In Public Schools, Get Religion Right Before the Fight

charles-c-haynes Commentary
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Antonio Peck was in kindergarten in 1999 when his family filed suit against the Baldwinsville, N.Y., school district. Antonio is in 10th grade now — and his family is still waiting for the case to be resolved. At this rate, he’ll be a college graduate when the courts finally render a decision.

On Oct. 15, the Peck family’s legal marathon took another turn when a federal appeals court heard oral arguments in Peck v. Baldwinsville School District for an astounding third time in 10 years. In the unfortunate history of lawsuits over religion in schools, the Peck case ranks as one of the most wasteful, divisive and unnecessary of all time.

At the heart of the dispute is a poster created by kindergartener Antonio to fulfill an assignment designed to show what he had learned about protecting the environment. Antonio depicted people picking up trash and recycling, but he also included a figure of a kneeling man that Antonio meant to be Jesus.

When it came time to put the poster on the school wall alongside 80 other student posters, school officials folded Antonio’s picture in half to hide the kneeling man in flowing robes. Why? Because the school was worried about appearing to violate the establishment clause of the First Amendment.

This is the kind of case that gives the First Amendment (and public schools) a bad name.

It’s hard for me to imagine how any reasonable observer could walk by a wall of 80 student posters about the environment, see an unlabeled kneeling figure on one child’s poster, and conclude that the school was somehow promoting or endorsing religion.

But U.S. District Judge Norman Mordue obviously disagrees. He has now ruled three times that the school has the authority to censor the poster. Twice the 2nd U.S. Circuit Court of Appeals reversed his decision and sent the case back — and each time the judge continued to support the school district. Now the appeals court has taken up the case yet again.

What’s wrong with this picture is not Antonio’s poster, but school district officials’ insistence that the First Amendment gives them the right to keep all references to religion out of student assignments.

I’m convinced that Antonio’s family (and common sense) will ultimately prevail. But meanwhile they have had to endure a 10-year court battle that could easily have been avoided years ago with the teacher’s saying, “Thank you, Antonio, for your nice poster.”

School districts must find a way to get this right before the fight. Most legal experts agree with the current U.S. Department of Education guidelines, which state that “students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions.”

In my view, Antonio fulfilled the assignment by creating a poster showing people protecting the environment. He should not have been censored for adding an image reflecting his belief that Jesus also has something to do with saving the environment. Antonio’s poster is not government speech.

Of course, there are other times when student religious expression crosses the line and triggers an establishment-clause violation by a public school. Students don’t have the right, for example, to compel a captive audience to participate in prayer or listen to a proselytizing sermon.

A few weeks ago, I wrote about the cheerleading squad at a Georgia high school that was barred from holding up banners with Bible verses for the football team to burst through when taking the field every Friday night. Although the cheerleaders are students, they represent the school at the games and, in that role, may not proclaim a religious message week after week.

How can public schools avoid divisive fights over art projects and football-game cheers — and save hundreds of thousands of dollars in legal fees? By adopting sound First Amendment policies that clearly distinguish between school-sponsored religious speech, which the establishment clause prohibits, and student religious speech, which, in many circumstances, the free-exercise and free-speech clauses protect.

If school officials need help understanding the difference, they should ask Antonio. After all, this is something he learned in kindergarten.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: E-mail: [email protected].