Religion in the Schools Case Argued Before the Third Circuit

Can a school district prevent the mother of a kindergarten student from reading from the Bible to her son's classmates? That issue is at the heart of a legal dispute that was argued a few weeks ago before the Third Circuit Court of Appeals. JSPAN filed a friend of the court brief urging the court to uphold the actions of the school district. The case arose when Donna Busch, an Evangelical Christian, attempted to read from Psalm 118 to her son's class in the Marple Newtown, Pennsylvania school district. She came to the classroom as part of a curricular program known as the "All About Me" week during which parents are invited to share a talent, short game, small craft or story. After the teacher and and administrator acted to prevent Busch from reading Psalm 118 to the class, she sued. Backed by a religious right group, she claimed that the school district had engaged in "viewpoint discrimination" in violation of her First Amendment rights. A federal judge in Philadelphia ruled against Busch, but he also held that the school district had engaged in viewpoint discrimination. In her appeal, Busch contended that any restrictions on her speech must be viewpoint neutral, even in a school setting. She claimed that it violated her free speech rights for the school to restrict her speech based on its religious viewpoint. In its amicus brief, JSPAN urged the appellate court to affirm the trial court's decision, but to reject any application of "viewpoint discrimination" principles. According to the JSPAN brief, the court should apply a line of Supreme Court decisions that authorize school officials to enforce reasonable rules to ensure that young children are not exposed to proselytizing activities as part of the school curriculum. JSPAN President Jeff Pasek and Board Member Ted Mann, both of whom helped author the JSPAN brief, attended a lively argument before a three-judge panel of the Third Circuit. Chief Judge Anthony Scirica in particular asked tough questions to the attorney representing Mrs. Busch, noting that in similar case the Third Circuit never mentioned viewpoint discrimination at all. Judge Marian Trump Barry noted that if you apply a viewpoint test and allow any parents into the classroom, the school district would be prohibited from preventing them from espousing Nazi, Communist or other beliefs. Judge Thomas Hardiman observed that some other parent might come into the classroom to espouse plural marriage. Judge Scirica then noted that there were passages in some religious texts that disparage others because they are non-believers. All of the tough questions and observations were not focused on one side, however. The attorney for the school district was pointedly asked by Judge Hardiman if the mother's proposed reading would be illegal only if it is seen as the school's speech rather than the speech of a private person. He also pressed to know why the school district permitted parents to read stories about witches but not any reading from the Bible. Looking to see what a reasonable observer would think about situation, Judge Barry asked whether a 5 or 6 year-old or the child's parents should be the relevant test, especially because the children might not have any particular understanding about what is happening in the classroom. It is always difficult to predict the outcome of a case based on the questions raised during the argument. JSPAN is optimistic that the Third Circuit will craft an opinion upholding the school district's actions without wading into issues about viewpoint discrimination. Whatever the result, it is anticipated that the losing party will seek Supreme Court review.