In
Busch v. Marple Newton School District, (3d Cir., June 1, 2009), the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, upheld a Pennsylvania elementary school's restriction that barred a kindergartner's mother from reading aloud from the Bible as part of a "show and tell" activity in her son's classroom. The teacher assigned each student an "All About Me" week, part of which involved a parent visiting the class and leading students in an activity or story. Donna Busch wanted to read from the Bible because it was her son Wesley's favorite book. Donna claimed that the school's refusal violated her free speech and equal protection rights, as well as the establishment clauses, under both the U.S. and state constitutions. The majority said in part:
Restrictions on speech during a school's organized, curricular activities are within the school's legitimate area of control because they help create the structured environment in which the school imparts basic social, behavioral, and academic lessons.... Principal Cook disallowed a reading from holy scripture because he believed it proselytized a specific religious point of view.
Judge Barry wrote a concurrence, saying:
children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion.
Judge Hardiman dissented as to plaintiff's free speech claim, arguing that the school had engaged in unconstitutional viewpoint discrimination:
Clearly, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."... It does not follow, however, that the state may regulate one's viewpoint merely because speech occurs in a schoolhouse — especially when the facts of the case demonstrate that the speech is
personal to the student and/or his parent rather than the school's speech. The majority’s desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the
government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them.
Yesterday's
San Jose (CA) Mercury News reported on the decision. (See
prior related posting.)
