, Oct 21, 2005 / 12:00 am (CNA).- 5-year old Antonio Peck had no idea when he turned in his homework assignment--a poster about protecting the environment--that it would land him in federal court.

Peck, then a kindergarten student at Baldwinsville, NY’s Catherine McNamara Elementary School, originally turned in his poster-assignment to his teacher in 1999. It featured, among other things, a cut out picture of Jesus--something he reportedly thought applicable to the environment, and the assignment.

School officials however, felt otherwise. The rejected a first version of the poster and folded Antonio’s second attempt in half, in order to obscure the image of a kneeling Jesus they thought to be too religious in nature.

In 2000, a New York federal court ruled that the school had the right to censor the poster on the grounds of separation of church and state.

A second court ruled in favor of the school again last year, but on Tuesday, a three judge panel of the 2nd U.S. Court of Appeals in Manhattan unanimously decided that Peck’s constitutional rights may have been violated and recommended the case back to court once again.

Mathew D. Staver, President and General Counsel for Florida-based Liberty Counsel, who is representing Peck said that “The school humiliated Antonio when the teacher folded his poster in half so that the cutout drawing of Jesus could not be seen.”

“To allow a kindergarten poster to be displayed for a few hours on a cafeteria wall, along with 80 other student posters, is far from an establishment of religion. To censor the poster solely because some might perceive a portion of it to be religious is an egregious violation of the Constitution," he said.

In the Peck vs. Baldwinsville School District case, the 2nd Circuit Court of Appeals joined with the ninth and eleventh Circuit Courts who hold the view that discrimination--even in the public school setting--is unconstitutional.

Conversely, the first and tenth Circuit Courts opine that discrimination in the public school context is permissible.

This split in opinion could land Antonio in the Supreme Court--something which Staver says he would be all for.

“I'm elated with the decision,” he said. “Now Antonio will have his day in court.”

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