Jones Day files amicus brief urging the Supreme Court to clarify the constitutionality of "viewpoint discrimination" under the First Amendment

Client(s) Indian River School District

On behalf of the Indian River School District in Delaware, Jones Day prepared and submitted an amicus curiae brief to the United States Supreme Court seeking clarification of the competing First Amendment principles that are at stake when protected speech is prohibited from public schools. When asked to read passages from her son's favorite book to his kindergarten class, the plaintiff in Busch v. Marple Newtown School District chose select verses from the Bible. School administrators prevented the reading solely due to its religious nature, placing First Amendment protections against viewpoint discrimination at odds with the constitutional prohibition of state-sponsored religion. In attempting to resolve the admitted "tension" between these fundamental principles, a divided panel of the Third Circuit Court of Appeals adopted a discretionary, factor-based test that fails to provide guidance to educators and students alike, and will encourage litigation that diverts valuable resources away from public schools.