Group asks appeals court to review decision in Bible-reading case

Friday, October 9, 1998

Refusing to accept that a public school teacher could constitutionally bar a first-grader from reading a Bible story to his classmates, a national religious-liberties group today asked a federal appeals court panel to review its decision.

Last December, U.S. District Judge Joseph Rodriguez ruled that the free-speech and religion rights of Zachary Hood were not violated by his teacher and other school officials when he was a first-grader at a Medford, N.J., elementary school. Attorneys for Hood filed suit in 1996 claiming that on two occasions school officials had been hostile to his religion.

A three judge-panel of the 3rd U.S. Circuit Court of Appeals, in a three-paragraph opinion, last month upheld Rodriguez's decision. Today the Becket Fund for Religious Liberty, based in D.C., filed a petition of review asking the panel or the full 3rd Circuit to reconsider the ruling.

Eric Treene, the Becket Fund's litigation director, said that Rodriguez and the 3rd Circuit had misapplied federal court procedure and precedent in ruling in favor of the teacher, the Medford Township Board of Education and other state education officials.

“The teacher invited the students to pick out their favorite story and bring it to class to read out loud,” Treene said. “By the teacher opening a forum for favorite stories to be read, we think Zachary should have been permitted to read his story to the class. Instead the teacher took it upon herself to say the story was religious and inappropriate – that is a dangerous morass of entanglement between government and religion.

“It is far better for the teacher to let an open assignment be truly open to all views,” Treene said.

The legal fracas over the brief biblical story, which Treene says contained no prevailing or even noticeable religious themes, began in 1994.

While Zachary was in kindergarten, his class was given an assignment to make posters depicting things for which they were thankful. Zachary's poster professed his thanks for Jesus. All the posters were displayed in a school hallway. Zachary's poster, however, was removed from the display by a school official and was returned to the display only after his kindergarten teacher demanded it be replaced. The poster was returned, albeit in a less prominent location.

Then in 1996, Hood's first-grade teacher, Grace Oliva, told her students that as a reward for reaching a certain proficiency in reading, they could read a story of their own choosing to the entire class. Hood chose to read the story “A Big Family,” an adaptation of a passage from the Old Testament, from The Beginner's Bible. The story did not mention God. Oliva, however, refused to let Hood read the story to his classmates. Instead she had him read it privately to her. Hood was the only student barred from reading his selection to the class.

Rodriguez found that both school actions were justified by legitimate educational concerns. First, Rodriguez said that public schools were not traditional public forums and that students' First Amendment rights were not “automatically coextensive with the rights of adults in other settings.”

Zachary “had no constitutional right to have the poster of Jesus displayed in any particular location; therefore, relocating the poster to a less conspicuous position on the wall was not a restriction on his speech,” Rodriguez wrote in C.H. v. Oliva.

As to the reading of the Bible story, Rodriguez ruled that Oliva acted under “legitimate pedagogical concerns.” The judge ruled that had the teacher allowed Zachary “to read the 'Beginner's Bible' to the rest of his first grade classmates, the possibility exists that they could have construed the presentation to be an endorsement of the Bible by the teacher,” therefore violating the separation of church and state.

Rodriguez also said it made no difference that Zachary's story did not have an overt religious theme. Instead, the judge said “the speech was the book itself.”

Finally, Rodriguez turned away the argument that the actions of the school officials were hostile toward religion in violation of the establishment clause of the First Amendment.

“As mentioned, [Zachary] had no constitutional right to have his religious poster displayed prominently in his public school, therefore merely relocating it had no impact on his, or anyone else's religion,” Rodriguez wrote. “Neither did prohibiting [Zachary] from reading the 'Beginner's Bible' to his class violate the Establishment Clause.”

According to Rodriguez, Oliva had “properly exercised her editorial control over the students' reading selections to ensure the material was appropriate for their educational level.”

The 3rd Circuit upheld Rodriguez's decision, stating that it must give “substantial deference” to the public school's decisions regarding what subjects are appropriate for elementary school classroom discussion.

Treene and the Becket Fund, however, argue in their petition for review that Oliva did create and violate a forum open to student views and that the school's actions did violate separation of church and state.

“There are two establishment-clause problems,” Treene said. “First, the teacher sent a message to Zachary that his religious choice made him a second-class citizen. All the other kids could read their favorite stories, but because he chose an Old Testament story, he could not participate on an equal basis with the other students.

“Secondly, this is a classic case of government entanglement with religion,” he said. “For the teacher to take it upon herself to decide what is religious and what is not is a dangerous game for the government to get involved in. It is far better to leave those questions to the individual.”

Treene said the actions of the Medford school officials ran afoul of the guidelines for religious expression in public schools put together by President Clinton and the U.S. Department of Education. Those guidelines were established in 1995 after consulting an array of religious-liberty lawyers and civil rights groups.

U.S. Secretary of Education Richard Riley said the guidelines reflect “obligations imposed on school officials by the First Amendment,” and that all the nation's public school districts should be cognizant of them.

“Schools may not forbid students acting on their own from expressing their personal religious views or beliefs solely because they are of a religious nature,” Riley said.

The guidelines also state that students “may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns.”

The Medford school officials, however, argue that their actions were backed by legitimate educational concerns, which were to refrain from appearing to endorse religion.

“If there is content that is inappropriate for public school, the teacher's judgment should control,” said John Dyer, an attorney for the Medford board of education. “The best thing is to remain secular.”

If the 3rd Circuit panel declines to reconsider its ruling, then it will be up to the full appeals court to decide whether to review the case.

— The Associated Press contributed to this story.