Supreme Court asked to decide whether Hazelwood allows school to censor kindergarten mom’s Bible reading

In the landmark Hazelwood case, the Supreme Court decided that schools have greater leeway to censor “curricular” speech that is, or could easily be mistaken for, the official voice of the school. In the years following Hazelwood, schools have argued that anything that happens within their walls is “curricular” speech, so as to assert maximum editorial control over its content.

Federal courts have sometimes bought into this questionable line of argument, finding that students’ graduation speeches, posters hung in corridors, and even commemorative tiles in a walkway are “curricular” so that they enjoy only the reduced level of First Amendment protection recognized under Hazelwood.

The Supreme Court is now being asked to evaluate the Third U.S. Circuit Court of Appeals’ decision applying Hazelwood to a mother’s choice of a book to read to her son’s kindergarten class.

What raises the stakes is that it wasn’t just a book – it was the Book.

Donna Kay Busch and her son, Wesley, sued Marple Newtown School District in Newtown Square, Pennsylvania, after she was told she could not read five Bible verses as part of a special “All About Me” exercise, in which Wesley was invited to bring a guest and share his favorite pastimes with the class.

Busch contends that singling out the Bible for prohibition is a classic case of government discriminating against a speaker based on viewpoint. A government action targeting certain viewpoints for preferred or disfavored treatment is almost always invalid under the First Amendment, unless justified by the most compelling reasons.

Unlike the Hazelwood School District v. Kuhlmeier case and others involving ordinary journalism, religious-speech cases present a complex balancing act because of the countervailing rights of the listeners, some of whom may complain if speech about religion lapses into speech promoting religion.

That concern was apparent in the Third Circuit’s June 1, 2009, ruling, which rested primarily on the need for government to avoid endorsing a religious message delivered to listeners of an impressionable age: “[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.”

Attorneys for the Busch family filed a petition on September 9 asking the Supreme Court to overrule the Third Circuit. They argue that the appeals court misread the Hazelwood case as permitting what is normally impermissible – discriminating against a speaker based on her viewpoint.

The lower courts have reached inconsistent readings of Hazelwood on this key point. Many believe that Hazelwood permits only the exclusion of certain subject matter from student publications (for instance, explicit sexual discussions), not the exclusion of one side of a contested issue (for instance, allowing columns that denounce homosexuality as a sin or a mental disorder, but excluding those that urge acceptance).

When the Court decided in its 2007 Morse v. Frederick ruling that a school could constitutionally punish a student for speech interpreted as promoting illegal drug use, some commentators believed that the Court was telegraphing a willingness to accept viewpoint discrimination in the school context. (Indeed, Justice Stevens accused the majority of doing just that in his Morse dissent.)

For student journalism, a Supreme Court ruling that Hazelwood allows schools to exclude, or punish, the expression of disapproved viewpoints would of course be disastrous. School administrators regularly overreach to remove editorial content solely because it is critical of the school. A license to discriminate based on viewpoint would only embolden them.

The Supreme Court rarely grants petitions such as the Busch family’s, and its First Amendment plate for the current term is already quite full. But petitions fare best when the petitioner is able to point to confusion among the lower courts that requires reconciling. The Busch petition certainly does that. And because the underlying facts are empathetic to those who advocate freedom of religious speech – paging Justice Alito! – the case may find a receptive audience at a Court normally disinclined to entertain school-speech claims.