Third Circuit: Freedom of Speech No Longer Exists in Kindergarten Classrooms

The United States Court of Appeals for the Third Circuit has ruled that a public school district acted permissibly when it prohibited a mother from reading a few verses from the Bible during an “All About Me” unit, in which parents came to the classroom to share information about each student and, in some cases, to read a portion of that student’s favorite book.

In the case of Busch v. Marple Newtown SD (June 1, 2009), the Court ruled, essentially, that a district has a great deal of control over the speech that is permitted in that type of forum.  As the Courts have said before,

Unlike parks, streets, and other traditional public fora, elementary school classrooms are not places for unlimited debate on issues of public importance.  Most of the time, school classrooms are reserved for teaching students in a structured environment.  Public schools may take on characteristics of public fora by “intentionally opening” facilities for “public discourse.” 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. (citations omitted).

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain.  In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

In this case, then, the Court ruled that the district could exert a great deal of control over speech in the kindergarten classroom, even though they did invite other parents to come into the classroom to speak to the class about each child’s interests.

It is important to note, though, that the Court in this case permitted the district to exercise rather significant discretion in determining what to allow and not allow.  For example, once Wesley had chosen the Bible as the favorite book that he wanted his mother to read for his “All About Me” presentation, Mrs. Busch selected a few verses from Psalm 118.  The Court noted the following:

[Mrs. Busch] 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 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.”

Additionally, the Court found as a matter of fact that

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 [the teacher’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 students and then offered them matzoh ball with chicken soup.” 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.

Presumably, the only distinction that the District could make between those permitted books and the Bible was that the Bible is considered to be scripture and, therefore, presumably could be considered proselytizing.  Despite opening the classroom forum for those books, though, the district was found to be acting within its discretion to limit the Bible reading.  This reflects the Court’s view that the mother’s free speech rights were so limited in that classroom that certain speech could be prohibited while other non-school-sponsored speech was still permitted.

The mother has indicated that she may be considering an appeal to the US Supreme Court, which is not obligated to hear the case.  Unless and until the Supreme Court reverses this decision, schools have a great deal of discretion, I believe, in regulating speech in this context.  As with all of these types of freedom of speech cases, each situation is very fact dependant, and you should consult legal counsel when making decisions like this.


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