NEW JERSEY –– Pre-Kindergarten and earlyelementary students cannot express their religious beliefs by distributing giftsthat bear a religious message to fellow classmates, according to a recent rulingby a federal appeals court. The U.S. Court of Appeals for the ThirdCircuit ruled Aug. 27 that an Egg Harbor Township elementary school couldprohibit a 4-year-old boy from passing out pencils labeled “Jesus [Loves]the Little Children,” with a heart symbol substituting for the wordlove.“As a general matter, the elementary school classroom,especially for kindergartners and first graders, is not a place for studentadvocacy. To require a school to permit the promotion of a specific messagewould infringe upon a school’s legitimate area of control,” ChiefU.S. Circuit Judge Anthony J. Scirica wrote for the unanimous three-judge panelin Walz v. Egg Harbor Township.The Rutherford Institute, aCharlottesville, Va., civil liberties organization representing Daniel Walz, now9, plans to appeal to the full 12-member bench of the Third Circuit and to theU.S. Supreme Court if necessary, said John Whitehead, president of theinstitute.“[The decision] basically eliminates free speech forelementary students,” Whitehead said. “Only in response toquestions can kids have an opinion.” In the lawsuit, theRutherford Institute is seeking a declaration that the school’s policy isunconstitutional and an injunction prohibiting the future enforcement of thepolicy.Whitehead said the court’s decision seems to be related tothe aftermath of Sept. 11 and the increase in zero tolerancepolicies.“We’re seeing that philosophy pop up in moredecisions,” Whitehead said. “It’s just the way were movingsocially.”Whitehead said the decision goes against the SupremeCourt’s landmark decision in Tinker v. Des Moines Community SchoolDistrict. In that decision, the court ruled that public school students,“do not shed their constitutional rights to freedom of speech orexpression at the schoolhouse gates.” The Third Circuit recognizedTinker but Scirica wrote, “a school’s need to control studentbehavior will necessarily result in limitations on studentspeech.”The case started in the spring of 1998 when Daniel Walz,then 4, brought the pencils to a pre-kindergarten class party. The teacherconfiscated the pencils and Daniel’s mother, Dana Walz, who was present atthe party, immediately appealed the matter to the principal. School officialssaid Daniel Walz could only distribute the pencils during noninstructional timebecause they said they did not want it to appear the school was endorsingChristianity. In December 1998, at another party, Daniel Walz wasprohibited from distributing candy canes with a message attached that describedthe treat as representing “several symbols for the birth, ministry, anddeath of Jesus Christ.” Dana Walz was informed her son could onlydistribute the candy canes outside the school building during his freetime.Dana Walz was once again informed in December 1999 that her soncould not distribute candy with Christian messages.The RutherfordInstitute filed the lawsuit on behalf of Daniel Walz in May 2000.JudgeJerome B. Simandle, of the U.S. District Court in Camden, N.J., sided with theschool district in February 2002 writing that the district’s restrictionwas “extremely reasonable.” Simandle wrote that he had“little doubt that the plaintiff’s mother, Dana Walz, is the drivingforce behind the distribution of these items and this lawsuit.”
Walz v. Egg Harbor Township Board of Ed., 342 F.3d 271 (3rd Cir. 2003)
Read previous coverage:
- Administrators crack down on student religious expression The Report, Spring 2003
- Student religious speech contested The Report, Spring 2002