According to CNS news, a kindergartner, who was prohibited from passing out religious items in class, is challenging a ruling by the U.S. Court of Appeals for the Third Circuit against the school policy, calling it religious discrimination.

The Rutherford Institute, a civil liberties organization committed to defending constitutional and human rights, is representing Dana Walz and her son Daniel. They are waiting for the Supreme Court to take their case.

The institute attorneys, in requesting a review of the case by the Supreme Court, said the school district's actions and policies discriminate against Daniel's speech on the basis of its religious viewpoint, constitute hostility toward and denigration of religion in violation of the First and Fourteenth Amendments, and violate a New Jersey law against discrimination

"To prohibit a student from handing out gifts of his choosing to his classmates simply because the school is afraid that a parent will mistakenly assume school participation is ludicrous," said John W. Whitehead, president of the Rutherford Institute.

"We are hopeful the U.S. Supreme Court will see through the school officials' justifications and recognize their actions for what they are -- religious discrimination," Whitehead said.

In April 1998, during the Easter-Passover season, Daniel handed out pencils just as other children handed out small gifts at the holiday party. The pencil that Daniel passed out had a Christian message, which stated “Jesus loves the little children.”

On seeing the pencils, Daniel's teacher confiscated them from the children. Daniel's mother, Dana Walz, who was present in the classroom, immediately reported to the school’s principal to allow his son to pass out the pencils but the principal, assistant superintendent and superintendent denied Daniel's request to hand out the pencils.

Then in December 1998, Daniel and his classmates had a Christmas-Hanukkah party at school. Before the party, Walz contacted the school's attorney to get permission for her son to hand out candy canes with the story "The Candy Maker's Witness" attached to them. However the school allowed Daniel to pass out the candies only outside of classroom whereas other children were allowed to hand out non-religious items during the party.

The institute attorneys have asked the court to determine whether students’ religious speech can be violated solely because it is religious and to what extent the Supreme Court’s First Amendment jurisprudence, applies to elementary schools.