Walz v. Egg Harbor Township Board of Education

Walz is a case remarkably similar to a Becket Fund case, Hood v. Medford Township School District (originally captioned C.H. v. Oliva). Both involved schools intent upon censoring the religious speech of elementary school children in New Jersey public schools.

At the age of six (he is now ten), Daniel Walz was in the Developmental Kindergarten Program at Egg Harbor

Township Public Schools when he passed out pencils to classmates at a class party with an inscription that read, "Jesus [heart symbol] the little children." As soon as his teacher realized what was on the pencils, she took them away from the other children. Walz's mother objected, and ultimately the Board of Education adopted a written policy regarding religion in the schools.

Mrs. Walz believed that the new policy would allow Danel to hand out gifts with a religious message to schoolmates in the future. But when she asked whether he could give out candy canes with "The Candy Maker's Witness" attached at the school's "Winter Holiday party," she was told he'd have to do so outside the school, on what turned out to be a stormy day. Other children, however, were permitted to hand out non-religious gifts at parties.

On (date), Daniel Walz and his mother, Dana Walz, filed suit against the Egg Harbor Board of Education, charging that their policy of prohibiting the distribution of religious gifts in the classroom was unconstitutional and constituted viewpoint discrimination. In an opinion and order issued on February 11, 2002, U.S. District Judge Jerome Simandle granted the school board's motion for summary judgment and dismissed the Walz complaint. He ruled that Daniel Walz's "dissemination of his religious messges in this case is not 'viewpoint discrimination' because the School District did not open a forum for the exchange of views about a subject." He differentiated Walz from C.H. v. Oliva, saying that "this case does not involve viewpoint discrimination in the way present in Lamb's Chapel or as found by Judge Alito in C.H."

Plaintiffs appealed (PDF format, 82K) the case to the Third U.S. Circuit Court of Appeals, which heard oral arguments in the case on January 9, 2003.

In an amicus brief submitted on behalf of Carol Hood (PDF format, 109K) on June 7, 2002, The Becket Fund argued that Judge Simandle "erred in finding that the Defendants did not engage in viewpoint discrimination." The Supreme Court has repeatedly held that "restrictions on speech must be viewpoint-neutral, even in a non-public forum," the brief noted. "However, as the result of the erroneous decision several years ago in C.H. v. Oliva—a decision that the court below relied on heavily—this clearly established principle of Free Speech law has been ignored." That court applied a standard of review to viewpoint discrimintion "that only applies to subject-matter discrimination," the Becket Fund brief pointed out, and called upon the appeals court to "seize this opportunity to make unmistakably clear that speech restrictions based on viewpoint—in any type of forum—triggers the most demanding judicial scrutiny under the Free Speech Clause."

Daniel and Dana Walz are represented in the appeal by attorney Michael Laffey and John Whitehead and Steven Aden of The Rutherford Institute. (Walz v. Egg Harbor Township Board of Education, U.S. District Court for the District of New Jersey, Case No. CIV 00-2149; U.S. Court of Appeals for the Third Circuit, Case No. 02-1665)

Articles & News Items

• "Third Circuit should "seize opportunity" to clarify free speech rules," June 11, 2002