Federal Appeals Court Rules That Kindergarten Student's Case May Proceed To Trial Over Censorship Of An Art Poster That Contained A Picture Of Jesus

Oct 19, 2005

Manhattan, New York - Yesterday, the United States Court of Appeals for the Second Circuit handed a victory to Antonio Peck and his parents by ruling that his case, involving the censorship of an art poster containing a picture of Jesus, may proceed to trial. Antonio is represented by Liberty Counsel.

The case began in 1999, when Antonio attended kindergarten in Syracuse, New York, at the Baldwinsville Elementary School. His teacher instructed the class to draw a poster regarding their understanding of the environment. Antonio's first poster contained several religious figures and the following statement: "The only way to save the world." Antonio was expressing his belief that God was the only way to save the environment. This poster was rejected. Antonio's second poster contained various cutout figures and other artistic work. Some of the figures on the right side included children holding hands circling the globe, people recycling trash into a recycle bin, and children picking up garbage. On the left side of the poster was a bearded man wearing a robe kneeling with one knee to the ground and two hands stretched toward the sky. To Antonio, this figure was Jesus, although the figure was not identified. This poster was displayed for half a day on the cafeteria wall along with 80 other student posters, but unlike the other kindergarten posters, school officials folded Antonio's poster in half so that the figure of Jesus could not be seen. When school officials refused to remedy the matter or adopt a policy to prevent future censorship, Liberty Counsel filed suit over the second poster.

In 2000, the federal trial court ruled that the school had the right to censor the poster because of "church and state" concerns. On March 28, 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. Yesterday a unanimous court of appeals again ruled in favor of Antonio and reversed the decision. Based on the testimony in the record, the court of appeals ruled that a trial was necessary to determine whether the poster was censored because of its religious viewpoint. The court of appeals pointed to deposition testimony of school officials, which stated that the poster was censored because of the religious image of Jesus. The officials also testified that they would not censor other secular images, even if they were not responsive to the assignment.

In Peck v. Baldwinsville School District, the federal court of appeals for the Second Circuit joined the Ninth and the Eleventh Circuits in holding that viewpoint discrimination is forbidden, even in the public school classroom context. The First and Tenth circuits hold that viewpoint discrimination in the public school context is permissible. This case will now proceed to trial. Based on the circuit splits, this case has the potential to make its way to the U.S. Supreme Court.

Mathew D. Staver, President and General Counsel for Liberty Counsel, stated: "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. 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. To censor the poster solely because some might perceive a portion of it to be religious is an egregious violation of the Constitution."

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