Lead Opinion
OPINION OF THE COURT
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 Busch
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.”
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.”
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.”
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 (6) violation of the guarantee of equal rights and the prohibition on discrimination in the Pennsylvania Constitution.
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.
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,
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.,
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,
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 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,
Busch contends the nature of the “All About Me” exercise alters the context of
Second, pointing to our statement in Walz that “[^Individual 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.
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 motiváted 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.,
Busch also challenges the school’s actions on establishment grounds. Under Lemon v. Kurtzman,
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,
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.,
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.
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.
. Because Donna Kay Busch brings claims on Wesley’s behalf, we will refer to her as the central litigant.
. Busch testified that an Evangelical Christian is “someone 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.”
. Wesley’s babysitter, Judy Harper, testified that Wesley’s favorite book in kindergarten was Brown Bear, Brown Bear. Nevertheless, on summary judgment, we assume that Wesley’s favorite book was the Bible and that the Bible was chosen according to his preference.
. Robert Mesaros, Superintendent of the Mar-pie Newtown 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.
. Regarding the state speech claims, the Pennsylvania 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,
Busch’s state establishment and equal protection claims are likewise disposed of by the relevant provisions of the federal constitution. Springfield Sch. Dist. v. Dep’t of Educ.,
. The District Court had jurisdiction under 28 U.S.C. §§ 1331 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.,
. "[A]ny analysis of the students' rights to expression on the one hand, and of schools’ need to control behavior and foster an 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,
. At her deposition, Busch testified that the school would not be able to restrict a parent in Wesley's class who, as part of his or her child’s “AH 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.
. Busch also acknowledged that Wesley's teacher keeps a 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.
. Busch averred additional claims on equal protection 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,
Concurrence Opinion
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,
The distinction between subject-matter and viewpoint discrimination is not a bright one. Cogswell v. City of Seattle,
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.,
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,
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.
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,
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,
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,
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.
The majority’s adherence to Walz is, in my view, also flawed because of that case’s reliance on Hazelwood School District v. Kuhlmeier,
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.
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.
I find Hazelwood inapposite to this appeal because there is no risk that Busch’s speech would “bear the imprimatur of the school,” Hazelwood,
As Walz itself indicates, “[^Individual student expression that articulates a particular view but that comes in response to a class assignment would appear to be protected.”
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.”
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;*108 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.
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.
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 Hazel-wood, “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.”
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.,
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.,
Without explicitly embracing either of these two perspectives vis-a-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.”
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.,
IV.
Clearly, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Fraser,
. I concur with the majority's holding in Part III of its 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.
. As Busch argues, that this was viewpoint discrimination 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, Rosenberger, and Good
. I also depart from the majority’s brief forum analysis in 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."
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,
The majority summarily concludes that the classroom is a nonpublic forum. Even as
. The likelihood that a kindergarten student would engage 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.
. Because I find that the speech in question could not 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,
. Neither the Walz court nor the majority here would have 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.
. I agree largely with the sentiments Judge Barry expresses 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,
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.
Concurrence Opinion
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,
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 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.