Michael Gaynor
April 25, 2006
Justice Alito: good for religious liberty
By Michael Gaynor

Warning: Justice Samuel A. Alito, Jr. Has Replaced Justice Sandra D. O'Connor and Public Schools May Not Censor Religious Viewpoints Of Students In Class Assignments.

Hurray!

Justice Alito's well deserved nomination and bitterly contested confirmation have borne fruit for those who respect the rule of law and the religious liberty that the First Amendment was adopted to protect.

As a federal appellate judge on the United States Court of Appeals for the Third Circuit, then Judge Alito took the position that schools may not censor religious viewpoints of students when they address permissible subjects in response to class assignments or instructions.

There is no reason to believe his position has changed.

On October 18, 2005, in Peck v. Baldwinsville Central School District, the United States Court of Appeals for the Second Circuit ruled that a student has a free speech claim if school officials censor the student's work based on its religious content, but rejected the student's Establishment Clause claim under current United States Supreme Court precedent.

On April 24, 2006, the United States Supreme Court allowed the Second Circuit ruling to stand.

The federal appellate courts had been divided as to whether public schools are permitted to censor the religious viewpoints of students in class assignments. The Second, Third and Ninth Circuits had answered no, while the First and Tenth Circuits had held that viewpoint discrimination in the curricular context may be permissible.

The First and Tenth Circuits now have good reason to reconsider: Justice Alito has succeeded former Justice O'Connor and is not inclined to make atheism or agnostism America's religion, either officially or unofficially.

The Peck case is a triumph for religious liberty and may be a harbinger of a return to the constitutional path from which the United States Supreme Court arrogantly and erroneously departed in 1947, when it embraced secularism and ruled that government must be neutral as between religion and irreligion and may not support religion generally,

Kindergarten students at Catherine McNamara Elementary School in

Baldwinsville, New York were instructed to create posters showing what they learned about the environment in class.

Their teacher sent detailed instructions home informing parents that the content of the posters should reflect what the students had learned about the environment in class.

Each student was to be given the opportunity to present his or her poster to the class, and the posters were to be displayed in the school's cafeteria during a school-wide environmental assembly.

Antonio Peck's poster depicted a robed figure that appeared to be Jesus along with several religious phrases.

His teacher took his poster to the school principal, who told her to instruct Antonio to create another poster.

The teacher notified Antonio's mother that the poster could not be displayed and Antonio would have to create a second one, bercause the poster contained religious content and did not reflect what Antonio had learned in class on the environment.

Antonio's second poster depicted the Jesus figure as well as people picking up trash and recycling next to a church.

Antonio was allowed to present the entire poster to his class, but he principal instructed the teacher to fold under the portion depicting the Jesus figure when hanging it for the assembly.

School officials contended that Antonio's poster violated "church and state" and would give the impression that the school was teaching religion, even though the poster was clearly a kindergartner's artwork, unless folded.

Folding the poster made it look odd. Antonio's name at the bottom was cut in half and when Antonio saw his poster folded and school officials told him and his parents why it was folded, he allegedly felt ashamed in front of his classmates and his parents and assumed he did something wrong and was being punished.

School officials refused to remedy the matter, apologize or adopt a policy to prevent future censorship, so, with the assistance of Liberty Counsel, Antonio's parents filed suit in the local federal district court, claiming that the school officials' censorship of Antonio's poster violated both Antonio's free speech rights and the Establishment Clause.

The district court granted the motion of the Baldwinsville Central School District (BCSD) motion for summary judgment on both claims.

The Second Circuit vacated the district court's ruling on the free speech claim and remained that claim to the district court for further proceedings and affirmed the district court's ruling on the Establishment Clause claim.

The Second Circuit rejected Antonio's parents' argument that the poster constituted personal speech that should be regulated pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which allows regulation of speech only if it materially and substantially interferes with school operations or infringes on the rights of others.

But, the Second Circuit found that the poster, having been made in response to a class assignment, constituted school-sponsored speech that can be restricted under the principle enunciated in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), that allows restrictions that are "reasonably related to legitimate pedagogical concerns."

The Second Circuit agreed with BCSD that there was sufficient evidence to support censoring the poster based on its "legitimate pedagogical concerns" that the portion of the poster depicting the robed figure was not responsive to the assignment and that the Jesus figure was the work of Antonio's mother, not Antonio.

Notwithstanding that, the Second Circuit determined that Antonio's parents' had raised a factual issue regarding whether officials had engaged in viewpoint discrimination based on the poster's religious content, finding that some of the evidence construed in a light most favorable to the parents suggested that officials censored Antonio's poster solely because it offered a religious perspective on the topic of how to save the environment and concluding that if the factual dispute was resolved in favor of Antonio's parents, a jury could find that BCSD officials had engaged in impermissible viewpoint discrimination based on religion in violation of Antonio's free speech rights.

The Second Circuit rejected BCSD's contention that Hazelwood permits school officials to engage in viewpoint discrimination when such discrimination is reasonably related to "legitimate pedagogical concerns." It noted that Hazelwood neither addressed nor "even mentioned, explicitly, the question of viewpoint neutrality" and, in the absence of clear United States Supreme Court direction, declined to depart from well established law that a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to "legitimate pedagogical interests."

With respect to the Establishment Clause claim, the Second Circuit applied the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971). It determined that BCSD's actions did not violate the Establishment Clause, because the school officials had acted with a secular purpose (concern that Antonio's poster was not responsive to the assignment); the partial censorship of the poster that allowed the church to be viewed while only covering the Jesus figure demonstrated that there was no intent to inhibit religion; and whatever entanglement with religion that occurred as a result of the alleged viewpoint discrimination was de minimis.

Mathew D. Staver, President and General Counsel for Liberty Counsel, rightfully declared victory for religious speech in general and Antonio in particular: "We are pleased the Supreme Court allowed this decision to stand. The school district sent a terrible message to Antonio that his faith is not welcome, when officials persisted in censoring his artwork. At the pinnacle of the Bill of Rights is the First Amendment, which enshrines our first liberty. It's about time that school officials learn a simple lesson — private religious speech when expressed on public property is constitutionally protected. Antonio, who began this case while in kindergarten, is an example of the maxim that one person, no matter the age, can accomplish great things when they stand for a principled cause."

Congratulations to Mr. Staver, Liberty Counsel, the Peck family and most of the United States Supreme Court Justices!

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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