The praying figure was folded under
By James J. KilpatrickWed Mar 8, 8:11 PM ET
Yahoo!News
What are the free-speech rights of a 5-year-old? A short and
sensible answer would place his rights at plus or minus zero, but today
we're talking constitutional law. The lad's rights may be larger than
you think.
If the Supreme Court takes the case of young Antonio Peck, the justices
will try once more to clarify the murky waters of the First Amendment.
The case turns on the Constitution's clause guaranteeing the "free
exercise" of religion. How free? By whom? Under what circumstances?
The facts are not seriously in dispute. Toward the end of the 1999-2000
school year, Antonio was enrolled in a kindergarten class at Catherine
McNamara Elementary School in Baldwinsville, N.Y., a suburb of
Syracuse. The class was taught by Susan Weichert under the general
supervision of the principal, Robert Creme.
Weichert testified by deposition that the kindergarten curriculum
included a two-month unit focusing upon "simple ways to save the
environment, such as preserving trees and animals, using natural
resources wisely, and keeping the environment clean." The unit
culminated in May with a project: The children would make posters
depicting what they had learned about the environment. There would be a
closing assembly. A tree would be planted, environmental songs would be
sung, and the posters would be displayed.
Weichert sent some instructions home to parents. The posters should
depict "ways to save our environment, i.e., pictures of the earth,
water, recycling, trash, etc." Antonio was not yet reading on his own,
so his mother, JoAnne Peck, sat down with him one evening and together
they pasted up an environmental poster. According to her deposition,
the child said that "the only way to save the environment was through
Jesus." Their poster thus depicted a robed Jesus in prayer and two
children on a rock labeled "Savior." A legend read, "God keeps His
promises."
Antonio took his poster to school the next day. It was not a hit.
Weichert ruled that the poster had nothing to do with the environmental
material the children had studied. Mrs. Peck took it up with principal
Creme. He suggested that the boy try again, this time with a poster
that could depict recycling, kids picking up trash, and maybe "a little
bit of religious content."
Mother and child went back to the drawing board. Their second effort
depicted the same praying Jesus and a church with a cross, but it also
included "pictures of people picking up trash and placing it in a
recycling can, of children holding hands and encircling the globe, and
of clouds, trees, a squirrel, and grass."
Weichert again appealed to Creme. He made a ruling that should qualify
him for diplomatic service: The second poster would be accepted, but
only if Jesus were folded under. By inadvertence, half the church also
was folded out of sight. Thus bobtailed, the entry went forward. A few
months later, Antonio's parents sued the school district for violation
of his constitutional rights.
Creme explained in a deposition that he had vetoed the first poster
"because it had absolutely no relevance to the assignment at all."
Moreover, he was "quite certain that (the poster) was not Antonio's
work." Weichert defended the "fold it over" instructions on the
reasoning that "if God is going to save the environment, that isn't
something that we discussed in the classroom."
The Pecks' suit collapsed in U.S. District Court on a motion for
summary judgment but picked up a second wind in the 2nd Circuit. Judge
Guido Calabresi, writing in October for a unanimous three-judge panel,
cited well-established precedents: Educators "do not offend the First
Amendment by exercising editorial control over the style and content of
student speech in school-sponsored expressive activities."
Then the judge backed off. There was some evidence that Antonio's
poster was censored not because it was unresponsive to the assignment,
but rather "because it offered a religious perspective on the topic of
how to save the environment." Perhaps the school would not have
similarly censored secular images that were equally non-responsive. The
panel voted to send the case back for further proceedings.
My guess is that the Supreme Court will deny certiorari and let this
one percolate. Artists are born to suffer, but Antonio's pain strikes
me as the sort of pain that a growing boy can bear. Besides,
affirmation would send a signal, sad to say, that the pandas are now
running the zoo.