By Armando V. Riccio, Esq.
The matter of Walz, et al., v. Egg Harbor Township Board of Education, et al., involves three incidents in which the School District limited a very young student’s distribution of pencils and candy canes which bore a religious message. The District permitted the child, Daniel Walz, to distribute the items on school premises outside of the classroom before or after school sponsored and supervised holiday parties.
In the Spring of 1998, Daniel Walz was attending pre-kindergarten in the Egg Harbor Township School District. During an in-class, school-sponsored party, the four and one-half year old child distributed pencils inscribed “Jesus (heart symbol) the Little Children.” The teacher collected the pencils which the Superintendent later determined were inappropriate for distribution at an in-class, school- sponsored party because of the young age of the children and potential confusion regarding school endorsement of the religious message.
After inquiry from Daniel’s mother regarding the school’s policy on the subject, the Board adopted a written policy which provided, in part, that “no religious belief or non-belief shall be promoted in the regular curriculum or in district sponsored courses, programs or activities, and none shall be disparaged.” The policy recognized, however, the educational value of exposure to various cultural and religious societies provided such is “presented in an objective manner as a traditional part of the cultural and religious heritage of the particular holiday.”
A few months after the Board adopted the policy, plaintiff attempted to distribute candy canes with an evangelical story attached to his kindergarten classmates during an in-class school-sponsored holiday party. Mrs. Walz selected, prepared, copied and attached the story to the candy canes. She selected the story because of the religious significance it attributed to the candy cane. Upon contacting the school, she was informed that her son would be permitted to distribute the item before school, during recess or after school, but not in the class room. Similarly, approximately one year later, Ms. Walz contacted the school regarding distribution of the candy canes with the evangelical note by her son to his first grade classmates. Once again, the District limited distribution to areas outside the classroom and outside of instructional time.
During this course of events, the District adhered to its established policies. One oral policy discouraged the direct exchange of gifts among students because of the potential economic strain it could cause certain students and the related distress if personal circumstances precluded participation. Another policy, treated all items alike: the District did not allow distribution of items with corporate names, political messages or unions in any class during school hours. This policy eliminated any confusion regarding the origin or school endorsement of any message conveyed by the item. The District also instructed parents who elected to donate generic gifts to supply such to the parent-teacher organization which would sort through them and distribute them during the in-class functions.
Mrs. Walz filed suit on behalf of her son Daniel claiming that the District’s action violated the child’s Constitutional rights (First Amendment free speech and free exercise rights, Fourteenth Amendment equal protection rights) and the New Jersey Law Against Discrimination.
From the outset, the parties agreed that the pre-kindergarten, kindergarten and first grade classrooms were non-public or closed forums in which school officials may reasonably restrict the speech of students. In such cases, governmental restrictions must only be viewpoint neutral and related to legitimate pedagogical concerns in order to be lawful, as opposed to restrictions which limit speech or the exercise of rights in a public or open forum, a venue in which First Amendment rights receive the strongest legal protection.
Walz argued that since other children distributed generic gifts during the same parties, the District’s action constituted discrimination on the basis of the religious viewpoint expressed by the items. Judge Jerome B. Simandle disagreed. He found the District’s decision to limit distribution to areas outside of the classroom and after class hours extremely reasonable. He also noted that the law’s requirement that such regulation remain viewpoint neutral “does not mean that any regulation that relates to the viewpoint of speech is prohibited, but rather [it] must be based solely upon larger pedagogical concerns rather than a particular point of view.” In other words, the District did not open the forum to student expression about a particular subject and then proscribe plaintiff’s “religious viewpoint” regarding the subject. Instead, generic gifts bearing no message were permitted through donations to the PTO and the in-class parties preserved an atmosphere where no particular view was promoted, religious, commercial or secular.
The Court also found significant two other factors in this case: the age of the children and the educational value of the events. The Judge distinguished this case, which involved pre-kindergarten, kindergarten and first grade children, from those involving the independent expressions of high school students. Further, Judge Simandle disagreed with the plaintiff’s argument that the events “were purely social activities where no pedagogical concerns exist.” Reaching this conclusion, the Judge relied upon the District’s “abundant evidence that the school seasonal parties for these young children were meant to have an educational component, and also that they were highly structured, supervised, and regulated.” As explained by the School District’s Superintendent, Dr. Leonard Kelpsh, and noted by the Court, “the events were intended to promote sharing and caring among students, to develop social skills, and to learn about talking in turn when in a large group.” The Judge concluded that each of the “school seasonal parties for these young children were meant to have an educational component.” As a result, the Court concluded that the limitation on the location and time of plaintiff’s distribution of the items were viewpoint neutral and reasonably related to important pedagogical concerns. Moreover, since the District’s policy prohibited students from contributing gifts bearing any message, religious messages were not singled out and thus, the policy did not violate the Establishment Clause because it did not endorse or prohibit religion.
Walz, et al., v. Egg Harbor Township Board of Education, et al., was decided before the United States Federal District Court for the District of New Jersey, Camden Vicinage.
This legal alert was prepared by Armando V. Riccio, Esq., who was a member of Capehart Scatchard’s Labor and Employment Group. For further information regarding this publication or other matters, please contact Capehart & Scatchard, PA.
