Walz ex rel. Walz v. Egg Harbor Tp. Bd. of Educ.

• Decision Date: 28 August 2003
• Docket Number: No. 02-1665.,02-1665.
• Parties: Daniel WALZ, by his Guardian Ad Litem Dana P. WALZ v. EGG HARBOR TOWNSHIP BOARD OF EDUCATION; Dr. Leonard Kelpsh, in his Official Capacity as Superintendent of Egg Harbor Township Schools Daniel Walz, by his Guardian Ad Litem Dana P. Walz, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

342 F.3d 271

Daniel WALZ, by his Guardian Ad Litem Dana P. WALZ v. EGG HARBOR TOWNSHIP BOARD OF EDUCATION; Dr. Leonard Kelpsh, in his Official Capacity as Superintendent of Egg Harbor Township Schools Daniel Walz, by his Guardian Ad Litem Dana P. Walz, Appellant.

No. 02-1665.

United States Court of Appeals, Third Circuit.

Argued January 9, 2003.

Filed August 28, 2003.

Michael P. Laffey, (Argued), Cassidy, Messina & Laffey, Holmdel, N.J., for Appellant.

Armando V. Riccio, (Argued), Capehart & Scatchard, Mount Laurel, N.J., for Appellees.

Kevin J. Hasson, The Becket Fund for Religious Liberty, Washington, D.C., for Amicus Curiae Appellant, Carol Hood.

Before SCIRICA, Chief Judge,^* BARRY and SMITH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Chief Judge.

In this appeal, we address whether an elementary school student has a First Amendment right to promote an unsolicited religious message during an organized classroom activity.

I.

Daniel Walz was a student in pre-kindergarten in the spring of 1998. His school, like other elementary schools in Egg Harbor Township, held seasonal, in-class parties several times a year. Organized by teachers and students' parents, the parties generally consisted of a parent-provided snack followed by games and activities. Significant for our purposes, there was usually an exchange of small gifts.

Just prior to Easter, Daniel's class held a seasonal party. The children's parents were encouraged to donate gifts to the local Parent Teacher Organization, which brought the gifts to the holiday party. Explaining why the PTO undertook this role, Dr. Leonard Kelpsh, the Egg Harbor Township school superintendent, said:

[S]ocially, economically, [our student body is] very diverse, and we just don't like to take the risk that, one, kids would see other kids doing it and feel they have to do it, and they can't afford to do it; and two, you know, sometimes kids don't get everyone in the class something.

According to Dana Walz, Daniel's mother and one of the parents in charge of collecting gifts for the PTO, the PTO generally would mail out requests for "candy, pencils, whatever" from parents. Parents and children generally would respond to those requests with generic donations.

At this particular party, Daniel brought his gifts directly to class where he distributed pencils to his classmates with the imprint, "Jesus [Loves] The Little Children" (heart symbol). Mrs. Walz had purchased the pencils at a local store because she though the pencils were "pretty ... and [Daniel] liked them.... We both thought that [the pencils] would be his little gift at Easter, at the Easter party or the spring party."

Daniel's teacher noticed the pencils' imprint and confiscated them. She brought this matter to the attention of the school principal, who contacted Dr. Kelpsh. School superintendent Kelpsh determined the pencils could not be distributed because the young children and their parents might perceive the message as being endorsed by the school.

On October 13, 1998, six months after the party, the Egg Harbor Board of Education adopted a written policy on the recognition of religion in its schools. It 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." Religion may be acknowledged in the course of school activities "if presented in an objective manner and as a traditional part of the culture and religious heritage of the particular holiday."

The school also maintained an unwritten policy on student expression. According to Dr. Kelpsh, items with political, commercial, or religious references were not allowed to be distributed in class during school hours. A school's job, said Dr. Kelpsh, was "to develop curriculum," not "endorse" a particular viewpoint. Under the school's policy, according to Dr. Kelpsh, a student would not be allowed to distribute pencils that stated "Home Depot" or "Support the [New Jersey Education Association]."

In December 1998, Daniel's kindergarten class held a seasonal holiday party, where Daniel sought to distribute candy canes to his classmates. Attached to the candy canes was a religious story, entitled "A Candy Maker's Witness." The story read:

A Candymaker in Indiana wanted to make a candy that would be a witness so he made the Christmas Candy cane. He incorporated several symbols for the birth, ministry, and death of Jesus Christ.

He began with a stick of pure white, hard candy. White to symbolize the Virgin Birth and the sinless nature of Jesus, and hard to symbolize the Solid Rock, the foundation of the Church, and firmness of the promises of God.

The candymaker made the candy in the form of a "J" to represent the precious name of Jesus, who came to earth as our Savior. It could also represent the staff of the "Good Shepherd" with which He reaches down into the ditches of the world to lift out the fallen lambs who, like all sheep, have gone astray.

Thinking that the candy was somewhat plain, the candymaker stained it with red stripes. He used three small stripes to show the stripes of the scouring [sic] Jesus received by which we are healed. The large red stripe was for the blood shed by Christ on the cross so that we could have the promise of eternal life.

Unfortunately, the candy became known as a Candy Cane [sic] a meaningless decoration seen at Christmas time. But the meaning is still there for those who "have eyes to see and ears to hear." I pray that this symbol will again be used to witness to The Wonder of Jesus and His Great Love that came down at Christmas and remains the ultimate and dominant force in the universe today.

According to Mrs. Walz, she made the decision to attach the story to the candy canes because of its religious significance. She contacted Daniel's school before the holiday party and was informed that Daniel could distribute the candy canes and the attached story to his classmates, but only before school, during recess, or after school, not during the classroom party itself. Daniel planned to give the candy canes to his classmates as they left school for the day, but a rainstorm caused him to distribute them in the hallway outside of the classroom.

A year later, in December 1999, a memorandum from two teacher coordinators was distributed to parent room representatives, including Mrs. Walz, providing guidelines on the "dos and don'ts" for the upcoming holiday party. Parents were requested to provide food and refreshments and prepare activities and games. The memorandum instructed that the party be "as generic as possible." To that end, parent representatives were advised to "choose projects that express the season, such as snowmen versus Santa."

Later that month, Daniel, now a first-grade student, attempted to distribute the candy canes and "Candy Maker's Witness" story during the classroom party, but was prohibited by school officials. The officials permitted him to distribute the candy canes in the hallway outside the classroom, at recess, or after school as students were boarding buses. Mrs. Walz acknowledged the items distributed at the party by others were, in fact, generic in nature.

Daniel Walz, through his mother, sued the Egg Harbor Township Board of Education and Dr. Kelpsh in his official capacity as school superintendent under 42 U.S.C. § 1983, alleging violations of the First Amendment (freedom of expression and free exercise of religion) and equal protection under the Fourteenth Amendment, and under the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1 to -49. The complaint alleged a continuing violation based on Daniel's attempts to distribute candy canes and the accompanying story at school holiday parties. In his complaint, Daniel sought a declaration that the school's policy was unconstitutional and an injunction prohibiting defendants from enforcing the policy. Both parties asked for summary judgment. The District Court granted summary judgment in favor of defendants and Daniel Walz filed a timely appeal.¹

II.

Daniel Walz alleges the school violated his constitutional rights by prohibiting him from distributing the pencils and the candy canes during the classroom holiday parties. At the threshold is an inquiry whether his attempted conduct constituted expressive activity under the First Amendment.

The District Court concluded:

The facts leave little doubt that plaintiff's mother, Dana Walz, is the driving force behind the distribution of these items and this lawsuit. It is highly unlikely that plaintiff, who was only 4 1/2 at the time he attempted to distribute the pencils, was able to independently read and advocate the dissemination of the message on the pencils. Additionally, Mrs. 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. The Court will, however, for the purposes of these summary judgment motions, assume that plaintiff, now nine, was attempting to freely speak and exercise his religious beliefs when distributing these items to his young classmates.

Walz by Walz v. Egg Harbor Twp. Bd. of Educ., 187 F.Supp.2d 232, 234 n. 1 (D.N.J. 2002).

Whether Daniel's attempted conduct merits First Amendment protection depends on whether it represented Daniel's own expression and whether he suffered an injury of constitutional dimension.

As the District Court noted, Daniel was in pre-kindergarten when he brought the "Jesus [Loves] The Little Children" pencils to the holiday party. Furthermore, Dana Walz appears to have driven her son's activity and this litigation. Although we doubt whether the distribution of the pencils constituted Daniel's own expression, other courts have recognized that a student of similar age can understand and interpret basic principles of religious expression. See, e.g., Wallace...