Child's choice of religious subjects in public school class

[Eugene Volokh]

C.H. v. Oliva, 1997 WL 810514 (D.N.J. Dec. 30):

     "Z.H. was a student at Haines Elementary School, which is one
of defendant Medford Township Board of Education's public schools.
While Z.H. was in kindergarten in 1994, students in his class were
asked to make posters depicting things for which they were
thankful.  Z.H.'s poster professed his thanks for `Jesus.'  All the
posters were then placed on display in the school hallway.
Apparently, while the regular classroom teacher was absent, some
unknown person removed Z.H.'s poster due to its religious theme.
Upon the classroom teacher's return, the poster was returned to
display, albeit in a less prominent location than it had previously
occupied.

     "A similar incident occurred in February 1996 while Z.H.
attended defendant Grace Oliva's first grade class at Haines
Elementary.  Ms. Oliva maintained a policy in her class which
rewarded students reaching a certain level of reading proficiency
by allowing them to read a book of their own choosing to the rest
of the class. [FN: The material was subject to review by Ms. Oliva
to ensure that it would be suitable in length and complexity for
first grade students.]  On February 9, 1996, Z.H. chose to read a
story called `A Big Family,' an adaptation of chapters 29-33 of the
Book of Genesis, from a book entitled `The Beginner's Bible.'
[FN3]  See Genesis 29:1-33:20.  However, because of its religious
content, Ms. Oliva did not allow Z.H. to read the story to the
class.  Instead, although the other students were allowed to read
their non-religious stories to the class, he was only allowed to
read the story to Ms. Oliva.  [Z.H.'s mother, C.H., complained and
eventually sued.]

     "FN3. The story `A Big Family' reads: Jacob traveled far
     away to his uncle's house.  He worked for his uncle,
     taking care of sheep.  While he was there, Jacob got
     married.  He had twelve sons.  Jacob's big family lived
     on his uncle's land for many years. But Jacob wanted to
     go back home.  One day, Jacob packed up all his animals
     and his family and everything he had.  They traveled all
     the way back to where Esau lived.  Now Jacob was afraid
     that Esau might still be angry at him.  So he sent
     presents to Esau. He sent servants who said, `Please
     don't be angry anymore.'  But Esau wasn't angry.  He ran
     to Jacob.  He hugged and kissed him.  He was happy to see
     his brother again."

     Held:  As to the Free Speech Clause claim:  "In the context of
the classroom, . . . educators may `exercis[e] editorial control
over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.'  Hazelwood School
District v. Kuhlmeier.  Both incidents--relocating the poster of
Jesus and disallowing Z.H. to read the `Beginner's Bible' to his
class--were reasonably related to legitimate pedagogical concerns.
In fact, as the Medford defendants note, if the school had replaced
the poster in a more prominent position because it depicted Jesus
Christ, or even to counterbalance inferences of religious
discrimination, the school could have run afoul of the
Establishment Clause.  Furthermore, had the Medford defendants
allowed Z.H. to read the `Beginner's Bible' to the rest of his
first grade classmates, the possibility exists that they could have
construed the presentation to be an endorsement of the Bible by the
teacher. . . .  If Z.H.'s teacher were to praise him for completing
his reading assignment skillfully, (i.e. by saying something like
`very good'), it is not unlikely that a child in first grade could
interpret that comment as an endorsement of the story and the book.
Therefore, allowing Z.H. to read the `Beginner's Bible' only to his
teacher was a proper accommodation of Z.H.'s right of free
expression and the principle of separation of church and state."

     As to the Establishment Clause claim:  "[T]he defendants'
actions neither advanced nor inhibited religion, nor did the
defendants create an excessive entanglement with religion."

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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010