Judge takes issue with boy, 9, being at center of religious-freedom suit

By The Associated Press

01.10.03

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PHILADELPHIA — A federal appeals judge expressed frustration yesterday that a 9-year-old boy remains at the center of a lawsuit testing First Amendment issues.

The case revolves around Daniel Walz, who was a 5-year-old student in a pre-kindergarten class four years ago when school officials in Egg Harbor Township, N.J., decided not to let him give classmates pencils or candy canes with evangelical Christian messages on them.

At the behest of the boy's mother, Dana Walz, the Rutherford Institute took up the case. The Charlottesville, Va.-based group's mission includes defending religious freedom.

Last February, a federal district court judge ruled that the school district did not deprive Daniel of his rights by forbidding the religious handouts.

The family appealed, and the case was back in court yesterday before a three-judge panel of the 3rd U.S. Circuit Court of Appeals. The issue remains whether Walz, still a student at H. Russell Swift School, should be allowed to hand out items to classmates in the future.

"There comes a point in time when children should be allowed to grow up without being used as pawns, without being a named plaintiff in this kind of lawsuit," said Judge Maryanne Trump Barry.

Daniel's age is an important part of the case, said Barry. She said that one of the central questions is whether very young children have the right of free speech even if they can't read or understand the message they're distributing.

The boy's lawyer, Michael P. Laffey, said Daniel was able to understand parts of the messages — including that the candy cane's "J" shape was in honor of Jesus Christ.

Laffey referenced a pair of landmark U.S. Supreme Court decisions on the freedom of expression of public school students to make his case.

The case is more like Tinker v. Des Moines Indep. Community School District, a 1969 ruling that allowed students to wear armbands in protest at school, than Hazelwood School District v. Kuhlmeier, a 1988 decision that gave school principals the right to censor school newspapers, Laffey argued.

The lawyer said the case more closely resembles Tinker because Walz wanted to give classmates the gifts only during classroom parties or outside the classroom. In other words, the gifts would be a student's statement and not the school's.

He argued the school was unfairly cracking down only because the message on the pencils — "Jesus loves little children" — and the story attached to the candy canes were religious.

"If someone gave out pencils that said `Teachers love children' or `Santa loves children,' that would not have been excluded," Laffey said.

But Armando V. Riccio, a lawyer for the board of education, said Daniel would not have been allowed to hand out promotional items for a store or a political candidate at school lest it appear the school was supporting that product or that candidate.

"The considerations had nothing to do with viewpoint," Riccio said. "They had to do with endorsements."

Previous

Federal judge: District was right to bar student's religious gifts to classmates
Suit arose out of two 1998 incidents in which then-5-year-old boy wanted to hand out pencils, candy canes with Christian inscriptions.  02.16.02

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Students suspended for passing out candy canes sue school
Attorney representing six Massachusetts high schoolers says policy barring distribution of anything unrelated to curriculum 'chills their speech.'  01.15.03