Busch v. Marple Newtown Sch ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-5-2009
Busch v. Marple Newtown Sch
Precedential or Non-Precedential: Precedential
Docket No. 07-2967
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AMENDED PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2967
DONNA KAY BUSCH,
IN HER INDIVIDUAL CAPACITY
AND AS THE PARENT AND NEXT FRIEND
OF WESLEY BUSCH, A MINOR
v.
MARPLE NEWTOWN SCHOOL DISTRICT;
MARPLE NEWTOWN SCHOOL DISTRICT
BOARD OF DIRECTORS;
ROBERT MESAROS, SUPERINTENDENT OF THE
MARPLE NEWTOWN SCHOOL DISTRICT;
THOMAS COOK, PRINCIPAL OF
CULBERTSON ELEMENTARY SCHOOL
Donna Kay Busch,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 05-cv-02094
(District Judge: Honorable R. Barclay Surrick)
Argued May 5, 2008
Before: SCIRICA, Chief Judge,
BARRY and HARDIMAN, Circuit Judges.
(Filed: June 1, 2009)
JASON P. GOSSELIN, ESQUIRE (ARGUED)
J. FREEDLEY HUNSICKER, JR., ESQUIRE
JARROD D. SHAW, ESQUIRE
KATHERINE L. VILLANUEVA, ESQUIRE
Drinker, Biddle & Reath
One Logan Square
18th and Cherry Streets
Philadelphia, Pennsylvania 19103
Attorneys for Appellant
MARK A. SERENI, ESQUIRE (ARGUED)
DiOrio & Sereni
21 West Front Street
P.O. Box 1789
2
Media, Pennsylvania 19063
ELLIS H. KATZ, ESQUIRE
JONATHAN P. RIBA, ESQUIRE
Sweet Stevens Tucker & Katz
331 East Butler Avenue
P.O. Box 5069
New Britain, Pennsylvania 18901
Attorneys for Appellees
DAVID A. CORTMAN, ESQUIRE
Alliance Defense Fund
1000 Hurricane Shoals Road
Building D, Suite 600
Lawrenceville, Georgia 30043
Attorney for Amici Curiae-Appellant,
Alliance Defense Fund and
Pennsylvania Family Institute
JAMES M. BECK, ESQUIRE
DIANE S. DANOFF, ESQUIRE
Dechert LLP
Cira Centre, 18 th Floor
2929 Arch Street
Philadelphia, Pennsylvania 19104
Attorney for Amicus Curiae-Appellees,
The Anti-Defamation League
3
MARC D. STERN, ESQUIRE
American Jewish Congress
825 Third Avenue, Suite 1800
New York, New York 10022
Attorney for Amicus Curiae-Appellees,
The American Jewish Congress
JEFFREY I. PASEK, ESQUIRE
Cozen & O'Connor
1900 Market Street, 3rd Floor
Philadelphia, Pennsylvania 19103
Attorney for Amicus Curiae-Appellees,
The Jewish Social Policy Action Network
EDWARD B. SCHWARTZ, ESQUIRE
DLA Piper
500 8th Street, N.W.
Washington, D.C. 20004
Attorney for Amicus Curiae-Appellees,
Americans United for Separation of Church and State
EMILY J. LEADER, ESQUIRE
Pennsylvania School Boards Association
400 Bent Creek Boulevard
P.O. Box 2042
Mechanicsburg, Pennsylvania 17055
Attorney for Amicus Curiae-Appellees,
Pennsylvania School Boards Association
4
FRANCISCO M. NEGRON, JR., ESQUIRE
National School Boards Association
1680 Duke Street
Alexandria, Virginia 22314
Attorney for Amici Curiae-Appellees,
National School Boards Association and
Pennsylvania School Boards Association
OPINION OF THE COURT
SCIRICA, Chief Judge.
Plaintiffs, who are mother and son, bring free speech,
establishment, and equal protection claims against Defendants,
who are school officials and the school district. These claims
stem from an elementary school’s restriction of the mother’s
effort to read aloud from scripture to students in her son’s
kindergarten classroom as part of a curricular “show and tell”-
type activity. The District Court granted summary judgment in
favor of Defendants on all claims. We will affirm.
I
5
Donna Kay Busch 1 is the mother of Wesley Busch, a
kindergarten student at Culbertson Elementary School of the
Marple Newtown School District, who was age five at the time
this matter arose. Busch describes herself as an Evangelical
Christian, 2 and Wesley shares his mother’s religious beliefs.
Busch and Wesley routinely read the Bible together at breakfast
and before going to bed, and Wesley often carries the Bible with
him.
In October 2004, as a student in teacher Jaime Reilly’s
kindergarten class, Wesley participated in a curricular unit
called “All About Me.” The unit was part of the social studies
curriculum and was designed to be a “socialization” program in
which students would “identify individual interests and learn
about others” and would “identify sources of conflict with others
and ways that conflicts can be resolved.”
Each student in Reilly’s class was featured during his or
her own “All About Me” week, and during the designated week,
the curriculum called for the student’s participation in three
ways. First, each student was given the opportunity to “share
1
Because Donna Kay Busch brings claims on Wesley’s
behalf, we will refer to her as the central litigant.
2
Busch testified that an Evangelical Christian is “someone
who believes . . . the Bible is the literal word of God.” Her
husband described an Evangelical as “one who brings God’s
word to the world.”
6
information about themselves [sic]” by bringing in “a poster
with pictures, drawings or magazine cut outs of [his or her]
family, hobbies or interests.” Second, the student was also
permitted to bring a snack to share as well as a special toy or
stuffed animal to introduce to the class. Third, Reilly invited
parents to participate in the unit by visiting the school to “share
a talent, short game, small craft, or story” with the class during
their child’s designated week.
As one aspect of Wesley’s participation in his “All About
Me” week, he made a poster with his mother that included
photographs of himself with his hamster, his brothers, his
parents, his best friend at the time, and a picture of a church cut
out from construction paper. Busch testified that she wrote what
Wesley asked her to write under the picture of the church: “I
love to go to the House of the Lord” or “I like to go to church”
or “something like that.” The poster was displayed in Wesley’s
classroom. And Wesley, like other students, had the opportunity
to present his poster to the class and talk about the various items
on it.
On October 15, 2004, Busch was scheduled to visit
Wesley’s class to participate in his “All About Me” week. She
told Wesley that Reilly invited her to visit class and read his
favorite book. When she asked him what he would like her to
read, Wesley responded, “the Bible.” 3
3
Wesley’s babysitter, Judy Harper, testified that Wesley’s
favorite book in kindergarten was Brown Bear, Brown Bear.
7
The night before her visit to Wesley’s class, Busch,
alone, without Wesley, pondered what passage she would read
from the Bible. Eventually she selected verses 1 through 4 and
verse 14 of Psalm 118 from the King James Bible:
1 Give thanks unto the Lord, for he is good;
because his mercy endures forever.
2 Let Israel now say, his mercy endures
forever.
3 Let the house of Aaron now say, that his
mercy endures forever.
4 Let them now that fear the Lord say, that
his mercy endures forever.
***
14 The Lord is my strength and my song, and
is become my salvation.
Busch testified she chose these verses because (1) she and
Wesley frequently read from the Book of Psalms; (2) she
thought the children would like Psalms because they are similar
to poetry; and (3) she desired a reading that did not make
reference to Jesus, which she worried might upset some people
given what she perceived in the past as hostility in the school
district towards her Christian beliefs. She also testified that she
intended to read the verses to the students without explanation
Nevertheless, on summary judgment, we assume that Wesley’s
favorite book was the Bible and that the Bible was chosen
according to his preference.
8
and that, if asked questions about the reading, she would
respond that “it was ancient psalms and ancient poetry and one
of Wesley’s favorite things to hear.”
On the morning she was supposed to read to Wesley’s
class, Busch informed Reilly of her decision to read from the
Bible. Reilly said she would have to check with the school’s
principal, Thomas Cook, who then arrived and spoke to Busch
in the hallway. He told Busch reading the Bible to the class
would be “against the law . . . of separation of church and state”
and asked her to read from another book. Principal Cook
testified he determined it was improper to read from the Bible
to a class of kindergarten students because he believed “the
Bible is holy scripture. . . . [I]t’s the word of God. And . . .
reading that to kindergarten students is promoting religion and
it’s proselytizing for promoting a specific religious point of
view.” 4 Busch testified that she remembered Cook using the
word “proselytizing” and that she understood him to be saying
it was against the law for her to try to “convert souls.”
Busch objected, telling Cook that her other son, age six,
had just finished reading a book called Gershon’s Monster: A
4
Robert Mesaros, Superintendent of the Marple Newtown
School District, later supported Principal Cook’s response to
Busch based on the captive nature of the classroom audience,
the parent appearing to “tak[e] the place of the teacher” in the
classroom, and the likely perception that the school district was
advocating or supporting whatever was going to be read.
9
Story for the Jewish New Year, which he had obtained from the
school library. Cook responded: “Well, that’s cultural and your
son chose that book and these children are not choosing to hear
from the Bible. . . . I can’t let you do it.” Reilly offered Busch
another book to read, and they settled on a book about counting.
Reilly testified the hallway conversation was inaudible in the
classroom, she never spoke with Wesley or the other children
about the incident, and she did not notice any change in
Wesley’s behavior or demeanor that day.
Other parents also participated in their children’s “All
About Me” weeks by reading stories to the class, sharing snacks,
and doing crafts. Among the stories read by parents were: The
Grinch Who Stole Christmas, The Jolly Roger, and Green Eggs
and Ham. Reilly also keeps a library of books from which she
periodically reads to Wesley’s class. Among those books are
several about holidays, including: Bear Stays Up for Christmas,
Froggy’s Best Christmas, The Wild Christmas Reindeer, Ten
Timid Ghosts on a Christmas Night, Christmas Trolls, The Best
Easter Eggs Ever, Easter Bunny’s On His Way, The Night
Before Easter, Hooray for Hanukkah, The Magic Dreidels, and
The Hanukkah Mice.
Additionally, one parent, Linda Lipski, visited Reilly’s
class twice during the year to give presentations on Hanukkah
and Passover that were planned in advance with Reilly. During
Hanukkah, Lipski brought in a menorah and a dreidel and read
“a Blue’s Clues Hanukkah story.” Later in the year, during the
Passover holiday, Lipski “read The Matzoh Ball Fairy to the
10
students and then offered them matzoh ball with chicken soup.” 5
Reilly set up Lipski’s presentation by discussing Easter and
Passover. She also discussed Christmas and Kwanzaa as part of
the winter holiday unit in the social studies curriculum, and
recalled a picture of a Christmas tree hanging in the classroom
at the time of the Hanukkah presentation. Reilly explained she
was comfortable permitting the holiday materials and
presentations because (1) the holidays were part of the official
social studies curriculum, (2) the menorah and dreidel were
symbols used on activity sheets in that curriculum, and (3) they
appeared consistent with the Marple Newtown School District’s
policy on holiday observances.
On May 3, 2005, Busch filed this lawsuit on behalf of
herself and Wesley against the Marple Newtown School
District, the Marple Newtown School District Board, School
District Superintendent Robert Mesaros, and School Principal
Thomas Cook, asserting six claims: (1) violation of the Free
Speech Clause of the United States Constitution; (2) violation of
the Free Communication Clause of the Pennsylvania
Constitution; (3) violation of the Establishment Clause of the
United States Constitution; (4) violation of the Establishment
Clause of the Pennsylvania Constitution; (5) violation of the
Equal Protection Clause of the United States Constitution; and
5
Reilly testified The Matzoh Ball Fairy is about a “family
[that] eats matzoh balls[,] and they float because the matzoh
balls were light and fluffy.”
11
(6) violation of the guarantee of equal rights and the prohibition
on discrimination in the Pennsylvania Constitution.6 Busch
6
Regarding the state speech claims, the Pennsylvania
Supreme Court has identified several factors to guide an analysis
of whether differences exist between federal and state
constitutional provisions. Pap’s A.M. v. City of Erie, 812 A.2d
591, 603 (Pa. 2002) (citing Commonwealth v. Edmunds, 586
A.2d 887, 895 (Pa. 1991)). Plaintiff has not addressed any of
these factors, and our own consideration of them does not
indicate the Pennsylvania Constitution differs from the federal
constitution in the area of school speech. To the contrary,
Pennsylvania state courts have followed federal constitutional
principles when considering the speech of teachers in
Pennsylvania classrooms, see Fink v. Bd. of Educ. of Warren
County Sch. Dist., 442 A.2d 837, 839–40, 841–42 (Pa. Commw.
Ct. 1982) (holding the school did not violate the teacher’s
constitutional rights by prohibiting the teacher from reading the
Bible in class), and as a matter of state policy — relevant to the
Pennsylvania constitutional analysis — the Pennsylvania
legislature has expressed a preference that religious texts not be
introduced to younger students. 24 Pa. Stat. Ann. § 15-1515
(West 2006). Accordingly, we believe the analysis of Busch’s
free speech claims under the United States Constitution is
dispositive of her claims under the Free Communications
Clause, Article I, § 7, of the Pennsylvania Constitution.
Busch’s state establishment and equal protection claims
are likewise disposed of by the relevant provisions of the federal
12
seeks a declaratory judgment, actual and nominal damages, and
costs and fees.
Following cross motions for summary judgment, the
District Court granted summary judgment in favor of the
Defendants and against Busch on all claims. This appeal
followed.7
constitution. Springfield Sch. Dist. v. Dep’t of Educ., 397 A.2d
1154, 1170 (Pa. 1979) (“[T]he provisions of Article I, Section
3 of [the Pennsylvania] constitution do not exceed the
limitations in the first amendment’s establishment clause.”);
Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1088 (Pa. 2003)
(“[T]he meaning and purpose of the Equal Protection Clause of
the United States Constitution and the state Constitution’s
prohibition against special laws are sufficiently similar to
warrant like treatment, and . . . contentions concerning the two
provisions may be reviewed simultaneously.” (citations
omitted)).
7
The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343. We have jurisdiction under 28 U.S.C. § 1291 to
review the District Court’s grant of summary judgment. Our
review is plenary, and we apply the same standard as the District
Court. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co.,
998 F.2d 1224, 1230 (3d Cir. 1993). Summary judgment should
be granted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
13
II
A
The elementary school setting — and particularly the
kindergarten classroom — is a unique forum for purposes of
considering competing First Amendment and pedagogical
interests. Unlike parks, streets, and other traditional public fora,
elementary school classrooms are not places for unlimited
debate on issues of public importance. See Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988). Most of the time,
school classrooms are reserved for teaching students in a
structured environment. Walz ex rel. Walz v. Egg Harbor Twp.
Bd. of Educ., 342 F.3d 271, 275–76 (3d Cir. 2003). Public
schools may take on characteristics of public fora by
“intentionally opening” facilities for “public discourse.”
Hazelwood Sch. Dist., 484 U.S. at 267 (quoting Cornelius v.
NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 802
(1985)); id. (“[S]chool facilities may be deemed to be public
forums only if school authorities have ‘by policy or by practice’
opened those facilities ‘for indiscriminate use by the general
genuine issue as to any material fact and that the [school district]
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). “In reviewing the District Court’s grant of summary
judgment, we view the facts in a light most favorable to the
nonmoving party:” in this case, the plaintiffs. Combs v. Homer-
Ctr. Sch. Dist., 540 F.3d 231, 235 n.5 (3d Cir. 2008) (citation
omitted).
14
public,’ or by some segment of the public, such as student
organizations.” (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 47 (1983), and citing Perry
Educ. Ass’n, 460 U.S. at 46 n.7)); see also Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 102, 106–07 (2001) (opening
school facilities to community groups after school hours); Child
Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist.,
386 F.3d 514, 524–26 (3d Cir. 2004) (opening school facilities
to a “broad array of community groups”). But in classrooms,
during school hours, when curricular activities are supervised by
teachers, the nonpublic nature of the school is preserved.
Speech occurring during these activities may be regulated under
standards different from those that would apply in public fora.
In the elementary school classroom, “the appropriateness
of student expression depends on several factors, including the
type of speech, the age of the locutor and audience, the school’s
control over the activity in which the expression occurs, and
whether the school solicits individual views from students
during the activity.” Walz, 342 F.3d at 278; see also id. at 275
(“In the elementary school setting, age and context are key.”).
As we have explained, “the age of the students bears an
important inverse relationship to the degree and kind of control
a school may exercise: as a general matter, the younger the
students, the more control a school may exercise.” 8 Id. at 276.
8
“[A]ny analysis of the students’ rights to expression on the
one hand, and of schools’ need to control behavior and foster an
15
“While secondary school students are mature enough and are
likely to understand that a school does not endorse or support
speech that it merely permits on a nondiscriminatory basis,
kindergartners and first graders are different.” Id. at 277
(internal quotation marks and citation omitted). For elementary
school students, “the line between school-endorsed speech and
merely allowable speech is blurred, not only for the young,
impressionable students but also for their parents who trust the
school to confine organized activities to legitimate and
pedagogically-based goals.” Id.
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. Id. at 275–76. The curricular standards applied during
these activities, “especially those that occur in kindergarten and
first grade, when children are most impressionable, should not
be lightly overturned.” Id. at 277; see also Hazelwood Sch.
Dist., 484 U.S. at 271 (“Educators are entitled to exercise
greater control over [school-sponsored expressive activities] to
assure that participants learn whatever lessons the activity is
designed to teach, that readers or listeners are not exposed to
environment conducive to learning on the other, must
necessarily take into account the age and maturity of the
student.” Walker-Serrano by Walker v. Leonard, 325 F.3d 412,
416 (3d Cir. 2003).
16
material that may be inappropriate for their level of maturity,
and that the views of the individual speaker are not erroneously
attributed to the school.”).
Some classroom discussion of religion or religious
practices may be consistent with appropriate curricular
standards, but classroom speech promoting religion or specific
religious messages presents special problems for educators. See
Walz, 342 F.3d at 280 (“[P]roselytizing speech . . . if permitted,
would be at cross-purposes with [the school’s] educational goal
and could appear to bear the school’s seal of approval.”); id. at
278 (“For a student in ‘show and tell’ to pass around a
Christmas ornament or a dreidel, and describe what the item
means to him, may well be consistent with the activity’s
educational goals . . . . Nevertheless, in the context of an
organized curricular activity, an elementary school may properly
restrict student speech promoting a specific message.”); cf.
Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (“Families
entrust public schools with the education of their children, but
condition their trust on the understanding that the classroom will
not purposely be used to advance religious views that may
conflict with the private beliefs of the student and his or her
family. Students in such institutions are impressionable and
their attendance is involuntary.”). Consistent with its
pedagogical goals, educators may appropriately restrict forms of
expression in elementary school classrooms.
Whether a school invites or solicits speech from students
helps determine whether student speech is consistent with the
17
school’s pedagogical goals. But the fact the speech was invited
during a curricular activity does not necessarily prevent the
school from limiting the student’s response. The school may
properly require that the solicited speech respond to the subject
matter at hand. See C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198,
211 (3d Cir. 2000) (en banc) (Alito, J., dissenting) (“Public
school teachers have the authority to specify the subjects that
students may discuss in class and the subjects of assignments
that students are asked to complete. Thus, if a student is asked
to solve a problem in mathematics or to write an essay on a great
American poet, the student clearly does not have a right to speak
or write about the Bible instead.” (citations omitted)). And the
school may require classroom responses conform to the mode of
presentation requested. Walz, 342 F.3d at 279. That is, when
invitations for student expression are intended to elicit
descriptive responses, the school may limit the responses
accordingly.
Likewise, when parents participate in an elementary
school’s curricular activities, the school may impose the same
requirement — that they refrain from promoting specific
messages in class. The school’s pedagogical considerations are
present, and are perhaps heightened, when a parent is the
speaker because parents, much like teachers, are typically held
in high regard and viewed as authoritative by young children.
By inviting participation in curricular activities, educators do not
cede control over the message and content of the subject matter
presented in the classroom. Were teachers or school
18
administrators required to do so, individual students or parents
could use the classroom to promote any message in the guise of
a pedagogically approved curricular activity.
Educators should be free to seek appropriate ways to
involve parents in the education of their children. See Brief of
Nat’l Sch. Bds. Ass’n and Pa. Sch. Bds. Ass’n as Amici Curiae
Supporting Appellees at 4 (recognizing “the need to avoid
creating legal disincentives for schools to do all they can to
engage parents in their children’s educations”). Yet the value
and frequency of these efforts could be jeopardized if parents —
once invited into the classroom to share details about their
family experience as part of “show and tell” activities — could
express any message of their choosing so long as it related in
some way to their child. See id. (explaining that inability to
exercise discretion would “force school districts to re-evaluate
parent participation in school projects on the basis that they can
ill afford the loss of control over the curriculum, legal
complications, and potential liabilities”); id. at 10 (“Amici
submit that activities which take place during instructional time
in public schools must be subject to school control, and that the
mere invitation to parents to help out with classroom activities
or homework assignments cannot result in carte blanche to teach
anything one pleases to a captive audience of public school
students.”). In the elementary school setting, and particularly at
the kindergarten level, educators would face the dilemma of
either foregoing valuable curricular activities or foregoing the
ability to control the pedagogical direction of their classrooms.
19
B
In this case, Donna Busch sought to read aloud passages
from the Bible to students in a kindergarten classroom, with the
teacher present, as part of a curricular exercise. In this context,
the school was concerned she would “promote a religious
message through the channel of a benign classroom activity.”
Walz, 342 F.3d at 280.
Busch contends the nature of the “All About Me”
exercise alters the context of the speech in two ways. First, she
contends the activity’s focus on Wesley during his “All About
Me” week prevented any perception of school endorsement.
“Show and tell” exercises — commonplace in elementary school
curricula — are valuable pedagogical tools for furthering the
behavioral and social development of children. But like other
curricular activities in the kindergarten classroom, “show and
tell” assignments generally presume the school may limit the
content of the presentations. Cf. id. at 278 (“[I]n the context of
an organized curricular activity, an elementary school may
properly restrict student speech promoting a specific message.”).
Moreover, unlike in Walz, the speaker here was not a student.
That it was a student’s parent further blurs “the line between
school-endorsed speech and merely allowable speech.” Id. at
277.
Second, pointing to our statement in Walz that
“[i]ndividual student expression that articulates a particular view
but that comes in response to a class assignment or activity
20
would appear to be protected,” id. at 279, Busch contends her
speech should have been permitted because she intended to
express a solicited view on the pertinent subject matter. That is,
the school invited her to participate in Wesley’s “All About Me”
week, where “all about Wesley” was the subject matter, and she
intended to present a viewpoint about Wesley. Accordingly,
Busch contends that once she was invited to speak, any
restriction on her speech was impermissible so long as her
speech was about Wesley.9
The school need not choose, however, between soliciting
information about students as part of curricular activities and
opening the classroom to any content the speaker chooses to
disseminate. In crafting a curriculum, school officials face the
9
At her deposition, Busch testified that the school would not
be able to restrict a parent in Wesley’s class who, as part of his
or her child’s “All About Me” week, wished to read material
advocating extreme violence and discrimination. We think it is
fair to discount these statements, which were elicited by
opposing counsel’s pointed questioning. When presented with
less provocative hypothetical scenarios at oral argument on this
appeal, however, Busch’s attorney similarly asserted that no line
drawing by the school would have been permissible so long as
a parent’s message related to his or her child. The gist of
Busch’s testimony and counsel’s argument is that Busch
believes schools must choose between allowing all invited
parent speech or allowing none at all.
21
sensitive task of exposing children to diverse traditions and
cultural experiences while also remaining mindful of the
expectations and rights of the children and their parents.
Principal Cook disallowed a reading from holy scripture because
he believed it proselytized a specific religious point of view. As
in Walz, the school’s reasons — to prevent promotion of a
religious message in kindergarten — were “designed to prevent
. . . speech that, if permitted, would be at cross-purposes with its
educational goal and could appear to bear the school’s seal of
approval.” Id. at 280.
Busch also contends the school’s restriction of her speech
was unrelated to the legitimate purpose of avoiding promotion
of religious messages generally but was instead motivated by its
desire to censor her and Wesley’s particular religious beliefs.
That is, the school was unconcerned with proselytizing generally
and only concerned with her Christian messages. She bases her
contention on a general assertion that the school had previously
exhibited animosity toward her faith while tolerating the
presentations of parents of other faiths in Wesley’s classroom.
Specifically, she points to the two presentations by Linda Lipski
on Hanukkah and Passover. As noted, during Hanukkah, Lipski
brought in a menorah and a dreidel and read “a Blue’s Clues
Hanukkah story.” On the Passover holiday, Lipski read The
Matzoh Ball Fairy to the students and then offered them matzoh
22
ball with chicken soup.10
But the unchallenged record demonstrates the school
permitted Wesley, in the classroom and as part of his “All About
Me” week, to express his religious beliefs. These beliefs were
featured on his “All About Me” poster as a depiction of a church
and a statement expressing that he likes to attend church.
Wesley was permitted, as other students were, to present his
poster to the class in the manner he desired. Accordingly, the
school’s actions do not appear to have been motivated by
discrimination against Wesley’s religion. Rather, the school
identified a significant difference between the identification of
religious belief and certain holiday-oriented religious materials,
on the one hand, and a parent’s reading of holy scripture, on the
other hand, which it considered a form of proselytizing.
It may be reasonably argued that a mother’s reading of
the Bible to a kindergarten class, especially sublime verses from
the Book of Psalms, should be permitted. In this sense and for
many, the conduct is benign and the message inspiring. But a
10
Busch also acknowledged that Wesley’s teacher keeps a
library of books she periodically reads to Wesley’s class.
Several of these books are about holidays, including Bear Stays
Up for Christmas, Froggy’s Best Christmas, The Wild
Christmas Reindeer, Ten Timid Ghosts on a Christmas Night,
Christmas Trolls, The Best Easter Eggs Ever, Easter Bunny’s
On His Way, The Night Before Easter, Hooray for Hanukkah,
The Magic Dreidels, and The Hanukkah Mice.
23
reading from the Bible or other religious text is more than a
message and unquestionably conveys a strong sense of spiritual
and moral authority. In this case, the audience is involuntary
and very young. Parents of public school kindergarten students
may reasonably expect their children will not become captive
audiences to an adult’s reading of religious texts.
The dilemma here is that our jurisprudence seeks to
affirm the right of individuals to identify and practice their
religion and at the same time to forestall the establishment of
religion. In this case, as in many others, these fundamental
principles are in tension with one another. Often a vehicle of
religious practice, speech is sometimes undertaken in private,
sometimes in a group, and sometimes, as here, in a public
school. The public school setting may implicate the
Establishment Clause, especially where public authority
undertakes or is reasonably perceived to have undertaken to give
one religious belief official approval or approval over other
religious beliefs. And this tension is particularly vexing in a
public school where attendance is compulsory and moral and
social values are being developed along with basic learning
skills. In seeking to address that tension, elementary school
administrators and teachers should be given latitude within a
range of reasonableness related to preserving the school’s
educational goals. See Hazelwood Sch. Dist., 484 U.S. at 273;
Walz, 342 F.3d at 277–78, 280–81. In this case, the school’s
24
actions were not unreasonable.11
III
Busch also challenges the school’s actions on
establishment grounds. Under Lemon v. Kurtzman, 403 U.S.
11
Busch averred additional claims on equal protection
grounds. She contends the school’s disparate treatment of her
and Lipski interfered with her and Wesley’s fundamental right
to free speech. Because we conclude the school’s actions did
not unconstitutionally burden Busch or Wesley’s First
Amendment rights, rational basis review is appropriate. See
Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974)
(“Unquestionably, the free exercise of religion is a fundamental
constitutional right. However, since we hold . . . that the Act
does not violate appellee’s right of free exercise of religion, we
have no occasion to apply to the challenged classification a
standard of scrutiny stricter than the traditional rational-basis
test.”); Rubin v. City of Santa Monica, 308 F.3d 1008, 1019 (9th
Cir. 2002) (“[R]ational basis review is appropriate unless the
restriction unconstitutionally burdens a fundamental right, here,
the right to free speech. Because we conclude that the
restrictions do not unconstitutionally burden Rubin’s right of
free speech, we find that neither do they violate his Equal
Protection right.”). Accordingly, because the school’s action
was in furtherance of a legitimate pedagogical objective, we
affirm the District Court’s holding that no equal protection
violation occurred.
25
602 (1971), government conduct complies with the
Establishment Clause if it meets three criteria. First, it must
have a secular purpose. Id. at 612. Second, its primary or
principal effect can neither advance nor inhibit religion,
meaning that regardless of its purpose, the action cannot
symbolically endorse or disapprove of religion. See id.; ACLU
v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1485–86
(3d Cir. 1996) (en banc). Third, the government action cannot
foster an excessive entanglement with religion. Lemon, 403
U.S. at 613; ACLU, 84 F.3d at 1483.
Regarding the first of these criteria, Principal Cook
prohibited Busch’s reading because he said it would be “against
the law . . . of separation of church and state.” Complying with
the Establishment Clause jurisprudence is a secular purpose.
And given the history of Establishment Clause violations when
religious messages have been conveyed at school-sponsored
activities, see, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290 (2000) (football games); Lee v. Weisman, 505 U.S. 577
(1992) (graduation ceremony), Cook’s determination that a
biblical reading to kindergarten students during a curricular
activity might also violate the Establishment Clause is not
unreasonable.
The likelihood of an Establishment Clause violation is
relevant to the second Lemon prong as well. An objective
observer would recognize the challenges educators face when
confronting potential Establishment Clause violations. See, e.g.,
Santa Fe Indep. Sch. Dist., 530 U.S. at 308 (focusing the
26
analysis on an objective observer familiar with the situation
confronting the school). Principal Cook’s efforts were
reasonably oriented toward complying with the Constitution,
and accordingly, an observer would not recognize his actions to
be hostile toward Wesley and Busch’s faith. An objective
observer would also know of Wesley’s own participation in the
“All About Me” week. These events do not demonstrate
hostility to Wesley’s identification with his faith.
Finally, Busch suggests the school’s policy governing
religious content in the classroom requires educators to make ad
hoc judgments, creating an excessive entanglement with
religion: “Defendants do not have a coherent policy governing
parental participation in classroom activities or religious
expression. Instead, judgments about what is permissible and
what is not permissible are made on an ad hoc basis, with
Defendants scrutinizing the speech at issue and making an
uninformed judgment call as to whether the speech is too
religious. This creates excessive entanglement between
government and religion.” Br. of Appellant at 15. The school
district, however, has a policy permitting holiday-oriented
content and cultural themes but disallowing speech that
promotes religion. The school’s monitoring of materials
presented in elementary classrooms for the purpose of
complying with its policy and the Establishment Clause does not
render the government’s actions excessively entangled with
religion. See Bowen v. Kendrick, 487 U.S. 589, 615–17 (1988)
(finding the review of educational materials to ensure
27
compliance with statutory and constitutional requirements does
not create an excessive entanglement with religion).
Accordingly, 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.
IV
For the foregoing reasons, we will affirm the judgment
of the District Court.
BARRY, Circuit Judge, concurring.
We have observed that “at a certain point, a school child
is so young that it might reasonably be presumed” that the First
Amendment does not protect that child’s speech. Walker-
Serrano by Walker v. Leonard, 325 F.3d 412, 417 (3d Cir.
2003). We have also observed that “[w]here that point falls is
subject to reasonable debate.” Id.
It cannot seriously be a subject of reasonable debate that
“that point” is kindergarten. I say this not because Wesley, then
age five, could neither read nor write and not because I take
issue with his mother’s claim that the Bible is Wesley’s favorite
book and not because, at least in my view, Wesley and his
28
kindergarten classmates would have been unable to understand
the excerpts from Psalm 118 that his mother sought to read on
his behalf, excerpts which tell us what Israel and the House of
Aaron say about the Lord’s mercy and note the concept of
salvation, a concept I note has been the subject of discussion and
debate among biblical scholars for centuries. I say that “that
point” is kindergarten because 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.
We send our littlest ones off to school worrying about
them and hoping no harm will come to them, but confident in
the knowledge that they will be protected and guided and, yes,
nurtured by their teachers, who are our surrogates while our
children are away. And so I write because I find something
unsettling about this case and others like it which, while
recognizing the crucial importance of age in determining the
extent of the First Amendment’s protections, have not – at least,
not yet – carved out an exception for the little ones but, rather,
continue to scrutinize and analyze purported violations of the
First Amendment rights of children at the pre-K and
kindergarten levels. I nonetheless join Chief Judge Scirica’s
excellent Opinion because it correctly applies our precedent to
the issues before us. Perhaps our next case will tweak that
precedent just slightly to accommodate my concerns.
29
HARDIMAN, Circuit Judge, dissenting in part and concurring
in part.
The Supreme Court has consistently considered two
important questions in Free Speech Clause cases involving
private speech: (1) whether the state’s regulation of speech is
based on subject matter or viewpoint; and (2) whether the
speech being regulated takes place in a public forum, a limited
public forum, or a nonpublic forum. The majority does not
discuss the first question. As for the second question, the
majority summarily concludes that this classroom was a
nonpublic forum. After doing so, the majority relies extensively
on Walz v. Egg Harbor Township Board of Education, 342 F.3d
271 (3d Cir. 2003), in concluding that the School District
appropriately barred Donna Busch from speaking. Because I do
not believe Walz controls this appeal, I must respectfully dissent
from that portion of the majority’s opinion that relates to
Busch’s free speech claim.12
I.
12
I concur with the majority’s holding in Part III of its
opinion denying Busch relief on her Establishment Clause
claim. However, I disagree with the majority’s implication in
that Part that the School District’s desire to avoid an
Establishment Clause violation was a valid concern. See infra
note 5.
30
Under the First Amendment, content-based regulations
of speech are presumptively invalid. R.A.V. v. City of St. Paul,
505 U.S. 377, 382 (1992). This presumption covers two types
of content-based regulations: (1) prohibitions of public
discussion of an entire topic or subject matter; and (2)
restrictions on particular viewpoints. See Consol. Edison Co. of
N.Y., Inc. v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980).
Accordingly, a content-neutral regulation “places no restrictions
on . . . either a particular viewpoint or any subject matter that
may be discussed.” Hill v. Colorado, 530 U.S. 703, 723 (2000).
The distinction between subject-matter and viewpoint
discrimination is not a bright one. Cogswell v. City of Seattle,
347 F.3d 809, 815 (9th Cir. 2003). As a general matter, “the
First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject
matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S.
92, 96 (1972). Therefore, governmental action that regulates
speech on the basis of its subject matter “slip[s] from the
neutrality of time, place, and circumstance into a concern about
content.” Id. at 99. If the marketplace of ideas is to remain free
and open, governments must not be allowed to choose “which
issues are worth discussing or debating.” Consol. Edison, 447
U.S. at 537-38; Startzell v. City of Phila., 533 F.3d 183, 192-93
(3d Cir. 2008). “To allow a government the choice of
permissible subjects for public debate would be to allow that
government control over the search for political truth.”
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515
31
(1981).
By contrast, viewpoint discrimination occurs when the
government targets not just subject matter, but also particular
views taken by speakers on a subject. Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
Viewpoint discrimination is “an egregious form of content
discrimination” and “the violation of the First Amendment is all
the more blatant.” Id. “To exclude a group simply because it is
controversial or divisive is viewpoint discrimination. A group
is controversial or divisive because some take issue with its
viewpoint.” Child Evangelism Fellowship of N.J., Inc. v.
Stafford Twp. Sch. Dist., 386 F.3d 514, 527 (3d Cir. 2004). As
Justice Brennan explained in his dissent in Perry Education
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983),
“[v]iewpoint discrimination is censorship in its purest form and
government regulation that discriminates among viewpoints
threatens the continued vitality of ‘free speech.’” Id. at 62.
The Supreme Court has consistently held that
discrimination based on the religious character of speech is
properly classified as viewpoint discrimination. In Lamb’s
Chapel v. Center Moriches Union Free School District, 508
U.S. 384 (1993), the Court held that a school district could not
permit school property to be used for the presentation of all
views about family issues and child rearing except those dealing
with the subject matter from a religious perspective. Id. at 393.
Similarly, in Rosenberger, the Court held unconstitutional a
university’s refusal to fund a student publication because it
32
addressed issues from a religious perspective. 515 U.S. at 831.
The Court explained: “Religion may be a vast area of inquiry,
but it also provides, as it did here, a specific premise, a
perspective, a standpoint from which a variety of subjects may
be discussed and considered.” Id. Finally, in Good News Club
v. Milford Central School, 533 U.S. 98 (2001), the Court found
viewpoint discrimination where a public school permitted
nonreligious groups to meet on school property after school but
prohibited a Christian club from doing so. Id. at 107-09. The
Court held that exclusion of a religious group amounted to
impermissible viewpoint discrimination where the group sought
only “to address a subject otherwise permitted under the [school
district’s policy], the teaching of morals and character, from a
religious standpoint.” Id. at 109. Together, Lamb’s Chapel,
Rosenberger, and Good News Club stand for the proposition that
if the government permits the discussion of a topic from a
secular perspective, “it may not shut out speech that discusses
that same topic from a religious perspective.” Stafford, 386 F.3d
at 528.
Comparing the facts of Walz and the present case, I find
they fall on opposite sides of the subject-matter/viewpoint
divide. In Walz, this Court considered whether a school’s
refusal to allow a first-grade student to distribute pencils that
included the phrase “Jesus [Loves] The Little Children” and
candy canes with attached religious stories during a classroom
holiday party violated the student’s constitutional rights. 342
F.3d at 274. The school maintained an unwritten policy
33
forbidding religious, as well as political and commercial
messages, but noted that religion may be acknowledged “if
presented in an objective manner and as a traditional part of the
culture and religious heritage of the particular holiday.” Id. at
273. As the district court in Walz determined, the regulation at
issue was viewpoint neutral, although it limited some religious
speech. Walz v. Egg Harbor Twp. Bd. of Educ., 187 F. Supp. 2d
232, 239-40 (D.N.J. 2002). Citing Lamb’s Chapel, the student
argued that because the restriction addressed religious speech
specifically, it was not viewpoint neutral. The district court
disagreed. The court acknowledged the Supreme Court’s
warning that discrimination against religion in general may
constitute viewpoint discrimination because it prevents
discussion from a religious standpoint. However, the court
found Lamb’s Chapel and its progeny inapplicable because the
school had not opened a forum for the exchange of views about
a subject by hosting a holiday party. Id. at 239. Rather, the
school had only solicited generic gifts devoid of any message
and had not created a forum to promote any viewpoint, religious
or secular. Id. Therefore, the district court properly concluded
that the regulation was viewpoint neutral, even if it
discriminated on the basis of subject matter.
In contrast to the district court’s careful analysis of the
distinction between subject matter and viewpoint discrimination
in Walz, this Court declined to engage in such an inquiry on
appeal, concluding that “in the context of an organized
curricular activity, an elementary school may properly restrict
34
student speech promoting a specific message.” Walz, 342 F.3d
at 278. Without determining whether the discrimination was
based on subject matter or viewpoint, we held that the school
could bar the student from “promot[ing] a religious message
through the channel of a benign classroom activity.” Id. at 280.
The regulation at issue in this appeal is different from
that in Walz. As the District Court noted, this case involves
viewpoint discrimination. Busch v. Marple Newtown Sch. Dist.,
No. 05-CV-2094, 2007 WL 1589507, at *7 (E.D. Pa. May 31,
2007). The teacher’s description of “All About Me” week left
the subject matter of the assignment open-ended, stating: “Each
child will have the opportunity to share information about
themselves [sic] during their ‘All About Me’ week.”
Furthermore, the description encouraged discussion of the
“child’s family, hobbies, and interests,” and invited parents to
“come to school to share a talent, short game, small craft, or
story” during their child’s week. Accordingly, Donna Busch’s
attempt to read Psalm 118 to her son’s class fell within the
specified subject matter — i.e., something of interest to her son
and important to his family — and the sole reason for excluding
her speech was its religious character. Psalm 118 does not
contain vulgar or lewd language, Bethel Sch. Dist. No. 403 v.
Fraser, 478 U.S. 675, 685 (1985) (“The First Amendment does
not prevent the school officials from determining that to permit
a vulgar and lewd speech . . . would undermine the school’s
basic educational mission.”), nor does it praise illegal activities,
Morse v. Frederick, 127 S. Ct. 2618, 2629 (2007) (school was
35
justified in restricting speech that could be “reasonably viewed
as promoting illegal drug use”), and there is no evidence that
Busch’s reading would have caused any sort of classroom
disruption, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 513 (1969).
Instead, the challenged speech was responsive to the
assignment but approached it from a religious perspective
because religion is most important to the Busch family. As the
Supreme Court has observed, particularly in the context of
religious expression, it can be difficult to discern what amounts
to a subject matter unto itself, and what, by contrast, is best
characterized as a standpoint from which a subject matter is
approached. See Rosenberger, 515 U.S. at 831. However, I
believe the school went too far in this case in limiting
participation in “All About Me” week to nonreligious
perspectives. As the District Court properly noted, Donna
Busch was denied the opportunity to read the story her son chose
because it expressed a religious viewpoint, rather than a secular
one. This plainly constituted viewpoint, not subject matter,
discrimination.13 As then-Judge Alito recognized in his dissent
13
As Busch argues, that this was viewpoint discrimination
is made manifest by the fact that religious discussion had not
been foreign to this classroom in the past. Apart from “All
About Me” week activities, a different parent twice was invited
to present to the class about Hanukkah and Passover. Therefore,
in addition to having discriminated against the religious
perspective generally – in contravention of Lamb’s Chapel,
36
in C.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000) (en banc), such
viewpoint discrimination is proscribed by the First Amendment
unless the School District can show that allowing Busch’s
speech on a nondiscriminatory basis would have “materially
disrupt[ed] classwork or involve[d] substantial disorder or
invasion of the rights of other [ ] [students].” Id. at 212 (quoting
Tinker, 393 U.S. at 513). “When the government makes an
avenue of communication available to the proponents of some
views, the same opportunity must, absent exceptional
circumstances, be afforded to others who wish to express their
ideas in that manner, whether or not the governmental officials
endorse or sanction the thoughts to be expressed.” Main Road
v. Aytch, 522 F.2d 1080, 1087 (3d Cir. 1975).
The viewpoint discrimination visited upon Busch differs
from the treatment in Walz. Though we did not explicitly
address the subject matter/viewpoint distinction in Walz, the
district court’s thorough analysis in that case shows that the
regulation was viewpoint neutral; the school did not open the
forum to discuss any subjects. By contrast, here the School
District solicited speech, but then discriminated on the basis of
viewpoint by refusing to allow Donna Busch to express herself
from a religious perspective. Having opened the proverbial
Rosenberger, and Good News – the School District may have
improperly discriminated between religious perspectives. Either
way, the School District does not vigorously challenge the
District Court’s conclusion that its restriction of Busch’s speech
was viewpoint-based.
37
Pandora’s box by inviting parents of kindergarten students to
speak to the class about their children’s “family, hobbies, and
interests,” the School District was required to respect the
boundaries that it had set — however open-ended — provided
that the speech remained germane to the subject matter and
subject, of course, to the limitations set forth in Tinker, Fraser,
and Morse. Because the basis of discrimination differs between
the two cases, I do not find Walz controlling. 4 1
14
I also depart from the majority’s brief forum analysis in
Part II.A of its opinion. As the Supreme Court noted in Perry,
“[t]he existence of a right of access to public property and the
standard by which limitations upon such a right must be
evaluated differ depending on the character of the property at
issue.” 460 U.S. at 44. Accordingly, the Supreme Court “has
adopted a forum analysis as a means of determining when the
Government’s interest in limiting the use of its property to the
intended purpose outweighs the interest of those wishing to use
the property for other purposes.” Cornelius v. NAACP Legal
Defense & Educ. Fund, 473 U.S. 788, 800 (1985).
The District Court found that the teacher’s invitation
converted the classroom into at most a limited public forum,
which is created when the state opens a public place for
expressive activity. Perry, 460 U.S. at 45. The District Court
accurately noted that the School District “opened [the]
classroom to specific people, the parents of [the] students, for a
specific delineated purpose,” to participate in the discussion of
their children via “All About Me” week. Busch, 2007 WL
1589507, at *6. While the First Amendment “does not
38
II.
The majority’s adherence to Walz is, in my view, also
flawed because of that case’s reliance on Hazelwood School
District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the
guarantee access to property simply because it is owned or
controlled by the government,” U.S. Postal Serv. v. Greenburgh
Civic Ass’n, 453 U.S. 114, 129 (1981), when the state has
opened a forum but limits the expressive activity to certain kinds
of speakers or the discussion of certain subjects — as the School
District did here — “[t]he Constitution forbids a state to enforce
certain exclusions . . . even if it was not required to create the
forum in the first place.” Perry, 460 U.S. at 45. Although the
School District surely was not required to invite parents into the
classroom in the first place, once it did so, it could only apply
reasonable time, place, and manner regulations; content-based
prohibitions “must be narrowly drawn to effectuate a compelling
state interest.” Id. at 46.
The majority summarily concludes that the classroom is
a nonpublic forum. Even assuming this to be the case, the
government could not restrict speech on the basis of the
speaker’s viewpoint. Id. at 45; see also Cornelius, 473 U.S. at
806 (“Control over access to a nonpublic forum can be based on
subject matter and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose served by the forum
and are viewpoint neutral.”) (emphasis added); Child
Evangelism Fellowship, 386 F.3d at 524 (“[E]ven if the . . . fora
were not limited public fora but were closed, [the school] still
could not engage in viewpoint discrimination.”).
39
Supreme Court upheld a principal’s deletion of student articles
on teen pregnancy and divorce from a school-sponsored
newspaper. The Court held that the school could “exercis[e]
editorial control over the style and content of student speech in
school-sponsored expressive activities as long as [its] actions are
reasonably related to legitimate pedagogical concerns.” Id. at
273.
Hazelwood is limited to situations in which the speech
may be interpreted as coming from the school itself. As the
Supreme Court acknowledged:
The question whether the First Amendment
requires a school to tolerate particular student
speech . . . is different from the question whether
the First Amendment requires a school
affirmatively to promote particular student
speech. The former question addresses educators’
ability to silence a student’s personal expression
that happens to occur on the school premises.
The latter question concerns educators’ authority
over school-sponsored publications, theatrical
productions, and other expressive activities that
students, parents, and members of the public
might reasonably perceive to bear the imprimatur
of the school. . . . Educators are entitled to
exercise greater control over this second form of
student expression.
40
Id. at 271.
The Court reaffirmed this principle in Rosenberger,
explaining:
[W]hen the State is the speaker, it may make
content-based choices. When the University
determines the content of the education it
provides, it is the University speaking, and we
have permitted the government to regulate the
content of what is or is not expressed when it is
the speaker or when it enlists private entities to
convey its own message. . . . It does not follow,
however . . . that viewpoint-based restrictions are
proper when the University does not itself speak
. . . but instead encourage[s] a diversity of views
from private speakers. A holding that the
University may not discriminate based on the
viewpoint of private persons whose speech it
facilitates does not restrict the University’s own
speech, which is controlled by different
principles.
515 U.S. at 833-34. See also Pleasant Grove City v. Summum,
129 S. Ct. 1125, 1131-34 (2009) (noting distinction between
government speech and private speech).
I find Hazelwood inapposite to this appeal because there
is no risk that Busch’s speech would “bear the imprimatur of the
school,” Hazelwood, 484 U.S. at 271, nor will it be mistaken for
“the [school’s] own speech.” Rosenberger, 515 U.S. at 834.
41
Here, “All About Me” week was designed to help students
“identify individual interests and learn about others.” The
teacher explained to parents that “[e]ach child will have the
opportunity to share information about themselves [sic] during
their ‘All About Me’ week.” Students were invited to send in a
poster with pictures of their favorite things, bring in special toys
or snacks to share with the class, and parents were welcome to
“come to school to share a talent, short game, small craft, or
story.” Everything from the title of the exercise – “All About
Me” week – to the specific requests made by the teacher,
indicated that the student (or, in reality, the parent) was speaking
and not the school.15 This is distinguishable from the situation
in Hazelwood, which contained numerous indicia of school-
sponsorship, including: the newspaper was produced by students
in a journalism class that was part of the school curriculum; the
school financed the paper and it was the official school
newspaper; the students’ work was reviewed and graded by a
faculty member and the entire paper was subject to the review
of the principal prior to publication. See Hazelwood, 484 U.S.
at 268-69.
As Walz itself indicates, “[i]ndividual student expression
that articulates a particular view but that comes in response to a
class assignment would appear to be protected.” 342 F.3d at
279. “[N]othing in Hazelwood suggests that its standard applies
15
T he likelihood that a kindergarten student would engage
this assignment without parental influence and control is
exceedingly remote. And the various approaches that a parent
might take in this regard are as idiosyncratic as the number of
parents.
42
when a student is called upon to express his or her personal
views in class or in an assignment.” Oliva, 226 F.3d at 213
(Alito, J., dissenting) (emphasis added). Donna Busch’s speech
came in response to the teacher’s broad invitation to share
something about her child; once invited, the School District was
obliged to “tolerate” her speech, not to “affirmatively promote”
it. Hazelwood, 484 U.S. at 271. “School- or government-
sponsored speech occurs when a public school or other
governmental entity aims ‘to convey its own message.’” Child
Evangelism Fellowship, 386 F.3d at 524 (quoting Rosenberger,
515 U.S. at 833). By contrast, when the school solicits the
expression of “a diversity of views from private speakers,” the
expression that results is private. Id.
In Walz, this Court seemed concerned that young students
would not be able to distinguish between school-sponsored
speech and speech from private individuals, and “the school may
wish to avoid the appearance of endorsing certain speech.” 342
F.3d at 277. Accordingly, we set forth a number of factors
against which to measure the propriety of student expression in
an elementary school setting, including: the type of speech; the
age of the speaker and audience; the school’s control over the
activity in which the expression occurs; and whether the school
solicits individual views from students during the activity. Id.
at 278.
The Walz factors strike me as highly manipulable and
therefore may encompass speech — such as the expression at
issue in this case — that will not be reasonably perceived as
school-sponsored. Even kindergarten students are capable of
43
distinguishing between personal “show and tell” activities and
school-sponsored instruction. As we observed in Walz:
The appropriateness of student speech must be
viewed in its educational context. For a student in
“show and tell” to pass around a Christmas
ornament or a dreidel, and describe what the item
means to him, may well be consistent with the
activity’s educational goals; likewise, a lesson
that includes a mock debate invites individual
student expression on the relevant topic. In those
scenarios, the student speaker is expressing
himself in the context of a school assignment or
activity where the school has sought students’
personal views.
342 F.3d at 278 (emphasis added).
The speech at issue in this appeal closely resembles a
“show and tell” exercise. Accordingly, Donna Busch’s speech
did not “bear the imprimatur of the school” and Hazelwood is
inapposite.16
16
Because I find that the speech in question could not
have borne the imprimatur of the School District, I also reject
the District Court’s conclusion that the School District’s
viewpoint discrimination was necessary to avoid an
Establishment Clause violation. “The Establishment Clause is
not violated when the government treats religious speech and
other speech equally and a reasonable observer would not view
the government practice as endorsing religion.” Oliva, 225 F.3d
at 211 (Alito, J., dissenting) (citing Capitol Square Review &
44
III.
Finally, I note that even if we were to find that
Hazelwood should control this case because any speech to young
children is likely to be perceived as being school-sponsored, this
would not conclude our inquiry. In holding that a school may
regulate school-sponsored expressive activities so long as the
regulation is “reasonably related to legitimate pedagogical
concerns,” the Hazelwood Court justified the principal’s
decision to discriminate on the basis of content; but that decision
does not necessarily offer any justification for allowing
educators to discriminate based on viewpoint absent a
compelling government interest.
As the Supreme Court held in Hazelwood, “educators do
not offend the First Amendment by exercising editorial control
over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably
related to legitimate pedagogical concerns.” 484 U.S. at 273
(emphasis added). The school officials in that case conceded
that any restrictions on school-sponsored student speech must be
viewpoint neutral. Id. at 287 n.3 (Brennan, J., concurring).
More fundamentally, if schools could impose viewpoint-based
restrictions on all student speech that might be perceived as
school-sponsored, the promise of Tinker — that students “do not
Advisory Bd. v. Pinette, 515 U.S. 753, 763-70 (1995)
(plurality)). Because the speech came from Busch and cannot
be considered school-sponsored, it did not violate the
Establishment Clause.
45
shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate” — would mean very little.
Tinker, 393 U.S. at 506.
Because Hazelwood did not address the issue of
viewpoint discrimination, the question of whether school-
sponsored speech can discriminate on the basis of viewpoint
remains open and our sister courts of appeals are split on this
issue. Some circuits have found that Hazelwood requires that
the school’s regulation only be reasonably related to pedagogical
concerns. See Fleming v. Jefferson County Sch. Dist., 298 F.3d
918, 926-29 (10th Cir. 2002); Ward v. Hickey, 996 F.2d 448,
454 (1st Cir. 1993); see also C.H. ex rel. Z.H. v. Oliva, 195 F.3d
167, 172-73 (3d Cir. 1999), vacated and reh’g en banc
(“Hazelwood clearly stands for the proposition that educators
may impose non-viewpoint neutral restrictions on the content of
student speech in school-sponsored expressive activities so long
as those restrictions are reasonably related to legitimate
pedagogical concerns.”) (emphasis added). In essence, these
courts read Hazelwood as establishing a rational basis standard
for speech in the public school setting. The District Court
embraced this standard, holding that “schools may restrict
speech even based on its viewpoint ‘so long as their actions are
reasonably related to legitimate pedagogical concerns.’” Busch,
2007 WL 1589507, at *9 (emphasis added).
By contrast, other circuit courts of appeals have
interpreted the Hazelwood standard to require that a school’s
restriction be not only reasonable, but also viewpoint neutral.
See Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626,
629-30 (2d Cir. 2005); Planned Parenthood of S. Nevada, Inc.
v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991);
46
Searcey v. Harris, 888 F.2d 1314, 1320 (11th Cir. 1989); see
also Oliva, 226 F.3d at 211 (Alito, J., dissenting). Citing these
cases, Busch argues that when a public school opens a limited
public forum, the general rule prohibiting viewpoint-based
restrictions remains effective despite Hazelwood.
Without explicitly embracing either of these two
perspectives vis-à-vis viewpoint discrimination, we concluded
in Walz that “in the context of its classroom holiday parties, the
school’s restrictions on this expression were designed to prevent
proselytizing speech that, if permitted, would be at cross-
purposes with its educational goal and could appear to bear the
school’s seal of approval.” 342 F.3d at 280 (citing Hazelwood,
484 U.S. at 273). Given the school’s valid educational
purposes, this Court reasoned, its actions were appropriate. Id.
The Court did not explain its level of scrutiny, however.
Likewise, in the present case, the majority makes sparse mention
of Hazelwood and does not attempt to justify the school’s
viewpoint discrimination under either rational basis review or
strict scrutiny.17
If we wish to conclude that Hazelwood grants schools the
power to discriminate on the basis of viewpoint, I think we
should do so explicitly. This Court’s approach in Walz and in
this appeal, however pragmatic or commonsensical, lends itself
17
Neither the Walz court nor the majority here would have
had occasion to clarify whether Hazelwood disallowed
viewpoint discrimination, because, as noted above, neither
opinion addressed the question whether the discrimination was
based on subject matter or viewpoint in the first place.
47
to ad hoc jurisprudence. I recommend that we establish clear
rules regarding viewpoint discrimination in the classroom. “The
need for specificity is especially important where, as here, the
regulation at issue is a ‘content-based regulation of speech. The
vagueness of such a regulation raises special First Amendment
concerns because of its obvious chilling effect on free speech.’”
Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243,
266 (3d Cir. 2002) (quoting Reno v. ACLU, 521 U.S. 844, 871-
72 (1997)); see also Speiser v. Randall, 357 U.S. 513, 526
(1958) (“When one must guess what conduct or utterance may
lose him his position, one necessarily will ‘steer far wider of the
unlawful zone.’”) (citation omitted).
IV.
Clearly, “the constitutional rights of students in public
school are not automatically coextensive with the rights of
adults in other settings.” Fraser, 478 U.S. at 682. 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
48
important to them. With respect, I dissent.18
18
I agree largely with the sentiments Judge Barry expresses
in her concurrence. Like Justice Thomas’s recent concurring
opinion in Morse, Judge Barry harkens back to a day when
American schools were run by principals and teachers, acting in
loco parentis, with little or no intrusion from lawyers, courts,
and parents. See Morse, 127 S. Ct. at 2630-36 (Thomas, J.,
concurring). But this is not where we find ourselves today. As
long as our schools continue to provide a forum for some
parents and teachers to espouse their views in public schools, we
must manage the speech of all parents and teachers within the
guise of the First Amendment, lest we engage in the very sort of
viewpoint discrimination that the Amendment was designed to
protect against.
An “elementary school exception” or “kindergarten exception”
to the First Amendment seems sensible to me. However, instead
of establishing such an exception — which would delegate to
schools the power to determine what is said and done in the
classroom — the majority opinion merely allows this school to
prohibit a viewpoint, germane to the assignment, that it
disfavors. In addition, I question whether the creation of such
an exception should be the exclusive province of the Supreme
Court.
49