Busch v. Marple Newtown School District
567 F.3d 89, 2009 WL 1508513 (2009)
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Rule of Law:
Public elementary schools may restrict speech by parents during curricular, in-class activities if the restriction is reasonably related to legitimate pedagogical concerns, such as avoiding the promotion of a specific religious message to a young, captive audience and preventing the appearance of school endorsement of religion.
Facts:
- Culbertson Elementary School held a curricular unit called "All About Me" for kindergarten students, run by teacher Jaime Reilly.
- As part of the unit, Reilly invited parents to visit the classroom to "share a talent, short game, small craft, or story" with the class.
- Donna Kay Busch's five-year-old son, Wesley, was a student in the class and, for his "All About Me" week, created a poster that included a picture of a church.
- When asked by his mother what story she should read to the class, Wesley requested his favorite book, the Bible.
- Busch selected verses from Psalm 118 to read aloud to the students.
- On the morning of the scheduled visit, Principal Thomas Cook prohibited Busch from reading from the Bible, stating it would violate the "separation of church and state" and constitute proselytizing.
- Another parent, Linda Lipski, had previously been permitted to give presentations to the class on Hanukkah and Passover, which included reading stories and sharing cultural items like a menorah and dreidel.
Procedural Posture:
- Donna Kay Busch, on behalf of herself and her son Wesley, filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania.
- The suit named the Marple Newtown School District and various school officials as defendants, alleging violations of the Free Speech, Establishment, and Equal Protection Clauses.
- Following cross-motions for summary judgment, the District Court granted summary judgment in favor of the defendants on all claims.
- Busch, as plaintiff-appellant, appealed the District Court's grant of summary judgment to the United States Court of Appeals for the Third Circuit.
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Issue:
Does a public elementary school violate a parent's First Amendment free speech rights by prohibiting her from reading a Bible passage to her son's kindergarten class during a curricular activity, based on concerns that the reading would constitute proselytizing and violate the Establishment Clause?
Opinions:
Majority - Scirica, Chief Judge
No, the public elementary school's restriction does not violate the parent's free speech rights. In the unique, nonpublic forum of an elementary school classroom, educators are entitled to exercise greater control over school-sponsored expressive activities to serve legitimate pedagogical goals. The school's action was reasonably related to its concerns of avoiding the promotion of a religious message to a young, impressionable, and captive audience, which could be perceived as school endorsement and potentially violate the Establishment Clause. The court distinguished this action from viewpoint discrimination, noting that Wesley was permitted to express his religious identity on his poster; the school drew a reasonable line between identifying a belief and having a parent read from holy scripture, which it considered a form of proselytizing.
Concurring - Barry, Circuit Judge
No, the school's action was permissible. The court should recognize that children of kindergarten age are simply too young for disagreements over classroom activities to be elevated to constitutional disputes cognizable in federal court. Teachers of very young children act as surrogates for parents and require broad discretion to guide and protect their students without judicial second-guessing. While bound by current precedent, future cases should consider carving out an exception to First Amendment analysis for children at the pre-K and kindergarten levels.
Dissenting in part and concurring in part - Hardiman, Circuit Judge
Yes, the school's action did violate the parent's free speech rights. The school engaged in impermissible viewpoint discrimination by prohibiting Busch's speech solely because of its religious character. By inviting parents to share information about their children's interests during "All About Me" week, the school created a limited public forum and could not then exclude a particular viewpoint. The speech was private expression, not school-sponsored speech that could be mistaken as bearing the school's imprimatur, making the majority's reliance on cases like Hazelwood inappropriate. Having opened the forum, the school was required to tolerate speech germane to the topic, absent a showing of substantial disruption.
Analysis:
This decision reinforces the high degree of deference courts grant to elementary school officials in regulating in-class, curriculum-related speech. It highlights the principle that the younger the students, the greater the school's authority to restrict expression to serve its pedagogical mission and avoid Establishment Clause conflicts. The case solidifies a school's power to draw a line between a student's expression of religious identity, which may be permissible, and activities the school deems proselytizing, which can be restricted. This ruling creates a significant hurdle for plaintiffs challenging school speech restrictions involving young children, particularly when the school can articulate a reasonable educational or constitutional-avoidance justification for its actions.
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