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No Free Speech Violation Found in School's Hiding of Child's Jesus Image
New York Law Journal
October 06, 2008
A public school's decision to fold over a portion of a kindergartner's poster to hide an image of Jesus did not violate the youngster's right to free speech, a federal judge has determined.
Antonio Peck's teacher and school principal had "legitimate pedagogical concerns" when deciding to edit the boy's poster for a school display promoting environmental awareness, Northern District of New York Judge Norman A. Mordue ruled in Peck v. Baldwinsville Central School District, 99-cv-1847.
Those valid concerns of Antonio's teacher, Susan Weichert, and the principal, Robert Creme, were that parents at the Catherine McNamara Elementary School in Baldwinsville, outside Syracuse, N.Y., would think Weichert was teaching religion if they saw the image of Jesus on Antonio's poster about ways to protect the environment, according to Mordue.
"Since the intent of the poster assignment was to prompt the student to demonstrate what he had learned from the environmental lesson, it was reasonable for the educators in this case to be concerned that a parent viewing Antonio's poster might think he had learned about Jesus in class," Mordue wrote.
The ruling was the third the judge has made in Peck. Each time Mordue decided in favor of the school district and its employees.
In February 2000, he granted summary judgment to the defendants on all of the claims brought on Antonio's behalf by his mother Jo Anne Peck. They alleged violations of the boy's First Amendment right to freedom of speech and religion and of the equal protection and establishment clauses of the U.S. Constitution.
Following remand for discovery by the 2nd U.S. Circuit Court of Appeals, Mordue again dismissed the action in its entirety in August 2004.
The 2nd Circuit then remanded the case a second time to the judge.
A circuit panel agreed with the judge's finding that the actions of school officials did not represent state inhibition of religion and violate the establishment clause.
But the appeals court held there were disputed factual questions surrounding the plaintiff's First Amendment claim, namely whether the school would have censored Antonio's poster had he used a nonreligious image and if the actions by the school officials and Baldwinsville Central School District amounted to viewpoint discrimination.
Following the framework outlined by the U.S. Supreme Court in Hazelwood School District v. Kulhmeier, 484 U.S. 260 (1984), Mordue last week again dismissed the claim of a free speech violation in his third review of the case.
"Assuming that Antonio's poster conveyed a religious viewpoint on the topic of how to save the environment, the Court concludes that plaintiff failed to prove by a preponderance of the evidence that defendants would have treated another poster with an equally non-responsive secular image, differently," the judge wrote.
OFFICIALS' MOTIVATION
He recounted testimony from Weichert and Creme in which both were asked how they would have handled the poster had another image been in Jesus' place, such as Smokey the Bear or a manatee.
Weichert was consistent in testifying that she would have quizzed students about the relationship of the symbols to the point of the poster project, which was for students to show that they had absorbed her lessons about respecting the environment, according to Mordue.
Antonio, when he was asked in front of the class by Weichert about his poster, did not discuss the connection between Jesus and a clean environment, Mordue noted.
"Thus, neither Mrs. Weichert's nor Principal Creme's responses to these questions reveal unconstitutional motivation since, unlike the hypotheticals which assumed the student explained how the image related to the environment, Antonio gave no explanation, even when prompted," the judge held.
The Pecks' attorney, Mathew D. Staver, said he expects to appeal Mordue's latest ruling.
"This will be the third trip to the Court of Appeals," Staver said in an interview. "We've had two unanimous reversals on the two previous rulings by that court."
Staver said he believes Antonio's poster was modified by school officials because it contained the image of Jesus and would have been treated differently had the boy chosen a nonreligious symbol, despite the testimony by Weichert and Creme.
"It's clear that she made her decision based on its religious content," Staver said. "They could have had one of the New York Mets on the poster and the teacher, based on the testimony, would have allowed it. But the picture of Jesus, she would not, based on its religious connotation. ... It is indisputable that the religious nature is what gave pause to this."
Staver is founder and chairman of Liberty Counsel, an organization with offices in Florida, Virginia and Washington, D.C., that represents Christians in freedom of religion cases and other litigation. Liberty Counsel is affiliated with Liberty University of Lynchburg, Va., which was founded by evangelist Jerry Falwell.
Jeanne Dangle, superintendent of the Baldwinsville school district, said she had no estimate of how much the litigation has cost the district.
"We were pleased that the district court vindicated the manner in which Antonio's poster was handled by district employees and we hope that the decision puts this long-litigated matter to rest," she said.
Louis Orbach of Bond, Schoeneck & King in Syracuse represented the school district and its employees. Orbach declined to comment.
The poster at issue in the case was the second Antonio presented to school officials as part of the environmental stewardship project.
Made from images clipped out of books and magazines and working with his mother, Antonio's first poster contained an image of Jesus walking with a little boy, a picture of a bearded man carrying two stone tablets labeled "The Ten Commandments" and a picture of a bearded man kneeling with clasped hands and eyes closed in prayer. The pictures also contained words such as "Jesus Loves the Children," "Jesus loves me this I know, for the Bible tells me so" and at the top of the poster, "The only way to save the world!"
Weichert said she was concerned that the first poster did not address at all the lessons about the environment she had been teaching and Creme agreed. Creme asked Peck to have her son do a new poster because, as Peck recalled the principal as saying, the first one had "too much religious stuff in it."
The second poster, which Antonio did by himself, contained a picture of Jesus kneeling next to a church with a cross. There were also pictures of people recycling trash, children holding hands encircling the globe and clouds, trees, a squirrel and grass.
When displayed at school, the portion of the poster depicting Jesus was folded over, though it appears a school aide may have obscured more of the poster than Weichert and Creme agreed was necessary, according to prior rulings.
The Pecks did not raise any claims with respect to the first poster.
