from
two teacher coordinators was distributed to parent room
representatives, including Mrs. Walz, providing guidelines
on the "dos and don'ts" for the upcoming holiday party.
Parents were requested to provide food and refreshments and
prepare activities and games. The memorandum instructed
that the party be "as generic as possible." To that end, parent
representatives were advised to "choose projects that express
the season, such as snowmen versus Santa."
Later that month, Daniel, now a first-grade student,
attempted to distribute the candy canes and "Candy Maker's
Witness" story during the classroom party, but was
prohibited by school officials. The officials permitted him to
distribute the candy canes in the hallway outside the
classroom, at recess, or after school as students were
boarding buses. Mrs. Walz acknowledged the items
A6
distributed at the party by others were, in fact, generic in
nature.
Daniel Walz, through his mother, sued the Egg Harbor
Township Board of Education and Dr. Kelpsh in his official
capacity as school superintendent under 42 U.S.C. § 1983,
alleging violations of the First Amendment (freedom of
expression and free exercise of religion) and equal protection
under the Fourteenth Amendment, and under the New Jersey
Law Against Discrimination, N.J. Stat. Ann. § § 10:5-1 to -
49. The complaint alleged a continuing violation based on
Daniel's attempts to distribute candy canes and the
accompanying story at school holiday parties. In his
complaint, Daniel sought a declaration that the school's
policy was unconstitutional and an injunction prohibiting
defendants from enforcing the policy. Both parties asked for
summary judgment. The District Court granted summary
judgment in favor of defendants and Daniel Walz filed a
timely appeal. nl
nl We have jurisdiction to review de novo the
District Court's grant of summary judgment under 28
U.S.C. § 1291.
Il.
Daniel Walz alleges the school violated his constitutional
rights by prohibiting him from distributing the pencils and
the candy canes during the classroom holiday parties. At the
threshold is an inquiry whether his attempted conduct
constituted expressive activity under the First Amendment.
The District Court concluded:
A7
The facts leave little doubt that plaintiff's
mother, Dana Walz, is the driving force behind
the distribution of these items and this lawsuit. It
is highly unlikely that plaintiff, who was only 4
1/2 at the time he attempted to distribute the
pencils, was able to independently read and
advocate the dissemination of the message on
the pencils. Additionally, Mrs. Walz has
consistently inquired about and challenged the
school's limitations on the distribution of such
items and she is the one who is dissatisfied with
the accommodations made by the school. The
Court will, however, for the purposes of these
summary judgment motions, assume that
plaintiff, now nine, was attempting to freely
speak and exercise his religious beliefs when
distributing these items to his young classmates.
Walz by Walz v. Egg Harbor Twp. Bad. of Educ., 187 F. Supp.
2d 232, 234 n.1 (D.N.J. 2002).
Whether Daniel's attempted conduct merits First
Amendment protection depends on whether it represented
Daniel's own expression and whether he suffered an injury of
constitutional dimension.
As the District Court noted, Daniel was in pre-
kindergarten when he brought the "Jesus [Loves] The Little
Children" pencils to the holiday party. Furthermore, Dana
Walz appears to have driven her son's activity and this
litigation. Although we doubt whether the distribution of the
pencils constituted Daniel's own expression, other courts
A8
have recognized that a student of similar age can understand
and interpret basic principles of religious expression. See,
e.g.. Wallace v. Jaffree, 472 U.S. 38, 42, 86 L. Ed. 2d 29, 105
S. Ct. 2479 (1985) (rejecting a state law authorizing a period
of silence for voluntary prayer in a matter involving a
kindergartner); DeSpain v. DeKalb County Comm. Sch. Dist.,
384 F.2d 836, 837 (7th Cir. 1967) ("We are of the view that
the verse is a prayer and that its compulsory recitation by
kindergarten students in a public school comes within the
proscription of the first amendment ... ."). In any event,
since we find the school's action in preventing the
distribution of the pencils was justified, this question is not
dispositive here.
IIT.
A.
In the elementary school setting, age and context are key.
n2 Elementary schools are responsible for teaching young
children basic social, behavioral, and academic lessons in a
structured environment. See Edwards v. Aguillard, 482 U.S.
578, 584, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987)
("Families entrust public schools with the education of their
children ... ."); Bd. of Educ. v. Pico, 457 U.S. 853, 894, 73
L. Ed. 2d 435, 102 S. Ct. 2799 (1982) (Powell, J., dissenting)
("Unlike the governing bodies of cities and counties, school
boards have only one responsibility: the education of the
youth of our country during their most formative and
impressionable years. Apart from health, no subject is closer
to the hearts of parents than their children's education during
those years."). Elementary educators design a structured
curriculum to facilitate reaching these pedagogical and
behavioral goals. See Hazelwood Sch. Dist. v. Kuhlmeier,
484 US. 260, 272, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988)
A9
("[A] school must be able to take into account the emotional
maturity of the intended audience in determining whether to
disseminate student speech on potentially sensitive topics,
which might range from the existence of Santa Claus in an
elementary school setting to the particulars of teenage sexual
activity in a high school setting.").
n2 We have examined the elementary school
setting previously. In C.H. v. Oliva, 226 F.3d 198 (3d
Cir. 2000) (en banc), an en banc court equally divided
on the First Amendment claims of a first-grader, and
accordingly affirmed the District Court without further
explication. Jd. at 200. In Walker-Serrano by Walker v.
Leonard, we found that although plaintiff had not
suffered an injury of constitutional dimension, "there
can be little doubt that speech appropriate for eighteen-
year-old high school students is not necessarily
acceptable for seven-year-old grammar _ school
students." 325 F.3d 412, 416-17, 419 (3d Cir. 2003).
Moreover, in Muller by Muller v. Jefferson Lighthouse
Sch., 98 F.3d 1530 (7th Cir. 1996), the Court of
Appeals for the Seventh Circuit addressed but did not
reach agreement on the question of what speech rights
elementary school children possess.
While school students do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse
gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969), a school's
need to control student behavior will necessarily result in
limitations on student speech. n3 A quiet reading period
Al10
necessarily requires silence, and a "show and tell" exercise
may be restricted to age-appropriate items to prevent
unsuitable discussions in a kindergarten classroom. E£.g.,
Walker-Serrano, 325 F.3d at 416 ("Any analysis of the
students’ rights to expression on the one hand, and of schools'
need to control behavior and foster an environment
conducive to learning on the other, must necessarily take into
account the age and maturity of the student.").
n3 The term speech generally encompasses student
expression.
In conventional elementary school activities, the age of
the students bears an important inverse relationship to the
degree and kind of control a school may exercise: as a
general matter, the younger the students, the more control a
school may exercise. See Sch. Dist. v. Schempp, 374 US.
203, 290-91 n. 69, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963)
(Brennan, J., concurring) ("The susceptibility of school
children to prestige suggestion and social influence within
the school environment varies inversely with the age, grade
level, and consequent degree of sophistication of the child.");
S.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (3d Cir.
2003) ("{A] school's authority to contro} student speech in an
elementary school setting is undoubtedly greater than in a
high school setting."). A school must be able to restrict
student expression that contradicts or distracts from a
curricular activity. Where, student expression interferes with
the legitimate teaching of an organized and pedagogically-
based classroom activity, a school may reasonably restrict or
limit expression beyond the bounds of what the activity
intends to teach. See Sypniewski v. Warren Hills Reg'l Bd. of
All
Educ., 307 F.3d 243, 259 (3d Cir. 2002) ("Speech that
disrupts education, causes disorder, or inappropriately
interferes with other students' rights may be proscribed or
regulated."); see also Hazelwood, 484 U.S. at 280 (Brennan,
J., dissenting) ("Free student expression undoubtedly
sometimes interferes with the effectiveness of the school's
pedagogical functions. Some brands of student expression do
so by directly preventing the school from pursuing its
pedagogical mission: The young polemic who stands on a
soapbox during calculus class to deliver an eloquent political
diatribe interferes with the legitimate teaching of calculus.").
As a general matter, the elementary school classroom,
especially for kindergartners and first graders, is not a place
for student advocacy. To require a school to permit the
promotion of a specific message would infringe upon a
school's legitimate area of control. Hazelwood, 484 U.S. at
271 ("Educators are entitled to exercise greater control over
[school-sponsored expressive activities] to assure that
participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material
that may be inappropriate for their level of maturity, and that
the views of the individual speaker are not erroneously
attributed to the school."). Curricular standards, especially
those that occur in kindergarten and first grade, when
children are most impressionable, should not be lightly
overturned. See Edwards, 482 U.S. at 584 (noting elementary
school children "are,impressionable").
Furthermore, in an elementary school classroom, the line
between school-endorsed speech and merely allowable
speech is blurred, not only for the young, impressionable
students but also for their parents who trust the school to
confine organized activities to legitimate and pedagogically-
Al2
based goals. See Edwards, 482 U.S. at 584 ("Families entrust
public -schools with the education of their children, but
condition their trust on the understanding that the classroom
will not purposely be used to advance religious views that
may conflict with the private beliefs of the student and his or
her family. Students in such institutions are impressionable
and their attendance is involuntary."). While "secondary
school students are mature enough and are likely to
understand that a school does not endorse or support speech
that it merely permits on a nondiscriminatory basis," Bd. of
Educ. v. Mergens, 496 U.S. 226, 250, 110 L. Ed. 2d 191, 110
S. Ct. 2356 (1990) (plurality), kindergartners and _ first
graders are different. Furthermore, schools may wish to
avoid the appearance of endorsing certain student speech.
See Hazelwood, 484 U.S. at 271 (censoring the text of a
school newspaper article is permissible to prevent the
perception of endorsement).
Determining the appropriate boundaries of student
expression is better handled by those charged with educating
our youth. School officials who exercise judgment based on
their expertise and authority should be afforded leeway in
making choices designed to foster an appropriate learning
environment and further the educational process. See id. at
273 ("The education of the Nation's youth is primarily the
responsibility of parents, teachers, and state and local school
officials, and not of federal judges."); Walker-Serrano, 325
F.3d at 419 ("The number of everyday decisions that must be
made with respect to the boundaries of acceptable behavior
of third graders is so great that courts cannot second guess
elementary school officials on every minor dispute involving.
third graders' expression."); Sypniewski, 307 F.3d at 260
("Public secondary and elementary school administrators are
granted more leeway than public colleges and universities or
Al3
legislative bodies."). Accordingly, where an elementary
school's purpose in restricting student speech within an
organized and structured educational activity is reasonably
directed towards preserving its educational goals, we will
ordinarily defer to the school's judgment.
B.
In an elementary school setting, the appropriateness of
student expression depends on several factors, including the
type of speech, the age of the locutor and audience, the
school's control over the activity in which the expression
occurs, and whether the school solicits individual views from
students during the activity. Cf Rosenberger v. Univ. of Va.,
515 U.S. 819, 834, 132 L. Ed. 2d 700, 115 S. Ct. 2510 (1995)
(applying strict scrutiny to discrimination based on religious
viewpoint where state institution solicits a diversity of views
from students); Planned Parenthood v. Clark County Sch.
Dist., 941 F.2d 817, 828-29 (9th Cir. 1991) (en banc)
(editorial control over the speech and specific approval by
the school were factors in finding the public would likely
perceive the speech to bear the imprimatur of the school).
The appropriateness of student speech must be viewed in
its educational context. For a student in "show and tell" to
pass around a Christmas ornament or a dreidel, and describe
what the item means to him, may well be consistent with the
activity's educational goals; likewise, a lesson that includes a
mock debate invites individual student expression on the
relevant topic. In those scenarios, the student speaker is
expressing himself in the context of a school assignment or
activity where the school has sought students’ personal
views. n4
Al4
n4 The Supreme Court has made this distinction in
the university setting. Rosenberger, 515 U.S. at 834
("It does not follow . . . that viewpoint-based
restrictions are proper when the University .. .
expends funds to encourage a diversity of views from
private speakers."). While an elementary school
deserves greater discretion to control its curricular
activities, individual student expression still may be
appropriate depending on the context.
Nevertheless, in the context of an organized curricular
activity, an elementary school may properly restrict student
speech promoting a specific message. See C.H., 226 F.3d at
211 (Alito, J., dissenting) ("Public school teachers have the
authority to specify the subjects that students may discuss in
class and the subjects of assignments that students are asked
to complete. Thus, if a student is asked to solve a problem in
mathematics or to write an essay on a great American poet,
the student clearly does not have a right to speak or write
about the Bible instead.") (citations omitted); cf Chandler v.
James, 180 F.3d 1254, 1265 (11th Cir. 1999) ("[A] student's
right to express his personal religious beliefs does not extend
to using the machinery of the state as a vehicle for
converting his audience.").
Context is essential in evaluating student speech in the
elementary school setting. It would seem reasonable that
student expression may implicate religion if done out of
personal observance as opposed to outward promotion. n5
There is a marked difference between expression that
symbolizes individual religious observance, such as wearing
a cross on a necklace, and expression that proselytizes a
a
particular view. See Hills v. Scottsdale Unified Sch. Dist.,
329 F.3d 1044, 1053 (9th Cir. 2003) ("The District cannot
refuse to distribute literature advertising a program with
underlying religious content where it distributes quite similar
literature for secular summer camps, but it can refuse to
distribute literature that itself contains proselytizing
language. The difference is subtle but important.") (emphasis
in original). Individual student expression that articulates a
particular view but that comes in response to a class
assignment or activity would appear to be protected. But, of
course, individual student expression that is or is likely to be
disruptive may be properly restricted.
n5 The Egg Harbor Board of Education's policy on
this subject seems appropriate. It provides that "no
religious belief or non-belief shall be promoted in the
regular curriculum or in district-sponsored courses,
programs or activities, and none shall be disparaged."
Under the policy, religion may be acknowledged in the
course of school activities "if presented in an objective
manner and as a traditional part of the culture and
religious heritage of the particular holiday."
Cc.
Here, plaintiff's counsel stipulated that the pencils and
candy cane stories "have a religious message. They were
picked in part because they had a religious message, and it
was the party's intention to disseminate that religious
message." n6 Daniel Walz's promotion of his religion
occurred during classroom activities that had a clearly
,
Al6
defined curricular purpose to teach social skills and respect
for others in a festive setting. Because of the tender age of
the students, the school prohibited the exchange of gifts with
commercial, political, religious, or other undertones that
promoted a specific message.
n6 Daniel Walz averred two additional claims in
his complaint, both of which the District Court
properly denied. First, he alleged the school's policy
"engaged in hostility toward religion that the
Establishment Clause itself forbids." But, under the
Supreme Court's oft-quoted test in Lemon v. Kurtzman,
411 U.S. 192, 36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973),
the school's policy did not advance or inhibit religion
and did not create any type of "excessive
entanglement" with religion. Instead, the policy was
neutral towards religion by prohibiting ll
endorsements of specific messages, including those
with commercial, political, or religious undertones. In
not isolating religious messages, the policy does not
implicate the Establishment Clause. Second, Daniel
Walz alleged a violation of the New Jersey Law
Against Discrimination, N.J. Stat. Ann. § § 10:5-1 to -
49. The NJLAD provides that "all persons shall have
the opportunity . . . to obtain all the accommodations,
advantages, facilities, and privileges of any place of
public accommodation . . . without discrimination
because of . . . creed, . . . subject only to conditions
and limitations applicable alike to all persons." Jd. at §
10:5-4. But Daniel has not been denied any
accommodation, advantage, facility, or privilege. He
was not excluded from the holiday parties, nor was he
Al7
prevented from distributing his religious gifts after
school or in the hallways. Thus, we will affirm the
District Court's denial of the NJLAD claim.
The District Court found "abundant evidence that the
school seasonal parties for these young children were meant
to have an educational component, and also that they were
highly structured, supervised, and regulated." Walz, 1 87 F.
Supp. 2d at 241. Several factors combined to demonstrate
school control: the teacher's role in planning the holiday
parties, the PTO's control over the gift distribution, and the
directive of generic gifts. At no point during the holiday
parties did the school solicit individual views from the young
students about the significance of the holiday to them
personally.
Daniel Walz skirted the structure of this organized
activity by bringing gifts that promoted a specific religious
message. Although he was not the only student to exchange
gifis directly with his classmates rather than through the
PTO, he was the only student to bring a non-generic gift.
It was well within the school's ambit of authority to
prevent the distribution of these items during the holiday
parties. The seasonal holiday parties were instructional
activities, as much a part of the curriculum as "show and tell"
or art class. Students were asked in advance--through a letter
to their parents--to donate generic gifts like candy and No. 2
pencils to the PTO. The subsequent exchange of gifts was
intended as a teaching tool to promote sharing. The gift-
giving from one student to another was not intended to
promote a particular religious message.
|
Al18
While this suit alleges a continuing violation--as Daniel
continues to attempt to distribute the "Candy Maker's
Witness" story during holiday parties--the school has never
punished Daniel for his repeated attempts to skirt the holiday
parties' rules. And unlike the distribution of the pencils,
which the school never permitted, the school has allowed
Daniel to give the candy cane stories to his classmates in the
school hallway after class or at recess. This accommodation
seems more than reasonable and perhaps even unnecessary.
Cf. Walker-Serrano, 325 F.3d at 419 ("Absent punishment
for expression, a significant pattern of concrete suppression,
or some other form of clear suppression of the expression of
elementary school students, a federal First Amendment
action is not an appropriate forum for resolution of disputes
over schools' control of third graders' conduct."). Therefore
there was no deprivation of Daniel's First Amendment rights
with respect to the candy cane stories.
IV.
Nevertheless, the school prohibited Daniel's distribution
of the pencils, and he has alleged a constitutional injury. As
noted, elementary school students retain certain First
Amendment rights of expression. See Wallace, 472 U.S. at 42
(state law authorizing a period of silence for meditation or
voluntary prayer is unconstitutional for kindergartners); W.
Va. v. Barnette, 319 U.S. 624, 637, 87 L. Ed. 1628, 63 S. Ct.
1178 (1948) ("That [schools] are educating the young for
citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to
strangle the free mind at its source and teach youth to
discount important principles of our government as mere
platitudes."). And where the school solicits individual views
Al9
in a Classroom assignment, students should be able to
respond in a non-disruptive manner.
Plaintiff contends "handing out pencils which stated
‘Jesus [Loves] The Little Children’ is essentially no different
than if Plaintiff had turned to his classmates during snack
time and stated, 'Jesus loves the little children. ' We
disagree. Where a student speaks to his classmates during
snack time, he does so as an individual. But absent
disruption, this is fundamentally different from a student
who controverts the rules of a structured classroom activity
with the intention of promoting an unsolicited message.
In short, Daniel Walz was not attempting to exercise a
right to personal religious observance in response to a class
assignment or activity. His mother's stated purpose was to
promote a religious message through the channel of a benign
classroom activity. In the context of its classroom holiday
parties, the school's restrictions on this expression were
designed to prevent proselytizing speech that, if permitted,
would be at cross-purposes with its educational goal and
could appear to bear the school's seal of approval. See
Hazelwood, 484 U.S. at 273 ("We hold that educators do not
offend the First Amendment by exercising editorial control
over the style and content of student speech in school-
sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns."). n7
Given its valid educational purpose, the school's action here
was appropriate. See id. ("It is only when the decision to
censor . . . student expression has no valid educational
purpose that the First Amendment is so directly and sharply
implicated as to require judicial intervention to protect
students’ constitutional rights.") (quotation omitted).
A20
n7 Elementary school marks a child's introduction
to formal public education and requires a parents to
entrust their child's development to another adult
mentor. See Illinois ex rel. McCollum v. Bd. of Educ.,
333 U.S. 203, 231, 92 L. Ed. 649, 68 S. Ct. 461 (1948)
(opinion of Frankfurter, J.) (quoted with approval in
Edwards, 482 U.S. at 584) ("The public school is at
once the symbol of our democracy and the most
pervasive means for promoting our common
destiny."). During these formative years, elementary
school educators must be able to structure an
appropriate curriculum to achieve the desired
pedagogical and behavioral goals.
For the foregoing reasons, we will affirm the judgment of
the District Court.
/s/ Anthony J. Scirica
Chief Judge
Bl
DANIEL WALZ, by his Guardian Ad Litem Dana P. Walz,
Plaintiff, v. EGG HARBOR TOWNSHIP BOARD OF
EDUCATION, et al., Defendants.
CIVIL NO. 00-2149 (JBS)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
187 F. Supp. 2d 232; 2002 U.S. Dist. LEXIS 1984
February 11, 2002, Decided
February 11, 2002, Filed
OPINION:
SIMANDLE, District Judge
This claim for injunctive and declaratory relief arising
from the alleged infringement of piaintiffs First and
Fourteenth Amendment rights, contrary to 42 U.S.C. § 1983,
comes before the Court on the motion for summary judgment
by plaintiff Daniel Walz ("Daniel") and the cross-motion for
summary judgment by defendants the Egg Harbor Township
Board of Education ("Egg Harbor BOE") and Leonard
Kelpsh ("Dr. Kelpsh") in his official capacity as
Superintendent of Egg Harbor Township Schools (or,
collectively, "defendants"), pursuant to Rule 56, Fed. R. Civ.
P. Plaintiff seeks summary judgment on his Complaint, a
declaration that defendants’ policy of prohibiting the
distribution of religious gifts in the classroom is
unconstitutional, and an injunction prohibiting defendants
from enforcing this policy. Defendants argue that the
B2
restrictions placed on Daniel were viewpoint neutral and
reasonably related to the school's pedagogical purpose.
Defendants further note that reasonable accommodations
were made for the distribution of plaintiff's religious
material. For the following reasons, defendants’ motion for
summary judgment will be granted, and plaintiff Daniel
Walz's Complaint will be dismissed.
I. BACKGROUND
The facts of this case involving proselytizing pencils,
evangelical candy canes, and very young school children are
largely undisputed. Plaintiff Daniel Walz, now nine years of
age, was born on September 25, 1992 and has attended
public school in Egg Harbor Township since 1998. On three
occasions, discussed in detail below, plaintiff was not
allowed to distribute items with a religious message in class
or during school-sponsored and supervised holiday parties.
These three incidents are the basis of plaintiff's Complaint,
which alleges violations of plaintiff's First Amendment free
speech and free exercise rights, Fourteenth Amendment
equal protection rights, 42 U.S.C. § 1983, and the New
Jersey Law Against Discrimination ("NJLAD"). |
The first alleged incident occurred in the spring of 1998,
when plaintiff was in developmental kindergarten ("pre-K")
and attended an in-class, school-sponsored holiday party.
During the party, the then four and one-half year-old plaintiff
Daniel distributed pencils with the imprinted message "Jesus
[heart symbol] the Little Children" to the other children in
his pre-K class. (See Laffey Cert., Ex. C, Picture of the
"proselytizing pencils.") Plaintiff's mother, Dana Walz, who
was present at the party as a chaperone, selected and
purchased the pencils for plaintiff to distribute at school
B3
because of their religious message. nl Plaintiff's then
teacher, Joan Safaryn, collected the pencils and contacted
several school officials, including the school's
superintendent, defendant Dr. Kelpsh, in order to determine
whether the pencils should be distributed at the in-class
party. Dr. Kelpsh determined that the pencils should not be
distributed at the in-class, school-sponsored holiday party
because the young children and their parents might be
confused as to the school's endorsement of the religious
message. After this incident, Mrs. Walz inquired as to
whether the school had a written policy regarding freedom of
religious expression in school and was informed that there
was no such policy. Mrs. Walz provided the school with
some information that she believed would aid in the
implementation of such a policy.
nl The facts leave little doubt that plaintiff's
mother, Dana Walz, is the driving force behind the
distribution of these items and this lawsuit. It is highly
unlikely that plaintiff, who was only 4 1/2 at the time
he attempted to distribute the pencils, was able to
independently read and advocate the dissemination of
the message on the pencils. Additionally, Mrs. Walz
has consistently inquired about and challenged the
schoo!'s limitations on the distribution of such items
and she is the oe who is dissatisfied with the
accommodations ma y the school. The Court will,
however, for the purposes of these summary judgment
motions, assume that plaintiff, now nine, was
attempting to freely speak and exercise his religious
beliefs when distributing these items to his young
classmates.
B4
On October 13, 1998, the Egg Harbor BOE adopted a
written policy regarding the recognition of religion in its
schools. That policy, in part, provides that "no religious
belief or non-belief shall be promoted in the regular
curriculum or in district-sponsored courses, programs or
activities, and none shall be disparaged." (Laffey Cert., Ex.
D.) The policy, however, recognizes that a broad secular
education can be furthered by exposing pupils to various
cultural and religious societies, and provides that religion
may be acknowledged in the course of teaching and school
activities "if presented in an objective manner and as a
traditional part of the culture and religious heritage of the
particular holiday." Id. Mrs. Walz believed that the adopted
policy, which does not specifically address the dissemination
of religious materials, would allow her son, the plaintiff, to
hand out gifts with religious messages in school. (See Walz
Cest., P 7.)
The second alleged incident occurred in December, 1998,
when plaintiff was in kindergarten and attended an in-class,
school-sponsored winter holiday party. During the winter
party, the then five year-old plaintiff distributed candy canes
with an attached religious story, entitled "A Candy Maker's
Witness." n2 Mrs. Walz first read the evangelical story when
her daughter brought home a copy from a local event. Mrs.
Walz entered the story on her home computer and made
duplicate copies, which she then attached to the candy canes
plaintiff attempted to distribute at the winter party. Mrs.
Walz chose to attach the story because it was symbolic of the
Christian holiday and because of the religious significance it
projected onto the candy canes. When Mrs. Walz contacted
the school regarding plaintiff's ability to distribute the candy
canes, she was told that plaintiff would not be permitted to
B5
distribute the canes and evangelical message in class, but that
he would be permitted to distribute the items before school,
during recess, or after school. Plaintiff was also permitted to
distribute the candy canes in the hallway after school.
n2 The story attached to the candy plaintiff
attempied to distribute is as follows:
A candymaker in Indiana wanted to
make a candy that would be a witness, so
he made the Christmas candy cane. He
incorporated several symbols for the birth,
ministry, and death of Jesus Christ.
He began with a stick of pure white,
hard candy. White to symbolize the Virgin
Birth and the sinless nature of Jesus, and
hard to symbolize the Solid Rock, the
foundation of the Church, and the
firmness of the promises of God.
The candymaker made the candy in
the form of a "J" to represent the precious
name of Jesus, who came to earth as our
Savior. It could also represent the staff of
the "Good Shepherd" with which He
reaches down into the ditches of the world
to lift out the fallen lambs who, like all
sheep, have gone astray.
Thinking that the candy cane was
somewhat plain, the candymaker stained it
with red stripes. He used three small
stripes to show the stripes of the scouring
Jesus received by which we are healed.
B6
The large red stripe was for the blood shed
by Christ on the cross so that we could
have the promise of eternal life.
Unfortunately, the candy became
known as a candy cane, a meaningless
decoration seen at Christmas time. But the
meaning is still there for those who "have
eyes to see and ears to hear." I pray that
this symbol will again be used to witness
The Wonder of Jesus and His Great Love
that came down at Christmas and remains
the ultimate and dominant force in the
universe today.
(See Laffey Cert., Ex. E.)
This is one of several purported origins for the
candy cane. Although the truth of the message a
plaintiff seeks to disseminate is not determinative of
the issue at hand, it is interesting to consider some of
the other purported origins of the candy cane. Some
brief research revealed that candy canes were first seen
in or around 1670 in Cologne, Germany,
approximately 130 years before Indiana was organized
as a territory and 146 years before it became a state in
1816. The canes were white and used to reward
children who were well behaved while in church. Most
depictions of such canes on Christmas cards prior to
1900 reveal that the red stripes were not added until
the twentieth century. The canes have primarily been
associated with the Christmas holiday in one form or
another, but their actual religious symbolism, if any, is
unclear.
B7
The third alleged incident occurred in December, 1999,
when plaintiff was in first grade and attended an in-class,
school-sponsored winter holiday party. n3 After his mother
contacted the school and was again informed that the then six
year-old plaintiff would only be permitted to distribute the
proselytizing candy canes before school, during recess, or
after school, and not during the in-class, school-sponsored
event, plaintiff distributed the canes in the school hallway
after class. Mrs. Walz acknowledged that the other items
distributed at the December, 1999 party were generic in
nature. (Walz Dep., Tr. 75.) Mrs. Walz also concedes that
plaintiff is still allowed to distribute items with religious
significance outside of school hours and outside the
classroom. (Id. at 113.)
n3 Prior to this party, a memorandum from two
teacher coordinators was distributed which gave
guidelines about the "dos and don'ts" for the Winter
Holiday Party. The memo instructed that the parties
should be as generic as possible, emphasizing the
whole season. (Defs.' Ex. C.)
The defendants' general policy regarding gift-giving of
any kind at plaintiff's school is that any gifts should be
donated to the local Parent Teacher Organization ("PTO"),
which would then distribute the trinkets to the class at the
seasonal event. Direct gifts from students are discouraged
because of the potential economic strain on certain students
and the potential emotional distress if a particular student
were to be excluded from the direct gift-giving. (Pl.'s Ex. F.,
B8
Kelpsh Dep., Tr. 59:14-22.) This policy is not written, but
rather orally communicated from the principal to teachers,
who disseminate the information to other teachers, parents,
and students through holiday letters and memoranda. (Kelpsh
Dep., Tr. 59:7-60:24.) Items with corporate names or
references to political candidates or unions are not allowed to
be distributed in any class during school hours. (Def.'s Ex. D,
Kelpsh Dep., Tr. 62:5-64:24.) Plaintiff's teacher, who
confiscated the proselytizing pencils in 1998, said she would
have done the same thing if the pencils had contained a
political or commercial message, such as "Vote for Joe
Smith" or "Home Depot." (Def.'s Ex. E, Safaryn Dep., Tr.
16:2-19:19.) Mrs. Walz asserted that she witnessed other
children directly handing out gifts, some wrapped, at holiday
parties, which contained generic pencils and candy. (See
Walz Cert., P 12; Def.'s Ex. A, D. Walz Dep., Tr. 74:9-
75:21.) Mrs. Walz claimed that her son's religious gifts were
the only ones not permitted to be directly distributed from a
student to the class, but offered no specific instances where
other children were allowed to directly distribute gifts and no
evidence of such conduct. (See Walz Cert., P 12.) Mrs. Walz
identified no instance in which another child distributed a
non-generic gift with any sort of message during class time.
Dr. Kelpsh elaborated on the intent behind the limited
gift distribution policy by stating that it was to ensure that no
confusion about the origin of any distributed gifts with
corporate, political, or religious messages, and alsc that the
BOE did not want anyone to mistakenly believe that the
school was endorsing any particular message. (Kelpsh Dep.,
Tr. 74-77; Walz Dep., Tr. 60:5-17.) School classes and
events under the authority of the Egg Harbor BOE are
closely controlled and monitored by the principal and
teachers. Additionally, teachers and occasionally parents,
B9
including at times Mrs. Walz, were present at each of the
school-sponsored parties at issue. There is no allegation that
the defendants treated one religion more favorably than
plaintiff's Christianity; rather, plaintiff asserts that other
generic gifts without messages were allowed, when plaintiff's
proselytizing pencils and evangelical candy canes were not.
On May 2, 2000, plaintiff, through his mother and
Guardian Ad Litem Dana P. Walz, filed a Complaint in this
Court, alleging that the defendants violated his First
Amendment free exercise and freedom of expression rights
(see Compl., PP IV-V), his Equal Protection rights under the
Fourteenth Amendment (see Compl., PP VI-VII), and the
New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et.
seq. ("NJLAD")(see Compl., P VIII). On July 6, 2001, both
plaintiff and defendants cross-moved for summary judgment.
For the reasons stated herein, the Court finds that no material
facts are in dispute and that the defendants are entitled to
judgment as a matter of law that they have not violated
plaintiff's rights. Defendants' motion will be granted and
plaintiff's motion and complaint will be dismissed.
II. DISCUSSION
Defendants and plaintiff Daniel cross-move for summary
judgment in this action under Rule 56, Fed. R. Civ. P.
Plaintiff argues that defendants violated 42 U.S.C. § 1983
when they allegedly curtailed plaintiff's freedom of speech
and free exercise First Amendment rights and violated the
Equal Protection clause of the Fourteenth Amendment, and
also that defendants' conduct violated the New Jersey Law
Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD").
Plaintiff seeks a declaration that the school's policy is
unconstitutional and an injunction prohibiting the future
ee ee
_ B10
enforcement of the policy. Defendants argue that the pre-K,
kindergarten, and first grade classrooms are non-public
forums and that the limitations placed on plaintiff's in-class
activities were reasonable and viewpoint neutral and
therefore permissible.
1. Summary Judgment Standard
Summary judgment is appropriate when the materials of
record "show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine"
if "the evidence is such that a reasonable jury could return a
verdict for the non-moving party." See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct.
2505 (1986). A fact is "material" only if it might affect the
outcome of the suit under the applicable rule of law Id.
Disputes over irrelevant or unnecessar facts will not
preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material
fact, the court must view the evidence in favor of the non-
moving party by extending any reasonable favorable
inference to that party; in other words, "The nonmoving
party's evidence ‘is to be believed, and all justifiable
inferences are to be drawn in [that party's] favor." Hunt v.
Cromartie, 526 U.S. 541, 552, 143 L. Ed. 2d 731, 119 S. Ct.
1545 (1999)(quoting Anderson, 477 U.S. at 255). The
threshold inquiry is whether there are "any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker
State Oil Ref. Corp., 72 F.3d 326, 329-330 (3d Cir. 1995)
(citing Anderson, 477 U.S. at 248) ("The nonmoving party
creates a genuine issue of material fact if it provides
Bll
sufficient evidence to allow a reasonable jury to find for him
at trial.").
The moving party always bears the initial burden of
showing that no genuine issue of material fact exists,
regardless of which party ultimately would have the burden
of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jalil v.
Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied,
493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990).
However, where the nonmoving party bears the burden of
persuasion at trial, "the burden on the moving party may be
discharged by 'showing' -- that is, pointing out to the district
court --that there is an absence of evidence to support the
nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The standard by which the court decides a summary
judgment motion does not change when the parties file cross-
motions. Weissman v. United States Postal Serv., 19 F. Supp.
2d 254 (D.N.J. 1998). When ruling on cross-motions for
summary judgment, the court must consider the motions
independently, Williams v. Philadelphia Hous. Auth., 834 F.
Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir.
1994), and view the evidence on each motion in the light
most favorable to the party opposing the motion. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
2. Plaintiff's Section 1983 Claims Related to First and
Fourteenth Amendment Violations
There is no dispute that defendants are state actors who
acted under color of state law. There is no dispute that the
pre-kindergarten, kindergarten, and first grade public school
classrooms where the alleged constitutional violations
B12
transpired are non-public forums, in which school officials
can reasonably restrict the speech of students and teachers.
n4 (See Pl.'s Mot. for Summ. J. at 5; Defs.' Cross-Mot. for
Summ. J. at 14.) There is also no dispute that defendants
allowed plaintiff to distribute his pencils and candy canes
before school, during lunch or recess, and after school, and
restricted the distribution of the pencils and candy canes in
the classroom and during class-time only. (Walz Cert., PP 9-
11.) Despite plaintiff's mother's dissatisfaction n5 with the
accommodations made for the distribution of plaintiff's
religious gifts, well-established precedent demonstrates that
there has been no violation of plaintiff Daniel Walz's
constitutional rights and his motion for summary judgment
will be denied, and defendants' motion for summary
judgment will be granted, and plaintiff's Complaint will be
dismissed, for the following reasons.
n4 This concession obviates the need for an
extended discussion of the non-applicability of cases
like Good News Club v. Milford Cent. Sch., 533 U.S.
98, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001), which
concerned a limited public forum and religious group
access to school property that had previously been
opened to the public for use. Plaintiff acknowledges
the factual differences between this case and Good
News Club, but urges that it be applied when
evaluating the defendants’ restriction of plaintiff's
speech. As discussed below, the restriction imposed by
the school was viewpoint neutral and reasonably
related to pedagogical concerns, and_ therefore
permissible.
B13
n5 Defendants raise the issue that it is actually
plaintiffs mother, Mrs. Walz, who is attempting to
exercise her First Amendment rights in a public school
classroom through her son. It was Mrs. Walz, not
Daniel, who selected and purchased the pencils and
who discovered and attached the Witness story to the
candy canes. It was Daniel, however, who ultimately
distributed the items to his classmates, although Mrs.
Walz was present during the three instances at issue.
While it is questionable that a 4 1/2 year old child has
the capacity to understand and assert his constitutional
rights by handing out "Jesus [heart symbol] the Little
Children" pencils and Candy Maker's Witness candy
canes, the Court will assume for the purposes of this
motion that the distribution of these items was an
assertion of Daniel's speech.
The First Amendment provides, in relevant part,
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech ... ." U.S. Const. amend. I. This
freedom of speech, however, is not unlimited in non-public
forums. n6 "Speech uttered in a non-public forum may be
subject to time place and manner regulations, and these
regulations must be viewpoint-neutral and reasonably related
to a legitimate governmental purpose." C.H. v. Oliva, 990 F.
Supp. 341, 352 (D.N.J. 1997), affd in relevant part, vacated
and remanded in part on other grounds, 226 F.3d 198 (3d
Cir. 2000)(en banc), cert. denied, Hood v. Medford Twp.
Bd. of Educ., 533 U.S. 915, 121 S. Ct. 2519, 150 L. Ed. 2d
692 (2001). The First Amendment rights of children in a
B14
public school "are not automatically coextensive with the
rights of adults in other settings," and must be "applied in
light of the special characteristics of the school
environment." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260, 266, 108 S. Ct. 562, 567, 98 L. Ed. 2d 592 (1988); C.H.,
990 F. Supp. at 352, n.17. “Educators may ‘exercise editorial
control over the style and content of student speech in
school-sponsored expressive activities so long as their
actions are reasonably related to legitimate pedagogical
concems." C.H., 990 F. Supp. at 353 (quoting Hazelwood,
484 U.S. 260, 273, 108 S. Ct. 562, 571, 98 L. Ed. 2d 592
(1988)).
n6 As noted above, plaintiff does not dispute that
his grade school classrooms are non-public forums.
Plaintiff claims that the restrictions placed on his
distribution of proselytizing pencils and evangelical candy
canes are not viewpoint neutral because other children were
allowed to "express themselves" by directly distributing
generic gifts at the in-class seasonal parties. Plaintiff's
mother, and presumably plaintiff, were dissatisfied with the
school's accommodation which allowed plaintiff to distribute
his religious gifts outside of the classroom and after school
hours. The Court finds that this minor restriction is viewpoint
neutral and extremely reasonable.
Plaintiff argues that "since the restriction addressed
religious speech specifically it is automatically not viewpoint
neutral." (Pl.'s Br. at 5.) Viewpoint neutral, however, does
not mean that any regulation that relates to the viewpoint of
the speech is prohibited, but rather that the regulation must
B15
be based solely upon larger pedagogical concerns rather than
a particular point of view. See C.H., 990 F. Supp. at 353
(citing Duran v. Nitsche, 780 F. Supp. 1048, 1052 (E.D. Pa.
1991)(quoting Hazelwood, 484 U.S. at 273)).
Plaintiff cites the United States Supreme Court's decision
in Lamb's Chapel v. Center Moriches Union Free School
District in support of his position that defendants’ actions in
this case were not viewpoint neutral and therefore constituted
viewpoint discrimination. 508 U.S. 384, 394-95, 113 S. Ct.
2141, 124 L. Ed. 2d 352 (1993). In Lamb's Chapel, the Court
struck down a school policy that permitted school facilities
to be used by a variety of groups during after-school hours,
but excluded a group who planned to show a film containing
the Christian perspective about child-rearing techniques. See
508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352. The Court
found that the exclusion of the otherwise permissible film
solely because it dealt with the subject [child-rearing] from a
religious standpoint was viewpoint discrimination. Lamb's
Chapel, 508 U.S. at 394-95, 113 S. Ct. at 2147-48; accord,
C.H., 226 F.3d at 210-11 (en banc)(Alito, J.,
dissenting)(internal citations and quotations omitted).
The restrictions placed upon plaintiff's dissemination of
his religious messages in this case is not "viewpoint
discrimination" because the School District did not open a
forum for the exchange of views about a subject, in which
case the District could not proscribe a "religious viewpoint"
unless it passed a strict scrutiny test. See Lamb's Chapel,
508 U.S. at 394-95, 113 S. Ct. 2141. Here, the contribution
of generic gifts bearing no messages was permitted to all
students, and this was not a forum to promote any point of
view, religious or secular. The seasonal parties for pre-K,
kindergarten, and first grade students were school events
B16
intended to promote sharing and caring among students, to
develop social skills, and to learn about talking in turn when
in a large group. Students were not told to bring gifts with
their favorite seasonal message; rather, students and their
parents were instructed that all gifts should be generic and
donated to the PTO for distribution at the seasonal parties.
Therefore, this case does not involve viewpoint
discrimination in the way present in Lamb's Chapel or as
found by Judge Alito in C.H. Furthermore, these parties were
limited to the grade school students, their teachers, and a few
parent-chaperones and were not designed to promote any
point of view, religious, commercial, or secular.
Plaintiff has come forward with no proof that other
children were allowed to disseminate messages in class or at
in-class, school-sponsored parties. Plaintiff concedes that no
religion was treated differently or more favorably than
plaintiffs Christianity. Plaintiff also concedes that the other
gifts he claims that were given by children at the holiday
parties were generic in nature, containing no speech
whatsoever. n7 Dr. Kelpsh and plaintiffs teacher, Ms.
Safaryn, testified in their depositions that children are not
allowed to distribute any items that contain promotional,
commercial, political or other speech. (See Kelpsh Dep., Tr.
62:5-64:24; Safaryn Dep., Tr. 16:2-19:19.) Additionally, the
school took affirmative steps to regulate the items distributed
at school parties by having the PTO, rather than individual
students, collect and distribute the candies and gifts. No facts
are presented by plaintiff to contradict this evidence. The
school's regulation of plaintiffs speech was viewpoint
neutral.
B17
n7 Although defendants dispute that any child was
allowed to directly to distribute gifts at holiday parties,
there is no allegation that any of the gifts contained
any message or speech.
The Court further finds that the restriction was
reasonably related to the school's pedagogical concerns, and
also that plaintiff was offered a reasonable accommodation
for the distribution of his gifts. There is no dispute that
Daniel was able to distribute each religious gift and message
to his classmates on school property outside the classroom
setting. Plaintiff argues that this case is similar to the seminal
case Tinker v. Des Moines Indep. Cmty Sch. Dist., in which
the Supreme Court deemed black arm bands worn by high
school students in protest of the Vietnam war to be pure
speech entitled to full First Amendment protections. 393
U.S. 503, 511, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Pre-
kindergarten, kindergarten, and first grade students
celebrating at an in-class party, however, are different than
high school students independently expressing political
beliefs. The age and grade level of the child seeking to
exercise his or her speech in school is relevant and should be
considered by courts determining whether the restrictions
placed on speech were appropriate. See Edwards v.
Aguillard, 482 U.S. 578, 584, 107 S. Ct. 2573, 96 L. Ed. 2d
510 (1987)(noting that elementary school children "are
impressionable and their [attendance] at school is
involuntary."); C.H., 226 F.3d at 203 (affirming district
court's judgment that the relocation of plaintiff's Jesus poster
and the restriction on plaintiff's religious story reading to his
first grade classmates were reasonably related to legitimate
pedagogical concerns); DeNooyer v. Livonia Pub. Sch., 799
B18
F. Supp. 744 (E.D. Mich. 1992), aff'd, 12 F.3d 211 (6th Cir.
1993), cert. denied, 5/7] U.S. 1031, 128 L. Ed. 2d 193, 114S.
Ct. 1540 (1994)(concluding that school's restriction of
plaintiff's showing of a video to her second grade class in
which she sang a religious song to be reasonable and a
legitimate pedagogical concern). The Seventh Circuit
expressed the justification for this greater restriction of
school speech when elementary school students are involved:
The potential 'verbal cacophony' of a public
forum can be antithetical to the delicate
‘custodial and tutelary' environment of an
elementary school. . . . Declaring the elementary
school classroom, hallway, or playground
forums for unfettered student communication
would require either a severe incursion into the
critical educational mission of the elementary
school or a substantial contraction of the First
Amendment protections afforded speech in a
public forum. Perhaps both. . . . In a public
forum, the Christian can tell the Jew he is going
to hell, or the Jew can tell the Christian that he is
not one of God's chosen, no matter how that may
hurt. But it makes no sense to say that the overly
zealous Christian or Jewish child in an
elementary school can say the same thing to his
classmate, no matter the impact.
Muller by Muller v. Jefferson Lighthouse Sch. 98 F.3d
1530, 1539-40 (7th Cir. 1996), cert. denied, 520 U.S. 1156,
137 L. Ed. 2d 495, 117 S. Ct. 1335 (1997) (citations omitted).
Plaintiff does not address these issues and instead
attempts to distinguish the relevant cases of Hazelwood and
B19
C.H. by arguing that they were limited to speech mandated
by the school's curriculum. Plaintiff argues that the school-
supervised, in-class parties at which candies and treats were
distributed by the PTO were purely "social activities" where
"no pedagogical concerns exist." (Pl.'s Br. at 8.) The Court
disagrees. There is abundant evidence that the school
seasonal parties for these young children were meant to have
an educational component, and also that they were highly
structured, supervised, and regulated. Non-parent outsiders
were not allowed to attend the party and the parties took
place during school hours. Children were taught important
social skills at the parties and were not permitted to freely
move around or talk at will. (See Safaryn Dep., Tr. 14:1-
15:25.) Also, it is intuitive that school activities, whether
they are social or academic in focus, for four, five, and six
year-old children have a high degree of structure, so that the
young children are not confused or overwhelmed by
concepts and other stimuli they cannot understand. Thus, the
defendants’ restriction of plaintiff's gift-giving during the
holiday parties was reasonably related to the important
pedagogical concerns of the school. n8 Nwotiung has been
presented in opposition from which a reasonable inference
could be drawn to suggest that these pedagogical concerns
were pretextual.
n8 Additionally, plaintiff was and is still allowed
to distribute his gifts after school. This is an extremely
reasonable accommodation.
3. Establishment Clause
B20
Plaintiff additionally asserts in his brief in support of
summary judgment that defendants "have engaged in
hostility toward religion that the Establishment Clause itself
forbids." (Pl.'s Br. at 11.) This.claim was not made in
plaintiffs Complaint, but since defendants raised the issue as
a defense, and both parties briefed the issue, and because
leave to amend pleadings should be freely given, see Rule
15(a), Fed. R. Civ. P., the Court will deem the Complaint
amended to assert plaintiff's Establishment Clause claim and
will consider whether defendants' policy violated the
Establishment Clause.
The First Amendment's Establishment Clause prohibits
governmental advancement or restriction of religion. U.S.
Const. amend. I. The Supreme Court has written that "[a]
proper respect for both the Free Exercise and _ the
Establishment Clauses compels the Staie to pursue a course
of 'neutrality' toward religion, . . . favoring neither one
religion over others nor religious adherents collectively over
nonadherents." C.H., 990 F. Supp. at 354 (quoting Board of
Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.
687, 696, 114.8. Ct. 2481, 2487, 129 L. Ed. 2d 546 (1994)).
Although not referenced by plaintiff, the inquiry for
determining whether an Establishment Clause violation has
occurred was set forth by the United States Supreme Court in
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed.
2d 745 (1971). The Lemon inquiry, which may or may not
still be properly classified as a three-prong test to determine
whether a violation of the Establishment Clause has
occurred, n9 guides courts to consider whether the
challenged practice (1) has a secular purpose; (2) has a
principal or primary effect which neither advances nor
inhibits religion; and (3) does not create an excessive
B21
entanglement of the government with religion. Lemon, 403
U.S. at 612-13, 91 S. Ct. at 2111; Lamb's Chapel, 508 U.S. at
395, 113 S. Ct. at 2148; Board of Educ. of Kiryas Joel
Village Sch. Dist, 512 U.S. at 696-97, 114 S. Ct. at 2488
(citing Lemon with approval); ACLU v. Black Horse Pike
Regional Bd. of Educ., 84 F.3d 1471, 1483 (3d Cir. 1996);
ACLU v. Schundler, 168 F.3d 92, 97 (3d Cir. 1999)(citing
Lemon with approval); C.H., 990 F. Supp. at 354; see also
C.H,, 226 F.3d at 212-13 (Alito, J., dissenting)(finding that
"the Establishment Clause is not violated when the
government treats religious speech and other speech equally
and a reasonable observer would not view the government
practice as endorsing religion").
n9 This Court recognizes that the three-prong
Lemon test has been criticized on a number of levels,
and by several Supreme Court Justices, but that it has
not been overruled and the spirit of the inquiry is as
applicable to determining whether an Establishment
Clause has occurred as any other suggested by its
critics. See Lamb's Chapel, 508 U.S. at 397, 113 S.
Ct. at 2149 (Kennedy, J., concurring in part and
concurring in the judgment), 508 U.S. at 397-98, 113
S. Ct. at 2149 (Scalia, J., concurring in the judgment);
see also Tangipahoa Parish Bd. of Educ. v. Freiler,
530 U.S. 1251, 120 S. Ct. 2706, 147 L. Ed. 2d 974
(2000)(mem.), denying cert. 185 F.3d 337 (5th Cir.
1999)(Scalia, J., dissenting)(detailing criticism of, but
not overruling the validity of, the Lemon inquiry).
B22
Defendants restricted the time and place where plaintiff
could distribute his gifts, and that restriction was not in any
way hostile to plaintiff's Christianity. The students were
prohibited, under the defendants’ policy, from contributing
gifts bearing any message, whether political, commercial, or
religious, such that religious messages were not singled out
but were grouped with similar forms of speech. Perhaps the
Establishment Clause would be implicated if the policy
permitted distribution of all gifts containing any messages
except religious messages, since the policy might show
disapproval of religion, per se. See Edwards v. Aguillard,
482 US. 578, 585, 96 L. Ed. 2d 510, 107 S. Ct. 2573
(1987)(emphasizing importance of discerning whether the
challenged policy is designed to "endorse or disapprove of
religion").
Although it is true that plaintiff was prevented from
distributing his gifts in class because of their message, which
was of a religious nature, and because he sought to give them
individually rather than contribute them to the collective
PTO effort, the defendants' actions in this case did not
advance or inhibit religion as such, and did not create any
type of excessive entanglement with religion. Defendants’
restriction upon all political, commercial and religious
endorsements, particularly when the age of the
schoolchildren is considered, could not be found by a fair-
minded factfinder to be anything but reasonable. n10
Additionally, plaintiff was allowed to distribute his gifts on
school premises outside of class time. There was simply no
excessive entanglement with plaintiff's religion posed by
defendants’ simple, common-sense accommodation which
permitted him to distribute his gifts to classmates of his
choice outside the class while on _ school premises.
B23 ,
Defendants, therefore, did not violate the Establishment
Clause.
nl0 Further, if the defendants had made an
exception to the policy, to permit plaintiff's religious
message while precluding other messages, the
possibility is real that a reasonable observer would
perceive the defendants as endorsing this religious
message. See County of Allegheny v. ACLU, 492 U.S.
573, 605, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989)(in
which majority of Justices endorsed the principle that
the Establishment Clause "certainly means at the very
least that government may not demonstrate a
preference for one particular sect or creed (including a
preference for Christianity over other religions)").
4. Plaintiff's NJLAD Claims
Plaintiff additionally claims in his Complaint that
defendants "withheld from Plaintiff accommodations,
advantages, facilities, and privileged available to other
students" and therefore violated the New Jersey Law Against
Discrimination. (Pl.'s Br. at 14.) Plaintiff alleges that "other
students were allowed to give out gifts in class" while
plaintiff was not allowed to distribute his religious messages,
but points to no specific instances where other children were
allowed to give direct gifts and concedes that any such gifts
that might have been distributed were generic.
The applicable section of the NJLAD provides that "all
persons shall have the opportunity . . . to obtain all the
accommodations, advantages, facilities, and privileges of any
B24
place of public accommodation . . . without discrimination
because of . . . creed, subject only to conditions and
limitations applicable alike to all persons. N.J.S.A. 10:5-4.
Plaintiff has not been denied any accommodation, advantage,
facility, or privilege of his public school nll based on his
Christian faith. There is no legal precept under the NJLAD
which mandates that a child be able to distribute religious
messages in his public grade school class. Plaintiff has not
cited one case finding a violation of the NJLAD arising from
facts similar to those present in this case. Plaintiff also has
not alleged that other children were allowed to distribute
gifts with religious messages from non-Christian faiths.
Additionally, plaintiff was not excluded from the holiday
parties, nor was he prevented from distributing his religious
gifts after school. Plaintiff's claim under the NJLAD thus
fails.
nll Public schools, such as the one attended by
plaintiff, are places of public accommodation under
the NJLAD. See Hinfey v. Matawan Reg'l Bd. of
Educ., 77 N.J. 514, 523, 391 A.2d 899 (1978).
III. CONCLUSION
For the foregoing reasons, the Court will grant
defendants’ motion for summary judgment and will dismiss
plaintiffs complaint with prejudice. The accompanying
Order will be entered..
February 11, 2002
Dated
B25
JEROME B. SIMANDLE
U.S. District Judge
ORDER
Filed: February 11, 2002
THIS MATTER having come before the court on
plaintiffs motion for summary judgment, and defendants’
cross-motion for summary judgment pursuant to Rule 56,
Fed. R. Civ. P.; and the Court having considered the
submissions of the parties; and for the reasons stated in the
accompanying Opinion;
IT IS on this day of February 2002, hereby
ORDERED that defendants’ cross-motion for summary
judgment [Docket Item 13-1] be, and hereby is, GRANTED,
and plaintiff's motion for summary judgment [Docket Item
12-1] be, and hereby is DISMISSED; and
IT IS FURTHER ORDERED that plaintiff's Complaint
is hereby DISMISSED WITH PREJUDICE.
JEROME B. SIMANDLE
U.S. District Judge
Cl
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL WALZ, by his Guardian HONORABLE
JEROME B.
SIMANDLE
Ad Litem Dana P. Walz,
CIVIL NO. 00-
2149 (JBS)
Plaintiff,
ORDER
V.
EGG HARBOR TOWNSHIP BOARD OF
EDUCATION, et al.,
Defendants.
THIS MATTER having come before the court on
plaintiff's motion for summary judgment, and defendants’
cross-motion for summary judgment pursuant to Rule 56,
Fed. R. Civ. P.; and the Court having considered the
submissions of the parties; and for the reasons stated in the
accompanying Opinion;
IT IS on this 8" day of February 2002, hereby
C2
ORDERED that defendants’ cross-motion for
summary judgment [Docket Item 13-1] be, and hereby is,
GRANTED, and plaintiff's motion for summary judgment
[Docket Item 12-1] be, and hereby is DISMISSED, and
IT IS FURTHER ORDERED that plaintiffs
Complaint is hereby DISMISSED WITH PREJUDICE.
/s/
JEROME B. SIMANDLE
U. S. District Judge
D1
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1665
DANIEL WALZ,
by his Guardian Ad Litem DANA P. WALZ
Vv.
EGG HARBOR TOWNSHIP BOARD OF
EDUCATION;
DR. LEONARD KELPSH, in his OFFICIAL
CAPACITY AS
SUPERINTENDENT OF EGG HARBOR TOWNSHIP
SCHOOLS
Daniel Walz, by his Guardian
Ad Litem Dana P. Walz,
Appellant
(D.C. Civ. No. 00-cv-02149)
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge,
SLOVITER, NYGAARD, ALITO, ROTH, McKEE,
RENDELL, BARRY, AMBRO, FUENTES, SMITH
D2
and CHERTOFF, Circuit Judges
The petition for rehearing filed by appellant in the
above-entitled case having been submitted to the judges who
participated in the decision of this Court and to all the other
available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of
the circuit in regular service not having voted for rehearing,
the petition for rehearing by the panel and the Court en banc,
is denied.
BY THE COURT,
/s/
Chief Judge
Dated: 09/30/03
CMHicce: MPL, KJH, AVR
eT
aetna rch goin oe ey
El
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1665
DANIEL WALZ,
by his Guardian Ad Litem DANA P. WALZ
V.
EGG HARBOR TOWNSHIP BOARD OF
EDUCATION;
DR. LEONARD KELPSH, in his OFFICIAL
CAPACITY AS SUPERINTENDENT OF EGG HARBOR
TOWNSHIP SCHOOLS
Daniel Walz, by his Guardian
Ad Litem Dana P. Walz,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D. C. Civil Action No. 00-cv-02149
(Honorable Jerome B. Simandle)
E2
Argued January 9, 2003
Before: SCIRICA, Chief Judge’, BARRY and SMITH,
Circuit Judges
JUDGMENT
This cause came to be heard on the record from the
United States District Court for the District of New Jersey
and was argued by counsel on January 9, 2003. On
consideration whereof, it is now hereby
ORDERED and ADJUDGED by this Court that the
judgment of the District Court entered February 11, 2002, be,
and the same is hereby affirmed. Costs taxed against
appellant. All of the above in accordance with the opinion of
this Court.
ATTEST:
/s/
Clerk
1 Judge Scirica began his term as Chief Judge on May 4, 2003.
\
E3
DATED: Aug. 28, 2003
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