United States District Court, District of New Jersey, D.
February 11, 2002
DANIEL WALZ, BY HIS GUARDIAN AD LITEM DANA P. WALZ, PLAINTIFF,
EGG HARBOR TOWNSHIP BOARD OF EDUCATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Jerome B. Simandle, U.S. District Judge.
This claim for injunctive and declaratory relief arising from the
alleged infringement of plaintiff's First and Fourteenth Amendment
rights, contrary to 42 U.S.C. § 1983, comes before the Court on the
motion for summary judgment by plaintiff Daniel Walz ("Daniel") and the
cross-motion for summary judgment by defendants the Egg Harbor Township
Board of Education ("Egg Harbor BOE") and Leonard Kelpsh ("Dr. Kelpsh")
in his official capacity as Superintendent of Egg Harbor Township Schools
(or, collectively, "defendants"), pursuant to Rule 56, Fed.R.Civ.P.
Plaintiff seeks summary judgment on his Complaint, a declaration that
defendants' policy of prohibiting the distribution of religious gifts in
the classroom is unconstitutional, and an injunction prohibiting
defendants from enforcing this policy. Defendants argue that the
restrictions placed on Daniel were viewpoint neutral and reasonably
related to the school's pedagogical purpose. Defendants further note
that reasonable accommodations were made for the distribution of
plaintiff's religious material. For the following reasons, defendants'
motion for summary judgment will be granted, and plaintiff Daniel Walz's
Complaint will be dismissed.
The facts of this case involving proselytizing pencils, evangelical
candy canes, and very young school children are largely undisputed.
Plaintiff Daniel Walz, now nine years of age, was born on September 25,
1992 and has attended public school in Egg Harbor Township since 1998.
On three occasions, discussed in detail below, plaintiff was not allowed
to distribute items with a religious message in class or during
school-sponsored and supervised holiday
parties. These three incidents
are the basis of plaintiff's Complaint, which alleges violations of
plaintiff's First Amendment free speech and free exercise rights,
Fourteenth Amendment equal protection rights, 42 U.S.C. § 1983, and
the New Jersey Law Against Discrimination ("NJLAD").
The first alleged incident occurred in the spring of 1998, when
plaintiff was in developmental kindergarten ("pre-K") and attended an
in-class, school-sponsored holiday party. During the party, the then
four and one-half year-old plaintiff Daniel distributed pencils with the
imprinted message "Jesus ____ the Little Children" to the other children
in his pre-K class. (See Laffey Cert., Ex. C, Picture of the
"proselytizing pencils.") Plaintiff's mother, Dana Walz, who was present
at the party as a chaperone, selected and purchased the pencils for
plaintiff to distribute at school because of their religious message.*fn1
Plaintiff's then teacher, Joan Safaryn, collected the pencils and
contacted several school officials, including the school's
superintendent, defendant Dr. Kelpsh, in order to determine whether the
pencils should be distributed at the in-class party. Dr. Kelpsh determined
that the pencils should not be distributed at the in-class,
school-sponsored holiday party because the young children and their
parents might be confused as to the school's endorsement of the religious
message. After this incident, Mrs. Walz inquired as to whether the
school had a written policy regarding freedom of religious expression in
school and was informed that there was no such policy. Mrs. Walz
provided the school with some information that she believed would aid in
the implementation of such a policy.
On October 13, 1998, the Egg Harbor BOE adopted a written policy
regarding the recognition of religion in its schools. That policy, in
part, provides that "no religious belief or non-belief shall be promoted
in the regular curriculum or in district-sponsored courses, programs or
activities, and none shall be disparaged." (Laffey Cert., Ex. D.) The
policy, however, recognizes that a broad secular education can be
furthered by exposing pupils to various cultural and religious
societies, and provides that religion may be acknowledged in the course
of teaching and school activities "if presented in an objective manner
and as a traditional part of the culture and religious heritage of the
particular holiday." Id. Mrs. Walz believed that the adopted policy,
which does not specifically address the dissemination of religious
materials, would allow her son, the plaintiff, to hand out gifts with
religious messages in school. (See Walz Cert., ¶ 7.)
The second alleged incident occurred in December, 1998, when plaintiff
was in kindergarten and attended an in-class, school-sponsored winter
holiday party. During the winter party, the then five year-old plaintiff
distributed candy canes with an attached religious story, entitled "A
Candy Maker's Witness."*fn2 Mrs. Walz first read the evangelical story
when her daughter brought home a copy from a local event.
entered the story on her home computer and made duplicate copies, which
she then attached to the candy canes plaintiff attempted to distribute at
the winter party. Mrs. Walz chose to attach the story because it was
symbolic of the Christian holiday and because of the religious
significance it projected onto the candy canes. When Mrs. Walz contacted
the school regarding plaintiff's ability to distribute the candy canes,
she was told that plaintiff would not be permitted to distribute the
canes and evangelical message in class, but that he would be permitted to
distribute the items before school, during recess, or after school.
Plaintiff was also permitted to distribute the candy canes in the hallway
The third alleged incident occurred in December, 1999, when plaintiff
was in first grade and attended an in-class, school-sponsored winter
After his mother contacted the school and was again
informed that the then six year-old plaintiff would only be permitted to
distribute the proselytizing candy canes before school, during recess, or
after school, and not during the in-class, school-sponsored event,
plaintiff distributed the canes in the school hallway after class. Mrs.
Walz acknowledged that the other items distributed at the December, 1999
party were generic in nature. (Walz Dep., Tr. 75.) Mrs. Walz also
concedes that plaintiff is still allowed to distribute items with
religious significance outside of school hours and outside the
classroom. (Id. at 113.)
The defendants' general policy regarding gift-giving of any kind at
school is that any gifts should be donated to the local Parent
Teacher Organization ("PTO"), which would then distribute the trinkets to
the class at the seasonal event. Direct gifts from students are
discouraged because of the potential economic strain on certain students
and the potential emotional distress if a particular student were to be
excluded from the direct gift-giving. (Pl.'s Ex. F., Kelpsh Dep., Tr.
59:14-22.) This policy is not written, but rather orally communicated
from the principal to teachers, who disseminate the information to other
teachers, parents, and students through holiday letters and memoranda.
(Kelpsh Dep., Tr. 59:7-60:24.) Items with corporate names or references
to political candidates or unions are not allowed to be distributed in
any class during school hours. (Def.'s Ex. D, Kelpsh Dep., Tr.
62:5-64:24.) Plaintiff's teacher, who confiscated the proselytizing
pencils in 1998, said she would have done the same thing if the pencils
had contained a political or commercial message, such as "Vote for Joe
Smith" or "Home Depot." (Def.'s Ex. E, Safaryn Dep., Tr. 16:2-19:19.)
Mrs. Walz asserted that she witnessed other children directly handing out
gifts, some wrapped, at holiday parties, which contained generic pencils
and candy. (See Walz Cert., ¶ 12; Def.'s Ex. A, D. Walz Dep., Tr.
74:9-75:21.) Mrs. Walz claimed that her son's religious gifts were the
only ones not permitted to be directly distributed from a student to the
class, but offered no specific instances where other children were
allowed to directly distribute gifts and no evidence of such conduct.
(See Walz Cert., ¶ 12.) Mrs. Walz identified no instance in which
another child distributed a non-generic gift with any sort of message
during class time.
Dr. Kelpsh elaborated on the intent behind the limited gift
distribution policy by stating that it was to ensure that no confusion
about the origin of any distributed gifts with corporate, political, or
religious messages, and also that the BOE did not want anyone to
mistakenly believe that the school was endorsing any particular message.
(Kelpsh Dep., Tr. 74-77; Walz Dep., Tr. 60:5-17.) School classes and
events under the authority of the Egg Harbor BOE are closely controlled
and monitored by the principal and teachers. Additionally, teachers and
occasionally parents, including at times Mrs. Walz, were present at each
of the school-sponsored parties at issue. There is no allegation that
the defendants treated one religion more favorably than plaintiff's
Christianity; rather, plaintiff asserts that other generic gifts without
messages were allowed, when plaintiff's proselytizing pencils and
evangelical candy canes were not.
On May 2, 2000, plaintiff, through his mother and Guardian Ad Litem
Dana P. Walz, filed a Complaint in this Court, alleging that the
defendants violated his First Amendment free exercise and freedom of
expression rights (see Compl., ¶¶ IV-V), his Equal Protection rights
under the Fourteenth Amendment (see Compl., ¶¶ VI-VII), and the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et. seq. ("NJLAD")
(see Compl., ¶ VIII). On July 6, 2001, both plaintiff and
defendants cross-moved for summary judgment. For the reasons stated
herein, the Court finds that no material facts are in dispute and that
the defendants are entitled to judgment as a matter of law that they have
not violated plaintiff's rights. Defendants' motion will be granted and
plaintiff's motion and complaint will be dismissed.
Defendants and plaintiff Daniel cross-move for summary judgment in this
action under Rule 56, Fed.R.Civ.P. Plaintiff argues that defendants
42 U.S.C. § 1983 when they allegedly curtailed plaintiff's
freedom of speech and free exercise First Amendment rights and violated
the Equal Protection clause of the Fourteenth Amendment, and also that
defendants' conduct violated the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1, et seq. ("NJLAD"). Plaintiff seeks a declaration that
the school's policy is unconstitutional and an injunction prohibiting the
future enforcement of the policy. Defendants argue that the pre-K,
kindergarten, and first grade classrooms are non-public forums and that
the limitations placed on plaintiff's in-class activities were reasonable
and viewpoint neutral and therefore permissible.
Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A
dispute is "genuine" if "the evidence is such that a reasonable jury
could return a verdict for the non-moving party." See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only
if it might affect the outcome of the suit under the applicable rule of
law. Id. Disputes over irrelevant or unnecessary facts will not preclude
a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the
court must view the evidence in favor of the non-moving party by
extending any reasonable favorable inference to that party; in other
words, "[T]he nonmoving party's evidence `is to be believed, and all
justifiable inferences are to be drawn in [that party's] favor.'" Hunt
v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at
255). The threshold inquiry is whether there are "any genuine factual
issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party." Liberty
Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326,
329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he
nonmoving party creates a genuine issue of material fact if it provides
sufficient evidence to allow a reasonable jury to find for him at
The moving party always bears the initial burden of showing that no
genuine issue of material fact exists, regardless of which party
ultimately would have the burden of persuasion at trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp.,
873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990).
However, where the nonmoving party bears the burden of persuasion at
trial, "the burden on the moving party may be discharged by `showing'
— that is, pointing out to the district court — that there is
an absence of evidence to support the nonmoving party's case." Celotex
Corp., 477 U.S. at 325.
The standard by which the court decides a summary judgment motion does
not change when the parties file cross-motions. Weissman v. United States
Postal Serv., 19 F. Supp.2d 254 (D.N.J. 1998). When ruling on
cross-motions for summary judgment, the court must consider the motions
independently, Williams v. Philadelphia Hous. Auth., 834 F. Supp. 794,
797 (E.D.Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the
evidence on each motion in the light most favorable to the party opposing
the motion. See Matsushita, 475 U.S. at 587.
Plaintiff's Section 1983 Claims Related to First and Fourteenth
There is no dispute that defendants are state actors who acted under
color of state law. There is no dispute that the pre-kindergarten,
kindergarten, and first grade public school classrooms where the alleged
constitutional violations transpired are non-public forums, in which
school officials can reasonably restrict the speech of students and
teachers.*fn4 (See Pl.'s Mot. for Summ. J. at 5; Defs.' Cross-Mot. for
Summ. J. at 14.) There is also no dispute that defendants allowed
plaintiff to distribute his pencils and candy canes before school, during
lunch or recess, and after school, and restricted the distribution of
the pencils and candy canes in the classroom and during class-time
only. (Walz Cert., ¶¶ 9-11.) Despite plaintiff's mother's
dissatisfaction*fn5 with the accommodations made for the
distribution of plaintiff's religious gifts, well-established precedent
demonstrates that there has been no violation of plaintiff Daniel Walz's
constitutional rights and his motion for summary judgment will be denied,
and defendants' motion for summary judgment will be granted, and
plaintiff's Complaint will be dismissed, for the following reasons.
The First Amendment provides, in relevant part, "Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech . . . ." U.S.
Const. amend. I. This freedom of speech, however, is not unlimited in
non-public forums.*fn6 "Speech uttered in a non-public forum may be
subject to time place and manner regulations, and these regulations must
be viewpoint-neutral and reasonably related to a legitimate governmental
purpose." C.H. v. Oliva, 990 F. Supp. 341, 352 (D.N.J. 1997), aff'd in
relevant part, vacated and remanded in part on other grounds, 226 F.3d 198
(3d Cir. 2000) (en banc), cert. denied, Hood v. Medford Twp. Bd. of
Educ., 121 S.Ct. 2519, 150 L.Ed.2d 692 (2001). The First Amendment
rights of children in a public school "are not automatically coextensive
with the rights of adults in other settings," and must be "applied in
light of the special characteristics of the school environment."
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562,
567, 98 L.Ed.2d 592 (1988); C.H., 990 F. Supp. at
352, n. 17.
"[E]ducators may `exercis[e] editorial control over the style and content
of student speech in school-sponsored expressive activities so long as
their actions are reasonably related to legitimate pedagogical
concerns.'" C.H., 990 F. Supp. at 353 (quoting Hazelwood, 484 U.S. 260,
273, 108 S.Ct. 562, 571, 98 L.Ed.2d 592 (1988)).
Plaintiff claims that the restrictions placed on his distribution of
proselytizing pencils and evangelical candy canes are not viewpoint
neutral because other children were allowed to "express themselves" by
directly distributing generic gifts at the in-class seasonal parties.
Plaintiff's mother, and presumably plaintiff, were dissatisfied with the
school's accommodation which allowed plaintiff to distribute his
religious gifts outside of the classroom and after school hours. The
Court finds that this minor restriction is viewpoint neutral and
Plaintiff argues that "[s]ince the restriction addressed religious
speech specifically it is automatically not viewpoint neutral." (Pl.'s
Br. at 5.) Viewpoint neutral, however, does not mean that any regulation
that relates to the viewpoint of the speech is prohibited, but rather
that the regulation must be based solely upon larger pedagogical concerns
rather than a particular point of view. See C.H., 990 F. Supp. at 353
(citing Duran v. Nitsche, 780 F. Supp. 1048, 1052 (E.D.Pa. 1991) (quoting
Hazelwood, 484 U.S. at 273)).
Plaintiff cites the United States Supreme Court's decision in Lamb's
Chapel v. Center Moriches Union Free School District in support of his
position that defendants' actions in this case were not viewpoint neutral
and therefore constituted viewpoint discrimination. 508 U.S. 384,
394-95, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). In Lamb's Chapel, the
Court struck down a school policy that permitted school facilities to be
used by a variety of groups during after-school hours, but excluded a
group who planned to show a film containing the Christian perspective
about child-rearing techniques. See 508 U.S. 384, 113 S.Ct. 2141. The
Court found that the exclusion of the otherwise permissible film solely
because it dealt with the subject [child-rearing] from a religious
standpoint was viewpoint discrimination. Lamb's Chapel, 508 U.S. at
394-95, 113 S.Ct. at 2147-48; accord, C.H., 226 F.3d at 210-11 (en banc)
(Alito, J., dissenting) (internal citations and quotations omitted).
The restrictions placed upon plaintiff's dissemination of his religious
messages in this case is not "viewpoint discrimination" because the
School District did not open a forum for the exchange of views about a
subject, in which case the District could not proscribe a "religious
viewpoint" unless it passed a strict scrutiny test. See Lamb's Chapel,
508 U.S. at 394-95, 113 S.Ct. 2141. Here, the contribution of generic
gifts bearing no messages was permitted to all students, and this was not
a forum to promote any point of view, religious or secular. The seasonal
parties for pre-K, kindergarten, and first grade students were school
events intended to promote sharing and caring among students, to develop
social skills, and to learn about talking in turn when in a large group.
Students were not told to bring gifts with their favorite seasonal
message; rather, students and their parents were instructed that all
gifts should be generic and donated to the PTO for distribution at the
seasonal parties. Therefore, this case does not involve viewpoint
discrimination in the way present in Lamb's Chapel or as found by Judge
Alito in C.H. Furthermore, these parties were limited to the grade
school students, their teachers, and a few parent-chaperones and
designed to promote any point of view, religious, commercial, or
Plaintiff has come forward with no proof that other children were
allowed to disseminate messages in class or at in-class, school-sponsored
parties. Plaintiff concedes that no religion was treated differently or
more favorably than plaintiff's Christianity. Plaintiff also concedes
that the other gifts he claims that were given by children at the holiday
parties were generic in nature, containing no speech whatsoever.*fn7
Dr. Kelpsh and plaintiff's teacher, Ms. Safaryn, testified in their
depositions that children are not allowed to distribute any items that
contain promotional, commercial, political or other speech. (See Kelpsh
Dep., Tr. 62:5-64:24; Safaryn Dep., Tr. 16:2-19:19.) Additionally, the
school took affirmative steps to regulate the items distributed at school
parties by having the PTO, rather than individual students, collect and
distribute the candies and gifts. No facts are presented by plaintiff to
contradict this evidence. The school's regulation of plaintiff's speech
was viewpoint neutral.
The Court further finds that the restriction was reasonably related to
the school's pedagogical concerns, and also that plaintiff was offered a
reasonable accommodation for the distribution of his gifts. There is no
dispute that Daniel was able to distribute each religious gift and
message to his classmates on school property outside the classroom
setting. Plaintiff argues that this case is similar to the seminal case
Tinker v. Des Moines Indep. Cmty Sch. Dist., in which the Supreme Court
deemed black arm bands worn by high school students in protest of the
Vietnam war to be pure speech entitled to full First Amendment
protections. 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
Pre-kindergarten, kindergarten, and first grade students celebrating at
an in-class party, however, are different than high school students
independently expressing political beliefs. The age and grade level of
the child seeking to exercise his or her speech in school is relevant and
should be considered by courts determining whether the restrictions
placed on speech were appropriate. See Edwards v. Aguillard, 482 U.S. 578,
584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (noting that elementary school
children "are impressionable and their [attendance] at school is
involuntary."); C.H., 226 F.3d at 203 (affirming district court's
judgment that the relocation of plaintiff's Jesus poster and the
restriction on plaintiff's religious story reading to his first grade
classmates were reasonably related to legitimate pedagogical concerns);
DeNooyer v. Livonia Pub. Sch., 799 F. Supp. 744 (E.D.Mich. 1992), aff'd,
12 F.3d 211 (6th Cir. 1993), cert. denied, 511 U.S. 1031 (1994)
(concluding that school's restriction of plaintiff's showing of a video
to her second grade class in which she sang a religious song to be
reasonable and a legitimate pedagogical concern). The Seventh Circuit
expressed the justification for this greater restriction of school speech
when elementary school students are involved:
The potential `verbal cacophony' of a public forum
can be antithetical to the delicate `custodial
and tutelary' environment of an elementary
school. . . . Declaring the elementary school
classroom, hallway, or playground forums for
unfettered student communication would require
either a severe incursion into the critical
educational mission of the elementary school or a
contraction of the First Amendment
protections afforded speech in a public forum.
Perhaps both. . . . In a public forum, the Christian
can tell the Jew he is going to hell, or the Jew can
tell the Christian that he is not one of God's chosen,
no matter how that may hurt. But it makes no sense
to say that the overly zealous Christian or Jewish
child in an elementary school can say the same
thing to his classmate, no matter the impact.
Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539-40 (7th
Cir. 1996), cert. denied, 520 U.S. 1156 (1997) (citations omitted).
Plaintiff does not address these issues and instead attempts to
distinguish the relevant cases of Hazelwood and C.H. by arguing that they
were limited to speech mandated by the school's curriculum. Plaintiff
argues that the school-supervised, in-class parties at which candies and
treats were distributed by the PTO were purely "social activities" where
"no pedagogical concerns exist." (Pl.'s Br. at 8.) The Court
disagrees. There is abundant evidence that the school seasonal parties
for these young children were meant to have an educational component, and
also that they were highly structured, supervised, and regulated.
Non-parent outsiders were not allowed to attend the party and the parties
took place during school hours. Children were taught important social
skills at the parties and were not permitted to freely move around or
talk at will. (See Safaryn Dep., Tr. 14:1-15:25.) Also, it is intuitive
that school activities, whether they are social or academic in focus, for
four, five, and six year-old children have a high degree of structure, so
that the young children are not confused or overwhelmed by concepts and
other stimuli they cannot understand. Thus, the defendants' restriction
of plaintiff's gift-giving during the holiday parties was reasonably
related to the important pedagogical concerns of the school.*fn8
Nothing has been presented in opposition from which a reasonable
inference could be drawn to suggest that these pedagogical concerns were
Plaintiff additionally asserts in his brief in support of summary
judgment that defendants "have engaged in hostility toward religion that
the Establishment Clause itself forbids." (Pl.'s Br. at 11.) This claim
was not made in plaintiff's Complaint, but since defendants raised the
issue as a defense, and both parties briefed the issue, and because leave
to amend pleadings should be freely given, see Rule 15(a), Fed.R.Civ.P.,
the Court will deem the Complaint amended to assert plaintiff's
Establishment Clause claim and will consider whether defendants' policy
violated the Establishment Clause.
The First Amendment's Establishment Clause prohibits governmental
advancement or restriction of religion. U.S. Const. amend. I. The
Supreme Court has written that "[a] proper respect for both the Free
Exercise and the Establishment Clauses compels the State to pursue a
course of `neutrality' toward religion, . . . favoring neither one
religion over others nor religious adherents collectively over
nonadherents." C.H., 990 F. Supp. at 354 (quoting Board of Educ. of
Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696, 114 S.Ct.
2481, 2487, 129 L.Ed.2d 546 (1994)).
Although not referenced by plaintiff, the inquiry for determining
whether an Establishment Clause violation has occurred was set forth by
the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602
S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Lemon inquiry, which may or may
not still be properly classified as a three-prong test to determine
whether a violation of the Establishment Clause has occurred,*fn9
courts to consider whether the challenged practice (1) has a secular
purpose; (2) has a principal or primary effect which neither advances nor
inhibits religion; and (3) does not create an excessive entanglement of
the government with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at
2111; Lamb's Chapel, 508 U.S. at 395, 113 S.Ct. 2148; Board of Educ. of
Kiryas Joel Village Sch. Dist, 512 U.S. at 696-97, 114 S.Ct. at 2488
(citing Lemon with approval); ACLU v. Black Horse Pike Regional Bd. of
Educ., 84 F.3d 1471
, 1483 (3d Cir. 1996); ACLU v. Shundler, 168 F.3d 92,
97 (3d Cir. 1999) (citing Lemon with approval); C.H., 990 F. Supp. at
354; see also C.H., 226 F.3d at 212-13 (Alito, J., dissenting) (finding
that "[t]he Establishment Clause is not violated when the government
treats religious speech and other speech equally and a reasonable
observer would not view the government practice as endorsing religion").
Defendants restricted the time and place where plaintiff could
distribute his gifts, and that restriction was not in any way hostile to
plaintiff's Christianity. The students were prohibited, under the
defendants' policy, from contributing gifts bearing any message, whether
political, commercial, or religious, such that religious messages were not
singled out but were grouped with similar forms of speech. Perhaps the
Establishment Clause would be implicated if the policy permitted
distribution of all gifts containing any messages except religious
messages, since the policy might show disapproval of religion, per se.
See Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (emphasizing
importance of discerning whether the challenged policy is designed to
"endorse or disapprove of religion").
Although it is true that plaintiff was prevented from distributing his
gifts in class because of their message, which was of a religious
nature, and because he sought to give them individually rather than
contribute them to the collective PTO effort, the defendants' actions in
this case did not advance or inhibit religion as such, and did not create
any type of excessive entanglement with religion. Defendants'
restriction upon all political, commercial and religious endorsements,
particularly when the age of the schoolchildren is considered, could not
be found by a fair-minded factfinder to be anything but reasonable.*fn10
Additionally, plaintiff was
allowed to distribute his gifts on school
premises outside of class time. There was simply no excessive entanglement
with plaintiff's religion posed by defendants' simple, common-sense
accommodation which permitted him to distribute his gifts to classmates
of his choice outside the class while on school premises. Defendants,
therefore, did not violate the Establishment Clause.
Plaintiff's NJLAD Claims
Plaintiff additionally claims in his Complaint that defendants
"withheld from Plaintiff accommodations, advantages, facilities, and
privileged available to other students" and therefore violated the New
Jersey Law Against Discrimination. (Pl.'s Br. at 14.) Plaintiff alleges
that "[o]ther students were allowed to give out gifts in class" while
plaintiff was not allowed to distribute his religious messages, but points
to no specific instances where other children were allowed to give direct
gifts and concedes that any such gifts that might have been distributed
The applicable section of the NJLAD provides that "[a]ll persons shall
have the opportunity . . . to obtain all the accommodations, advantages,
facilities, and privileges of any place of public accommodation . . .
without discrimination because of . . . creed, subject only to conditions
and limitations applicable alike to all persons. N.J.S.A. 10:5-4.
Plaintiff has not been denied any accommodation, advantage, facility, or
privilege of his public school*fn11 based on his Christian faith. There
is no legal precept under the NJLAD which mandates that a child be able
to distribute religious messages in his public grade school class.
Plaintiff has not cited one case finding a violation of the NJLAD arising
from facts similar to those present in this case. Plaintiff also has not
alleged that other children were allowed to distribute gifts with
religious messages from non-Christian faiths. Additionally, plaintiff
was not excluded from the holiday parties, nor was he prevented from
distributing his religious gifts after school. Plaintiff's claim under
the NJLAD thus fails.
For the foregoing reasons, the Court will grant defendants' motion for
summary judgment and will dismiss plaintiff's complaint with prejudice.
The accompanying Order will be entered.
THIS MATTER having come before the court on plaintiff's motion for
summary judgment, and defendants' cross-motion for summary judgment
pursuant to Rule 56, Fed.R.Civ.P.; and the Court having considered the
submissions of the parties; and for the reasons stated in the
ORDERED that defendants' cross-motion for summary judgment [Docket Item
13-1] be, and hereby is, GRANTED, and plaintiff's motion for summary
judgment [Docket Item 12-1] be, and hereby is DISMISSED; and
IT IS FURTHER ORDERED that plaintiff's Complaint is hereby DISMISSED