N.J. school sued after barring student from handing out religious gifts

Thursday, May 18, 2000

A New Jersey public school district has been accused by a national religious-liberty group of violating the fundamental rights of a kindergartner by barring him from giving pencils with Christian messages to his peers.

The Rutherford Institute, a religious-liberty advocacy group, filed a federal lawsuit earlier this month against the Egg Harbor Township School District, claiming officials unconstitutionally barred Daniel Walz, then in kindergarten, from handing out pencils and candy canes bearing Christian messages to his classmates during holiday parties.

In April 1998, Daniel gave his peers pencils inscribed with the statement, “Jesus loves the little children,” during a class party. According to the Rutherford Institute’s eight-page complaint, Daniel’s teacher took the pencils from the students. When Daniel’s mother complained to school officials, she was told that the pencil messages could offend students who did not belong to an organized religion.

Shortly after the incident, the Egg Harbor school board adopted a policy that, according to the district’s superintendent, would allow students to disseminate religious materials during noninstructional time.

In December 1998, Daniel’s mother asked school officials if her son could pass out candy canes with cards attached to them that included an evangelical story, “The Candy Maker’s Witness.” The story states that the candy cane comprises “several symbols for the birth, ministry and death of Jesus Christ.”

The candy maker “began with a stick of pure white, hard candy,” the story goes. “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 the firmness of the promises of God. Unfortunately, the candy became known as a Candy Cane — 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.”

Joseph Betley, the school board’s attorney, told Dana, Daniel’s mother, that the student could distribute the candy and cards to classmates only during lunch or recess and that the school considered class parties to be instructional time.

In letters to school officials, the Rutherford Institute argued that the district’s policy and treatment of Daniel was “discriminatory conduct” that violated his religious liberties. The group asked the court to “issue a permanent injunction restraining Defendants from enforcing policy which prohibits children from handing out gifts at parties which contain religious content and that they be required to end all discrimination against Plaintiffs based on the religious content of gifts he seeks to give his fellow classmates.”

“Students should not be treated differently solely because of the content of their messages,” said Steven Aden, chief litigator for the Rutherford Institute. “If others are permitted to hand out secular holiday cards, then Daniel should be allowed to hand out religious cards during the same time and place.”

Calls to Betley for comment regarding the lawsuit were not returned.

A guide to religious expression in public schools, which has been sent out by the U.S. Department of Education and endorsed by an array of First Amendment groups, including The Freedom Forum’s First Amendment Center, states that public school teachers should not discourage student activity “because of its religious content.”

The guide also notes that public schools may impose “reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally, but they may not single out religious literature for special regulation.”