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
holiday party.*fn3 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.