Busch v. Marple Newtown School Dist.
| Decision Date | 01 June 2009 |
| Docket Number | No. 07-2967.,07-2967. |
| Parties | 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 Donna Kay Busch, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Jason P. Gosselin, Esquire (Argued), J. Freedley Hunsicker, Jr., Esquire, Jarrod D. Shaw, Esquire, Katherine L. Villanueva, Esquire, Drinker, Biddle & Reath, Philadelphia, PA, Attorneys for Appellant.
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.
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 in favor of Defendants on all claims. We will affirm.
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 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."
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 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: 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 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 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...
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