3rd time not charm for suit over Jesus poster

Tuesday, October 7, 2008

For the third time, a federal judge has rejected a lawsuit over a kindergartener’s religious-themed poster, ruling New York school officials didn’t violate the First Amendment by censoring the boy’s work.

The nearly decade-long dispute began in 1999 at Catherine McNamara Elementary School in New York when teacher Susan Weickert assigned her class the project of creating posters relating to something they had learned in class about the environment. The class sought to teach students how to take care of the environment. For the assignment, student Antonio Peck initially created a poster full of religious imagery with the statement, “The only way to save our world.” His poster depicted the Ten Commandments and Jesus and made numerous other religious references.

Weickert thought that the poster didn’t deal with anything she had taught in class and might have created the impression that she was teaching religion in her classroom. She consulted school Principal Robert Creme, who agreed that the poster should not be displayed and that Antonio should redo it.

Antonio made a second poster showing children in front of a church throwing away trash. It included a picture of Jesus kneeling with his hands lifted upward. School officials allowed this poster to be displayed but folded back the part of the poster that showed Jesus.

Peck, through his parents JoAnne and Kenley, sued the school district, the principal and school superintendent in federal court, alleging numerous constitutional violations, including free-speech and establishment-clause claims. The free-speech claim contended that school officials censored Antonio’s posters because of the religious viewpoints they conveyed.

U.S. District Judge Norman Mordue initially granted summary judgment to the school officials in 2000, but the 2nd U.S. Circuit Court of Appeals vacated the judgment in 2001 and sent the case back to the trial court for more fact-finding. In 2004, the trial court again dismissed the lawsuit. On another appeal, the 2nd Circuit upheld the dismissal of the establishment-clause claim but reinstated Peck’s free-speech claim in its 2005 decision in Peck v. Baldwinsville Central School District.

In April 2006, the Supreme Court refused to review the 2nd Circuit’s decision.

In January 2007, Mordue held a one-day bench trial. At this trial, the teacher testified that she thought Antonio’s second poster still did not fulfill the assignment. She also expressed concern that other parents would think she was teaching religion in her classroom.

According to the district court in its Sept. 30, 2008, opinion, a key question was whether the plaintiff could prove that school officials would have treated a purely secular image that was unresponsive to the assignment the same way that they treated the image of Jesus. The district court concluded that “plaintiff failed to prove by a preponderance of the evidence that defendants would have treated another poster with an equally non-responsive secular image differently.”

During the trial, Peck’s counsel had asked the teacher what she would have done if Antonio or another student had created an image of the Sierra Club or Smokey the Bear. The teacher responded that she would have asked the students — as she did of Antonio — to connect the image to what they learned in class. According to the teacher, Antonio failed to explain how the picture of Jesus related to what he learned in class.

The court also addressed the plaintiff’s argument that the concern that the teacher and principal showed over the religious content of the poster was evidence that they discriminated against its religious content. “Unquestionably, the religious nature of the image of Jesus on Antonio’s poster was of concern to both Mrs. Weichert and Principal Creme,” the court wrote. However, the court found that such concern was “not evidence of viewpoint discrimination.”

According to the court, “it was reasonable for the educators in this case to be concerned that a parent viewing Antonio’s poster might think he had learned about Jesus in class.”

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