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Lines Drawn Against First Amendment Rights in Public Schools

James W. Cushing, Esq. on 8/10/2009

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A Marple Newtown School District kindergarten student has recently found himself at the center of a First Amendment controversy involving religious expression in public schools in the matter of Busch v. Marple Newtown School District, 2007 WL 1589507, appealed to the 3rd Circuit 2009 WL 1508513 (neither decision is reported).  The trial court found against the Plaintiffs per a Motion for Summary Judgment and the 3rd Circuit affirmed the decision.

In October 2004 a kindergarten class was in the midst of a unit of study called “All About Me”.  The assignments in the unit included the opportunity for the children to make a poster with pictures and/or drawings of their interests, hobbies, and/or families; bring in a toy or other item to share with the class; bring a snack; and, bring a parent in to share a talent, short game, small craft, or story with the class.  The Plaintiffs (a mother and son) in the matter elected to have an excerpt from Plaintiff-Son’s favorite book read by Plaintiff-Mother to the class to fulfill that portion of the assignment; Plaintiff-Son’s favorite book is the Bible.  Plaintiff-Mother intended to read Psalms 118:1 - 4 and 14 without further comment on them (the aforesaid verses read as follows as translated in the Authorized Version of the Bible: “O give thanks unto the LORD; for he is good: because his mercy endureth for ever. Let Israel now say, that his mercy endureth forever. Let the house of Aaron now say, that his mercy endureth forever. Let them now that fear the LORD say, that his mercy endureth forever. The LORD is my strength and song, and is become my salvation.”). This portion of the Bible was selected because it had no reference to Jesus, was generally inspirational, and was a form of poetry, according to the Plaintiff-Mother.  Plaintiff-Mother went to Plaintiff-Son’s class at the appointed time and told his teacher what she intended to read.  His teacher indicated that she would have to confer with the principal before she could allow Plaintiff-Mother to read from the Bible to the class.  The principal refused to permit Plaintiff-Mother from reading from the Bible to the class for fear of violating the law, specifically a breach of the “separation of church and state.”  Believing their constitutional rights have been violated, Plaintiff-Mother brought suit on behalf of her son alleging Constitutional breaches of his freedom of speech, the Establishment Clause, and equal protection of the law. 

            In making its ruling, the Court attempted to navigate the tangled web of law surrounding the rights guaranteed by the First Amendment balanced by the limitations of the Establishment Clause in a public school.  At the outset, the Court first had to discern what sort of “forum” a school (and a kindergarten class in particular) is for First Amendment purposes which determines the level of scrutiny the Court applies to the circumstances before it.  The parties agreed in this matter that a public school classroom (and a kindergarten class in particular) is not a public forum, which gives the government wide latitude to implement its curriculum.  The second tier of analysis is for the Court to determine whether the school engaged in viewpoint discrimination.  The Court ruled that, with specific exceptions, the government cannot discriminate speech based upon its viewpoint.  After review of all of the facts presented, it did concede that the school district discriminated against Plaintiff-Mother’s speech based upon its viewpoint (i.e.: the Bible).  The Court’s next step in its inquiry is to determine if the school’s viewpoint discrimination fits into one of the constitutionally permissible exceptions.  In taking this step, the Court noted that the various Circuit Court rulings are across the spectrum on the issue of what precisely is and is not permissible viewpoint discrimination.  Finally, the Plaintiffs alleged that the school district violated their 14th Amendment rights by subjecting them to disparate treatment based on their religious beliefs.  The Plaintiffs argued that the school permitted other religions to be exposed to the class and discriminated against Christianity by prohibiting the Plaintiffs from reading from the Bible.

A primary focus of the Court’s analysis was to determine whether the situation presented a perception of school-endorsed speech.  The listeners of the speech have to know that the religious speech at issue does not originate from and is not endorsed by the school.  Additionally, the Court noted that a school may restrict speech inasmuch as it is reasonably related to pedagogical concerns.  Essentially, the government cannot be perceived as promoting religion.  As a general rule, the younger the child, the more control over speech a school may exercise as it is generally assumed that young children are more impressionable and less likely to discern whether speech is endorsed by and/or originated from the school as opposed to a student.

            After a fairly extensive review of the facts and law relevant to the matter, the Court ultimately ruled that the school district was correct to restrict Plaintiffs from reading from the Bible in the classroom.  The Court decided that, in this matter, young children of a kindergarten age are specifically protected by the Constitution and are not able to discern school-endorsed speech from speech from an individual student.  The fact that was of central importance to the Court’s analysis was that the Plaintiff who read the Bible in the classroom was the mother whom, as a parent of a child in the class, the Court believed would be viewed as an authority figure by the children.  The Court believed that an impressionable kindergarten student would view the reading of the Bible by an authority figure (i.e.: parent) in a classroom as (unconstitutionally) coming from the school district and unable to discern that it was coming from the parent individually.  In terms of the equal protection claim, the Court noted that the other religions were presented “culturally” whereas it believed that Bible reading to a class was “proselytizing” restricted by Establishment Clause.

            Obviously the Court’s decision is controversial and the Plaintiffs are considering filing an appeal to the United States Supreme Court.  The Court’s decision is far from having unshakable support in either law or fact.  Indeed, matters such as this are extremely fact specific, and the law on which a court must base its ruling is extraordinarily tangled.  To complicate matters further, the Court spent a few paragraphs of its analysis of the matter detailing what the Plaintiff-Mother and her husband believe an Evangelical Christian to be.  It also attempted to discern the theological significance of the Bible verses selected for the reading.  Neither lines of inquiry are relevant to whether Plaintiffs’ speech is constitutionally permissible and, in fact, give the appearance that Christianity itself is, inappropriately, on trial.  In fact, it is through these flawed lines of analysis that the Court hinted that the Plaintiffs were actually engaged in proselytizing as opposed to their own stated intentions of merely presenting Plaintiff-Son’s favorite book.

            One could argue that the Court did not take the assignment in proper consideration.  One could very logically assume that the children listening to a presentation within the context of “All About Me” would readily understand that the Bible reading was, by definition, “all about” Plaintiff-Son and his favorite book as opposed to the school.  Indeed, Plaintiffs’ intention to read from the Plaintiff-Son’s favorite book was responsive to and complied with the assignment given by the school itself.  No evidence was presented by the Defendant that the students would somehow be confused over whether Bible reading in class was student or school sponsored.  Indeed, the reading of the verses would have taken less than thirty (30) seconds; one can hardly argue that that would somehow have an “adverse” effect on the children in the class.  To fit its ruling, the Court makes impossible distinctions.  For example, the Court distinguishes between expressing one’s love of the Bible from reading from it as well as incredulously stating that an assignment to help students learn about one another (i.e.: the “All About Me” project) somehow does not permit students to express their religious beliefs if they are important to those students.  In other words, students can learn about one another, except when it comes to religion.

            It was noted during the trial – and in the Court’s opinion – that religion and the kindergarten class have crossed paths before.  The classroom contains various books dealing with religious holidays (both Jewish and Christian).  Furthermore, the school has allowed a presentation to the class by a Jewish woman about the significance of Hanukkah and Passover.  Ironically, the Plaintiff-Son included pictures of a church on his “All About Me” poster with captions saying “I love to go to the house of the Lord”, and even that was permitted.  The school district obviously did not see any of the above as impermissible entanglements of religion and the kindergarten class.  One wonders how the Court could credibly draw such imperceptible distinctions between these religious incursions into public schools and the reading of 5 innocuous verses from the Bible in a classroom.

            Finally, it could be argued that the school district was generally overly sensitive and discriminatory to the presence of Christianity in its schools.  For example: the school district has likely unconstitutional policies of (1) prohibiting students from “advocating” a religious point of view or preference in any context; (2) ensuring that public schools are not a forum for a student to express his personal religious preference/doctrine; and, (3) suggesting calling a Christmas tree a “holiday” tree.  These policies are based upon the false premise that the Constitution calls for “separation of church and state”.  It is noteworthy to point out, as a sort of final slap in Plaintiffs’ faces, that when the Bible was rejected as a book to be read to the class, the teacher offered the Plaintiffs a book about witches as an alternative.  It hardly shows any appropriate sensitivity to the Plaintiffs’ religious beliefs on the part of the school district to suggest a book about the occult – something well known to be taboo among professed Christians – as somehow a viable alternative to the Bible.

            It remains to be seen whether this case will be appealed; if so it may be a viable case to be heard by the United States Supreme Court due to the general confusion and inconsistency among the various Circuits.  Regardless of whether this case is appealed to the United States Supreme Court, the fact remains that the relationship of religion and public schools is a very sensitive and fact specific one.  Ultimately, we are all called to be respectful and tolerant of one another and our religious, or nor non-religious, views.  One would hope that the lesson being learned in public schools is that there is a wide diversity of religious views and that it is possible for us all too peacefully co-exist without having to sacrifice one’s own religion in the process.

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  • 8/11/2009 by Anonymous

    This is such a ridiculous court decision that it should be appealed.

    Some judges clearly overreact when they hear "bible" or "God".

    This woman and her child’s free speech rights were completely demolished because of some principal’s lack of principle and a panel of judges who impose their personal biases and make it "law."

  • 8/11/2009 by Anonymous

    The tension between the free speech clause and the establishment clause is a difficult one at best, and particularly so in regard to children, especially of kindergarten age. The school must have reasonable discretion in deciding each situation, and the courts should not interfere in the absence of an abuse of that discretion.
    It appears from the article’s summary, the accuracy of which I cannot judge, that the school weighed the issues seriously and decided the matter in a good faith belief that it was the right decision. That decision is not unreasonable and the courts were correct to refuse to interfere with that decision.

  • 8/12/2009 by James W. Cushing

    In fairness, the school administration certainly tried to be thoughtful and act in good faith. I do not think anyone doubts the sincerity of the principal or teacher. However, sincerity ought not trump basic human rights and, more particularly, rights guaranteed in the U.S. Constitution. I agree that a school ought to have reasonable discretion and a court ought to respect that discretion. However, unlawfully abridging someone’s constitutional rights is never reasonable or within a school’s discretion. It is clear, from the school’s stated policies, that it is overly sensitive to religion as they are generally unconstitutional.

  • 8/12/2009 by Jennifer Schultz

    I’m taken aback by the last three paragraphs of the "article" which are thinly veiled critiques of the court’s decision. The school didn’t overact. There is clearly a difference between letting a kid tell his classmates his loves church, and letting an adult woman read “O give thanks unto the LORD; for he is good: because his mercy endureth for ever. Let Israel now say, that his mercy endureth forever. Let the house of Aaron now say, that his mercy endureth forever. Let them now that fear the LORD say, that his mercy endureth forever. The LORD is my strength and song, and is become my salvation." to five-year-olds. Those children would not have been able to understand this was the student’s opinion – it would have seemed like "fact" to them. And that’s the line being drawn – the beliefs of a religion or cultural can be presented as "this is what certain people think", but it cannot be taught as dogma or truth. The passage was dogma.

  • 8/12/2009 by James W. Cushing

    I would be surprised if a kindergarten student would even understand the passage or what it had to say at all, let alone understand it to be "dogma". Indeed, I also would be surprised if the kids would even be paying close enough attention to even know what was being read. I do not see how reading a few lines from the Bible is teaching "dogma" when (a) no exposition on the passage is offered and (b) it was totally compliant and consistent with the task assigned: a parent was to read an excerpt from the child’s favorite book. I do not think a kindergarten student lacks so much understanding that he would not realize that when something is read during "all about me" time that the book is from something else other than the "me". Indeed, I do not think anyone would suggest a student in the class would think the school itself serves green eggs and ham in the cafeteria if Dr. Seuss was read in class, why would the Bible be any different? I think this demonstrates an oversensitivity and general intolerance for religion. I also think that the school district opened the door to the Bible by allowing a presentation in the very religiously orientated holiday of Passover in the class.

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  • 4/25/2011 by Jordie Bittler

    Completely agree. There is no way a kindergarten student would understand the passage. Have you been in 5K classroom recently? Those kids are so busy focusing on 1st readers and trying to get the basics of comprehension down, that this type of "dogma" (as it is called) would fly right over their heads. You could http://www.iscinternational.com/features/color-faxing/">color fax it to them and they would just admire the pretty colors — it’s more about the visual then the substance at this age!

  • 6/13/2011 by Alex Davies

    It is possible, however, that if we teach the children accordingly they will develop a sense of what is right and wrong — for example as it relates to renewable energies. Take http://www.solarpondpumps.org/ as a perfect example of something that starts small and then builds up

  • 7/24/2011 by Keith Wagner

    @Alex, why stop with solar pond pumps? You could go with something as simple as http://www.solarchristmaslights.org/ or any other renewal energy or eco friendly product? The same argument could be made regardless. The point is that when there is a strong militant feeling towards anything, whether it is the Bible or something seemingly simple, like renewable energy, you will get the same types of outbursts.

  • 9/15/2011 by LJ

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