                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-1999

C.H. v Oliva
Precedential or Non-Precedential:

Docket 98-5061




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Recommended Citation
"C.H. v Oliva" (1999). 1999 Decisions. Paper 290.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/290


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Filed October 22, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5061

C.H., AS GUARDIAN AD LITEM OF Z.H., A MINOR,
AND C.H., INDIVIDUALLY
Appellant

v.

GRACE OLIVA; GAIL PRATT; PATRICK JOHNSON;
MEDFORD TOWNSHIP BOARD OF EDUCATION;
LEO KLAGHOLTZ, Commissioner of Education;
THE STATE OF NEW JERSEY
DEPARTMENT OF EDUCATION

Appeal from the United States District Court
For the District of New Jersey
(D.C. Civil No. 96-cv-02768)
District Judge: Honorable Joseph H. Rodriguez

Argued June 2, 1999

BEFORE: ROTH and STAPLETON, Circuit Judges, and
LONGOBARDI,* District Judge

(Opinion filed October 22, 1999)



_________________________________________________________________

* Honorable Joseph J. Longobardi, Senior United States District Judge
for the District of Delaware, sitting by designation.
F. Michael Daily, Jr.
Quinlan, Dunne & Daily
16 North Centre Street
Merchantville, NJ 08109-2519
 and
Eric W. Treene (Argued)
The Becket Fund for Religious
 Liberty
2000 Pennsylvania Avenue, N.W.
Suite 3200
Washington, DC 20006
 Attorneys for Appellant

Betsy G. Liebman
Capehart & Scatchard
8000 Midlantic Drive
Laurel Corporate Center, Suite 300
Mount Laurel, NJ 08054
 and
Michael P. Madden (Argued)
Madden, Madden & Del Duca
108 Kings Highway East, Suite 200
P.O. Box 210
Haddonfield, NJ 08033
 and
John K. Worthington (Argued)
Office of Attorney General of
 New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
 Attorneys for Appellees

Marc D. Stern
American Jewish Congress
15 East 84th Street
New York, NY 10028
 Attorney for Amicus-Appellee
 American Jewish Congress

                        2
OPINION OF THE COURT

STAPLETON, Circuit Judge:

C.H., as guardian ad litem of Z.H. and on her own behalf,
appeals from an order of the District Court dismissing her
complaint in this civil rights action. She alleges that the
defendants, New Jersey public school authorities,
impermissibly restricted Z.H.'s freedom of expression while
he was a student in kindergarten and first grade. She also
contends that the defendants' actions were so hostile
toward religion as to violate the Establishment Clause. We
will affirm.

I. BACKGROUND

Because we are reviewing the District Court's Rule 12(c)
judgment on the pleadings, we view the facts and
inferences to be drawn from the pleadings in a light most
favorable to C.H., the non-moving party. Janney
Montgomery Scott, Inc. v. Shepard Niles Inc., 11 F.3d 399,
406 (3d Cir. 1993). The following facts are affirmatively
alleged in the complaint.

This case arises from two incidents that occurred while
Z.H. was a student at the Haines Elementary School in
Medford, New Jersey. The first incident occurred while Z.H.
was a kindergarten student. In the spirit of the
Thanksgiving holiday, Z.H.'s teacher asked the students to
make posters depicting what they were "thankful for." Z.H.
produced a poster indicating that he was thankful for
Jesus. Initially, Z.H.'s poster was hung in the hallway
outside the kindergarten classroom along with all of the
other students' artistic works. Subsequently, on a day
when Z.H.'s teacher was absent from school, certain
unnamed employees of the Defendant Township of Medford
Board of Education removed Z.H.'s poster because of its
religious theme. When Z.H.'s teacher returned the next day,
she placed the poster back on the hallway wall, but hung
it in a less prominent location at the end of the hallway.

                                3
The second incident occurred approximately one and
one-half years later while Z.H. was a student in defendant
Grace Oliva's first grade class at Haines Elementary School.
As a reward for special achievement in reading
assignments, Ms. Oliva invited students to bring to class a
book from home and read one of their favorite stories to the
class. The only pre-announced condition to this privilege
was that Ms. Oliva would review the stories proposed by the
students to insure that their length and complexity were
appropriate for first graders. Z.H. qualified for this honor
and brought to school his favorite book, entitled"The
Beginner's Bible: Timeless Children's Stories," which was a
cartoon-illustrated collection of 95 children's stories based
upon The Bible. Z.H. asked to read "A Big Family," a story
based upon Genesis 29:1-33:20 that read, in its entirety, as
follows:

       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 home
       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.

After reviewing Z.H.'s selection, Ms. Oliva informed Z.H.
that he could not read this story to the class "because of its
religious content." Instead, Ms. Oliva permitted Z.H. to read
the story to her outside the presence of the other students.
Other students who brought in stories from non-religious
sources were permitted to read their stories to the class.

Upon learning of her son's experience, C.H. contacted
several school officials. First, C.H. contacted Ms. Oliva who
informed her that Z.H. could not read "the Bible" in class
"because it might influence other students." Next, C.H.
contacted defendant Gail Pratt, Principal of Haines
Elementary School, who explained that Z.H.'s reading

                               4
selection "was the equivalent of praying and might upset
Muslim, Hindu and Jewish students." Further, Pratt noted
that there was "no place in the public school for the reading
of the Bible" and that perhaps C.H. should consider
removing Z.H. from public school. C.H. then contacted
defendants Patrick Johnson, Superintendent of Schools,
and the Medford Board of Education, demanding that Z.H.
be allowed to read his story to the class and that the
defendants apologize for their conduct. These defendants
did not respond to this demand.

For apparently unrelated reasons, Z.H.'s family
subsequently moved from the Medford school district. At
the time the complaint was filed, Z.H. was attending public
school in another community also in Burlington County,
New Jersey.

C.H. filed a two-count complaint in the District Court,
alleging that the defendants' actions violated Z.H.'s First
Amendment right to freedom of expression. While her
complaint did not allege that the defendants' actions
violated the Establishment Clause, that claim was
thereafter raised and the District Court's opinion addressed
it. C.H. appeals the disposition of that claim, and we will
consider it as well. Named as defendants were Oliva, Pratt,
Johnson, the Medford School Board, Leo Klagholtz, New
Jersey's Commissioner of Education, and the New Jersey
Department of Education. In Count I, plaintiff sought
monetary damages against the Medford defendants alleging
that they intentionally, willfully or with reckless disregard,
deprived Z.H. of his constitutionally protected right to
freedom of expression in violation of 42 U.S.C.S 1983. In
Count II, plaintiff alleged that the state defendants aided in
the violation of Z.H.'s First Amendment rights, and sought
an order requiring them to implement the policies
necessary to protect from discrimination any student who
presents religious views.

The defendants moved for judgment on the pleadings
under Fed. R. Civ. P. 12(c). The District Court granted
defendants' motion and dismissed the complaint against all
defendants.1 C.H. now appeals. We have jurisdiction under
_________________________________________________________________

1. The District Court's opinion also addressed a number of the
defendants' jurisdictional defenses. See C.H. v. Oliva, 990 F. Supp. 341,

                               5
28 U.S.C. S 1291, and exercise plenary review over district
court dismissals under Rule 12(c). Hayes v. Community
Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991);
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289,
290 (3d Cir. 1988).

II. "A BIG FAMILY"

A.

While the parties dispute some details, they agree that (1)
"A Big Family" was an appropriate response to the
assignment given by Ms. Oliva to her first-grade class in the
sense that it was a favorite story of Z.H.'s and was of
appropriate length and reading complexity, and (2) Z.H. was
permitted to read "A Big Family" only to his teacher and not
to his classmates in class because it was a story based
upon the Bible. Accordingly, the issue presented by the
undisputed facts can be simply stated: whether public
school students in the first grade have a First Amendment
right to present religious material in class where that
material is responsive to a teacher's assignment.

Plaintiff correctly points out that state policies that
restrict expression of religious perspectives are not
viewpoint neutral even where those policies apply equally to
all religious perspectives. While such policies do not
discriminate against any particular religious faith, they do
discriminate against non-secular perspectives. See
Rosenberger v. Rector and Visitors of the Univ. of Va., 515
U.S. 819, 831 (1995); Lamb's Chapel v. Center Moriches
Sch. Dist., 508 U.S. 384, 393-94 (1993). As a result,
plaintiff insists such restrictions are precluded by the First
Amendment where, as here, they are not narrowly tailored
to serve a compelling state interest.

The defendants respond that, in the context of afirst-
grade classroom, a teacher must be able to take cognizance
_________________________________________________________________

347-52 (D. N.J. 1996). In so doing, the District Court dismissed the
State Department of Education as a defendant on Eleventh Amendment
grounds and removed C.H. as a plaintiff in her personal capacity
because she lacked standing. Id. at 348-49.

                               6
of the fact that state-compelled exposure of young children
to religious material is a matter of great sensitivity among
members of a school community. Defendants insist that
students of this age are very impressionable and cannot be
relied upon to distinguish between those things their
teacher endorses and those things she merely allows to be
expressed in her classroom. Accordingly, the defendants
urge that the situation confronted by Ms. Oliva held a
realistic and substantial risk of the school's being perceived
by the students and their parents as endorsing the Bible
before a captive and vulnerable audience. They conclude
that teachers must be permitted to avoid subject matter
holding this kind of potential for disruptive controversy.

B.

Although it is undisputed that public school students
" `do not shed their constitutional rights . . . at the
schoolhouse gate,' the nature of those rights is[determined
by] what is appropriate for children in school." Veronica
Sch. Dist. 47J v. Acton, 515 U.S. 646, 655-56 (1995)
(quoting Tinker v. Des Moines Indep. Comm. Sch. Dist., 393
U.S. 503, 506 (1969)). "The State's power over school
children . . . is custodial and tutelary, permitting a degree
of supervision and control that cannot be exercised over
free adults." Id. at 655. Moreover, it is well accepted that
public schools perform a critical role in shaping the
nation's youth, and that federal courts should be wary of
interfering in this process. As the Supreme Court observed
more than thirty years ago:

       Courts do not and cannot intervene in the resolution of
       conflicts which arise in the daily operation of school
       systems and which do not directly and sharply
       implicate basic constitutional values.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968). Over the
years, the Court has repeatedly reemphasized this theme.
E.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682
(1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
266 (1988).

With this foundation, we turn to the Supreme Court
precedent most helpful in the current context, Hazelwood

                               7
Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood,
the Supreme Court considered whether a public school's
decision to excise two articles from the student paper
violated the students' First Amendment rights. The
newspaper, Spectrum, was written and edited by the high
school's Journalism II class, under the direction of the
teacher, and was published and printed with funds
supplied by the high school. Prior to the final press run of
the school year, the teacher reviewed the year'sfinal edition
and objected to two stories that were scheduled to be
included. One of the stories described the experiences of
three of the school's students with pregnancy, the other
discussed the impact of divorce on students at the school,
and both were written in a manner that might have
revealed the identity of at least some of the students and
parents discussed. Because he believed there was
insufficient time before the scheduled press run to modify
the stories, the teacher elected to pull the stories from the
press run with the approval of his superiors.

The Supreme Court first addressed the issue of whether
Spectrum could appropriately be characterized as a public
forum. The Court found that the school had never evinced
an "intent to open the pages of Spectrum to `indiscriminate
use' by its student[s]," and, on the contrary, had "reserve[d]
the forum for its intended purpos[e] as a supervised
learning experience for journalism students." Hazelwood,
484 U.S. at 270 (internal citations and quotation marks
omitted). For these reasons, Spectrum was found to be a
non-public forum. This meant that the school was entitled
to exercise control over the content of the paper for
purposes other than maintaining discipline and avoiding
disruption of the learning process.

The Hazelwood Court then explained that there was an
important additional distinction between speech that may
be perceived as promoted by a school and speech that a
school is asked only to tolerate:

        The question whether the First Amendment requires
       a school to tolerate particular student speech . . . is
       different from the question whether the First
       Amendment requires a school affirmatively to promote
       particular student speech. The former question

                               8
       addresses educators' ability to silence a student's
       personal expression that happens to occur on the
       school premises. The latter question concerns
       educators' authority over school-sponsored
       publications, theatrical productions, and other
       expressive activities that students, parents, and
       members of the public might reasonably perceive to
       bear the imprimatur of the school. These activities may
       fairly be characterized as part of the school
       curriculum, whether or not they occur in a traditional
       classroom setting, so long as they are supervised by
       faculty members and designed to impart particular
       knowledge or skills to student participants and
       audiences.

Hazelwood, 484 U.S. at 270-71.

Hazelwood teaches that student expression that is a part
of a school curriculum may be subject to greater
restrictions than tolerated speech and articulates the
relevant legal standard to be applied in cases involving
such expression:

       Educators are entitled to exercise greater control over
       this . . . form of student expression to assure that
       participants learn whatever lessons the activity is
       designed to teach, that readers or listeners are not
       exposed to material that may be inappropriate for their
       level of maturity, and that the views of the individual
       speaker are not erroneously attributed to the school.
       . . . [E]ducators do not offend the First Amendment by
       exercising . . . 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.

Id. at 271-73 (emphasis added).

The Court gave the following examples of the kinds of
restrictions that would be considered "reasonably related to
legitimate pedagogical concerns":

       [A] school must be able to take into account the
       emotional maturity of the intended audience in
       determining whether to disseminate student speech on

                                  9
       potentially sensitive topics, which might range from the
       existence of Santa Claus in an elementary school
       setting to the particulars of teenage sexual activity in a
       high school setting. A school must also retain the
       authority to refuse to sponsor student speech that
       might reasonably be perceived to advocate drug or
       alcohol use, irresponsible sex, or conduct otherwise
       inconsistent with "the shared values of a civilized social
       order," or to associate the school with any position
       other than neutrality on matters of political
       controversy.

Id. at 272 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 683 (1986)).

It is apparent from these examples that a viewpoint-
based restriction on student speech in the classroom may
be reasonably related to legitimate pedagogical concerns
and thus permissible. A rule foreclosing classroom speech
that promotes the use of alcohol or that advocates a
position on a controversial political issue is recognized by
Hazelwood to be permissible even though it is not viewpoint
neutral.

After thus explicating the "legitimate pedagogical
concerns" standard, the Hazelwood Court turned to the
case before it and conducted a contextual analysis that
took into account the sensitive nature of the subject matter
of the excised articles and the ages of the intended
audience, as well as the privacy interests of the students
and parents that might have been identified. The ultimate
conclusion was that the First Amendment rights of the
student journalists had not been violated. In the course of
reaching this conclusion, the Court rejected the argument
that school officials should be permitted to exercise
prepublication control over school-sponsored student
expression only pursuant to preestablished criteria. It
believed that preestablished "regulations in the context of a
curricular activity could unduly constrain the ability of
educators to educate." Hazelwood, 484 U.S. at 273 n.6

Hazelwood clearly stands for the proposition that
educators may impose non-viewpoint neutral restrictions
on the content of student speech in school-sponsored

                               10
expressive activities so long as those restrictions are
reasonably related to legitimate pedagogical concerns.
Contrary to plaintiff 's suggestion, this remains the law of
the land.

Plaintiff insists that under Lamb's Chapel v. Center
Moriches Sch. Dist., 508 U.S. 385 (1993), and Rosenberger
v. Rector, 515 U.S. 819 (1995), absent a compelling state
interest, it is no longer permissible under any
circumstances for a school to prohibit religious perspectives
while permitting secular ones. Lamb's Chapel and
Rosenberger are distinguishable from Hazelwood, however.
The student speech at issue in both Rosenberger and
Lamb's Chapel is more appropriately characterized as
"tolerated," rather than "promoted," speech. Indeed,
Rosenberger expressly distinguished and preserved
Hazelwood on this ground.

In Lamb's Chapel, a public school restricted speech by
permitting numerous community organizations to access its
facility for after-hours use, while denying a church
organization access when it sought to use the facilities to
show a film series on family and child-rearing issues from
a Christian perspective. In Rosenberger, the University
restricted student speech by refusing to grant funding from
a student activities fund for extracurricular activities to a
student-run publication with an explicitly Christian
perspective, even though such funding was granted to other
student organizations. In neither case did the expressive
activity at issue "occur in a traditional classroom setting,
. . . supervised by faculty members and designed to impart
particular knowledge or skills to students," as in
Hazelwood. Hazelwood, 484 U.S. at 570. Moreover,
Rosenberger distinguished Hazelwood on the ground that
the latter dealt with the State's ability to impose restrictions
on the school's own speech, whereas Rosenberger
addressed state restrictions on private, or tolerated, speech:

       [W]hen the [State] determines the content of the
       education it provides, it is the [State] speaking, and we
       have permitted the government to regulate the content
       of what is or is not expressed when it is the speaker
       . . . . It does not follow, however, . . . that viewpoint-
       based restrictions are proper when the [State] does not

                               11
       itself speak or subsidize transmittal of a message it
       favors . . . . A holding that the [State] may not
       discriminate based on the viewpoint of private persons
       whose speech it facilitates does not restrict the[State's]
       own speech, which is controlled by different principles.
       See, e.g., Board of Ed. of Westside Community Schools
       (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990);
       Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,
       270-72 (1988).

Rosenberger, 515 U.S. at 833-34.

Thus, the requirement of viewpoint neutrality, while
essential to the analysis of a school's restrictions on extra-
curricular speech, such as that at issue in Rosenberger and
Lamb's Chapel, is simply not applicable to restrictions on
the State's own speech. Under Hazelwood, "[e]ducators are
entitled to exercise greater control over . . . student
expression" when it is elicited as part of a teacher-
supervised, school-sponsored activity. Hazelwood , 484 U.S.
at 271. In that specific environment, viewpoint neutrality is
neither necessary nor appropriate, as the school is there
responsible for "determin[ing] the content of the education
it provides." Rosenberger, 515 U.S. at 833.2
_________________________________________________________________

2. This conclusion is not inconsistent with Chandler v. James, No. 97-
6898, 1999 WL 493495 (11th Cir. July 13, 1999). In Chandler, the Court
held that the students' First Amendment right to freedom of expression
was violated where students were barred from engaging in purely
student-initiated, unsupervised, religious expression at school, such as
prayer or other devotional speech at school-related assemblies, sporting
events, or graduation ceremonies. The Chandler Court focused on the
fact that the student speech at issue was purely student-initiated, and
found that "the speech is not the State's--either by attribution or by
adoption." Id. at *6. Unlike Z.H.'s speech here, the student speech at
issue in Chandler was clearly "tolerated" speech, triggering a higher
level
of scrutiny of the restrictions involved. Indeed, the Court's conclusion
that the limitation was unconstitutional was expressly predicated on this
fact, thereby distinguishing it from the case at bar. See id. at *10 ("So
long as school personnel do not participate in or actively supervise
student-initiated speech, [the County School Board] cannot
constitutionally prohibit students from speaking religiously. . . .").

                               12
C.

We have no difficulty concluding that Ms. Oliva'sfirst-
grade classroom was a non-public forum. There is no claim
that the school invited the public, or any segment of the
public, to use this forum for expressive activity. To the
contrary, it was operated by the school exclusively for
purposes of elementary education. While expressive activity
was encouraged in this classroom, such expression was
encouraged in the context of a "supervised learning
experience." Id. at 270. In this respect, the forum at issue
here is analogous to that in Hazelwood, in which a school-
sponsored, student-run newspaper was held to be a
nonpublic forum largely because the school retained control
over the paper to ensure it was reserved "for its intended
[educational] purpose." Id.; see also Muller v. Jefferson
Lighthouse Sch., 98 F.3d 1530, 1540 (7th Cir. 1996)
(elementary school classroom was a nonpublic forum);
Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Pa. 1991) (same).

We also have no difficulty concluding that Z.H.'s
proposed story, like Spectrum, was a part of the school's
curriculum and is appropriately characterized as promoted
expression. It necessarily follows that the issue for decision
is whether the decision to deny permission to read"A Big
Family" to the class was reasonably related to a legitimate
pedagogical concern. We conclude that it was.

D.

We note at the outset that the decision maker here was
the classroom teacher, Ms. Oliva. She was vested with the
authority, unconstrained by school regulations, to
determine the manner in which the classes should be
conducted so as to best serve the educational mission of
the school. This required her to exercise her discretion in
light of all the circumstances she confronted. Her exercise
of this discretion is entitled to substantial deference from
this Court not only because she is a professional educator,
but also because she is in a far better position than we to
predict how students and their parents are likely to
respond to the way she conducts her class in any given
situation and what impact those responses may have on
the ongoing educational process.

                               13
Z.H. wanted to read a story from "The Beginner's Bible."
If he were permitted to do so, it was reasonable to expect
that other students might recognize that presentation as a
story from the Bible. Even if Z.H. did not choose to
expressly so inform his classmates, the title of the volume,
the names of the characters and the clothing in which the
characters were depicted in the illustrations could convey
this message. To be sure, as plaintiff stresses, the content
of the story was consistent with its being from a secular
source. But the potential for Z.H.'s presentation being
perceived by some of his classmates as a reading from the
Bible clearly existed, and we believe a teacher in Ms. Oliva's
position was entitled to take that fact into account.

In determining whether Ms. Oliva's decision was
reasonably related to legitimate pedagogical concerns, the
context is, of course, crucial. Ms. Oliva's was afirst-grade
class. For children at this level, their teacher is a primary
source of authority in their lives. They look to their teacher
for signals of appropriate behavior. As a result, lessons that
a first-grade teacher imparts to a class, or allows to be
imparted in a classroom under her supervision, are likely to
be understood as carrying her imprimatur. While older
students may be able to distinguish messages a teacher
specifically advocates from those she merely allows to be
expressed in the classroom, most first graders cannot be
counted on to make this nuanced distinction.

We believe it was also an important part of the context of
Ms. Oliva's decision that the classroom setting involved a
religiously heterogeneous and captive audience. It is not
unreasonable to expect that parents of non-Christian
children would resent exposure of their six-year-old
children to a reading from the Bible. Nor is it unreasonable
to expect that some parents of Christian first graders would
regard a compelled classroom exposure to material from the
Bible as an infringement of their parental right to guide the
religious development of their children at this stage.
Moreover, it is not unreasonable to expect that any
resentment engendered by Z.H.'s reading would have a
significant adverse impact on the important relationship
between the parents, the teacher, and their school.

                               14
It is most certainly true, as plaintiff emphasizes, that
religion is an important part of the human experience and
that no child's education can reasonably be regarded as
complete without meaningful exposure to the variety of
religious perspectives that he or she will encounter in the
community and to the impact that religion has had in the
development of civilization. For this reason, there are
undoubtedly some contexts in which a school's foreclosure
of student religious expression in a classroom will not be
reasonably related to a legitimate pedagogical concern. The
pedagogical issue presented by this case, however, is one of
timing. Our holding is a narrow one: a first-grade public-
school teacher may reasonably conclude that the
pedagogical detriment likely to flow from permitting what
may be perceived as a reading of a Bible story in her
classroom outweighs any pedagogical benefits.

III. THE POSTER

We now turn to the school's decision to temporarily
remove Z.H.'s poster from the kindergarten arts display.
Our analysis and conclusion parallel those of the preceding
section. First, we conclude that the display area in the hall
outside the kindergarten classroom, like the first-grade
classroom, was a non-public forum. Nothing in the record
suggests that it had been opened up to the display of any
material not constituting, or generated in response to, the
school's educational curriculum. Moreover, we also
conclude that the art display, like the stories read in class,
was "promoted" rather than "tolerated" speech. It follows
that the issue to be resolved is whether the school's
decision to temporarily remove Z.H.'s poster was reasonably
related to a legitimate pedagogical concern.

Z.H.'s kindergarten teacher accepted his poster as
responsive to the assignment--that he depict something for
which he was thankful. She placed it in the hall with the
posters of his classmates. During the teacher's absence
from school, Z.H.'s poster was taken down because of
concern over its religious content. It was restored to the
display, however, by his teacher on her return. Given the
sensitivity of the issues raised by student religious
expression, coupled with the notable immaturity of the

                                15
students involved and the relatively public display of the
posters in the school hallway, the school's temporary
removal of the poster does not violate the First Amendment
rights of the student artist. As we have indicated, decisions
on issues of this kind necessarily involve fact-sensitive
exercises of discretion by school authorities and reservation
of a brief period for deliberation is thus a measure
reasonably related to legitimate pedagogical concerns. Cf.
Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1541
(7th Cir. 1996) (failure of school regulations to provide a
definite time limit within which decisions to grant or deny
permission to engage in expressive activity was reasonable);
Salinas v. Sch. Dist. of Kansas City, 751 F.2d 288 (8th Cir.
1984) (delay occasioned by school board's deliberations over
sensitive requests for use of facilities for expressive activity
did not violate the requester's First Amendment rights).3

IV.

Plaintiff additionally asserts that defendants violated the
Establishment Clause. The District Court analyzed this
claim under Lemon v. Kurtzman, 403 U.S. 602 (1971), and
found no violation. On appeal to this Court, plaintiff insists
that by welcoming favorite stories, but excluding those that
the teacher deemed "religious," defendants exhibited a
"hostility toward religion" that is barred by the
Establishment Clause. In addition, plaintiff argues that by
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3. In her complaint, plaintiff alleges that the poster was removed
"because of its religious theme." App. at 7. She further alleges that
Z.H.'s
teacher "properly returned the poster to the hallway, although this time
the poster was placed at a less prominent location at the end of said
hallway." Id. Plaintiff 's complaint does not, however, accuse Z.H.'s
teacher of having placed the poster in a less prominent location because
of its religious content. Nevertheless, plaintiff argues before us that
the
placement of the poster on its return constituted an independent
violation of Z.H.'s First Amendment rights. We decline plaintiff 's
invitation to require the District Court to review and regulate the
school's
placement of its students' artwork. Even if the sensitivity of the subject
matter on Z.H.'s poster played some role in its placement, we believe that
placement would be within the permissible discretion of Z.H.'s teacher
for essentially the same reasons we have given in sustaining Ms. Oliva's
exercise of her discretion.

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involving the teacher in the determination as to which
stories are too religious to be read to the class, the
defendants' conduct "entangles government with religion,
and departs from the neutrality toward religion that the
Establishment Clause mandates."

The plaintiff misconstrues the requirements of the
Establishment Clause. To determine whether the
defendants' conduct violated the Establishment Clause, we
continue to apply the three-part test set out in Lemon. See
ACLU of New Jersey v. Black Horse Pike Regional Bd. of
Educ., 84 F.3d 1471, 1483 (3d Cir. 1996) (en banc). Briefly
stated, a government practice does not offend the
Establishment Clause if (1) it has a secular purpose; (2) its
principal or primary effect neither advances nor inhibits
religion; and (3) it does not create an excessive
entanglement of government with religion. Lemon, 403 U.S.
at 612-613. We agree with the District Court that this test
is satisfied here.

First, the defendants' purpose in restricting Z.H.'s
reading to Ms. Oliva alone was, as discussed at length
above, distinctly secular. Ms. Oliva chose to restrict Z.H.'s
reading as a means to ensuring that no student mistakenly
believe that Z.H.'s religious beliefs were officially sanctioned
by the school. This concern for the possibility of confusion,
as well as the possibility that Z.H.'s story might"upset"
other students, was motivated by distinctly educational
considerations. There is no suggestion to the contrary.
Second, the one-time restriction Ms. Oliva imposed cannot
be said to have had "the effect of communicating a message
of government endorsement or disapproval of religion,"
Lynch v. Donnelly, 465 U.S. 668, 692 (1984), let alone the
"hostility toward religion" which plaintiff alleges. Ms. Oliva's
restriction was an appropriate compromise, well-justified by
her pedagogical concerns. Rather than require Z.H. to pick
"another" favorite story, her compromise respected the
integrity of his choice and permitted him to read his chosen
tale in reward for his achievements. The accommodating
approach Ms. Oliva took was thus far from hostile or
disapproving. Finally, Ms. Oliva's conduct in this regard did
little to entangle the government with religion. To the
contrary, by implementing an alternative course that would

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not entail her incorporation of his reading into that day's
classwork, or her "approval" of Z.H.'s performance before
the class, Ms. Oliva deftly avoided any appearance of
entanglement that might have resulted. Compare Chandler,
1999 WL 493495, at *8 ("Teacher participation in student-
initiated prayer improperly entangles the State in religion
and signals an unconstitutional endorsement of religion."
(internal citation omitted)).

As the Supreme Court has explained, "[a] proper respect
for both the Free Exercise and the Establishment Clauses
compels the State to pursue a course of `neutrality' toward
religion, favoring neither one religion over others nor
religious adherents collectively over nonadherents." Bd. of
Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.
687, 696 (1994) (internal citations omitted). We think
defendants appropriately steered such a neutral course in
this case. Thus we agree with the District Court that, even
viewing the facts in the light most favorable to the plaintiff,
C.H. has failed to state a violation of the Establishment
Clause.

V.

In sum, we conclude that plaintiff has failed to allege a
violation of Z.H.'s First Amendment right to freedom of
expression because the defendants' restrictions on Z.H.'s
speech were reasonably related to a legitimate pedagogical
concern. In addition, we find no violation of the
Establishment Clause. Finally, because we have found no
constitutional violation, plaintiff is not entitled to injunctive
relief.

Accordingly, we will affirm the order of the District Court
granting defendants' judgment on the pleadings under Rule
12(c).

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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