Officials at a New York state school may have violated the constitutional free-speech rights of a kindergarten student who included an image of Jesus in his homework assignment, according to an appeals court decision.

The three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in Manhattan remanded the case back to a federal district court Monday for further consideration.

Antonio Peck, who attended Catherine McNamara Elementary School in Baldwinsville, N.Y., as a kindergarten student during the 1999-2000 school year, included an image of Jesus and other religious elements in a poster created in fulfillment of a homework assignment on the environment.

The student reportedly was expressing his belief that God was the only way to save the environment.

School officials rejected one version of the poster and then obscured a portion of the second version when it was placed on display at an assembly, citing concerns over its “religious” nature.

Liberty Counsel, a Florida-based public-interest law firm, filed suit over the second poster.

“To allow a kindergarten poster to be displayed for a few hours on a cafeteria wall, along with 80 other student posters, is far from an establishment of religion,” said Mathew D. Staver, president and general counsel of Liberty Counsel. “To censor the poster solely because some might perceive a portion of it to be religious is an egregious violation of the Constitution.”

The case was partly funded by the Arizona-based Alliance Defense Fund from 1999-2003.

The second version of the poster depicted a robed, praying figure of Jesus, a church with a cross, people picking up trash for recycling, children holding hands around a globe, clouds, trees, a squirrel and grass.

In its opinion, the 2nd Circuit panel said the district court “overlooked evidence that, if construed, in the light most favorable to Peck, suggested that Antonio’s poster was censored not because it was unresponsive to the assignment … , but because it offered a religious perspective on the topic of how to save the environment.”

In 2000, the federal trial court ruled the school had the right to censor the poster because of “church and state” concerns. In March 2001, a unanimous federal court of appeals reversed the decision and sent the case back to the trial court.

Last year, the same federal trial court again ruled for the school. Liberty Counsel noted the 2nd Circuit joined the 9th and the 11th Circuits in holding that viewpoint discrimination is forbidden, even in the public school classroom context.

However, the 1st and 10th Circuits hold that viewpoint discrimination in the public school context is permissible, making it likely the Peck case will end up in the Supreme Court.

Staver said, “I’m elated with the decision. Now Antonio will have his day in court. The school humiliated Antonio when the teacher folded his poster in half so that the cutout drawing of Jesus could not be seen.”

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