Legal Clips, [October 2005]
The U.S. Court of Appeals for the Second Circuit has ruled that a student has a free speech claim when school officials censored his environmental poster based on its religious content. However, the court rejected the student's Establishment Clause claim. Students in Susan Weichert's kindergarten class at Catherine McNamara Elementary School in Baldwinsville, New York were instructed to create posters showing what they learned about the environment in class. Ms. Weichert 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 would be given the opportunity to present his or her poster to the class, and the posters would be displayed in the school's cafeteria during a school-wide environmental assembly. Antonio Peck's poster contained unmistakable religious content, i.e., a depiction of a robed figure that appeared to be Jesus along with several religious phrases. Ms. Weichert took the poster to Principal Robert Creme who told her to instruct Antonio to create another poster. Ms. Weichert informed Antonio's mother that the poster could not be displayed and he would have to create a second one. Ms. Weichert gave two reasons: (1) the poster contained religious content; and (2) it did not reflect what Antonio had learned during the section on the environment. Antonio's second poster still contained the robed figure, but it also contained a depiction of people picking up trash and recycling next to a church. Principal Creme instructed Ms. Weichert to hang the second poster at the assembly but to fold under the portion depicting the robed figure. However, Antonio was allowed to present the poster to class without any alterations. During the presentation he made no references to religion or God. Antonio's parents filed suit on his behalf in federal district court. They claimed that the school officials' censorship of Antonio's poster violated his free speech rights and the Establishment Clause. The district court granted the Baldwinsville Central School District's (BCSD) motion for summary judgment on both claims.

The Second Circuit vacated the district court's decision on the free speech claim and remanded the case to the lower court. However, it affirmed the lower court's ruling on the Establishment Clause claim. Addressing the free speech claim first, the appellate court rejected the 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. Instead, the court found that the poster, which was created 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 court 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 placement of that image was not Antonio's work but rather his mother's. However, it found that the parents' had raised a factual issue regarding whether officials had engaged in viewpoint discrimination based on the poster's religious content. It found 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. The Second Circuit concluded that if the factual dispute was resolved in favor of the 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. It rejected BCSD's contention that Hazelwood permits school officials to engage in viewpoint discrimination when such discrimination is reasonably related to "legitimate pedagogical concerns." The court pointed out that Hazelwood neither addressed nor "even mentioned, explicitly, the question of viewpoint neutrality." As a result, without clear direction from the U.S. Supreme Court it 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." Turning to the Establishment Clause claim, the Second Circuit applied the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and determined that BCSD's actions did not violate the Establishment Clause. It concluded that school officials had acted with a secular purpose because their concern that Antonio's poster was not responsive to the assignment was wholly secular. The court also found that the partial censorship of the poster that allowed the church to be viewed while only covering the robed figure demonstrated that there was no intent to inhibit religion. Lastly, the court concluded that whatever entanglement with religion that occurred as a result of the alleged viewpoint discrimination was de minimis.

Peck v. Baldwinsville Central School District, No. 04-4950 (2d Cir. Oct. 18, 2005)
[Full opinion]