Opposition Brief — Walz ex rel. Walz v. Egg Harbor Township Board of Education

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FEB 18207, |

OFF ICE OF Ti

(2)

ae

No. 03-982 eee

IN THE

Supreme Court of the United States

DANA P. WALZ, Guardian ad litem, on behalf of Daniel Walz,

Petitioner,

v.

EGG HARBOR TOWNSHIP BOARD OF EDUCATION, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

ARMANDO V. Riccio

CAPEHART & SCATCHARD, P.A.

8000 Midlantic Drive, Suite 300

Mount Laurel, NJ 08054

(856) 914-2079

Counsel for Respondents

185842 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

II.

QUESTIONS PRESENTED

Whether a student attending pre-kindergarten,

kindergarten and first grade, respectively, has a

First Amendment right to distribute items bearing overtly

religious messages to a captive audience of four,

five and six year old children during annual in-class -

school sponsored seasonal events intended to achieve

certain learning objectives.

Whether providing alternate times and/or locations on

school premises for distribution of items bearing overtly

religious messages constitutes a violation of Petitioner’s

First Amendment rights.

i

TABLE OF CONTENTS

Page

oa Tree er he i

po ge eee ee ll

Tebie OF Cited AMUMORIGGS o.oo eons Neu esesns lil

emtenbent OT TRO URE 2. nko ccccxscvsssenne en ]

Reasons To Deny The Petition ................. 5

I. The Third Circuit Court Of Appeals’ Decision

Does Not Conflict With The Decisions Of The

re er ne 5

I]. The Third Circuit Applied The Appropriate

First Amendment Analysis Which Is Based

Upon Established Legal Principals Applicable

in Tre Particular Comtent. . ... ss. 55.000 9

CORON ook cosas cvinuwaradgioreeeeaeee 18

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Beil v. Little Axe Independent School District

No. 70, 766 F.2d 1391 (10 Cir. 1985) ....---. 12

Bethel Sch. Dist. No. 403 v Fraser, 478 U.S. 675

FOOD ok cee serene nsnserecenereeeses 6, 10, 13, 15

County of Allegheny v. ACLU, 492 U.S. 573 (1989)

oO OT Ee Oe eee Tee Te ee 14

DeNooyer v. Livonia Public Schools, 799 F. Supp.

744 (E.D. Mich. 1992) aff’d, 12 F.3d 211 (6" Cir.

1993), cert. denied, 511 U.S. 1031 (1994) ..... 12

Edwards vy. Aguillard, 482 U.S. $78 C1987) .. 25... 13

Good News Club v. Milford Central School, 533 U.S.

| ann oc 14, 15

Hazelwood School District y. Kuhlmeier, 484 U.S.

TR TNONED vnc cere vensencdeseeun ers eeees passim

Hedges v. Wauconda Community Unit School

District, 9 F.3d 1295 (7" Cir. 1993) ......+---- 6, 7,8

Lee v. Weisman, 505 U.S. 577 (1992) ....---+++: 10

Muller v. Jefferson Lighthouse School, 98 F.3d 1530

(7" Cir. 1996), cert. denied, 520 U.S. 1156 (1997)

De Fe Pe Peer Cee eee ae passim

iv

Cited Authorities

Page

Poling v. Murphy, 872 F.2d 757 (6" Cir. 1989) cert.

- denied, 4935 US: TOZE IFAD) onc isvcanciess 12

Rosenberger v. Rector and Visitors of the University

@ Virginia, 515 U.S. 819 (1995) .........45.. 6

S.G. v. Sayreville Bd. of Ed., 333 F.3d 417 (3" Cir

2003), cert. denied, 1248S. Ct. 1040 (2004) ... 15-16, 17

Saxe v. State College Area Sch. Dist., 240 F.3d 200

2g | 5 POPP eer re sero re ye ee ye

Sch. Dist. v. Schempp, 374 U.S. 203 (1963) ...... 13

Sypniewski v. Warren Hills Regional Bd. of Ed., 307

F.3d 243 (2002), cert. denied, 123 S. Ct. 2077

7-year err e oor ery er rer Ea 17

Tinker v. Des Moines Independent Com. Sch. Dist.,

SOF UF EEE oie eee es aee passim

Walker-Serrano v. Leonard, 325 F.3d 412 (3" Cir.

NE so vee co eee Cee Oe 6, 15, 16

Zykan v. Warsaw Com. Sch. Corp., 631 F.2d 1300

Ee Ge CE. cars baka wa saad hacia eee enen 12-13

United States Constitution:

Pelee PE na oho oe kk eo see passim

l

STATEMENT OF THE CASE

Petitioner, Daniel Walz, bases his complaint upon three

events each of which occurred during an in-class school

sponsored seasonal party. Each event took place during

regular school hours. All students were required to attend

and non-parent outsiders were not allowed to attend the

events. App. B19. All events were closely controlled and

monitored by the principal and teachers. App. B8. Further,

as detailed below, Respondent provided numerous legitimate

pedagogical reasons underlying its policies, as well as,

application of those policies in this case. Moreover, Petitioner

was permitted to distribute his proselytizing items on school

premises outside of the context of the in-class school

sponsored activities.

In the Spring of 1998, Petitioner’s mother, Mrs. Dana

Walz, purchased pencils inscribed with a religious message:

“Jesus (heart symbol) the Little Children.” She selected the

pencils for Petitioner to distribute at an in-class event because

of the message and the intended audience, children.

App. B2. Petitioner attempted to distribute the pencils at

the school’s in-class spring party. Petitioner, who was

approximately 4 years old at the time, was attending

developmental kindergarten (known as “pre-kindergarten”).

App. B2. Once Petitioner’s teacher noticed the pencils, she

collected them and made an inquiry to the school

administration. App. B3. Mrs. Walz attended the event as a

chaperone and does not recall the exchange of any wrapped

gifts at that party.

Ultimately, Dr. Leonard Kelpsh, the Superintendent

of the Respondent’s schools, was contacted regarding

distribution of the proselytizing pencils and concluded that

Petitioner should distribute the pencils at a different time

2

and location based upon the items’ lack of neutrality, the

closed nature of a school, the potential for parents to

misconstrue the message contained on the pencils as school

sponsored and the availability of other locations in or at the

elementary school for distribution. App. B3, B8. Moreover,

other items with endorsements were not allowed to be

distributed in class during school hours, including items

with political, commercial or religious references. App. A3;

App. B16. According to Dr. Kelpsh, the school’s job was to

develop curriculum, not endorse a particular view. Under the

policy, a student would not be allowed to distribute pencils

that stated “Home Depot” or “Support the New Jersey

Education Association.” Jd.

In 1998, Mrs. Walz’s daughter returned from a local event

with a copy of the evangelical story, “A Candy Maker’s

Witness.” App. B4-B5. The story is overtly religious and

attributes religious significance to the candy cane. See App.

B5-B6, n.2. Mrs. Walz entered the story into her computer,

printed out copies of it, purchased candy canes separately,

affixed the evangelical story to the candy canes with a ribbon

and placed them in a basket. App. B4. Mrs. Walz chose the

message because it was symbolic of the Christian holiday

and attributed religious significance to the candy cane.

Id.; App. AS. Mrs. Walz provided Petitioner with the candy

canes to which she attached the evangelical story for

distribution at a school sponsored winter party for

kindergarten children in December 1998. App. B4-B5 At that

time, Petitioner was just over 5 years old and his classmates

were approximately the same age. Jd. Prior to the event,

Mrs. Walz contacted the schoo! regarding distribution of the

evangelical candy canes and was informed that Petitioner

could distribute such before school, during recess or after

school, but not inside the classroom. /d.; App. AS. Ultimately,

3

Petitioner was permitted to distribute the candy canes with

the proselytizing message in the elementary school hallway.

App. B5; App. AS.

The third event raised in Petitioner’s Complaint

transpired in December of 1999 during a school sponsored

in-class activity for first grade children, a winter party.

App.-B7. Again, Mrs. Walz contacted the school regarding

distribution of the evangelical candy canes and was informed

that Petitioner could distribute such before school,

during recess or after school, but not inside the classroom.

Id.; App. AS. In fact, Petitioner distributed the evangelical

candy canes in the hallway of the school. App. B7; App. AS.

Mrs. Walz stated that the items distributed during the

December 1999 event where generic in nature. Jd. Petitioner

has not been prevented from handing out items promoting

his religious ideologies in the hallways of his elementary

school or during recess. Jd.

According to Dr. Kelpsh, the in-class seasonal activities

were intended to promote sharing and caring among students,

to develop social skills, and to learn about talking in turn in

a large group. App. B16; App. B19. Children were taught

important social skills at the parties and were not permitted

to freely walk around or talk at will. App. B19.

The age or maturity of the students also played a part in

Dr. Kelpsh’s decisions regarding in-class distribution of items

endorsing or promoting particular ideals or individuals for

two reasons: (1) he questioned whether Petitioner, a very

young child, decided or understood what it meant to promote

such religious beliefs and whether this was the parent

attempting to impose such beliefs upon other students in the

classroom environment; and (2) the ability of other students

4

to understand that communication as solely made by another

student and not endorsed by the school in the context of in-

class distribution.

Petitioner presented no facts to contradict Respondent’s

evidence that the school took affirmative steps to regulate

the items distributed at each in-class activity. App. B16.

In accordance with the Respondent’s general policy regarding

collection and disiribution of items at the seasonal parties,

in or around December 1999, the local Parent Teacher

Organization (“PTO”) sent instructions home to parents

which provided a list of “do’s and don’t’s” for the upcoming

in-class winter party. App. B7, n.3; App. B7-8; App. AS.

Notably, the “Don’ts” listed in the notice include

“Don’t forget to keep the parties as generic as possible.”

Further, the instructions make clear that “gifts” were to be

provided to the PTO which would distribute the gifts at the

event. App A2; App. B7; App. AS. Parents and children

generally would respond to the requests with generic

donations. App. A2. Notably, students were not asked to

bring in gifts with their favorite seasonal message. App. B16.

Mrs. Walz could not identify any gift containing a

non-religious message which was distributed during any of

the in-class school sponsored events. App. B8; App. AS-6.

According to Dr. Kelpsh, direct gifts from students were

discouraged because of the economic diversity of the

community, the economic strain it would cause some students,

and the potential distress caused to those who could not afford

to participate. App. B7-B8. Dr. Kelpsh explained that:

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

5

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 something in class.

App. A2.

Although unwritten, the above policy is communicated orally

by the administration to teachers who disseminate the

information to other teachers, parents and students. App. B8.

The Third Circuit and Federal District Court for the

District of New Jersey relied upon the above facts in support

of their decisions.

REASONS TO DENY THE PETITION

I. THE THIRD CIRCUIT COURT OF APPEALS’

DECISION DOES NOT CONFLICT WITH THE

DECISIONS OF THE SEVENTH CIRCUIT

Petitioner’s claim of conflict among the Third and

Seventh Circuits rests upon the unsupported factual

contention, rejected by the Courts below, that Respondent

engaged in unlawful viewpoint discrimination against

Petitioner’s religious speech. App. B15-16 (“The school’s

regulation of [Petitioner’s] speech was viewpoint neutral’’);

see also, App. A15-16 and A19; App. B15-16. Further,

Petitioner incorrectly asserts that “it is undisputed that the

only reason Respondents refused to allow [Petitioner] to

distribute his gifts was because they included religious

messages [and] . . . [Petitioner’s] classmates were permitted

to distribute generic gifts inside the classroom at the same

time.” In fact, Petitioner offered “no proof that other children

were allowed to disseminate messages in class or at in-class,

school sponsored parties” and conceded that the gifts he

tania

6

claims were distributed by other children were generic in

nature. App. B16; see also App. A6 and App. B7. Petitioner

also conceded that no other religion was treated more

favorably than his own. Jd.

Viewpoint discrimination is a form of content

discrimination which occurs when the government targets

not the subject matter, but the particular views taken by the

speaker on a subject. See Rosenberger v. Rector and Visitors

of the University of Virginia, 515 U.S. 819 (1995). Moreover,

that the Respondent provided other alternatives for Petitioner

to distribute proselytizing items on school premises is

evidence that the Respondent’s decisions were not based on

animus to Petitioner’s religious beliefs, but to the particular

mode of expression under the particular circumstances.

App. Al8; see Walker-Serrano v. Leonard, 325 F.3d 412,

419 (3 Cir. 2003), cert. denied, 123 S. Ct. 2077 (2003);

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 689 (1986)

({T]here is no suggestion that school officials attempted to

regulate [Petitioner’s] speech because they disagreed with

the views [he] sought to express. Nor does this case involve

an attempt by school officials to ban written materials they

consider “inappropriate” for [elementary] school students,

or to limit what students should hear, read, or learn about.)

Petitioner relies upon two Seventh Circuit opinions in

support of a claimed conflict, Hedges v. Wauconda

Community Unit School District, 9 F.3d 1295 (7" Cir. 1993)

and Muller v. Jefferson Lighthouse School, 98 F.3d 1530

(7" Cir. 1996), cert. denied, 520 U.S. 1156 (1997). Both cases

are distinguishable on their facts, the law, or otherwise

reconcilable with the opinions of the Third Circuit.

PWD)

7

In Hedges v. Wauconda Community Unit School District,

supra, the Seventh Circuit held that a school policy which

specifically prohibited distribution of materials with religious

content in the school’s hallways violated a junior high school

student’s First Amendment rights. 9 F.3d at 1297-98. The

Seventh Circuit recognized the significant difference between

the government’s lawful ability to prohibit certain categories

of speech and the unlawful viewpoint discrimination

embodied by a policy which specifically targeted material

containing religious information. Jd. at 1298 (“Even when

government may forbid a category of speech outright, it may

not discriminate on account of a speaker’s viewpoint.”)

Notably, the Court recognized that schools are typically

closed forums wherein most daily activities are strictly

regimented especially during class when students discuss

subjects of the school’s devising and not of their own

preference. Jd. at 1301. As a result, the Court determined

that limiting distribution to a designated place and prohibiting

distribution of material primarily prepared by non-students

was not unlawful. Jd.’

In a comparable case, Saxe v. State College Area Sch.

Dist., 240 F.3d 200 (3" Cir. 2001) the Third Circuit reached

a result similar to that of the Seventh Circuit in Hedges.

Reversing the lower court, the Third Circuit agreed with the

students’ First Amendment challenge to an overly broad

school district anti-harassment policy which prohibited, inter

alia, unwelcome verbal conduct which offends an individual

based upon their sexual orientation. The plaintiffs in Saxe

1. Although Petitioner argues that the policy in Hedges governed

elementary and junior high school students, the Seventh Circuit’s

subsequent opinion in Muller recognized that “the environment of

an elementary school was not at issue in [Hedges]”. Muller, 98 F.3d

at 1538.

8

were devout Christian students who successfully argued that

the policy prohibited them from expressing their religious

belief that homosexuality is a sin. /d. at 203, 218. Applying

the standards set forth in Tinker and its progeny, the Third

Circuit concluded that the policy went beyond permissible

restrictions and was overbroad. /d. at 216-17.

In addition to the lack of any actual conflict among the

Seventh and Third Circuits based upon the Hedges decisior,

Hedges and Saxe are distinguishable from this case at several

levels: neither case involved distribution of proselytizing

items during in-class school sponsored pre-kindergarten,

kindergarten and first grade instructional events. Moreover,

on the day of the latter two events, Respondent provided

Petitioner with on-premises alternatives for distribution of

the candy canes with the attached religious messages.

Accordingly, the decision in Hedges is not analogous to

Petitioner’s case.

Similarly, no conflict between the Circuits exist based

upon the Seventh Circuit’s opinion in Muller, supra.

In Muller, the Seventh Circuit addressed application of a

school district’s general policy which regulated the time and

location of literature distribution to an elementary student’s

circulation of invitations to a religious meeting. 98 F.3d at

1532. Upholding the policy, two members of the three judge

panel agreed that the applicable test “is whether the

restrictions on student expression are ‘reasonably related to

legitimate pedagogical concerns.’” Jd. at 1540 and 1545

(citing Hazelwood School District v. Kuhlmeier, 484 U.S.

260, 267 (1988)). Upholding the distribution limitations and

nonpublic fora conclusions reached in Hedges, the Muller

Court found the Hazelwood test consistent with Tinker v. Des

Moines Independent Com. Sch. Dist., 393 U.S. 503 (1969).

Id. at 1540.

9

Assuming, arguendo, that Petitioner’s understanding of

Muller is correct, Petitioner recognizes that Muller does not

resolve the issue within the Seventh Circuit. Pet’r[’s]

Br. pp. 12-13. At most, Muller establishes that the issue of

whether Tinker applies in the elementary school setting

remains unresolved within that Circuit. Hence, Petitioner’s

reliance upon Muller as a basis to contend that a conflict

among the Seventh and Third Circuits is misplaced.’

Moreover, two members of the three judge panel applied the

same analytical framework in Muller as applied by the Third

Circuit in this case.

Petitioner’s failure to establish facts supporting his claim

of viewpoint discrimination before the Courts below,

combined with facts establishing the lack of such

discrimination, undermines a key presumption relied upon

in support of Petitioner’s prayer for the issuance of a

Writ granting Certiorari. In short, no conflict exists among

the Third and Seventh Circuits which warrants issuing a Writ

of Certiorari.

Il. THE THIRD CIRCUIT APPLIED THE

APPROPRIATE FIRST AMENDMENT ANALYSIS

WHICH IS BASED UPON ESTABLISHED

LEGAL PRINCIPALS APPLICABLE IN THE

PARTICULAR CONTEXT.

The Third Circuit’s analysis followed a recognized

framework and applied established legal principals to the

particular facts before the Court. Petitioner’s attempt to

2. Unlike the Muller case, the type of forum and concomitant

analysis is not an issue in this case since the Petitioner conceded

that the forum was a nonpublic forum which, in turn, dispensed

with the need for an exhaustive analysis of Tinker. App. B11-12;

App. B12, n.4.

\

10

disparage the opinion of the Court as incomprehensible or

divergent from established legal principles, as well as

Petitioner’s blunderbuss claim of confusion regarding the

framework applicable in such cases, is unfounded.

The Third Circuit’s analysis specifically recognized the

basic proposition announced in Jinker and developed by its

progeny: “while school students do not ‘shed their

constitutional rights to freedom of speech or expression at

the schoolhouse gate,’ a school’s need to control student

behavior will necessarily result in limitations on student

speech.” App. A9 (citing Tinker, supra); see also Tinker, 393

U.S. at 506 (1969) (The free speech rights of students must

be “applied in light of the special characteristics of the school

environment.”); Lee v. Weisman, 505 U.S. 577, 592 (1992);

Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682

(1986) (The rights of students to express themselves at school

are not coextensive with the rights of adults to express

themselves in other settings. “[Instead,] there are heightened

concerns with protecting freedom of conscience from subtle

coercive pressure in the elementary and secondary public

schools.”); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

(1988). Tinker held that the non-disruptive expression by high

school students which occurred outside the context of

school sponsored activities was protected under the

First Amendment. In particular, Zinker centered upon a

school’s prohibition which singled out a particular form of

symbolic speech because of its political viewpoint even

though it did not “intrude upon the work of the schools or

the rights of other students.” 393 U.S. at 508, 510 and 514.

Recognizing the distinctions raised within 7Jinker and its

progeny, including the nature of the in-class school sponsored

EF SCI RE LP LOLOL LODE LL LENE IOTE OR, I Rm —_———

11

activities and the closed nature of the forum, the Third Circuit

applied the Hazelwood framework.’

A review of the underlying legal principals in conjunction

with its analysis establishes that the Third Circuit’s

application of Hazelwood was correct.‘ Activities which are

supervised by school faculty and designed to impart particular

knowledge or skills to student participants are fairly

characterized as part of the curriculum, may be reasonably

perceived as bearing the imprimatur of the school’ and,

accordingly, fall within the purview ofa school’s authoritative

control. Hazelwood, supra, 484 U.S. at 271; App. All,

Al4 and A19. It is irrelevant whether or not the activities

occur in a traditional classroom setting. Jd. Further, the

continued exercise of supervision and control over the

activity supports the conclusion that it is part of the

curriculum. Jd. at 268-270. In this context, educators maintain

greater control over student expression to assure that

3. Petitioner conceded that the pre-kindergarten, kindergarten

and first grade classrooms were nonpublic fora. App. B11-12.

As a result, forum analysis and discussion of the non-applicability

of limited public forum cases was unnecessary. App. B12, n.4.

4. In Hazelwood, the school maintained control over articles

which appeared in a school newspaper that were written and

edited by high school students as part of a journalism class.

Hazelwood, supra, 484 U.S. at 262. The Petitioners claimed a

violation of their First Amendment rights when administrators

removed two stories, one that addressed student pregnancy and

another regarding the impact of divorce on students, prior to printing

the paper. Jd. at 263-64.

5. A court is not required to determine with certainty that

dissemination of particular material would be construed as an

endorsement by the school. Hazelwood, supra, 484 U.S. at 272.

12

participants learn the lessons the activities are designed to

teach, that [recipients of the message] 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. Jd. at 271-72; App. All.

School officials are given wide latitude in choosing which

educational values to emphasize and the means through

which those values are promoted by them. See Poling v.

Murphy, 872 F.2d 757, 762-63 (6" Cir. 1989), cert. denied,

493 U.S. 1021 (1990). Educators do not violate the

First Amendment by exercising control over student

speech in expressive activities provided it is reasonably

related to legitimate pedagogical concerns. /d. at 273;°

App. All and Al19.

Legitimate pedagogical concerns include taking into

account the maturity level of the intended audience in

determining whether to disseminate student speech on

potentially sensitive topics. Jd. at 272; Tinker, supra,

393 U.S. at 515 (“[A governmental actor] may permissibly

determine that, at least in some precisely delineated areas, a

child... . is not possessed of that full capacity for individual

choice which is the presumption of First Amendment

guarantees.”) (Stewart, J., concurring); DeNooyer v. Livonia

Public Schools, 799 F. Supp. 744 (E.D. Mich. 1992), aff'd,

12 F.3d 211 (6" Cir. 1993), cert. denied, 511 U.S. 1031

(1994); Bell v. Little Axe Independent School District

No. 70, 766 F.2d 1391 (10" Cir. 1985); App Al1-13.

Additionally, public school is intended to instill learning and

prepare children for meaningful lives and citizenship.

See Zykan v. Warsaw Com. Sch. Corp., 631 F.2d 1300, 1304

6. As noted above, the analytical framework developed in

Hazelwood was accepted as the appropriate framework by two

members of the three judge panel in Muller, supra.

13

(7" Cir. 1980). Accordingly, the age of the student bears an

important inverse relationship to the degree and kind of

control a school may exercise. See Sch. Dist. v. Schempp,

374 US. 203, 290-91 n.69 (1963) (Brennan, J., concurring);

Fraser, supra, 478 U.S. at 683-85; Muller, supra, 98 F.3d at

1539-40 (citations omitted) (Concluding school could

preclude a grammar school student from distributing

invitations to a religious meeting in his fourth grade

classroom reasoning that an elementary school

“may restrict such speech that could crush a child’s sense of

self-worth.”); see also Edwards v. Aguillard, 482 U.S. 578,

584 (1987) (Noting that elementary school children

“are impressionable and their [attendance] at school is

involuntary.”); App. A8-A10.

The Third Circuit applied the above analytical framework

and legal principals to the following facts: (1) Petitioner’s

proselytizing occurred during classroom activities that had

a clearly defined curricular goal which included teaching

social skills, respect for others and sharing (App. Al6 and

A17); (2) each event was highly structured, supervised and

regulated (App. A17); (3) based upon the tender age of the

students, the school generally prohibited the exchange of gifts

that promoted a specific message (App. A16); and (4) several

factors demonstrated the school’s continual control over each

event including the teacher’s role in planning the events, the

PTO’s control over gift collection as well as distribution,

and the directive of generic gifts (App. Al7).

The Court also relied upon the fact that the stated purpose

of Petitioner’s mother “was to promote a religious message

through the channel of a benign classroom activity.”

_ App. A19. It is axiomatic that there is no stronger association

with a school than activities which occurs inside a classroom.

14

The fact that each event occurred in the classroom during

school hours, at a school sponsored event, lends further

support for the conclusion that the Respondents properly

requested Petitioner to distribute his proselytizing items in

areas outside of the classroom. As noted by the District Court,

“if the [Respondents] had made an exception to the policy,

to permit [Petitioner’s] religious messages while precluding

others, the possibility is real that a reasonable observer would

perceive the [Respondents] as endorsing this religious

message.” App B23, n.10 (citing County of Allegheny v.

ACLU, 492 U.S. 573, 605 (1989)).

Petitioner’s bare argument that if in-class events

constitute an “organized curricular activity” then it is difficult

to imagine any activities at the elementary school level

outside of that description is not only an over exaggeration,

it ignores the practical educational environment of a

pre-kindergarten, kindergarten and first grade class

recognized by the Courts below. Pet’r[’s] Br. p. 19.

Elementary grade school children do not attend a traditional

four hour lecture style class at this developmental stage in

their education. Additionally, Petitioner did not explain the

basis for, and provided no credible evidence to support, the

contention that the pre-kindergarten, kindergarten and first

grade in-class events do not squarely fit within the types of

activities described in Hazelwood.

Petitioner’s reliance upon Good News Club v. Milford

Central School, 533 U.S. 98 (2001) is misplaced. That case

involved a religious club which sought access to the school’s

limited open forum created by the school board’s policy.

The risk of the perception that the board endorsed a student

religious club was not supported by the facts because the

activities occurred after school hours, the activities were

15

presented by individuals who were not faculty members, and

student attendance was not mandatory. Most importantly, in

Good News Club, parental permission was required, the

children-participants were not all the same age, the activities

would take place in a combined high school resource and

middle school special education room, not in an elementary

school classroom, and there was no oversight by teachers.

Contrary to Petitioner’s argument, the Third Circuit has

not obliterated all First Amendment rights of elementary

students. App. Al4, n.4 (“While an elementary school

deserves greater discretion to control its curricular activities,

individual student expression still may be appropriate

depending on the context”); App. A18 (“As noted, elementary

school students retain certain First Amendment rights of

expression.”); App. A18-19 (“And where the school solicits

individual views in a classroom assignment, students should

be able to respond in a non-disruptive manner.”) (emphasis

added); Walker-Serrano v. Leonard, 325 F.3d 412, 416, 417

(3rd Cir. 2003) (“That the First Amendment protects student

expression within schools is beyond challenge . . . That age

is a factor in this calculus does not necessarily mean that

third graders do not have First Amendment rights under

Tinker. Tinker provides a flexible standard that arguably is

able to incorporate these considerations”)’ Moreover, the

Court concluded that as to the distribution of the candy

cane story, there was no deprivation of Petitioner’s

First Amendment rights. App A18.

Petitioner contends that Third Circuit’s opinions in

Walker-Serrano v. Leonard, supra, and S.G. v. Sayreville

7. In Walker-Serrano, neither party urged the court to consider

the case under Hazelwood or Fraser, 325 F.3d at 416.

16

Bd. of Ed., 333 F.3d 417 (3" Cir 2003), cert. denied, 124

S. Ct. 1040 (2004) establish that the Third Circuit does not

recognize any meaningful First Amendment protection for

elementary school students. Pet’r[’s] Br. p. 23. Contrary to

Petitioner’s claim, the Court’s opinion in Walker-Serrano did

not strip elementary students of their First Amendment rights.

325 F.3d at 418 (“In any event, we see no reason at this point

to conclude that, as a general matter, these concerns cannot

be addressed under the case-by-case approach specified in

Tinker.”) Instead, the Court applied established legal doctrine

which recognizes, inter alia, the significance of certain

practical realities: age bears an inverse relationship to a

student’s First Amendment rights in a school environment.

Id. at 416. The Court recognized that, in an elementary school

setting, such rights must be counterbalanced by the

proscription against interfering with the rights of other young

students, the potential for subtle coercion and valid parental

prerogatives established by Jinker and subsequent decisions.

Id. at 418-420. Most importantly, the third grade student in

Walker-Serrano occasioned no constitutional harm:

the school encouraged other expressions of the student’s

opposition to the field trip, permitted distribution of other

materials, including coloring books and stickers, which

expressed the student’s views and she was not disciplined

for circulating the petition or prevented from obtaining

permission to circulate the petition at a different time or

location. Jd. at 419.

Against a backdrop of three incidents involving violent

statements made by students which involved reference to

firearms and a horribly tragic nationally publicized incident

of a six year old child shooting another, the Third Circuit

upheld a school’s discipline of a student for stating to another

student that “I’m going to shoot you.” S.G v. Sayreville Bd.

17

of Ed., 333 F.3d 417 (3" Cir 2003), cert. denied, 124 S. ® 2

1040 (2004). The contemporaneousness of the events played

a key role in its decision. Nonetheless, the Court did not

dismiss the First Amendment in a perfunctory manner. Rather,

the Third Circuit recognized that the freedom to advocate

unpopular views in school must be counterbalanced against

society’s interest in teaching students socially appropriate

behavior. Jd. at 421, 422.

A student’s First Amendment rights continue to have

meaningful value in the Third Circuit. See Sypniewski v.

Warren Hills Regional Bd. of Ed., 307 F.3d 243 (2002),

cert. denied, 123 S. Ct. 2077 (2003). In Sypniewski, the

Third Circuit overturned a District Court decision where a

student was prohibited from wearing a T-Shirt because it

contained language generally similar to that banned by the

school board’s policy. Jd. at 254-57. Although the school’s

concern arose because of a history of racial tensions and

recent threats of violence, the Court required significantly

more than a mere general similarity among the terms

association with white supremist gang activity which were

banned and a somewhat related term contained on the

student’s T-Shirt. Jd. Absent significantly stronger proofs,

the Court refused to apply Jinker's proscription against

expression that interferes with school operations or the rights

of others. Jd.

The foregoing establishes that the Third Circuit’s analysis

and application of Hazelwood does not represent a substantial

departure or unwarranted extension of First Amendment

jurisprudence nor the elimination of First Amendment rights

in the elementary school context.

18

CONCLUSION

For all of the foregoing reasons, Respondents Egg

Harbor Township Board of Education and Superintendent

Dr. Leonard Kelpsh pray that the Court denies Petitioner’s

request for the issuance of a Writ of Certiorari.

Respectfully Submitted,

ARMANDO V. Riccio

CAPEHART & SCATCHARD, P.A.

8000 Midlantic Drive, Suite 300

Mount Laurel, NJ 08054

(856) 914-2079

Counsel for Respondents

Date: February 18, 2004

LEONEL OI ADELE MEG OE