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Do kindergarten or first-grade students have a First Amendment right to express their religious beliefs during a school-sponsored party by distributing gifts to fellow students that bear a religious message? The 3rd U.S. Circuit Court of Appeals has ruled that the answer is no if the school party was a “highly structured” event that had an educational component. “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,” Chief U.S. Circuit Judge Anthony J. Scirica wrote in Walz v. Egg Harbor Township Board of Education. The decision by a unanimous three-judge panel affirms the dismissal of a suit brought by a boy who was prohibited from distributing pencils emblazoned with the message “Jesus [Loves] the Little Children” (using a heart symbol to substitute for the word “love”). When Daniel Walz was in first grade, he was also barred from distributing candy canes with a message attached that said the seasonal treat was designed to include “several symbols for the birth, ministry, and death of Jesus Christ,” by bearing the shape of the letter J and a red-and-white color scheme signifying Christ’s purity and blood. Walz and his mother filed suit to challenge the school’s actions, arguing that even very young students have a First Amendment right to engage in religious speech with their peers. But Scirica found that “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.” In the lower court and again in the 3rd Circuit, the judges questioned whether Daniel himself was asserting his First Amendment rights or instead if the case was really about his mother’s wishes. In dismissing the suit, U.S. District Judge Jerome B. Simandle said he had “little doubt that plaintiff’s mother, Dana Walz, is the driving force behind the distribution of these items and this lawsuit.” Simandle said he found it “highly unlikely” that Daniel, at age 4, was “able to independently read and advocate the dissemination of the message on the pencils.” He also found that Dana 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.” But in the end, Simandle dodged the question, saying he would simply “assume that plaintiff, now 9, was attempting to freely speak and exercise his religious beliefs when distributing these items to his young classmates.” Likewise, Scirica found that the issue of whether Daniel’s conduct merits First Amendment protection “depends on whether it represented Daniel’s own expression and whether he suffered an injury of constitutional dimension.” Scirica, too, found that “Dana Walz appears to have driven her son’s activity and this litigation” and said, “we doubt whether the distribution of the pencils constituted Daniel’s own expression.” But Scirica, like Simandle, dodged the question, noting that “other courts have recognized that a student of similar age can understand and interpret basic principles of religious expression” and that “since we find the school’s action in preventing the distribution of the pencils was justified, this question is not dispositive here.” Turning to the merits of the case, Scirica found that in First Amendment suits brought by elementary school students, “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.” Context is also critical, Scirica found, so that courts are more likely to uphold restrictions on speech in the classroom or during school-sponsored activities and are less likely to do so where the student’s expression occurs during free time, such as recess or in hallways. “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 based goals,” Scirica wrote. Although high school students are mature enough and are likely to understand that a school does not endorse or support speech that it merely permits, Scirica found that “kindergartners and first graders are different” and that school officials sometimes restrict certain student speech “to avoid the appearance of endorsing.” Scirica found that Daniel’s religious gifts were properly prohibited because he had attempted to distribute them “during classroom activities that had a clearly defined curricular purpose to teach social skills and respect for others in a festive setting.” Although the events were seasonal parties, Scirica noted, Simandle had found “abundant evidence” that the parties were “meant to have an educational component, and also that they were highly structured, supervised, and regulated.” Because of the “tender age” of the students, Scirica said, the school prohibited the exchange of gifts with “commercial, political, religious, or other undertones that promoted a specific message.” Daniel “skirted the structure of this organized activity,” Scirica wrote, “by bringing gifts that promoted a specific religious message.” The exchange of gifts at the parties “was intended as a teaching tool to promote sharing,” Scirica noted, and “the gift-giving from one student to another was not intended to promote a particular religious message.” The Walzes’ lawyer, Michael P. Laffey of Cassiday Messina & Laffey in Holmdel, N.J., argued in his brief that “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.’” Scirica disagreed, saying, “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.”

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