In Peck v. Baldwinsville Central School District, 2005 U.S. App. LEXIS 22368, the Second Circuit Court of Appeals on October 18 affirmed the trial court's dismissal of plaintiff's Establishment Clause claim, but vacated and sent back for trial plaintiff's First Amendment expression claim. The case grows out of a parents' challenge to the school's refusal to display their kindergarten child's environmental poster that included a picture of Jesus.
The court said: "the district court overlooked evidence that, if construed in the light most favorable to Pecks, suggested that Antonio's poster was censored not because it was unresponsive to the assignment, and not because Weichert and Creme believed that JoAnne Peck rather than Antonio was responsible for the poster's content, but because it offered a religious perspective on the topic of how to save the environment." It went on to say: "however, we do not foreclose the possibility that certain aspects of the record might be developed in such a manner as to disclose a state interest so overriding as to justify ... viewpoint discriminatory censorship. For example, The District has proffered its interest in avoiding the perception of religious endorsement as a rationale for not including Antonio's full poster in the environmental assembly." Yesterday's New York Newsday reported on the decision.
