Catherine McNamara Elementary, Baldwinsville, N.Y.
When kindergartner Antonio Peck made a poster suggesting Jesus was the way to “save the world,” little did he know his artwork would spark a 10-year legal battle that has seen six court decisions fire back and forth only to now be sent to the U.S. Supreme Court.
According to the original complaint filed a decade ago, Peck’s kindergarten teacher, Susan Weichert, instructed the class to create a poster with cutout pictures illustrating the children’s understanding of the environment and asking them to show ways to take care of the earth.
Peck, a student of Catherine McNamara Elementary School in Baldwinsville, N.Y., during the 1999-2000 school year, drew a picture featuring religious figures and the words, “The only way to save the world.”
But Peck’s poster was rejected because of its religious content and the school administration’s fears that when displayed with the dozens of other students’ pieces, the poster might mistakenly give some parents the impression the school was teaching on matters of faith.
The Peck family sued the school for violating the boy’s free exercise of religion, launching a back-and-forth battle between a district judge and the Second Circuit Court of Appeals, with the lower court ruling against the boy three times and the higher consistently ruling in the kindergartner’s favor, until now.
Upon the third hearing of the case, the higher court concluded Peck no longer has standing to sue, since, “He points to no policy or custom (or an equivalent) suggesting that any defendant regularly violates students’ free-speech rights.”
Shocked by what it calls “a new burden of proof” upon a plaintiff who presumably now can’t sue over a rights violation unless he or she can demonstrate a pattern of such abuses, Liberty Counsel this week has asked the U.S. Supreme Court to review the case and the appeals court’s reasoning.
“In cases such as this, in which school officials censor student work out of fear of adult misperceptions instead of concern for effects upon other students, it is particularly likely that a student will be susceptible to further censorship so long as he is under the auspices of the school district,” the Liberty Counsel petition states. “The Second Circuit’s conclusion that a student can lose standing due to the passage of time is particularly troubling and would sanction the chilling of student speech any time a school official is worried that some third-party observer might mistakenly believe that the school teaches religion. This would grant school districts a broad power of censorship and create the kind of ‘heckler’s veto’ that this Court has warned against.”
Last year, after Peck’s first poster was censored, the young boy was forced to draw a second. Peck’s next poster featured cutouts of people picking up garbage and children holding hands around a globe, images more in line with the rest of the class. He also, however, included a cutout of a bearded man wearing a robe with his hands stretched toward the sky.
“To Antonio, this figure was Jesus, although the figure was not identified,” the original complaint states.
The following is Peck’s poster as he submitted it for the kindergarten assignment:
Antonio Peck’s kindergarten poster illustrates the boy’s thoughts on how to save the earth
The boy’s poster was displayed for part of one day on a cafeteria wall, just like 80 other student posters, with one exception – his drawing was folded in half to conceal Jesus.
Peck’s mother observed her son’s assignment posted on the wall as follows:
In 2000, New York federal Judge Norman Mordue ruled that the school was permitted to censor the poster due to “church and state” concerns. In 2001, the Second Circuit Court of Appeals reversed the decision 3-0 and sent the case back to the trial court.
In 2004, Judge Mordue ruled in favor of the school district yet again. But, for a second time, he was reversed 3-0 in 2005 when the appeals court said public schools cannot censor a student’s viewpoint on permissible subjects when it is responsive to a school assignment.
In October 2008, Judge Mordue ruled once again that the public school was permitted to censor the poster, leading to the most recent Circuit Court decision and consequent petition to the U.S. Supreme Court by Liberty Counsel.
Mathew D. Staver, founder and chairman of Liberty Counsel, argues it’s time for the legal battles to end with a Supreme Court decision in the boy’s favor:
“Students may present religious themes in their homework,” Staver said in a statement. “After 10 years and three appeals, Antonio deserves an answer to the question of whether the school district violated his constitutional rights. The Second Circuit skirted the issue, and we are asking the Supreme Court to give Antonio the chance to get that answer.”