What are the free-speech rights of a 5-year-old? A short and sensible answer would place his rights at plus or minus zero, but today we're talking constitutional law. The lad's rights may be larger than you think.
If the Supreme Court takes the case of young Antonio Peck, the justices will try once more to clarify the murky waters of the First Amendment. The case turns on the Constitution's clause guaranteeing the "free exercise" of religion. How free? By whom? Under what circumstances?
The facts are not seriously in dispute. Toward the end of the 1999-2000 school year, Antonio was enrolled in a kindergarten class at Catherine McNamara Elementary School in Baldwinsville, N.Y., a suburb of Syracuse. The class was taught by Susan Weichert under the general supervision of the principal, Robert Creme.
Weichert testified by deposition that the kindergarten curriculum included a two-month unit focusing upon "simple ways to save the environment, such as preserving trees and animals, using natural resources wisely, and keeping the environment clean." The unit culminated in May with a project: The children would make posters depicting what they had learned about the environment. There would be a closing assembly. A tree would be planted, environmental songs would be sung, and the posters would be displayed.
Weichert sent some instructions home to parents. The posters should depict "ways to save our environment, i.e., pictures of the earth, water, recycling, trash, etc." Antonio was not yet reading on his own, so his mother, JoAnne Peck, sat down with him one evening and together they pasted up an environmental poster. According to her deposition, the child said that "the only way to save the environment was through Jesus." Their poster thus depicted a robed Jesus in prayer and two children on a rock labeled "Savior." A legend read, "God keeps His promises."
Antonio took his poster to school the next day. It was not a hit. Weichert ruled that the poster had nothing to do with the environmental material the children had studied. Mrs. Peck took it up with principal Creme. He suggested that the boy try again, this time with a poster that could depict recycling, kids picking up trash, and maybe "a little bit of religious content."
Mother and child went back to the drawing board. Their second effort depicted the same praying Jesus and a church with a cross, but it also included "pictures of people picking up trash and placing it in a recycling can, of children holding hands and encircling the globe, and of clouds, trees, a squirrel, and grass."
Weichert again appealed to Creme. He made a ruling that should qualify him for diplomatic service: The second poster would be accepted, but only if Jesus were folded under. By inadvertence, half the church also was folded out of sight. Thus bobtailed, the entry went forward. A few months later, Antonio's parents sued the school district for violation of his constitutional rights.
Creme explained in a deposition that he had vetoed the first poster "because it had absolutely no relevance to the assignment at all." Moreover, he was "quite certain that (the poster) was not Antonio's work." Weichert defended the "fold it over" instructions on the reasoning that "if God is going to save the environment, that isn't something that we discussed in the classroom."
The Pecks' suit collapsed in U.S. District Court on a motion for summary judgment but picked up a second wind in the 2nd Circuit. Judge Guido Calabresi, writing in October for a unanimous three-judge panel, cited well-established precedents: Educators "do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities."
Then the judge backed off. There was some evidence that Antonio's poster was censored not because it was unresponsive to the assignment, but rather "because it offered a religious perspective on the topic of how to save the environment." Perhaps the school would not have similarly censored secular images that were equally non-responsive. The panel voted to send the case back for further proceedings.
My guess is that the Supreme Court will deny certiorari and let this one percolate. Artists are born to suffer, but Antonio's pain strikes me as the sort of pain that a growing boy can bear. Besides, affirmation would send a signal, sad to say, that the pandas are now running the zoo.