The decision that Donna Kay Busch and her attorneys must make by Aug. 31 could put the mother of three before the U.S. Supreme Court.
The Newtown Square, Pa., woman is considering whether to continue with a case that tackles issues of free speech and separation of church and state. If she goes forward, Busch says, the only cause she wants to strike a blow for is her son Wesley.
"I am his advocate," said Busch, 47, a business consultant.
In a 2005 lawsuit against the Marple Newtown School District and its officials, Busch contends that her and her son's right to religious expression was violated when she was not allowed to read from the Bible during an exercise in Wesley's kindergarten class at Culbertson Elementary School in Newtown Square.
During All About Me Week, students made presentations about themselves. One option was to have a parent read from the child's favorite book. Wesley chose the Bible. When his mother tried to read it, principal Thomas Cook asked her not to, citing separation of church and state.
Courts have ruled twice against Busch, who is represented by lawyers affiliated with the Rutherford Institute, a Christian legal group. A summary judgment in U.S. District Court in Philadelphia found in favor of the school district in May 2007. In June, the U.S. Court of Appeals for the 3rd Circuit affirmed the decision, 2-1, calling a kindergarten classroom a nonpublic setting that merited unique consideration of free-speech issues.
The opinion, written by Chief Judge Anthony Scirica, said restrictions on speech sometimes are necessary to "create the structured environment in which the school imparts basic social, behavioral, and academic lessons," particularly when students are so young and the speech could be interpreted as promoting a religious view. School officials must have latitude to make decisions, the court said.
In his dissent, Judge Thomas Hardiman said the district had gone "too far" in limiting participation in All About Me Week to nonreligious perspectives. The district "solicited speech, but then discriminated on the basis of viewpoint," he wrote.
School district officials declined to comment on the decision beyond a news release announcing the decision on the district's Web site.
But Edward Partridge, vice president of the school board, said in a 2005 Philadelphia Inquirer interview, "We respect religion and understand that it holds an important place in the community, but the law says it's not to be in the classroom of a publicly funded school."
Jason Gosselin, one of Busch's attorneys, challenged the court's opinion and said the school's decision was wrong. Wesley's teacher "told Donna that she could share something meaningful to Wesley," but, Gosselin said, "it couldn't be what was most meaningful because it's religious."
Busch was given 90 days after the June 1 appellate court ruling to petition the Supreme Court to hear the case. Gosselin said they hadn't made a decision, but "we feel this is an appropriate case to be appealed to the Supreme Court."
If they do appeal, Busch said, it will be a fight for Wesley.
"Freedom of speech is being able to be who you are no matter where you are, and that was taken away," she said.
Eric Busch, her husband and Wesley's father, said his wife had never intended to be part of a lawsuit. "She was just trying to do what Wesley asked," he said. Donna Busch declined to allow Wesley to be interviewed.
Her son's request to read from the Bible reflected the life the family leads, she said. It goes back to her roots as a minister's daughter.
"We were in church every Sunday, Sunday night, Wednesday night, every revival, every camp meeting," she said. "We were the entertainment."
Busch sang gospel music in a group with her four sisters. Church was not something she loved at the time, but she grew to appreciate the Christian life she had grown up in, she said.
Her family, including 11-year-old son Bradley (son Ryan, 21, lives on his own), attends Spruce Street Baptist Church in Newtown Square. The Busches have a daily devotional during breakfast, when they read and pray together. At night, they tumble on Donna Busch's bed and read the Bible.
When she selected to read from Psalms 118:1-4 and 14, she knew there might be controversy because she was reading from the Bible.
Psalm 118 begins, "O give thanks unto the Lord; for he is good: because his mercy endureth for ever."
"I tried to pick something neutral so that it would be what Wesley wanted and at the same time wouldn't offend anybody," Busch said.
SUPREME PRECEDENT?
Jason Gosselin, one of Donna Busch's attorneys, says no Supreme Court ruling has addressed the narrow circumstances of this case, involving claims of viewpoint discrimination in an elementary school. In 2001, justices declined to hear a case involving a student who had been prohibited from reading a Bible story in class to demonstrate his reading skills.
