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
No. 07-2967
United States Court of Appeals, Third Circuit
June 1, 2009
Argued May 5, 2008. As Amended June 5, 2009.
567 F.3d 89
Mark A. Sereni, Esquire (Argued), DiOrio & Sereni, Media, PA, Ellis H. Katz, Esquire, Jonathan P. Riba, Esquire, Sweet Stevens Tucker & Katz, New Britain, PA, Attorneys for Appellees.
David A. Cortman, Esquire, Alliance Defense Fund, Lawrenceville, GA, Attorney for Amici Curiae-Appellant, Alliance Defense Fund and Pennsylvania Family Institute.
James M. Beck, Esquire, Diane S. Danoff, Esquire, Dechert LLP, Philadelphia, PA, Attorney for Amicus Curiae-Appellees, The Anti-Defamation League.
Marc D. Stern, Esquire, American Jewish Congress, New York, NY, Attorney for Amicus Curiae-Appellees, The American Jewish Congress.
Jeffrey I. Pasek, Esquire, Cozen & O‘Connor, Philadelphia, PA, Attorney for Amicus Curiae-Appellees, The Jewish Social Policy Action Network.
Edward B. Schwartz, Esquire, Charles B. Wayne, DLA Piper, Washington, D.C., Ayesha N. Khan, Alex J. Luchenitser, Americans United for Separation of Church and State, Washington, D.C., Attorney for Amicus Curiae-Appellees, Americans United for Separation of Church and State.
Emily J. Leader, Esquire, Pennsylvania School Boards Association, Mechanicsburg, PA, Attorney for Amicus Curiae-Appellees, Pennsylvania School Boards Association.
Francisco M. Negron, Jr., Esquire, National School Boards Association, Alexandria, VA, Attorney for Amici Curiae-Appellees, National School Boards Association and Pennsylvania School Boards Association.
Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.
ΟΡΙΝΙΟΝ 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
I
Donna Kay Busch1 is the mother of Wesley Busch, a 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,2 and Wesley shares his mother‘s religious beliefs. 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 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
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 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.”
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.”4 Busch testified that she remembered Cook using the 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 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
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 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
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
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 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 in-
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 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 school‘s pedagogical goals. But the
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 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.
B
In this case, Donna Kay 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
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 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 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
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 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 actions were not unreasonable.11
Busch also challenges the school‘s actions on establishment grounds. Under Lemon v. Kurtzman, 403 U.S. 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 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 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. Walker-Serrano 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 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
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.
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
I.
Under the First Amendment, content-based regulations on 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 (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 dis-
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 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 that same 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 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
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 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 (1986) (“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, 551 U.S. 393 (2007) (school was 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.13 As then-Judge Alito recognized
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 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.14
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 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.
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, 555 U.S. 460, 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. Here, “All About Me” week was designed to help
As Walz itself indicates, “[i]ndividual student expression that articulates a particular view but that comes in response to a class assignment or activity would appear to be protected.” 342 F.3d at 279. “[N]othing in Hazelwood suggests that its standard applies 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 government-sponsored speech occurs when a public school or other governmental entity aims ‘to convey its own message.‘” Stafford, 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 being school-sponsored. Even kindergarten students are capable of 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.
Id. 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
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 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 school-sponsored 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. υ. 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 es-
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); 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 cross-purposes 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 and17 does not attempt to justify the school‘s viewpoint discrimination under either rational basis review or strict scrutiny.
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 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 ma-