Third Grade Speech Case

From the Religion Clause blog:

3rd Circuit Says School Can Bar Bible Reading At Kindergarten "Show and Tell"

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.)

Hypo

Okay, now change the facts and ask yourself whether this changes your mind about the proper outcome of the Free Speech issue in the case above.

Now the student is Mary and she is the child of a same-sex couple, Alice and Sally. On "all about me" day Mary's mom, Alice, wishes to read from Mary's favorite children's book, Heather Has Two Mommies, a book about a same-sex family. The teacher forbids Alice to read from this book, because some parents don't want their young children exposed to issues about sexual orientation and same-sex relationships.

How would you rule on Mary and Alice's free speech claim?


I think the dissent got it right in the Busch case, but this is, after all, a curriculum speech case (i.e. Hazelwood not Tinker). The irony is that this was an "all about me" day, designed to promote self-esteem for each child. As it turns out, it is--for religious children--an "all about me except the most important thing about me" day, a program that a reasonable observer might well perceive as endorsing a message of disapproval concerning the religious "me" of children of faith.

If neutrality is the goal of the First Amendment, it would be better not to have this kind of "all about me" day at all, rather than to have it and then force religious children to create a false "me" because their authentic "me" is religious and thus unacceptable.

And again, this is why I believe we need school choice for all families with children. Not everyone's favorite book is a secular one.

I hope this case reaches the Supreme Court.