Busch v. Marple Newtown School District

OPINION OF THE COURT

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 *92elementary 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

Donna Kay Busch1 is the mother of Wesley Busch, a kindergarten student at Culbertson Elementary School of the Mar-pie 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 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

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 *931 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 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 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 *94Christmas, 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 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 (6) violation of the guarantee of equal rights and the prohibition on discrimination in the Pennsylvania Constitution.6 Busch seeks *95a 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

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, 108 S.Ct. 562, 98 L.Ed.2d 592 (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, 108 S.Ct. 562 (quoting Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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 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, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), and citing Perry Educ. Ass’n, 460 U.S. at 46 n. 7, 103 S.Ct. 948)); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 102, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (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 in*96dividual 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. “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 nondiseriminatory 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, 108 S.Ct. 562 (“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 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, 107 S.Ct. 2573, 96 L.Ed.2d 510 (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 school’s pedagogical goals. But the *97fact 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 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.

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 *98the 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 “[^Individual student expression that articulates a particular view but that comes in response to a class assignment or activity 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 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 *99read “a Blue’s Clues Hanukkah story.” On the Passover holiday, Lipski read The Matzoh Ball Fairy to the students and then offered them matzoh 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 motiváted 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 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, 108 S.Ct. 562; Walz, 342 F.3d at 277-78, 280-81. In this case, the school’s actions were not unreasonable.11

*100III

Busch also challenges the school’s actions on establishment grounds. Under Lemon v. Kurtzman, 403 U.S. 602 (1971), government conduct complies with the Establishment Clause if it meets three criteria. First, it must have a secular purpose. Id. at 612, 91 S.Ct. 2105. 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, 91 S.Ct. 2105; 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, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (football games); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (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, 120 S.Ct. 2266 (focusing the 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. *101The 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, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (finding the review of educational materials to ensure 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.