JSPAN Scores Victory in Church-State Amicus Brief

by Judah Labovitz and Ted Mann, JSPAN Board members and members of the Church-State Policy Center On June 1, 2009, the Court of Appeals for the Third Circuit decided the case of Donna Kay Busch v. Marple Newtown School District in a long-awaited decision. JSPAN had submitted an Amicus Curiae brief almost two years ago. We did so because the case involved an important church-state issue which, wrongly decided, would have created a very bad precedent in an area of the law of special importance to the Jewish community. Happily, the case was not wrongly decided. Donna Busch is the Evangelical Christian mother of Wesley, who at the time of the events discussed below, was a five-year old kindergartner in a Marple Newtown Township elementary school. It was Wesley's week in the "All About Me" program. During that week, parents were invited to read to the class something from their child's favorite book. According to his mother, Wesley's favorite book was the Bible, and she intended to read to the class five verses from Psalm 118, beginning with "Give thanks unto the Lord, for he is good; because his mercy endures forever” and ending with "The Lord is my strength and my song, and is become my salvation." The principal would not permit her to do so, although he did permit Wesley to bring into class and to display a poster depicting some of the youngster's favorite things, including his church. So, represented by the Alliance Defense Fund (a conservative Christian organization founded by many Christian ministries to defend "family values" and as a response to the ACLU), Mrs. Busch sued the School District claiming, among other things, that she had been denied the freedom of speech guaranteed by the Constitution’s First Amendment. Although the federal district court judge denied Donna Busch any relief, in his analysis of her free speech claim he found that the teacher had created a "limited public forum" when she opened her classroom to the parents of students to read something from their child’s favorite book. While government may restrict speech in such a forum, the restriction must be "viewpoint neutral," and the judge concluded that the principal's denial of permission to read a Psalm was not "viewpoint neutral," but rather constituted "viewpoint discrimination." The judge's inquiry did not end there, however. He ultimately held against Mrs. Busch on the theory that a public school may constitutionally seek to avoid the perception that it is endorsing a religious viewpoint and that such avoidance may even constitute a compelling state interest. When Donna Busch appealed to the Court of Appeals for the Third Circuit, JSPAN's Church-State Committee met to consider whether we should file an Amicus brief. We liked the Judge’s final conclusion, but we did not approve the route he took to get there. In our view the case required neither an analysis of what kind of "forum" was involved nor a discussion of whether the principal's action constituted "viewpoint discrimination." After all, almost 50 years ago the Supreme Court required viewpoint discrimination in public school classrooms when it ruled (6-1) that a state-written prayer to God at the start of the school day violated the Establishment Clause, and two years later ruled (8-1) that the Pennsylvania statute requiring that ten verses of the Bible be read in every public school classroom was likewise unconstitutional. We therefore argued in our brief that "viewpoint discrimination" was a singularly inappropriate lens through which to consider whether a parent has a free speech right to read Biblical Psalms to a captive audience of youngsters. The Court of Appeals decision rested heavily on the fact that this was a kindergarten class, that the parent, Donna Busch, carried the authority or imprimatur of the school in that context, and that the rights of the other children and their parents were impacted. Donna Busch and the Alliance Defense Fund seemed to have forgotten that other parents have rights too. They are required to send their children to school; they are not required to allow either teachers or parents to inculcate impressionable children with religious beliefs that differ from what they are taught at home. The Court of Appeals in an Opinion by Chief Judge Scirica approached the appeal precisely as we had requested in our Amicus brief, approving the lower court’s decision, but not the route taken to get there. The decision was 2:1, with Judge Berry writing a separate concurring opinion. Very probably, however, we have not heard the end of the case. One of the three members of the three-judge panel dissented, increasing the likelihood that Donna Busch's lawyers will file a Petition for a Rehearing En Banc – heard by the entire Court – or a Petition for Certiorari to the United States Supreme Court. So stay tuned; it ain't over till its over! (Alphabetically listed, the volunteer lawyers who participated in the preparation of the JSPAN brief were Alan Garfield, Judah Labovitz, Theodore Mann, Kenneth Myers, Daniel Segal and Barry Ungar). To read the Third Circuit decision in its entirety, click here.