Thursday, June 11, 2009
Busch v. Marple Newtown Sch. Dist., No. 07-2967 (3d Cir. June 1, 2009), is an interesting case.
The Third Circuit held that a school district did not violate a student’s or his parents’ free speech or Establishment Clause rights by telling his mother she could not read the Bible to his kindergarten class. In an unusual move, each of the three judges on the panel each issued an opinion.
The majority opinion by Chief Judge Anthony J. Scirica began by observing that the elementary school setting provided a unique forum for purposes of considering the friction between the First Amendment and pedagogical interests. The court concluded that the classroom, during school hours, where curricular activities are being conducted by teachers, constitutes a nonpublic forum subject to a more relaxed standard for regulation of speech than a public forum. The age and impressionability of elementary school students must be factored into any restrictions, because “parents … trust the school to confine organized activities to legitimate and pedagogically-based goals.” The court concluded that this case was governed by the standard set forth by Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), whereby school officials must have a legitimate pedagogical reason for restricting school-sponsored speech. While classroom discussion of religion may be appropriate, “classroom speech promoting religion or specific religious messages presents special problems for educators.”
The court also relied on Walz ex rel. Walz v. Egg Harbor Township Board of Education, 342 F.3d 271 (3d Cir. 2003), for the proposition that “when invitations for student expression are intended to elicit descriptive responses, the school may limit the responses accordingly,” the court found that the school’s pedagogical considerations are “heightened” when parents are speaking because, like teachers, they are viewed by young children as authoritative.
The court rejected the parent’s contention that her speech could not be perceived as endorsed by the school. The school officials’ concern about violating the Establishment Clause was a legitimate pedagogical consideration, and in addressing the tension created by a potential perception of religious endorsement, “elementary school administrators and teachers should be given latitude within a range of reasonableness related to preserving the school’s educational goals.” As for the Establishment Clause claim, the court ruled under Lemon v. Kurtzman, 403 U.S. 602 (1971), that “the school’s actions do not violate the Establishment Clause because they were motivated by a permissible purpose to comply with the Establishment Clause; they do not evidence hostility toward Wesley’s faith; and they are not excessively entangled with religion.”
A separate concurring opinion by Judge Maryanne Trump Barry went further to argue that “children of kindergarten age 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.” The third opinion, by Judge Thomas M. Hardiman, concurred with the majority on the Establishment Clause question but dissented on the free speech question.
Mitchell H. Rubinstein