2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-2009

Busch v. Marple Newtown Sch

Precedential or Non-Precedential: Precedential

Docket No. 07-2967

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 AMENDED PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2967

 

DONNA KAY BUSCH,

IN HER INDIVIDUAL CAPACITY

AND AS THE PARENT AND NEXT FRIEND

OF WESLEY BUSCH, A MINOR

v.

MARPLE NEWTOWN SCHOOL DISTRICT;

MARPLE NEWTOWN SCHOOL DISTRICT

BOARD OF DIRECTORS;

ROBERT MESAROS, SUPERINTENDENT OF THE

MARPLE NEWTOWN SCHOOL DISTRICT;

THOMAS COOK, PRINCIPAL OF

CULBERTSON ELEMENTARY SCHOOL

Donna Kay Busch,

Appellant
2

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 05-cv-02094

(District Judge: Honorable R. Barclay Surrick)

 

Argued May 5, 2008

Before: SCIRICA, Chief Judge,

BARRY and HARDIMAN, Circuit Judges.

(Filed: June 1, 2009)

JASON P. GOSSELIN, ESQUIRE (ARGUED)

J. FREEDLEY HUNSICKER, JR., ESQUIRE

JARROD D. SHAW, ESQUIRE

KATHERINE L. VILLANUEVA, ESQUIRE

Drinker, Biddle & Reath

One Logan Square

18th and Cherry Streets

Philadelphia, Pennsylvania 19103

Attorneys for Appellant

MARK A. SERENI, ESQUIRE (ARGUED)

DiOrio & Sereni

21 West Front Street

P.O. Box 1789
3

Media, Pennsylvania 19063

ELLIS H. KATZ, ESQUIRE

JONATHAN P. RIBA, ESQUIRE

Sweet Stevens Tucker & Katz

331 East Butler Avenue

P.O. Box 5069

New Britain, Pennsylvania 18901

Attorneys for Appellees

DAVID A. CORTMAN, ESQUIRE

Alliance Defense Fund

1000 Hurricane Shoals Road

Building D, Suite 600

Lawrenceville, Georgia 30043

Attorney for Amici Curiae-Appellant,

Alliance Defense Fund and 

Pennsylvania Family Institute

JAMES M. BECK, ESQUIRE

DIANE S. DANOFF, ESQUIRE

Dechert LLP

Cira Centre, 18 Floor th

2929 Arch Street

Philadelphia, Pennsylvania 19104

Attorney for Amicus Curiae-Appellees,

The Anti-Defamation League
4

MARC D. STERN, ESQUIRE

American Jewish Congress

825 Third Avenue, Suite 1800

New York, New York 10022

Attorney for Amicus Curiae-Appellees,

The American Jewish Congress

JEFFREY I. PASEK, ESQUIRE

Cozen & O'Connor

1900 Market Street, 3rd Floor

Philadelphia, Pennsylvania 19103

Attorney for Amicus Curiae-Appellees,

The Jewish Social Policy Action Network

EDWARD B. SCHWARTZ, ESQUIRE

DLA Piper

500 8th Street, N.W.

Washington, D.C. 20004

Attorney for Amicus Curiae-Appellees,

Americans United for Separation of Church and State

EMILY J. LEADER, ESQUIRE

Pennsylvania School Boards Association

400 Bent Creek Boulevard

P.O. Box 2042

Mechanicsburg, Pennsylvania 17055

Attorney for Amicus Curiae-Appellees,

Pennsylvania School Boards Association
5

FRANCISCO M. NEGRON, JR., ESQUIRE

National School Boards Association

1680 Duke Street

Alexandria, Virginia 22314

Attorney for Amici Curiae-Appellees,

National School Boards Association and

Pennsylvania School Boards Association

 

OPINION OF THE COURT

 

SCIRICA, Chief Judge.

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 elementary 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
 Because Donna Kay Busch brings claims on Wesley’s 1

behalf, we will refer to her as the central litigant.

 Busch testified that an Evangelical Christian is “someone 2

who believes . . . the Bible is the literal word of God.” Her

husband described an Evangelical as “one who brings God’s

word to the world.”

6

Donna Kay Busch is the mother of Wesley Busch, a 1

kindergarten student at Culbertson Elementary School of the

Marple Newtown School District, who was age five at the time

this matter arose. Busch describes herself as an Evangelical

Christian, and Wesley shares his mother’s religious beliefs. 2

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
 Wesley’s babysitter, Judy Harper, testified that Wesley’s 3

favorite book in kindergarten was Brown Bear, Brown Bear.

7

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
Nevertheless, on summary judgment, we assume that Wesley’s

favorite book was the Bible and that the Bible was chosen

according to his preference.

8

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 1 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
 Robert Mesaros, Superintendent of the Marple Newtown 4

School District, later supported Principal Cook’s response to

Busch based on the captive nature of the classroom audience,

the parent appearing to “tak[e] the place of the teacher” in the

classroom, and the likely perception that the school district was

advocating or supporting whatever was going to be read.

9

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.” Busch testified that she remembered Cook using the 4

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
10

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 Christmas, 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
 Reilly testified The Matzoh Ball Fairy is about a “family 5

[that] eats matzoh balls[,] and they float because the matzoh

balls were light and fluffy.”

11

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
 Regarding the state speech claims, the Pennsylvania 6

Supreme Court has identified several factors to guide an analysis

of whether differences exist between federal and state

constitutional provisions. Pap’s A.M. v. City of Erie, 812 A.2d

591, 603 (Pa. 2002) (citing Commonwealth v. Edmunds, 586

A.2d 887, 895 (Pa. 1991)). Plaintiff has not addressed any of

these factors, and our own consideration of them does not

indicate the Pennsylvania Constitution differs from the federal

constitution in the area of school speech. To the contrary,

Pennsylvania state courts have followed federal constitutional

principles when considering the speech of teachers in

Pennsylvania classrooms, see Fink v. Bd. of Educ. of Warren

County Sch. Dist., 442 A.2d 837, 839–40, 841–42 (Pa. Commw.

Ct. 1982) (holding the school did not violate the teacher’s

constitutional rights by prohibiting the teacher from reading the

Bible in class), and as a matter of state policy — relevant to the

Pennsylvania constitutional analysis — the Pennsylvania

legislature has expressed a preference that religious texts not be

introduced to younger students. 24 Pa. Stat. Ann. § 15-1515

(West 2006). Accordingly, we believe the analysis of Busch’s

free speech claims under the United States Constitution is

dispositive of her claims under the Free Communications

Clause, Article I, § 7, of the Pennsylvania Constitution.

Busch’s state establishment and equal protection claims

are likewise disposed of by the relevant provisions of the federal

12

(6) violation of the guarantee of equal rights and the prohibition

on discrimination in the Pennsylvania Constitution. Busch 6
constitution. Springfield Sch. Dist. v. Dep’t of Educ., 397 A.2d

1154, 1170 (Pa. 1979) (“[T]he provisions of Article I, Section

3 of [the Pennsylvania] constitution do not exceed the

limitations in the first amendment’s establishment clause.”);

Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1088 (Pa. 2003)

(“[T]he meaning and purpose of the Equal Protection Clause of

the United States Constitution and the state Constitution’s

prohibition against special laws are sufficiently similar to

warrant like treatment, and . . . contentions concerning the two

provisions may be reviewed simultaneously.” (citations

omitted)).

The District Court had jurisdiction under 28 U.S.C. §§ 1331 7

and 1343. We have jurisdiction under 28 U.S.C. § 1291 to

review the District Court’s grant of summary judgment. Our

review is plenary, and we apply the same standard as the District

Court. Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co.,

998 F.2d 1224, 1230 (3d Cir. 1993). Summary judgment should

be granted “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no

13

seeks a 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
genuine issue as to any material fact and that the [school district]

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). “In reviewing the District Court’s grant of summary

judgment, we view the facts in a light most favorable to the

nonmoving party:” in this case, the plaintiffs. Combs v. HomerCtr. Sch. Dist., 540 F.3d 231, 235 n.5 (3d Cir. 2008) (citation

omitted). 

14

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 (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 (quoting Cornelius v.

NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 802

(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
 “[A]ny analysis of the students’ rights to expression on the 8

one hand, and of schools’ need to control behavior and foster an

15

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 (1983), and citing Perry

Educ. Ass’n, 460 U.S. at 46 n.7)); see also Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 102, 106–07 (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 individual 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.” Id. at 276. 8
environment conducive to learning on the other, must

necessarily take into account the age and maturity of the

student.” Walker-Serrano by Walker v. Leonard, 325 F.3d 412,

416 (3d Cir. 2003). 

16

“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 nondiscriminatory 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 (“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
17

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 (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
18

school’s pedagogical goals. But the fact 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
19

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.
20

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 the 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

“[i]ndividual student expression that articulates a particular view

but that comes in response to a class assignment or activity
 At her deposition, Busch testified that the school would not 9

be able to restrict a parent in Wesley’s class who, as part of his

or her child’s “All About Me” week, wished to read material

advocating extreme violence and discrimination. We think it is

fair to discount these statements, which were elicited by

opposing counsel’s pointed questioning. When presented with

less provocative hypothetical scenarios at oral argument on this

appeal, however, Busch’s attorney similarly asserted that no line

drawing by the school would have been permissible so long as

a parent’s message related to his or her child. The gist of

Busch’s testimony and counsel’s argument is that Busch

believes schools must choose between allowing all invited

parent speech or allowing none at all. 

21

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
22

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 read “a Blue’s Clues

Hanukkah story.” On the Passover holiday, Lipski read The

Matzoh Ball Fairy to the students and then offered them matzoh
 Busch also acknowledged that Wesley’s teacher keeps a 10

library of books she periodically reads to Wesley’s class.

Several of these books are about holidays, including Bear Stays

Up for Christmas, Froggy’s Best Christmas, 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.

23

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 motivated 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
24

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;

Walz, 342 F.3d at 277–78, 280–81. In this case, the school’s
 Busch averred additional claims on equal protection 11

grounds. She contends the school’s disparate treatment of her

and Lipski interfered with her and Wesley’s fundamental right

to free speech. Because we conclude the school’s actions did

not unconstitutionally burden Busch or Wesley’s First

Amendment rights, rational basis review is appropriate. See

Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974)

(“Unquestionably, the free exercise of religion is a fundamental

constitutional right. However, since we hold . . . that the Act

does not violate appellee’s right of free exercise of religion, we

have no occasion to apply to the challenged classification a

standard of scrutiny stricter than the traditional rational-basis

test.”); Rubin v. City of Santa Monica, 308 F.3d 1008, 1019 (9th

Cir. 2002) (“[R]ational basis review is appropriate unless the

restriction unconstitutionally burdens a fundamental right, here,

the right to free speech. Because we conclude that the

restrictions do not unconstitutionally burden Rubin’s right of

free speech, we find that neither do they violate his Equal

Protection right.”). Accordingly, because the school’s action

was in furtherance of a legitimate pedagogical objective, we

affirm the District Court’s holding that no equal protection

violation occurred.

25

actions were not unreasonable.11

III

Busch also challenges the school’s actions on

establishment grounds. Under Lemon v. Kurtzman, 403 U.S.
26

602 (1971), government conduct complies with the

Establishment Clause if it meets three criteria. First, it must

have a secular purpose. Id. at 612. 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; 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 (2000) (football games); Lee v. Weisman, 505 U.S. 577

(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 (focusing the
27

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. The 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 (1988)

(finding the review of educational materials to ensure
28

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.

BARRY, Circuit Judge, concurring.

We have observed that “at a certain point, a school child

is so young that it might reasonably be presumed” that the First

Amendment does not protect that child’s speech. WalkerSerrano by Walker v. Leonard, 325 F.3d 412, 417 (3d Cir.

2003). We have also observed that “[w]here that point falls is

subject to reasonable debate.” Id. 

It cannot seriously be a subject of reasonable debate that

“that point” is kindergarten. I say this not because Wesley, then

age five, could neither read nor write and not because I take

issue with his mother’s claim that the Bible is Wesley’s favorite

book and not because, at least in my view, Wesley and his
29

kindergarten classmates would have been unable to understand

the excerpts from Psalm 118 that his mother sought to read on

his behalf, excerpts which tell us what Israel and the House of

Aaron say about the Lord’s mercy and note the concept of

salvation, a concept I note has been the subject of discussion and

debate among biblical scholars for centuries. I say that “that

point” is kindergarten because 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. 

We send our littlest ones off to school worrying about

them and hoping no harm will come to them, but confident in

the knowledge that they will be protected and guided and, yes,

nurtured by their teachers, who are our surrogates while our

children are away. And so I write because I find something

unsettling about this case and others like it which, while

recognizing the crucial importance of age in determining the

extent of the First Amendment’s protections, have not – at least,

not yet – carved out an exception for the little ones but, rather,

continue to scrutinize and analyze purported violations of the

First Amendment rights of children at the pre-K and

kindergarten levels. I nonetheless join Chief Judge Scirica’s

excellent Opinion because it correctly applies our precedent to

the issues before us. Perhaps our next case will tweak that

precedent just slightly to accommodate my concerns. 
 I concur with the majority’s holding in Part III of its 12

opinion denying Busch relief on her Establishment Clause

claim. However, I disagree with the majority’s implication in

that Part that the School District’s desire to avoid an

Establishment Clause violation was a valid concern. See infra

note 5.

30

HARDIMAN, Circuit Judge, dissenting in part and concurring

in part.

The Supreme Court has consistently considered two

important questions in Free Speech Clause cases involving

private speech: (1) whether the state’s regulation of speech is

based on subject matter or viewpoint; and (2) whether the

speech being regulated takes place in a public forum, a limited

public forum, or a nonpublic forum. The majority does not

discuss the first question. As for the second question, the

majority summarily concludes that this classroom was a

nonpublic forum. After doing so, the majority relies extensively

on Walz v. Egg Harbor Township Board of Education, 342 F.3d

271 (3d Cir. 2003), in concluding that the School District

appropriately barred Donna Busch from speaking. Because I do

not believe Walz controls this appeal, I must respectfully dissent

from that portion of the majority’s opinion that relates to

Busch’s free speech claim.12

I.
31

Under the First Amendment, content-based regulations

of speech are presumptively invalid. R.A.V. v. City of St. Paul,

505 U.S. 377, 382 (1992). This presumption covers two types

of content-based regulations: (1) prohibitions of public

discussion of an entire topic or subject matter; and (2)

restrictions on particular viewpoints. See Consol. Edison Co. of

N.Y., Inc. v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980).

Accordingly, a content-neutral regulation “places no restrictions

on . . . either a particular viewpoint or any subject matter that

may be discussed.” Hill v. Colorado, 530 U.S. 703, 723 (2000).

The distinction between subject-matter and viewpoint

discrimination is not a bright one. Cogswell v. City of Seattle,

347 F.3d 809, 815 (9th Cir. 2003). As a general matter, “the

First Amendment means that government has no power to

restrict expression because of its message, its ideas, its subject

matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S.

92, 96 (1972). Therefore, governmental action that regulates

speech on the basis of its subject matter “slip[s] from the

neutrality of time, place, and circumstance into a concern about

content.” Id. at 99. If the marketplace of ideas is to remain free

and open, governments must not be allowed to choose “which

issues are worth discussing or debating.” Consol. Edison, 447

U.S. at 537-38; Startzell v. City of Phila., 533 F.3d 183, 192-93

(3d Cir. 2008). “To allow a government the choice of

permissible subjects for public debate would be to allow that

government control over the search for political truth.”

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515
32

(1981). 

By contrast, viewpoint discrimination occurs when the

government targets not just subject matter, but also particular

views taken by speakers on a subject. Rosenberger v. Rector &

Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

Viewpoint discrimination is “an egregious form of content

discrimination” and “the violation of the First Amendment is all

the more blatant.” Id. “To exclude a group simply because it is

controversial or divisive is viewpoint discrimination. A group

is controversial or divisive because some take issue with its

viewpoint.” Child Evangelism Fellowship of N.J., Inc. v.

Stafford Twp. Sch. Dist., 386 F.3d 514, 527 (3d Cir. 2004). As

Justice Brennan explained in his dissent in Perry Education

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983),

“[v]iewpoint discrimination is censorship in its purest form and

government regulation that discriminates among viewpoints

threatens the continued vitality of ‘free speech.’” Id. at 62.

The Supreme Court has consistently held that

discrimination based on the religious character of speech is

properly classified as viewpoint discrimination. In Lamb’s

Chapel v. Center Moriches Union Free School District, 508

U.S. 384 (1993), the Court held that a school district could not

permit school property to be used for the presentation of all

views about family issues and child rearing except those dealing

with the subject matter from a religious perspective. Id. at 393.

Similarly, in Rosenberger, the Court held unconstitutional a

university’s refusal to fund a student publication because it
33

addressed issues from a religious perspective. 515 U.S. at 831.

The Court explained: “Religion may be a vast area of inquiry,

but it also provides, as it did here, a specific premise, a

perspective, a standpoint from which a variety of subjects may

be discussed and considered.” Id. Finally, in Good News Club

v. Milford Central School, 533 U.S. 98 (2001), the Court found

viewpoint discrimination where a public school permitted

nonreligious groups to meet on school property after school but

prohibited a Christian club from doing so. Id. at 107-09. The

Court held that exclusion of a religious group amounted to

impermissible viewpoint discrimination where the group sought

only “to address a subject otherwise permitted under the [school

district’s policy], the teaching of morals and character, from a

religious standpoint.” Id. at 109. Together, Lamb’s Chapel,

Rosenberger, and Good News Club stand for the proposition that

if the government permits the discussion of a topic from a

secular perspective, “it may not shut out speech that discusses

thatsame topic from a religious perspective.” Stafford, 386 F.3d

at 528.

Comparing the facts of Walz and the present case, I find

they fall on opposite sides of the subject-matter/viewpoint

divide. In Walz, this Court considered whether a school’s

refusal to allow a first-grade student to distribute pencils that

included the phrase “Jesus [Loves] The Little Children” and

candy canes with attached religious stories during a classroom

holiday party violated the student’s constitutional rights. 342

F.3d at 274. The school maintained an unwritten policy
34

forbidding religious, as well as political and commercial

messages, but noted that religion may be acknowledged “if

presented in an objective manner and as a traditional part of the

culture and religious heritage of the particular holiday.” Id. at

273. As the district court in Walz determined, the regulation at

issue was viewpoint neutral, although it limited some religious

speech. Walz v. Egg Harbor Twp. Bd. of Educ., 187 F. Supp. 2d

232, 239-40 (D.N.J. 2002). Citing Lamb’s Chapel, the student

argued that because the restriction addressed religious speech

specifically, it was not viewpoint neutral. The district court

disagreed. The court acknowledged the Supreme Court’s

warning that discrimination against religion in general may

constitute viewpoint discrimination because it prevents

discussion from a religious standpoint. However, the court

found Lamb’s Chapel and its progeny inapplicable because the

school had not opened a forum for the exchange of views about

a subject by hosting a holiday party. Id. at 239. Rather, the

school had only solicited generic gifts devoid of any message

and had not created a forum to promote any viewpoint, religious

or secular. Id. Therefore, the district court properly concluded

that the regulation was viewpoint neutral, even if it

discriminated on the basis of subject matter.

In contrast to the district court’s careful analysis of the

distinction between subject matter and viewpoint discrimination

in Walz, this Court declined to engage in such an inquiry on

appeal, concluding that “in the context of an organized

curricular activity, an elementary school may properly restrict
35

student speech promoting a specific message.” Walz, 342 F.3d

at 278. Without determining whether the discrimination was

based on subject matter or viewpoint, we held that the school

could bar the student from “promot[ing] a religious message

through the channel of a benign classroom activity.” Id. at 280.

The regulation at issue in this appeal is different from

that in Walz. As the District Court noted, this case involves

viewpoint discrimination. Busch v. Marple Newtown Sch. Dist.,

No. 05-CV-2094, 2007 WL 1589507, at *7 (E.D. Pa. May 31,

2007). The teacher’s description of “All About Me” week left

the subject matter of the assignment open-ended, stating: “Each

child will have the opportunity to share information about

themselves [sic] during their ‘All About Me’ week.”

Furthermore, the description encouraged discussion of the

“child’s family, hobbies, and interests,” and invited parents to

“come to school to share a talent, short game, small craft, or

story” during their child’s week. Accordingly, Donna Busch’s

attempt to read Psalm 118 to her son’s class fell within the

specified subject matter — i.e., something of interest to her son

and important to his family — and the sole reason for excluding

her speech was its religious character. Psalm 118 does not

contain vulgar or lewd language, Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 685 (1985) (“The First Amendment does

not prevent the school officials from determining that to permit

a vulgar and lewd speech . . . would undermine the school’s

basic educational mission.”), nor does it praise illegal activities,

Morse v. Frederick, 127 S. Ct. 2618, 2629 (2007) (school was
As Busch argues, that this was viewpoint discrimination 13

is made manifest by the fact that religious discussion had not

been foreign to this classroom in the past. Apart from “All

About Me” week activities, a different parent twice was invited

to present to the class about Hanukkah and Passover. Therefore,

in addition to having discriminated against the religious

perspective generally – in contravention of Lamb’s Chapel,

36

justified in restricting speech that could be “reasonably viewed

as promoting illegal drug use”), and there is no evidence that

Busch’s reading would have caused any sort of classroom

disruption, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503, 513 (1969).

Instead, the challenged speech was responsive to the

assignment but approached it from a religious perspective

because religion is most important to the Busch family. As the

Supreme Court has observed, particularly in the context of

religious expression, it can be difficult to discern what amounts

to a subject matter unto itself, and what, by contrast, is best

characterized as a standpoint from which a subject matter is

approached. See Rosenberger, 515 U.S. at 831. However, I

believe the school went too far in this case in limiting

participation in “All About Me” week to nonreligious

perspectives. As the District Court properly noted, Donna

Busch was denied the opportunity to read the story her son chose

because it expressed a religious viewpoint, rather than a secular

one. This plainly constituted viewpoint, not subject matter,

discrimination. As then-Judge Alito recognized in his dissent 13
Rosenberger, and Good News – the School District may have

improperly discriminated between religious perspectives. Either

way, the School District does not vigorously challenge the

District Court’s conclusion that its restriction of Busch’s speech

was viewpoint-based.

37

in C.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000) (en banc), such

viewpoint discrimination is proscribed by the First Amendment

unless the School District can show that allowing Busch’s

speech on a nondiscriminatory basis would have “materially

disrupt[ed] classwork or involve[d] substantial disorder or

invasion of the rights of other [ ] [students].” Id. at 212 (quoting

Tinker, 393 U.S. at 513). “When the government makes an

avenue of communication available to the proponents of some

views, the same opportunity must, absent exceptional

circumstances, be afforded to others who wish to express their

ideas in that manner, whether or not the governmental officials

endorse or sanction the thoughts to be expressed.” Main Road

v. Aytch, 522 F.2d 1080, 1087 (3d Cir. 1975).

The viewpoint discrimination visited upon Busch differs

from the treatment in Walz. Though we did not explicitly

address the subject matter/viewpoint distinction in Walz, the

district court’s thorough analysis in that case shows that the

regulation was viewpoint neutral; the school did not open the

forum to discuss any subjects. By contrast, here the School

District solicited speech, but then discriminated on the basis of

viewpoint by refusing to allow Donna Busch to express herself

from a religious perspective. Having opened the proverbial
I also depart from the majority’s brief forum analysis in 14

Part II.A of its opinion. As the Supreme Court noted in Perry,

“[t]he existence of a right of access to public property and the

standard by which limitations upon such a right must be

evaluated differ depending on the character of the property at

issue.” 460 U.S. at 44. Accordingly, the Supreme Court “has

adopted a forum analysis as a means of determining when the

Government’s interest in limiting the use of its property to the

intended purpose outweighs the interest of those wishing to use

the property for other purposes.” Cornelius v. NAACP Legal

Defense & Educ. Fund, 473 U.S. 788, 800 (1985).

The District Court found that the teacher’s invitation

converted the classroom into at most a limited public forum,

which is created when the state opens a public place for

expressive activity. Perry, 460 U.S. at 45. The District Court

accurately noted that the School District “opened [the]

classroom to specific people, the parents of [the] students, for a

specific delineated purpose,” to participate in the discussion of

their children via “All About Me” week. Busch, 2007 WL

1589507, at *6. While the First Amendment “does not

38

Pandora’s box by inviting parents of kindergarten students to

speak to the class about their children’s “family, hobbies, and

interests,” the School District was required to respect the

boundaries that it had set — however open-ended — provided

that the speech remained germane to the subject matter and

subject, of course, to the limitations set forth in Tinker, Fraser,

and Morse. Because the basis of discrimination differs between

the two cases, I do not find Walz controlling. 1

4
guarantee access to property simply because it is owned or

controlled by the government,” U.S. Postal Serv. v. Greenburgh

Civic Ass’n, 453 U.S. 114, 129 (1981), when the state has

opened a forum but limits the expressive activity to certain kinds

of speakers or the discussion of certain subjects — as the School

District did here — “[t]he Constitution forbids a state to enforce

certain exclusions . . . even if it was not required to create the

forum in the first place.” Perry, 460 U.S. at 45. Although the

School District surely was not required to invite parents into the

classroom in the first place, once it did so, it could only apply

reasonable time, place, and manner regulations; content-based

prohibitions “must be narrowly drawn to effectuate a compelling

state interest.” Id. at 46.

The majority summarily concludes that the classroom is

a nonpublic forum. Even assuming this to be the case, the

government could not restrict speech on the basis of the

speaker’s viewpoint. Id. at 45; see also Cornelius, 473 U.S. at

806 (“Control over access to a nonpublic forum can be based on

subject matter and speaker identity so long as the distinctions

drawn are reasonable in light of the purpose served by the forum

and are viewpoint neutral.”) (emphasis added); Child

Evangelism Fellowship, 386 F.3d at 524 (“[E]ven if the . . . fora

were not limited public fora but were closed, [the school] still

could not engage in viewpoint discrimination.”).

39

II.

The majority’s adherence to Walz is, in my view, also

flawed because of that case’s reliance on Hazelwood School

District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the
40

Supreme Court upheld a principal’s deletion of student articles

on teen pregnancy and divorce from a school-sponsored

newspaper. The Court held that the school could “exercis[e]

editorial control over the style and content of student speech in

school-sponsored expressive activities as long as [its] actions are

reasonably related to legitimate pedagogical concerns.” Id. at

273.

Hazelwood is limited to situations in which the speech

may be interpreted as coming from the school itself. As the

Supreme Court acknowledged:

The question whether the First Amendment

requires a school to tolerate particular student

speech . . . is different from the question whether

the First Amendment requires a school

affirmatively to promote particular student

speech. The former question addresses educators’

ability to silence a student’s personal expression

that happens to occur on the school premises.

The latter question concerns educators’ authority

over school-sponsored publications, theatrical

productions, and other expressive activities that

students, parents, and members of the public

might reasonably perceive to bear the imprimatur

of the school. . . . Educators are entitled to

exercise greater control over this second form of

student expression.
41

Id. at 271.

The Court reaffirmed this principle in Rosenberger,

explaining:

[W]hen the State is the speaker, it may make

content-based choices. When the University

determines the content of the education it

provides, it is the University speaking, and we

have permitted the government to regulate the

content of what is or is not expressed when it is

the speaker or when it enlists private entities to

convey its own message. . . . It does not follow,

however . . . that viewpoint-based restrictions are

proper when the University does not itself speak

. . . but instead encourage[s] a diversity of views

from private speakers. A holding that the

University may not discriminate based on the

viewpoint of private persons whose speech it

facilitates does not restrict the University’s own

speech, which is controlled by different

principles.

515 U.S. at 833-34. See also Pleasant Grove City v. Summum,

129 S. Ct. 1125, 1131-34 (2009) (noting distinction between

government speech and private speech).

I find Hazelwood inapposite to this appeal because there

is no risk that Busch’s speech would “bear the imprimatur of the

school,” Hazelwood, 484 U.S. at 271, nor will it be mistaken for

“the [school’s] own speech.” Rosenberger, 515 U.S. at 834.
T he likelihood that a kindergarten student would engage 15

this assignment without parental influence and control is

exceedingly remote. And the various approaches that a parent

might take in this regard are as idiosyncratic as the number of

parents.

42

Here, “All About Me” week was designed to help students

“identify individual interests and learn about others.” The

teacher explained to parents that “[e]ach child will have the

opportunity to share information about themselves [sic] during

their ‘All About Me’ week.” Students were invited to send in a

poster with pictures of their favorite things, bring in special toys

or snacks to share with the class, and parents were welcome to

“come to school to share a talent, short game, small craft, or

story.” Everything from the title of the exercise – “All About

Me” week – to the specific requests made by the teacher,

indicated that the student (or, in reality, the parent) was speaking

and not the school. This is distinguishable from the situation 15

in Hazelwood, which contained numerous indicia of schoolsponsorship, including: the newspaper was produced by students

in a journalism class that was part of the school curriculum; the

school financed the paper and it was the official school

newspaper; the students’ work was reviewed and graded by a

faculty member and the entire paper was subject to the review

of the principal prior to publication. See Hazelwood, 484 U.S.

at 268-69.

As Walz itself indicates, “[i]ndividual student expression

that articulates a particular view but that comes in response to a

class assignment would appear to be protected.” 342 F.3d at

279. “[N]othing in Hazelwood suggests that its standard applies
43

when a student is called upon to express his or her personal

views in class or in an assignment.” Oliva, 226 F.3d at 213

(Alito, J., dissenting) (emphasis added). Donna Busch’s speech

came in response to the teacher’s broad invitation to share

something about her child; once invited, the School District was

obliged to “tolerate” her speech, not to “affirmatively promote”

it. Hazelwood, 484 U.S. at 271. “School- or governmentsponsored speech occurs when a public school or other

governmental entity aims ‘to convey its own message.’” Child

Evangelism Fellowship, 386 F.3d at 524 (quoting Rosenberger,

515 U.S. at 833). By contrast, when the school solicits the

expression of “a diversity of views from private speakers,” the

expression that results is private. Id.

In Walz, this Court seemed concerned that young students

would not be able to distinguish between school-sponsored

speech and speech from private individuals, and “the school may

wish to avoid the appearance of endorsing certain speech.” 342

F.3d at 277. Accordingly, we set forth a number of factors

against which to measure the propriety of student expression in

an elementary school setting, including: the type of speech; the

age of the speaker and audience; the school’s control over the

activity in which the expression occurs; and whether the school

solicits individual views from students during the activity. Id.

at 278.

The Walz factors strike me as highly manipulable and

therefore may encompass speech — such as the expression at

issue in this case — that will not be reasonably perceived as

school-sponsored. Even kindergarten students are capable of
Because I find that the speech in question could not 16

have borne the imprimatur of the School District, I also reject

the District Court’s conclusion that the School District’s

viewpoint discrimination was necessary to avoid an

Establishment Clause violation. “The Establishment Clause is

not violated when the government treats religious speech and

other speech equally and a reasonable observer would not view

the government practice as endorsing religion.” Oliva, 225 F.3d

at 211 (Alito, J., dissenting) (citing Capitol Square Review &

44

distinguishing between personal “show and tell” activities and

school-sponsored instruction. As we observed in Walz:

The appropriateness of student speech must be

viewed in its educational context. 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; likewise, a lesson

that includes a mock debate invites individual

student expression on the relevant topic. In those

scenarios, the student speaker is expressing

himself in the context of a school assignment or

activity where the school has sought students’

personal views.

342 F.3d at 278 (emphasis added).

The speech at issue in this appeal closely resembles a

“show and tell” exercise. Accordingly, Donna Busch’s speech

did not “bear the imprimatur of the school” and Hazelwood is

inapposite.16
Advisory Bd. v. Pinette, 515 U.S. 753, 763-70 (1995)

(plurality)). Because the speech came from Busch and cannot

be considered school-sponsored, it did not violate the

Establishment Clause.

45

III.

Finally, I note that even if we were to find that

Hazelwood should control this case because any speech to young

children is likely to be perceived as being school-sponsored, this

would not conclude our inquiry. In holding that a school may

regulate school-sponsored expressive activities so long as the

regulation is “reasonably related to legitimate pedagogical

concerns,” the Hazelwood Court justified the principal’s

decision to discriminate on the basis of content; but that decision

does not necessarily offer any justification for allowing

educators to discriminate based on viewpoint absent a

compelling government interest.

As the Supreme Court held in Hazelwood, “educators do

not offend the First Amendment by exercising editorial control

over the style and content of student speech in school-sponsored

expressive activities so long as their actions are reasonably

related to legitimate pedagogical concerns.” 484 U.S. at 273

(emphasis added). The school officials in that case conceded

that any restrictions on school-sponsored student speech must be

viewpoint neutral. Id. at 287 n.3 (Brennan, J., concurring).

More fundamentally, if schools could impose viewpoint-based

restrictions on all student speech that might be perceived as

school-sponsored, the promise of Tinker — that students “do not
46

shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate” — would mean very little.

Tinker, 393 U.S. at 506.

Because Hazelwood did not address the issue of

viewpoint discrimination, the question of whether schoolsponsored speech can discriminate on the basis of viewpoint

remains open and our sister courts of appeals are split on this

issue. Some circuits have found that Hazelwood requires that

the school’s regulation only be reasonably related to pedagogical

concerns. See Fleming v. Jefferson County Sch. Dist., 298 F.3d

918, 926-29 (10th Cir. 2002); Ward v. Hickey, 996 F.2d 448,

454 (1st Cir. 1993); see also C.H. ex rel. Z.H. v. Oliva, 195 F.3d

167, 172-73 (3d Cir. 1999), vacated and reh’g en banc

(“Hazelwood clearly stands for the proposition that educators

may impose non-viewpoint neutral restrictions on the content of

student speech in school-sponsored expressive activities so long

as those restrictions are reasonably related to legitimate

pedagogical concerns.”) (emphasis added). In essence, these

courts read Hazelwood as establishing a rational basis standard

for speech in the public school setting. The District Court

embraced this standard, holding that “schools may restrict

speech even based on its viewpoint ‘so long as their actions are

reasonably related to legitimate pedagogical concerns.’” Busch,

2007 WL 1589507, at *9 (emphasis added).

By contrast, other circuit courts of appeals have

interpreted the Hazelwood standard to require that a school’s

restriction be not only reasonable, but also viewpoint neutral.

See Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626,

629-30 (2d Cir. 2005); Planned Parenthood of S. Nevada, Inc.

v. Clark County Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991);
 Neither the Walz court nor the majority here would have 17

had occasion to clarify whether Hazelwood disallowed

viewpoint discrimination, because, as noted above, neither

opinion addressed the question whether the discrimination was

based on subject matter or viewpoint in the first place.

47

Searcey v. Harris, 888 F.2d 1314, 1320 (11th Cir. 1989); see

also Oliva, 226 F.3d at 211 (Alito, J., dissenting). Citing these

cases, Busch argues that when a public school opens a limited

public forum, the general rule prohibiting viewpoint-based

restrictions remains effective despite Hazelwood.

Without explicitly embracing either of these two

perspectives vis-à-vis viewpoint discrimination, we concluded

in Walz that “in the context of its classroom holiday parties, the

school’s restrictions on this expression were designed to prevent

proselytizing speech that, if permitted, would be at crosspurposes with its educational goal and could appear to bear the

school’s seal of approval.” 342 F.3d at 280 (citing Hazelwood,

484 U.S. at 273). Given the school’s valid educational

purposes, this Court reasoned, its actions were appropriate. Id.

The Court did not explain its level of scrutiny, however.

Likewise, in the present case, the majority makes sparse mention

of Hazelwood and does not attempt to justify the school’s

viewpoint discrimination under either rational basis review or

strict scrutiny.17

If we wish to conclude that Hazelwood grants schools the

power to discriminate on the basis of viewpoint, I think we

should do so explicitly. This Court’s approach in Walz and in

this appeal, however pragmatic or commonsensical, lends itself
48

to ad hoc jurisprudence. I recommend that we establish clear

rules regarding viewpoint discrimination in the classroom. “The

need for specificity is especially important where, as here, the

regulation at issue is a ‘content-based regulation of speech. The

vagueness of such a regulation raises special First Amendment

concerns because of its obvious chilling effect on free speech.’”

Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243,

266 (3d Cir. 2002) (quoting Reno v. ACLU, 521 U.S. 844, 871-

72 (1997)); see also Speiser v. Randall, 357 U.S. 513, 526

(1958) (“When one must guess what conduct or utterance may

lose him his position, one necessarily will ‘steer far wider of the

unlawful zone.’”) (citation omitted).

IV.

Clearly, “the constitutional rights of students in public

school are not automatically coextensive with the rights of

adults in other settings.” Fraser, 478 U.S. at 682. 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
 I agree largely with the sentiments Judge Barry expresses 18

in her concurrence. Like Justice Thomas’s recent concurring

opinion in Morse, Judge Barry harkens back to a day when

American schools were run by principals and teachers, acting in

loco parentis, with little or no intrusion from lawyers, courts,

and parents. See Morse, 127 S. Ct. at 2630-36 (Thomas, J.,

concurring). But this is not where we find ourselves today. As

long as our schools continue to provide a forum for some

parents and teachers to espouse their views in public schools, we

must manage the speech of all parents and teachers within the

guise of the First Amendment, lest we engage in the very sort of

viewpoint discrimination that the Amendment was designed to

protect against. 

An “elementary school exception” or “kindergarten exception”

to the First Amendment seems sensible to me. However, instead

of establishing such an exception — which would delegate to

schools the power to determine what is said and done in the

classroom — the majority opinion merely allows this school to

prohibit a viewpoint, germane to the assignment, that it

disfavors. In addition, I question whether the creation of such

an exception should be the exclusive province of the Supreme

Court.

49

important to them. With respect, I dissent.18