Kindergartner Censored for Distributing Gifts With Religious Message

By Melanie Arter | July 7, 2008 | 8:04 PM EDT

( - Attorneys for a New Jersey boy who was prohibited from handing out candy canes and pencils with a religious message are asking the U.S. Supreme Court to take their case.

The Rutherford Institute, a civil liberties organization committed to defending constitutional and human rights, is representing Dana Walz and her son Daniel. The institute is challenging a ruling by the U.S. Court of Appeals for the Third Circuit that upholds a school policy the institute says is tantamount to religious discrimination.

The school allowed Daniel's classmates to distribute non-religious items, but he was forbidden from passing out items with Christian messages during holiday parties.

"To prohibit a student from handing out gifts of his choosing to his classmates simply because the school is afraid that a parent will mistakenly assume school participation is ludicrous," said John W. Whitehead, president of the Rutherford Institute.

"We are hopeful the U.S. Supreme Court will see through the school officials' justifications and recognize their actions for what they are -- religious discrimination," Whitehead said.

In April 1998, Daniel and his pre-kindergarten classmates attended a holiday party at school during the Easter-Passover season. Some children brought in small gifts to hand out during the party. Daniel handed out pencils that stated, "Jesus loves the little children."

On seeing the pencils, Daniel's teacher confiscated them from the children. Daniel's mother, Dana Walz, who was present in the classroom, immediately brought the matter to the attention of the school's principal. The principal, assistant superintendent and superintendent denied Daniel's request to hand out the pencils.

In December 1998, Daniel and his classmates had a Christmas-Hanukkah party at school. Before the party, Walz contacted the school's attorney to get permission for her son to hand out candy canes with the story "The Candy Maker's Witness" attached to them.

She was told Daniel could do so only outside the classroom, but Daniel's classmates were allowed to hand out non-religious gifts during the party.

Institute attorneys, in requesting a review of the case by the Supreme Court, said the school district's actions and policies discriminate against Daniel's speech on the basis of its religious viewpoint, constitute hostility toward and denigration of religion in violation of the First and Fourteenth Amendments, and violate a New Jersey law against discrimination.

The attorneys have asked the court to determine whether students' religious speech can be censored solely because it is religious, and to what extent the Supreme Court's First Amendment jurisprudence, particularly that dealing specifically with student speech, applies in the context of a public elementary school.

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