3rd Circuit upholds school’s refusal to allow mom to read Psalms to kindergarteners

Busch v. Marple Newtown School District, No. 07-2967 (3rd Cir. June 1, 2009) (ADF and Penn. Family Institute involvement in the litigation)

Plaintiffs, who are mother and son, bring free speech, establishment, and equal protection claims against Defendants, who are school officials and the school district. These claims stem from an elementary school’s restriction of the mother’s effort to read aloud from scripture to students in her son’s kindergarten classroom as part of a curricular “show and tell”-type activity. The District Court granted summary judgment favor of Defendants on all claims. We will affirm . . .

HARDIMAN, Circuit Judge, dissenting in part and concurring in part.

The Supreme Court has consistently considered two important questions in Free Speech Clause cases involving private speech: (1) whether the state’s regulation of speech is based on subject matter or viewpoint; and (2) whether the speech being regulated takes place in a public forum, a limited public forum, or a nonpublic forum. The majority does not discuss the first question. As for the second question, the majority summarily concludes that this classroom was a nonpublic forum. After doing so, the majority relies extensively on Walz v. Egg Harbor Township Board of Education, 342 F.3d 271 (3d Cir. 2003), in concluding that the School District appropriately barred Donna Busch from speaking. Because I do not believe Walz controls this appeal, I must respectfully dissent from that portion of the majority’s opinion that relates to Busch’s free speech claim.12