Student’s parents sue Ohio school for barring distribution of religious literature

OHIO — A kindergartner’s candy and religious poem have causeda stir and a lawsuit in Kettering.Just before Easter 2003, an Orchard Park Elementary kindergartner,five-year-old Madison Wuebben, asked teacher Angela Helwig if she coulddistribute jellybeans with a religious prayer attached. After speaking with the school principal, Helwig denied Wuebben’s request.At the time, the Kettering School District did not have a written policy onstudents’ right to distribute literature. The jellybean prayer is a rhyme that uses colors to talk about God. Thefirst line states, “Red is for the blood He gave.” Helwig thought it would be better to distribute the material after school,Superintendent Bob Mengerink said. Mengerink said he was surprised that someonewould want to disseminate religious material to kindergartners because they are”young and impressionable.” He did not want students or their parents to thinkthe school endorsed the religious message. After speaking with school officials, Madison’s parents, Allen and SheilaWuebben, filed a lawsuit on Feb. 5 in U.S. District Court against the school sothat Madison and other students could have the right to distribute religiousliterature. The lawsuit seeks $1 in nominal damages and a judge’s ruling thatthe school’s actions violated the First Amendment.Rita Dunaway, special counsel for the Rutherford Institute, a civilliberties organization that is representing the Wuebbens, said what the schooldid was “outrageous.””We regularly fight for the right of students to express religious messageswherever students are allowed express secular messages,” she said. “There seemsto be a growing movement to regulate religious messages by private individuals.When schools single out religious expression, they violate students’ FirstAmendment right to free speech and free expression, as well as students’Fourteenth Amendment right to equal protection under the law.”The school district’s lawyer, however, said courts have adopted a slidingscale of First Amendment rights for students.”We believe Kettering did nothing wrong in handling [the literaturedistribution],” said R. Gary Winters, the school district’s lawyer. “The courtshave said that the amount of free speech in the school context is dependent uponthe age of the student. Speech for younger children can be more closelycontrolled than speech for older children.”The Wuebbens’ lawyers relied on the First Amendment’s religious freedomclauses in the lawsuit because they view the school’s action as hostile toreligion and religious students. “The Supreme Court has made it clear the establishment clause not onlyprohibits government officials from favoring any particular religion, but italso forbids government officials from demonstrating hostility toward religion,”Dunaway said.The school district has since created a written policy on students’literature distribution. The policy limits students’ religious expression tolunch periods and when class is not in session.”We think we’re following the law, as we interpret it,” Mengerink said,citing the U.S. Court of Appeals for the Third Circuit’s ruling in Walz v.Egg Harbor Township School District. In the Walz lawsuit, the courtupheld a lower court’s ruling that the district in New Jersey did not violate akindergarten student’s free-speech rights by preventing him fromdistributing “proselytizing pencils” and “evangelical candy canes” during classparties.”We’re doing what’s correct legally,” Mengerink said, adding that theschool would amend its policies if the courts ruled against it. Dunaway said she is not concerned about the Walz ruling because theThird Circuit’s decision is not binding in Ohio, which is in the Sixth Circuit.She also noted that the Rutherford Institute, which represented the student inthe Walz lawsuit, has petitioned the U.S. Supreme Court to review theruling. She said the ruling was a dramatic departure from the Supreme Court’searlier ruling in similar cases because it effectively eliminated FirstAmendment rights for elementary school students.

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