By: Jamie Inferrera, Staff Writer
In 2004, Wesley Busch was a kindergarten student at the Culbertson Elementary School (Marple Newton School District) in suburban Philadelphia. His class participated in a curriculum unit entitled “All About Me.” As part of the week-long assignment, parents were invited to “share a talent, short game, small craft, or story” with the class that would highlight something about their child. Wesley’s mother, Donna Kay Busch, was scheduled to attend Wesley’s class to read from his favorite book, the Bible. When Donna Busch arrived at the school, she spoke with the principal who informed her that she would not be permitted to read from the Bible because it would be “against the law…of the separation of church and state.”
In May 2005, Donna Busch filed a lawsuit on behalf of her and her son Wesley claiming “(1) violation of the Free Speech Clause of the United States Constitution; (2) violation of the Free Communication Clause of the Pennsylvania Constitution; (3) violation of the Establishment Clause of the United States Constitution; (4) violation of the Establishment Clause of the Pennsylvania Constitution; (5) violation of the Equal Protection Clause of the United States Constitution; and (6) violation of the guarantee of equal rights and the prohibition on discrimination in the Pennsylvania Constitution.”
The United States District Court for the Eastern District of Pennsylvania granted summary judgment on all counts in favor of the Defendants. The United States Court of Appeals for the Third Circuit, in a 2-1 decision, affirmed the ruling of the lower court.
On October 29, 2014, Third Circuit Judge Thomas M. Hardiman visited Duquesne Law, at the invitation of the school’s Federalist Society chapter. Judge Hardiman primarily spoke on the topic of the First Amendment, highlighting the case of Busch v. Marple Newtown School District (567 F.3d 89). Judge Hardiman, the dissenting voice in this case, posed the following question to a room full of law students: “do kindergarteners have First Amendment rights?”
The majority in Busch v. Marple Newtown School District held that the school’s restriction not allowing Donna Busch to read from the Bible did not violate free speech rights; the restriction did not violate equal protection; and the school’s conduct was not in violation of the Establishment Clause of the United States Constitution. Writing for the majority, Chief Judge Scirica stated that “[t]he elementary school setting — and particularly the kindergarten classroom — is a unique forum for purposes of considering competing First Amendment and pedagogical interests.” Educators have the right to “appropriately restrict forms of expression in elementary school classrooms” according to the majority in this case.
Judge Hardiman’s dissent in Busch v. Marple Newtown School District focused on the part of the majority’s opinion relating to the Donna Busch’s free speech claim. Judge Hardiman noted that Donna Busch’s attempt to read the Bible was in response to a specific class assignment. The description of “All About Me” week was left open-ended and Wesley’s request to have his mother read from his favorite book fell within the parameters of the class assignment. Therefore, Judge Hardiman concluded that the school district engaged in viewpoint discrimination.
“The majority’s desire to protect young children from potentially influential speech in the classroom is understandable,” Judge Hardiman wrote. “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 important to them.”
Numerous amicus briefs were filed in this case, on both sides of the issue. Americans United for the Separation of Church and State took the position that Wesley’s mother did not have a First Amendment right to read from the Bible as part of the “All About Me” curriculum. The Pennsylvania Family Institute and Alliance Defense Fund filed a brief in support of Donna Busch and her son.
Even amidst the Third Circuit’s decision in Busch v. Marple Newtown School District, no bright line exists as to a definitive age where school children develop First Amendment rights in the eyes of the judiciary. The United States Supreme Court has a request to hear the case and dismissed without opinion.
So, do kindergartners have First Amendment rights? At least in the Third Circuit, they do not.
Writer’s note: During the spring semester, Judge Hardiman will be teaching Advanced Constitutional Law: Current Issues on Mondays from 8:30 – 10:10 a.m.
Authorities:
Americans United for the Separation of Church and State amicus brief: https://www.au.org/files/legal_docs/Busch%20amicus%20brief.pdf.
Busch v. Marple Newton School District, 567 F.3d 89 (2009).
