The most recent case, Busch v. Marple Newtown School District, attracted six friend-of-the-court briefs when it went before the 3rd U.S. Circuit Court of Appeals and resulted in a 48-page decision with all three judges on the panel weighing in.

In a 2-1 vote, the court rejected the claims of a kindergarten student’s mother who said public school officials violated her First Amendment rights during a program called "All About Me" week when they prohibited her from reading her son Wesley's favorite book - the Bible.

Writing for the court, 3rd Circuit Chief Judge Anthony J. Scirica said "parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult's reading of religious texts."

When parents participate in an elementary school's curricular activities, Scirica said, school officials have the right to require that the parents refrain from promoting specific messages in class.

According to court papers, Wesley Busch's class had an assignment where they were to share information about themselves, first by bringing in a poster that illustrated their interests and later by having their parents come in to read from their favorite books.

Wesley made a poster with his mother that included photographs of himself with his hamster and with his family, as well as a picture of his church captioned: "I love to go to the House of the Lord."

For the reading from his favorite book part of the assignment, Donna Busch testified that Wesley asked her to read from the Bible and that she chose to read Psalm 118, which begins: "Give thanks unto the Lord, for he is good; because his mercy endures forever," but that the teacher and principal prohibited her from doing so.

Judge Maryanne Trump Barry noted that the 3rd Circuit has already said school children are sometimes so young that they cannot be said to have First Amendment rights but has never drawn a bright line to define the age when free speech rights take hold.

But Barry insisted that the line must be drawn higher than kindergarten age.

"Children of kindergarten age are simply too young and the responsibilities of their teachers too special to elevate to a constitutional dispute cognizable in federal court any disagreement over what a child can and cannot say and can and cannot do and what a classmate can and cannot be subjected to by that child or his or her champion," Barry wrote.

Judge Thomas M. Hardiman disagreed  and said he believed school officials engaged in "viewpoint discrimination" to prohibit speech that was clearly "personal" to an individual student and his parent.

"The majority's desire to protect young children from potentially influential speech in the classroom is understandable. But that goal, however admirable, does not allow the government to offer a student and his parents the opportunity to express something about themselves, except what is most important to them," Hardiman wrote.

Such disagreement among the intermediate courts can provide the impetus for the U.S. Supreme Court to take up the case.

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