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The decision of public school officials in Baldwinsville, N.Y., near Syracuse, to obscure an image of Jesus before displaying a child’s poster has triggered a legal battle that landed in the 2nd U.S. Circuit Court of Appeals. The dispute over displaying kindergartner Antonio Peck’s poster was not an easy one to unravel for the circuit, as the case forced the court, in the words of Judge Guido Calabresi, to “cut a path through the thorniest of constitutional thickets — among the tangled vines of public school curricula and student freedom of expression.” While the court was able to produce one holding — “that a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests,” it still had to remand the case of Peck v. Baldwinsville Central School District, 04-4950-cv, for further proceedings before Northern District of New York Judge Norman A. Mordue. The conflict began when teacher Susan Weichert asked students to create a poster showing what they had learned about simple ways to save the environment. The posters were to be first presented to the class and explained by the students and then later displayed at an assembly to which parents were invited. Antonio Peck produced, with the aid of his mother, a poster that showed Jesus kneeling and raising his hands to the sky, two children on a rock bearing the word “Savior” and the Ten Commandments, and several phrases, including “the only way to save our world” and “prayer changes things.” Weichert took the poster to school principal Robert Cr�me, who told the teacher that Antonio should be instructed to produce another poster. The boy’s mother was later told by the teacher that his poster, in its original form, would not be shown at the school assembly. The mother and son then sat down and made a second poster that once again showed Jesus, but this time kneeling next to a church with a cross. The phrases had been eliminated and, to the right of the church, there were pictures of people recycling trash, children holding hands encircling the globe and clouds, trees, a squirrel and grass. Cr�me reviewed the second poster and instructed Weichert that the poster could be displayed at the assembly with the kneeling figure of Jesus folded under. But when it came time for the assembly, a parent volunteer made a mistake and obscured more of the poster than Weichert intended. At depositions, Weichert and Cr�me offered several explanations for their actions. Cr�me said he rejected the first poster because it had no relevance to the assignment, he was certain the poster was not Antonio’s work, and, because Antonio could not read, Weichert would have to read the poster for him. He said he had similar concerns about the second poster. Both Cr�me and Weichert were asked a series of hypothetical questions, including how they would react to a poster that showed topics not discussed in the environmental class, but were non-religious, or a poster that was religious where the student would be able to explain its relevance to the environment. Weichert responded that, even if Antonio explained the relevance of God or religion to the environmental theme, she still would not have accepted the first poster or displayed the obscured portion of the second poster because she never discussed religion with the students during the class. Weichert also expressed concern that, if she allowed the poster to be shown at the assembly, parents might believe she was teaching religion. The Pecks claimed the school had censored their son based on religious content, violating both the Establishment Clause and Antonio’s right to free speech. Mordue dismissed both claims, finding the censorship was viewpoint neutral, was justified by legitimate pedagogical concerns, and that the actions of school officials were not state-inhibition of religion. The 2nd Circuit agreed on the Establishment Clause claim. But on the First Amendment claim, Calabresi said the facts on the record brought Antonio’s poster within the framework outlined by the U.S. Supreme Court in Hazelwood School District v. Kulhmeier, 484 U.S. 260 (1984), where the Court said that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” OVERLOOKED CONCERNS Calabresi said the circuit might have affirmed the district court if the only factual dispute raised by the Pecks concerned school officials’ belief that Mrs. Peck and not Antonio was responsible for producing the poster. But Calabresi said there were other concerns, including that the lower court may have “overlooked evidence that, if construed in a light most favorable to the Pecks, suggested that Antonio’s poster was censored not because it was unresponsive to the assignment, and not because Weichert and Cr�me believed that JoAnn Peck rather than Antonio was responsible for the poster’s content, but because it offered a religious perspective on the topic of how to save the environment.” So there are “at least disputed factual questions, which may not be resolved on summary judgment,” he said, on whether Weichert and Cr�me were particularly disposed to censor a poster with religious content and “would not necessarily have similarly censored secular images that were equally non-responsive.” “Were these facts ultimately proved, the District’s actions might well amount to viewpoint discrimination,” Calabresi said. On remand for further proceedings on the motivation of school officials, he said, the circuit was not foreclosing the possibility that the record might show a state interest “so overriding as to justify, under the First Amendment, the District’s potentially viewpoint discriminatory censorship,” such as the interest in avoiding the perception of religious endorsement. “We think it prudent to leave it to the district court, in the first instance, to ascertain whether The District’s actions were necessary to avoid an Establishment Clause violation, and if so, whether avoidance of that violation was a sufficiently compelling state interest as to justify viewpoint discrimination by The District,” Calabresi said, Judges Robert Katzmann and Barrington D. Parker joined in the opinion. Rena M. Lindevaldsen, Matthew D. Staver, Erik W. Stanley, Anita L. Staver and Mary E. McAlister of Liberty Counsel in Longwood, Fla., and Brian Raum of The Gucciardo Law Firm in New York City represented the plaintiffs. Louis Orbach and Lillian Abbott of Bond, Schoeneck & King in Syracuse represented the school district.

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