Shifting, or Blurry, Fora?

The Busch v. Marple Newton Sch. Dist. case is getting a lot of play. In it the 3rd Circuit ruled that a parent may not read the bible in her son's kindergarten class, even though it was during an activity called "All About Me" which featured information about each student, including the opportunity to read from each student's favorite book. The mother of the student selected the "Give Thanks unto the Lord for He is Good" passage of Psalms, but before she could read it in class, the teacher and principal stopped (Mark Walsh has more). Anyway, the court ruled for the school - which is fine by me - because it occurred in a classroom, which the court found to be a closed forum and thus the administration could regulate. This is just another example of the court's tilting toward schools, but nothing seems legally out of order in their ruling.

It's that forum, though, that concerns me. The court seemed to imply, as Patrick Fanelli noted, that even though the classroom is a closed forum, it is sort of a shifting closed forum in that age and context matter as to how much regulatory control the school retains. As Patrick said:

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain. In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

This strikes me as odd. Fora are not the kinds of things that are blurry, once your decision as to the applicable forum is made (i.e. public forum ... pretty much anything goes, limited open forum ... some restriction permitted, closed forum ... any rational and constitutional restriction permitted).

It is unclear to me reading the opinion what the court was shifty or blurry about, but it should not be shifty of blurry about the forum. A public school classroom is a closed forum, pretty much all the time when school is in session - whether that's kindergarten or that's high school seniors. The court correctly concluded it was a closed forum. So, giving them the benefit of the doubt, I am only left to conclude that they were implying that it was the constitutional principles can be shifted or blurred by the surrounding circumstances, not the fora. If that's what they meant, then I would agree. What a kindergartner is constitutionally permitted to say and what a senior is constitutionally permitted to say are different, and thus the freedom of expression shifts to compensate for the speaker and the circumstances (shouting fire is fine in a park, not so much in movie theater). But, it is the constitutional protection that is shifting, not the forum.

Thus, there is not a spectrum of thousands of different fora. There are only three options when it comes to schools and those options are mutually exclusive.

Comments

[Patrick Fanelli]

You are right that this creates a blurry line for determining when a forum is open or not. And I think it does so in several ways. It makes it very, very difficult for a teacher, superintendent, or really anyone other than some kind of prophet to predict what a reviewing court would do now.

Not only is the question - whether or not a forum has been opened - now dependent upon the age of the hearers in that forum, but the answer also depends on the content offered. In other words, the Court seems to be implying, if not saying outright, that a forum can be a "little bit open" without being completely open.

For example, did you notice just how much that classroom had been opened - even for other religious and very secular speech? The Court recognized that parents had spoken about religious holidays and had read religious books. But that did not open the foum far enough to allow for the reading of scripture.

So the problem for a state actor (teacher, principal, superintendent, etc.) is trying to determine where that blurry line is, on both counts. First, they must determine not just whether the forum has been opened - but how much has it been opened? The problem with this is that even if we draw some imaginary line between 'religious books' and 'scripture,' as was done here, we basically require a state actor to determine what is or is not scripture. How is that for an excessive entanglement of state and religion?

In short, a teacher or administrator must now consider not whether a forum has been opened, but how much. That is a MUCH more difficult task.