Busch v. Marple Newtown Sch. Dist., No. 05-2094 (E.D. Pa. May 31, 2007)
A Pennsylvania federal district court has ruled that school officials did not violate a student’s or his parent’s free speech or equal protection rights, or the Establishment Clause, when they barred the parent from reading Bible verses in class as part of an elementary school social studies unit focused on learning about particular students. Wesley Busch was a student at Culbertson Elementary School. As part of her social studies curriculum, Wesley’s kindergarten teacher, Jamie Reilly, included a unit called "All About Me" that directed students to identify individual interests and learn about their classmates. One component of the unit involved the student’s parent coming to school to "share a talent, short game, small craft, or story with the class." Wesley’s mother, Donna Kay Busch, planned to read the Bible. After Ms. Reilly learned of the book selection, Principal Thomas Cook informed Ms. Busch that she would not be allowed to read to the class from the Bible, because this would be "against the law ... of separation of church and state" and asked her to read from another book. He concluded that it was improper to read from the Bible to a class of kindergarten students, because the "Bible is holy scripture. …And … reading that to kindergarten students is promoting religion." Ms. Busch sued Marple Newtown School District in her own individual capacity and on behalf of Wesley, claiming violations of the Free Speech, Equal Protection, and the Establishment Clauses.
Addressing the free speech claim first, the court determined that the classroom was, at most, a limited public forum where the government may impose restrictions that are reasonable and viewpoint neutral. Although the court agreed with the plaintiffs that the principal’s actions amounted to viewpoint discrimination, it noted that viewpoint discrimination is allowed under certain circumstances. The court found that the speech in the present case fell under the Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988), standard governing school-sponsored speech. It stated: "[W]here there is a likelihood of a perception of school-endorsed speech, …schools may restrict speech even based on its viewpoint ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’" As a result, the district court concluded that the principal was justifiably concerned that the school would be perceived as endorsing speech promoting a religious viewpoint in violation of the Establishment Clause. It also found that the principal’s action was justified because "a school’s avoidance of an Establishment Clause violation is a compelling interest such that it justifies viewpoint based restriction of speech." It added: "The student listeners, their parents, and all other school community members have a right to be free from government promotion of religion. In this context, the ‘right to freedom of speech . . . must yield to compelling public interests of greater constitutional significance.’"
The court also disposed of the plaintiffs’ Establishment Clause claim, finding the principal’s actions conformed to the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), since it had the secular purpose of avoiding a constitutional violation and had a "purely neutral effect." Turning to the equal protection claim, the court found that the disparate treatment accorded to other parents’ presentations did not rise to the level of a constitutional violation, because while those other presentations may have taught about religion, such as explaining the customs surrounding Hanukkah and Passover, they avoided imparting a religious viewpoint that could "carry an impermissible message of government endorsement of religion."
Busch v. Marple Newtown Sch. Dist., No. 05-2094 (E.D. Pa. May 31, 2007)
[Full opinion]