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February 11, 2002


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 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 plaintiff's 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.

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