Petition for Writ of Certiorari — Bauchman ex rel. Bauchman v. West High School

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No._-___ (97 176 4 APR 29 1998!

Supreme Court, U ©

; J } ;

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

RACHEL BAUCHMAN,

WEST HIGH SCHOOL, er al.,

OFFICE Gt TRE CLERK

Petitioner,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Edward A. Harris

Georgina E. Hayden

Michael W. Martin

Joseph E. Neuhaus

125 Broad Street

New York, New York 10004

(212) 558-4000

Ross C. Anderson

Nathan B. Wilcox

ANDERSON & KARRENBERG

700 Bank One Tower

50 West Broadway

Salt Lake City, Utah 84101

(801) 534-1700

Of Counsel

Andrew C. Hruska

Counsel of Record

131 Fifth Avenue

April 28, 1998

New York, New York 10003

(212) 777-7404

Questions Presented

The questions presented for review are:

1. Whether an Establishment Clause claim of religious

purpose must allege an express and contemporaneous admission

by a state actor that the challenged conduct was intended as an

endorsement of religion, or may such a claim be based on

circumstantial and historical evidence that the conduct was

intended to promote religion.

2. Whether Establishment Clause cases are exempt from the

ordinary rule at the pleading stage that a plaintiff's allegations

are to be read in the light most favorable to the plaintiff.

List of Parties

The parties to the proceedings before the United States Court

of Appeals for the Tenth Circuit were petitioner Rachel

Bauchman, by and through her parent and guardian Cheryl

Bauchman; respondents West High School, Salt Lake City

School District, Richard Torgerson, William Boston, Gene

Bonella, Teresa Piele, Dolores Riley, Darline Robles, Dale

Manning and Mary Jo Rasmussen; and respondent-intervenors

Leila Quinones Barela, by and through her father, Luke J.

Barela; Luke J. Barela, in his own capacity, Tamra M. Badger,

by and through her parent and guardian, William A. Badger,

William A. Badger, in his own capacity, Cindy R. Badger, Eric

Michael Nielsen, by and through his parent and guardian Greg

Nielsen; Greg Nielsen, in his own capacity, Jo Rita Nielsen,

Heather Pettit, by and through her parent and guardian, Ralph

Pettit; Ralph Pettit, in his own capacity, Elaine Pettit, Joy M.

Warthen, by and through her parent and guardian, Lee Warthen,

Alexander B. Warthen, by and through his parent and guardian,

Lee Warthen, Lee Warthen, in his own capacity, Barbara

Warthen, Steven C. Eror, Jr., by and through his parent and

guardian, Steven C. Eror, Steven C. Eror, in his own capacity,

Judy H. Error, Jane Curtis, by and through her parent and

guardian, Marvin R. Curtis, Jr., Marvin R. Curtis, Jr., in his

own capacity, and Joan C. Curtis.

Table of Contents

Page

ee iy ce-ab cause keep eeanaeenws i

SEE EL OF ELLE LET EEL PECL PEPE Soe ii

BEI PORE CIEE PEL CEE CCT COTE Vv

I aa a awsiwe ease bexactsany s ix

Se I I os sieve ye cewek ess bee's l

Is a BNE rb io eh os VUE Mowe evs bee CED 2

Constitutional and Statutory Provisions Involved ........ 2

EE oe eck e ced eed Rakes $40 bee eS 2

A. The Amended Complaint ...............0.+.5m 2

OR 8 Er. 5

Bi Rae REE CMT BOE oo cee esses. 6

2. The Tenth Circuit’s Panel Decision .......... 6

Be ee PY BLO oc cc ee eces oa scws 8

4. Denial of Rehearing En Banc ............... 9

Page

Reasons for Granting the Writ ....05. cece cease cece nes 9

I. The Decision Below Presents Important

Questions Concerning the Standard of

Proof in Establishment Clause Cases............. 10

II. The Decision Below Conflicts with the

Third, Fifth, Eighth and Eleventh Circuits......... id

Ill. The Tenth Circuit Improperly Exempted

Establishment Clause Cases from the

Settled Stanuards Governing Motions

i RE Fe I ne ikke Seek emcees kes 17

RD TRS ISG Nine Sgr eee Rae a Ra MET diya NOPE ES ENN 19

Table of Authorities

Page(s)

Cases

American Civil Liberties Union v. Black Horse

Pike Regional Board of Education,

84 F.3d 1471 (3d Cir. 1996) ........-- cece ee eee: 14-15

Bauchman v. West High School,

132 F.3d 542 (10th Cir. 1995) 2... .. ee eee ee eees passim

Bauchman v. West High School,

No. 95-C-506G, 1996 WL 407856

(D. Utah May 30, 1996) .........---eeeeee. 1, 3, 5-6, 17

Bauchman v. West High School,

No. 95-4084, 1995 WL 914614

(10th Cir. June 6, 1995) 0.022. eee c tener ewcccenes 5

Bauchman v. West High School,

900 F. Supp. 248 (D. Utah 1995) ...... 6... ce eee ee eee 5

Bauchman v. West High School,

No. 95CV-506G, (D. Utah June 2, 1995) ...........-. 5

Bazemore v. Friday,

RIOTS, SES CLIN ea cc eve ik hie er ces eevee 12-13

Board of Education v. Mergens,

ee Ae S|: SRP er UNE yr oe Pra sy 13

Conley v. Gibson,

pi BIR SE ey. 53 Fe eran a pene Tare re fae 17

County of Allegheny v. American Civil

Liberties Union,

Be RE EE Ss ah one cia on ee ee Ene Ralee

Cruz v. Beto,

ee ee ee Ee Ee Gk a ae os ORK Wee ce creeks eae

Edwards v. Aguillard,

Se Ws TE COMET ick oih.6 bonis va ee eben 5, 10,

Florey v. Sioux Falls School District 49-5,

ie fe GER Gs ot A) GPR ee ap

Haupt v. United States

PERI EPEED 5 ov i'svinbcd Sale sudadeepns a

Holland v. United States,

TG RE CEN 6 6 i'n nc ops kkcea cand cebhate aan

Honce v. Vigil,

EF eR CEASE BOOED oe ok oe Wiles nme dw estes

Hughes v. Rowe,

I PW EEPET A ccs s dha cawuceavedbeasedkekeay

Ingebretsen v. Jackson Public School District,

eae Pe LI GO, ROOD cv cain eis cibneeuewanr

Jager v. Douglas County School District,

De Wie are CES RG, EDO D oii ed ecw ehew bce’

Lowe v. Angelo’s Italian Foods, Inc.,

PE TG ER FEIN Gls COTE 6 kid tcecnabud bean’

Lynch v. Donnelly,

EE AES ERE OUEE b 6 4 s'e b cdo ec tine uedan ab aces

11, 13

vii

Neitzke v. Williams,

Se, SRE cre Vow iwxaw eae wee be ieee eee 17

Pitre v. Western Elec. Co..,

ee ee Ae A lc AED <b 0-3 oe Be we be beee es 13

Stone v. Graham,

a ft CR re Pe re eee 10

Turley v. State Farm Mutual Auto. Ins. Co.,

POG ee We LE ROT ED Rid beee ees cee oase ¥s 12

Village of Arlington Heights v. Metropolitan

Housing Dev. Corp.,

gE Myo FO). sy 5 GRRE eery & Ree ag fon tinea pane 12

Wallace v. Jaffree,

eo ATE Sp ft, > SA rere eer ere x ee Eee 10, 11

Wisconsin v. Mitchell,

Re ae a SE Ty wen ond wees 12

Constitutional and Statutory Provisions

st UN MED 6b Va hive db eedd ede ceerscees passim

sas te RAT 6h o0 Ch ae CNR EN wha eoew be he aed 2

Equal Access Act, 20 U.S.C. §§ 4071-74. ............. 13

NS EE HAE CORN S Koko Oe eh oe kee as eern eas ee

viii

Rules and Regulations

is i ee a laa 8, 12, 16

PO Sin aces SN hc hve ee i wn one hk eee 12

as Ts a EY We hk 2b 6 a 0 a ee Oe eae 12

Miscellaneous

2 WEINSTEIN’S FEDERAL EVIDENCE § 404.22[1][a]

(Joseph M. McLaughlin ed. 2d ed., 1997............. 12

2 John H. Wigmore, EVIDENCE IN TRIALS AT

COMMON LAW § 302 (Chadbourn Rev. 1979) .......... 12

Index to Appendix

Page

Order of the United States Court of Appeals for

the Tenth Circuit, Denying Petition

for Rehearing and Suggestion for Rehearing

En Banc, Gated Jeraery 26, 1996 0. ccc ese cees Al

Opinion of the United States Court of Appeals for the

Tenth Circuit, dated December 18, 1997 .............. A2

Order of the United States District Court for the District

OF Le I OE BU LIPO ac iaassn can eeesduoow ss A78

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

RACHEL BAUCHMAN,

Petitioner,

WEST HIGH SCHOOL, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioner Rachel Bauchman respectfully petitions for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Tenth Circuit entered in this case.

Opinions and Order Below

The order of an equally divided court of appeals denying the

petition for rehearing and suggestion for rehearing en banc is

reprinted in the appendix hereto at page Al. The panel opinions

are reported at 132 F.3d 542 and are reprinted in the appendix

hereto at pages A2 through A77. The district court opinion is

reported at No. 95-C-506G, 1996 WL 407856 (D. Utah May 30,

1996) and reprinted at pages A78 through A109.

Jurisdiction

The judgment of the court of appeals was entered on

December 18, 1997, and petitioner’s timely petition for

rehearing and suggestion for rehearing en banc was denied on

January 28, 1998. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

The First Amendment to the United States Constitution

provides, in pertinent part: “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof... .”

Section 1983 of U.S. Code Title 42 provides in pertinent part:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . , subjects, or

causes to be subjected, any citizen of the United States . . . to

the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for

redsess ....”

Statement of the Case

A. The Amended Complaint

Petitioner Rachel Bauchman (“Rachel’’) was, at the time this

action began, a sophomore at West High School, a public school

in Salt Lake City, Utah. Rachel is Jewish. She brought this

action against the school district and school officials alleging

that the high school choir class teacher was using the class as a

vehicle to promote the Mormon religion. After the district court

dismissed her original complaint, Rachel sought to file an

amended complaint that advanced extensive and detailed

allegations that the teacher, over a period of years, said prayers

in leading class activities and introducing performances, held

concerts at religious ceremonies, included an overwhelming

preponderance of religious songs in the class’s repertoire,

sought to exclude Rachel and other non-Mormon students from

class activities, repeatedly admitted that the class had a religious

purpose and criticized Rachel, identifying her by her religion,

for objecting to the class’s religious content.

The allegations were, in summary form, as follows:'

Respondent Rich~»* Torgerson (“Torgerson”) has promoted

religion in his public school singing classes for twenty years.

Under Torgerson’s direction, his class for many years regularly

participated in Mormon Church worship services, singing a

disproportionately large number of Christian devotional songs

and Mormon hymns and taking part in Mormon prayers and

sacrament meetings. Amended Complaint (“A.C.”) § 16(b), (d)-

(g), (j)-(m); TCA 158-59, 160-62, 250, 337, 346-47.’ Several

years prior to Rachel’s school year, Torgerson admitted his

preference for Mormon students, explaining that things were

much easier if the students in the choir class were members of

the Mormon Church because the choir class participated in

Mormon sacrament meetings. A.C. § 16(d); TCA 158-59, 222.

‘Indeed, he even required prospective students to identify their

religion on class application forms. A.C. § 16(d); TCA 158-59.

There were also instances prior to Rachel’s class year in

which Torgerson commemorated class events with traditional

Mormon prayers, invoking “our heavenly father” and closing

with, “in the name of Jesus Christ, amen.” A.C. § 16(k);

TCA 160-61, 250, 329, 346, 352. Torgerson also emphasized

' The allegations of the proposed Amended Complaint are, at virtually every

point, supported by affidavit, documentary or deposition evidence that was

developed during sharply limited discovery conducted during briefing of the

motions below. Both the district court and the court of appeals considered

the record developed in the limited discovery together with the allegations

in the proposed Amended Complaint in deciding the motion to amend. 132

F.3d at 559 (A37); 1996 WL 407856 at *1 n.8 (A82).

2 “TCA” refers to Rachel’s Appendix to her appeal No. 96-4101 in the

United States Court of Appeals for the Tenth Circuit.

the religious message of the assigned songs by instructing the

choir class to imagine Jesus being crucified and “dying for our

sins.” A.C. 4 16(i); TCA 160, 225, 234, 251-52.

In 1994, a few months before Rachel entered Torgerson’s

class, he was reprimanded by the school district for his religious

activities during his annual class trip. Torgerson responded by

admitting in a letter to parents, “I have a little trouble with this

separationist concept.” TCA 584.

In the fall of 1994 — shortly after Rachel entered his class —

when questioned about his promotion of religion in his class,

Torgerson declared: “I bring religion into the classroom, and I

ask my students to do the same.” TCA 774.

Torgerson continued to schedule the performance of almost

entirely Christian-oriented music during Rachel’s year in his

class, heavily weighting the repertoire with religious songs,

including many contemporary “pop” Christian tunes. TCA 334-

35, 342-43, 672-74. He instructed the class that a true

appreciation of music comes through religious experience.

TCA 770-71. Torgerson likewise continued to schedule many

of the class performances in Mormon buildings and churches at

which speakers endorsed the Mormon religion. A.C. § 17(b)-

(c); TCA 165-66, 601, 677A, 681. At one class performance,

Torgerson offered a prayer to the “heavenly father.” TCA 331,

338.

After Rachel and her family suggested that Torgerson reduce

the number of and emphasis on religious songs, A.C. 4 19(a);

TCA 172, 588, Torgerson criticized and ridiculed Rachel in

class lectures for her concerns about his endorsement of

religion. He stated, among other things, that Jews of all people

should be tolerant of Mormons because they, like Mormons,

were persecuted for their beliefs. A.C. § 17(k); TCA 167-68,

772.

Torgerson also used class time and public school facilities to

organize a covert Spring trip for the Christian members of the

class. A.C. § 17(g)-(h); TCA 166-67, 329-30, 353-54, 785-86.

Torgerson designed the covert trip to replace the annual class

tour, which in prior years had included participation in Mormon

religious services. Torgerson’s tour was to feature, in the words

of a flyer prepared for the tour, “expressions of faith and

prayer.” TCA 609. The three Jewish students in the class,

including Rachel, were not invited to participate and were

rebuffed when they inquired about it. A.C. § 17(h); TCA 167,

330, 353-54, 784-85.

B. Procedural History

Rachel began this action for declaratory and injunctive relief

and damages under 42 U.S.C. § 1983 on May 31, 1995.’ The

district court granted defendants’ motion to dismiss the

complaint. 900 F. Supp. 254 (D. Utah 1995). Shortly

thereafter, Rachel filed a motion for reconsideration or in the

alternative to amend the complaint, together with a proposed

Amended Complaint supported by eight affidavits. TCA 144-

260. The district court denied Rachel’s motion for

reconsideration, 900 F. Supp. 254, and, following a brief

discovery period strictly limited in scope to the 1994-95 school

year, denied leave to file the proposed Amended Complaint.

1996 WL 407856 (A78-A109).

> Rachel initially sought a preliminary injunction barring the school from

scheduling only religious songs for the class to sing at West High’s

graduation exercises that year. The district court denied the injunction.

Bauchman v. West Eigh School, No. 9SCV-506G (D. Utah June 2, 1995)

(transcript of hearing on Motion for TRO or Preliminary Injunction) (TCA

23A-23SS). On June 6, 1995, a Tenth Circuit panel, different from the one

that ultimately heard the appeal, granted an injunction pending appeal with

respect to the graduation ceremony. Bauchman v. West High School, No.

95-4084, 1995 WL 914614 (10th Cir. June 6, 1995) (TCA 23TT-23UU).

1. The District Court’s Order

The district court held that under its reading of this Court’s

cases, “subjective intent plays no part” in Establishment Clause

jurisprudence. /d. at *3 (A86). Rather, the court held that the

conduct alleged in a complaini must be viewed as seen by an

“objective” observer. In applying that standard, the court

abandoned the presumptions normally accorded plaintiffs and

instead weighed the evidence presented, including the

credibility of affiants and deponents. The court rejected the

specific allegations of the proposed amended complaint as

“speculative or conclusory,” “unsupported or at odds with an

objective review of evidence developed in discovery,” or

otherwise not believable. /d. at *4-*9 (A90-A105). Based on

these conclusions, the court held that filing the amended

complaint would be “futile.” Jd. at *9 (A106).

2. The Tenth Circuit’s Panel Decision

The Tenth Circuit affirmed the district court on other

grounds, over a vigorous dissent by Judge Murphy. The

majority criticized this Court’s Religion Clause precedents as

“muddled” and “uncertain{],” concluding that the “purpose”

prong of this Court’s Establishment Clause analysis was “an

unworkable standard that offers no useful guidance.” 132 F.3d

at 551-52 (A17-A20), citing Edwards v. Aguillard, 482 U.S.

578, 636-37 (1987) (Scalia, J., dissenting). It nevertheless

undertook to apply the purpose and effect standards set out in

the Court’s opinions in Edwards and its predecessors in light

of what it viewed as “the uncertainty surrounding the present

Court’s position regarding the appropriate scope of the

endorsement test and the appropriate Establishment Clause

analysis, in general.” 132 F.3d at 552 (A20-A21).

In doing so, however, the panel majority held that an

Establishment Clause complaint is subject to a particularly

searching and selective inquiry. The majority rejected as

“irrelevant” the allegations of the decades-long pattern and

‘

practice of Torgerson’s in-class endorsement of religion on the

ground that they were not “temporally connected to the

challenged activity.” 132 F.3d at 560 (A38-A39). Rather, the

majority held, the focus of the inquiry must be on “concrete

manifestations of intent” made at the time of the challenged

conduct. Jd. (A39). Specifically,

an Establishment Clause claim like the one before us must

be supported by allegations of conduct or statements that

expressly (without resorting to psychoanalysis) indicate the

defendant believed his selection of songs and performance

venues would serve a religious purpose .....

Id. at 561 (A40) (first emphasis added).

The majority panel held that its new requirement of

contemporaneous, express admission of an unconstitutional

purpose was required by policy concerns. It distinguished the

defendant’s short-term “purpose” from his apparently longer-

term “motive,” explaining that “pragmatic limits on the nature

of our inquiry into the ‘actual’ purpose of the challenged

conduct” required a court to “stop short of an attempt to discern

a defendant’s psychological motives vis a vis his past conduct.”

Id. at 560 (A39) (emphasis in original). The majority also

expressed concern that basing decisions on religious motives

inferred from a teacher’s past conduct would subject religious

teachers to “a unique disability” and involve courts in

educational decisions best left to local authorities. /d.

Although the district court had not applied this new standard,

but rather a standard that did not even include a search for

subjective intent, the panel majority simply incorporated the

district court’s erroneous decision with respect to the actual

allegations of the proposed Amended Complaint:

The specific nature of Ms. Bauchman’s augmented

allegations and the evidence pertaining to those allegations

are thoroughly addressed in the district court’s [opinion].

We can add little to the district court’s analysis.

Id. at 561 (A40-A41) (citation omitted).

The panel majority did not separately address whether the

proposed Amended Complaint adequately alleged governmental

action with the effect of endorsing religion.

3. Judge Murphy’s Dissent

In dissent, Judge Murphy concluded that “[t]he majority has

so radically restricted pleading and proof of an improper

purpose as to nullify the endorsement test’s purpose prong,” and

that the panel’s new test was “inconsistent with Supreme Court

precedent.” 132 F.3d at 563 (A45). Canvassing this Court’s

cases, the dissent found no support in Supreme Court

Establishment Clause jurisprudence for the majority’s

distinction between the “purpose” and the “motive” of the

defendant. /d. at 567-69 (A54-A58).

Further, the dissent found unpersuasive the majority’s

perceived “pragmatic limits” on the inquiry into purpose in

Establishment Clause cases. The majority’s exclusion of prior

conduct from the purpose inquiry was inconsistent both with the

general approach to intent evidence incorporated in Federal

Rule of Evidence 404(b), which provides that evidence of past

conduct is admissible to prove motive and intent, and with the

Tenth Circuit’s case law in examining analogous questions of

intent under the anti-discrimination laws. Jd. at 570-71 (A62-

A65). The dissent also found the majority’s concerns about

burdening a religious teacher’s beliefs to be unpersuasive, since

the issue was not the religious person’s beliefs, but that person’s

conduct endorsing or disapproving religion. Jd. at 569 (A58-

A59). Likewise, the concerns about burdening local school

board policy were unfounded because the allegations in the

proposed Amended Complaint did not attack a religiously

neutral policy, but rather the actions of a teacher allegedly

undertaken for the direct and specific purpose of advancing

religion. Jd. (A60-61).*

4. Denial of Rehearing En Banc

An equally divided Tenth Circuit denied Rachel’s petition for

rehearing en banc without opinion. Chief Judge Seymour and

Judges Ebel, Henry, Briscoe, Lucero and Murphy voted to grant

rehearing. Al.

Reasons for Granting the Writ

The Tenth Circuit’s holding relies on perceived uncertainty

in this Court’s Establishment Clause cases to erect a nearly

insurmountable hurdle to pleading the religious purpose and

effect of governmental conduct. This holding split the en banc

Tenth Circuit and creates a conflict with the law of at least four

other Circuits, which rely on indirect evidence of intent in

Establishment Clause cases. Even aside from the undeniable

importance of the constitutional question, the issue is, as the

Tenth Circuit found, one of “acute public interest” in Utah, with

its “unique social and political history” of “longstanding tension

involving the separation of church . . . and state.” 132 F.3d at

545 (A4-AS5). This Court should grant the writ to clarify its

jurisprudence and resolve the Circuit split.

* Like the majority, the dissent did not discuss whether the allegations of the

proposed Amended Conxplaint would state a claim under the “effects” prong

of Establishment Clause analysis.

The Decision Below Presents Important Questions

Concerning the Standard of Proof in Establishment

Clause Cases

This Court’s decisions have not explicitly addressed the

standard of proof in Establishment Clause cases, although a

number of cases implicitly accept that all ordinary sources of

proof are available to prove intent in such cases. Edwards, 482

U.S. at 590, 594 (considering history and context of state’s

action); Wallace v. Jaffree, 472 U.S. 38, 65 (1985) (Powell, J.,

concurring) (Court relied on “sequence and history of three

Alabama statutes”); Stone v. Graham, 449 U.S. 39, 41 (1980)

(per curiam) (concluding that pre-eminent purpose was “plainly

religious” despite avowed secular purpose).

This case presents the question of the appropriate standard of

proof of religious purpose in as clear a fashion as possible.

Because the case was decided at the pleading stage, the rule

erected by the opinion below is couched in sweeping terms

unaffected by the particular facts of this case and will act to bar

claims from the courthouse and chill otherwise meritorious

claims from even being brought. If, as petitioner submits, the

Tenth Circuit’s standard is wrong, its rule will have an

especially pernicious effect in a particularly important circuit for

Religion Clause cases. Counsel contemplating bringing

Establishment Clause cases in the Tenth Circuit will not bring

those that cannot meet the newly raised pleading standards.

Moreover, this case provides an opportunity to clarify the

vitality of the central concerns of the Establishment Clause in

the face of the lower court’s misreading of supposed uncertainty

in this Court’s cases. The Tenth Circuit mistook debates at the

margins of Establishment Clause jurisprudence, involving the

problem of discerning the purpose of a deliberative body, as

license to impose a uniquely high pleading standard on all

Establishment Clause cases. This case arises at the core of

DERI ES SE URE Mees Der On

Sil AF

Sa i hea :

co VeRO MESS Ha

Establishment Clause concerns — the use o; a public school

classroom as a preacher’s pulpit — as to whi :h, we submit,

there should be no doubt as to the constitutional command.

The standard applied by the Tenth Circuit is clearly in error.

This Court’s cases consistently require that government must

act for secular rather than religious purposes, particularly in the

public schools. See County of Allegheny v. American Civil

Liberties Union, 492 U.S. 573, 592 (1989); Edwards, 482 U.S.

at 584 (“Families entrust public schools with the education of

their children, but condition their trust on the understanding that

the classroom ‘will not purposely be used to advance religious

views that may conflict with the private beliefs of the student

and his or her family.”) (emphasis added); id. at 585; Wallace,

472 U.S. at 56; Lynch v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring).

While purporting to follow this Court’s precedents in this

area, the Tenth Circuit has effectively nullified purpose analysis

entirely by imposing unprecedented obstacles to establishing

religious purpose. Uniquely in the history of judicial analysis

of an actor’s state of mind, the court below bars all indirect

evidence of intent and motive and requires that the actor have

expressed his religious purpose at the time that he acted on it.

132 F.3d at 560-61 (A39-A40). As Judge Murphy pointed out

in dissent, id. at 573-75 (A68-A74), the Tenth Circuit adopted

a nearly insurmountable evidentiary standard for proving

Establishment Clause violations, since — short of a statement

at the time by the actor that “my purpose is to promote religion”

— virtually no allegation will suffice. Even the stringent

procedural safeguards that the criminal law requires do not

demand the contemporaneous, explicit admission of

wrongdoing by the malefactor. Cf Holland v. United States,

12 |

348 U.S. 121, 139-40 (1954) (jury may convict defendant based

solely on circumstantial evidence).

This new requirement is inconsistent with centuries of Anglo-

Saxon jurisprudence which recognizes that intent must

commonly be proved by indirect evidence. See 2 John H.

Wigmore, EVIDENCE IN TRIALS AT COMMON LAW § 302

(Chadbourn Rev. 1979). The Federal Rules of Evidence

expressly contemplate that a court can discern an individual’s

“motive ... intent [and] knowledge” from past conduct. FED.

R. Evip. 404(b); see Turley v. State Farm Mutual Auto. Ins.

Co., 944 F.2d 669, 673-74 (10th Cir. 1991).° This is especially

true where civil rights are at stake. See Village of Arlington

Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,

266-67 (1977) (“Determining whether invidious discriminatory

purpose was a motivating factor demands a sensitive inquiry

into such circumstantial and direct evidence of intent as may be

available .... The historical background of the decision is one

evidentiary source, particularly if it reveals a series of official

actions taken for invidious purposes.”); see also Bazemore v.

Friday, 478 U.S. 385, 402 n.13 (1986) (prior acts of

In preving motive or intent, “[e]vidence of a defendant’s previous

declarations or statements is commonly admitted in criminal trials . . . .”

Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (citing Haupt v. United

States, 330 U.S. 631, 642 (1947)).

° Every federal court of appeals has similarly permitted proof of intent

through historical, circumstantial evidence. See 2 WEINSTEIN’S FEDERAL

EVIDENCE § 404.22[1][a] (Joseph M. McLaughlin ed. 2d ed., 1997). In

requiring elaborate and detailed allegations to support a claim of religious

purpose, the Tenth Circuit’s new standard is also inconsistent with Rule 8

of the Federal Rules of Civil Procedure, which requires only “a short and

plain statement of the claim.” FED. R. Civ. P. 8(a); accord id. 8(e)(1)

(pleadings to be “simple, concise, and direct”).

EEE Eee

discrimination are “quite probative” of current discriminatory

intent).’

The Tenth Circuit supported its “deferential” inquiry into the

government’s purpose with cases drawn from the inapposite

legislative context. 132 F.3d at 552 (A20), citing Edwards, 482

U.S. at 636-37 (Scalia, J., dissenting). But, legislative purpose

is not at issue here. This case concerns the problem of what

Justice Kennedy termed “the eager proselytizer” in County of

Allegheny, 492 U.S. at 678 (Kennedy, J., concurring in part and

dissenting in part). Rather than disembodied statutory language,

we have a flesh-and-blood government actor whose purpose is

discernible through direct and circumstantial evidence.

The Tenth Circuit’s distinction between “motive” and

“purpose” in purported reliance on Board of Education v.

Mergens, 496 U.S. 226, 249 (1990) (plurality opinion), is a

plain misreading of that case. See 132 F.3d at 567-69 (A55-

A58). Mergens concerned an extracurricular religious group's

use of public school facilities under the Equal Access Act, 20

U.S.C. §§ 4071-74. A plurality of this Court stated that “the

possibly religious motives” that guided “some legislators” in

voting for the act were irrelevant because the “legislative

purpose of the statute” was what was relevant to determining

the purpose of the statute. 496 U.S. at 249 (emphasis in

original). Thus, the distinction between “motive” and

“purpose” was not between some long-term and short-term

purposes, as the Tenth Circuit thought, but merely between the

purposes of individual legislators and the “legislative purpose”

of the legislating body as a whole. Mergens has nothing to do

” See Judge Murphy’s dissent, 132 F.3d at 571 (A64) (“This circuit has long

held that evidence of prior or concurrent acts of discrimination against others

is relevant and admissible to prove an otherwise unrelated claim of

discrimination.”) (citing Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d

1170, 1175 (10th Cir. 1996); Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir.

1993); Pitre v. Western Elec. Co., 843 F.2d 1262, 1266-67 (10th Cir. 1988)).

with the evidence to be considered in determining an individual

government actor’s purpose.

The consequences of the decision below are especially severe

for religious minorities who are most frequently Establishment

Clause plaintiffs. By blocking access to the courts to redress

minorities’ constitutional grievances, the Tenth Circuit’s

decision strikes at those citizens most in need of the

Establishment Clause’s protection from government actors’

promotion of religion. Moreover, the ruling creates a glaring

split with several other circuits that, in affirming findings of

religious purpose, have explicitly relied on the very type of

evidence that the Tenth Circuit’s decision would bar.

Il.

The Decision Below Conflicts With the Third, Fifth,

Eighth and Eleventh Circuits

In addressing Establishment Clause violations, the federal

courts of appeals other than the Tenth Circuit routinely consider

circumstantial and historical evidence of intent in analyzing

government actors’ purpose. The Third, Fifth, and Eleventh

Circuits have each relied on logical inference and historical

context to reach the conclusion that government actors harbored

an actual religious purpose despite proffering an ostensible

secular purpose, and the Eighth Circuit has said it would do so

in an appropriate case.

In American Civil Liberties Union v. Black Horse Pike

Regional Board of Education, 84 F.3d 1471 (3d Cir. 1996) (en

banc), the Third Circuit declared that the defendant school

district harbored an actual religious purpose — despite its

avowed secular purpose — in permitting student-led prayer at

graduation ceremonies. The court relied on the defendant

school board’s historical conduct in concluding that its facially

secular policy in fact constituted an “attempt to preserve the

long standing practice of conducting invocation and benediction

prayer at graduation ceremonies.” Jd. at 1484 (internal

quotations omitted). The Third Circuit pointed particularly to

the defendant’s previous practice of reviewing students’

speeches, which it had ceased in order, the Court found, to

distance itself from the content of religious presentations. /d.

Similarly, in Ingebretsen v. Jackson Public School District,

88 F.3d 274 (5th Cir. 1996), the Fifth Circuit held that a state

statute permitting student-initiated prayer at public school

events evinced an actual religious purpose, id. at 279, despite an

express purpose to “accommodate the free exercise of religious

rights of its student citizens,” id. at 282 (Jones, J., dissenting

from denial of reh’g en banc) (internal quotations omitted). In

reaching this conclusion, the Fifth Circuit relied on the history

and context of the government action, including a separate

legislative resolution commending a school principal for

promoting prayer and the prior “uproar over [the principal’s]

treatment after allowing prayer in his school.” Jd. at 279.

Nowhere did the Fifth Circuit rely on express,

contemporaneous admissions of religious purpose. Rather,

unlike the Tenth Circuit below, that court inferred religious

purpose from the circumstantial evidence of indirectly related

statements and the historical context demonstrating “a wave of

public sentiment and indignation” over opposition to the

promotion of religion in public schools. Jd. at 277.

Likewise, in Jager v. Douglas County School District, 862

F.2d 824, 826 (11th Cir. 1989), the Eleventh Circuit analyzed

the alleged “actual” religious purpose of a defendant school

district’s practice of permitting invocations before football

games. These speeches “invoked reference to Jesus Christ” or

requested “let us pray” and were delivered by announcers

chosen by students. The court held that because the school

district had rejected the alternative of pre-game speeches that

did not refer to Jesus or prayer, it was “very clear that the

School District’s actual purpose in having pre-game invocations

was religious.” Jd. at 830.

The Eleventh Circuit made no reference to express,

contemporaneous statements that the defendants’ believed their

action would serve a religious purpose. Quite the contrary, the

defendants in Jager — as did respondents below — vigorously

denied the allegation of actual religious purpose, insisting that

their actions were “wholly secular from start to finish.” /d. at

829 n.11 (internal quotations omitted). Moreover, the Eleventh

Circuit drew on the defendant’s nearly forty-year history of

allowing Christian ministers to deliver these pre-game

invocations in determining the related “primary effect” test, id.

at 831, which is linked with the “purpose” test in this Court’s

endorsement analysis, see Lynch, 465 U.S. at 690 (O’Connor,

J., concurring).

Finally, one of the cases that the panel below relied on for its

endorsement analysis was Florey v. Sioux Falls School District

49-5, 619 F.2d 1311 (8th Cir. 1980). See 132 F.3d at 554

(A24). While Florey did not hold the particular policy at issue

unconstitutional, it affirmed the principle that “[t]his does not

mean, of course that religious ceremonies can be performed in

the public schools under the guise of ‘study.’” /d. at 1316. In

other words, the Eighth Circuit would delve beyond the

expressed intent of government actors to ascertain whether

religious purposes lie beneath the “guise” of professed secular

intent.

That these courts of appeals do not explicitly note that they

rely on indirect evidence in reaching their conclusions should

come as no surprise because the proof of an individual’s intent

through historical and circumstantial evidence is so routine as

to be utterly unremarkable. See generally FED. R. EviD. 404(b).

The Tenth Circuit’s novel and entirely unwarranted requirement

that an Establishment Clause claim “must be supported by

allegations of conduct or statements that expressly (without

resorting to psychoanalysis) indicate the defendant believed his

[conduct] would serve a religious purpose” 132 F.3d at 561

(A40) (emphasis in original), stands in sharp contrast to other

circuits’ holdings and the settled law of proof of facts.

Il.

The Tenth Circuit Improperly Exempted Establishment

Clause Cases from the Settled Standards Governing

Motions at the Pleading Stage

In addition to imposing an unprecedented and nearly

insurmountable standard of pleading Establishment Clause

violations, the Tenth Circuit also erred in exempting such cases

from the uniform rule that at the pleading stage the district court

must construe the allegations in the light most favorable to the

plaintiff. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Tellingly, the Tenth Circuit recognized that the proposed

Amended Complaint “clearly asserts defendants’ conduct was

motivated by a religious purpose” and includes “numerous

allegations to support [Rachel’s] claim that Mr. Torgerson has

unconstitutionally promoted his religious beliefs in the

classroom for over twenty years.” 132 F.3d at 559 (A37). This

conclusion would, in the ordinary case, have sufficed to reverse

the district court.

The Tenth Circuit refused to apply the ordinary pleading test

to the allegations here. Instead, in relying on the district court’s

opinion, it incorporated that court’s completely inappropriate

weighing of the evidence and rejection of allegations that the

district court simply decided not to believe. See 132 F.3d at 561

(A40-A41); 1996 WL 407856 at *3-*9 (A89-A105). Because

a court is not permitted to dismiss a complaint simply because

it does not believe the plaintiff's allegations, Neitzke v.

Williams, 490 U.S. 319, 327 (1989), the Tenth Circuit erred in

upholding the district court’s failure to construe Rachel’s

allegations in her favor. This error tainted the majority’s

evaluation of both the “purpose” and “effect” prongs, as well as

its rejection of Rachel's original complaint, see, e.g., 132 F.3d

at 555-56 (A27-A28).

The Tenth Circuit’s ruling departs so far from the established

course of Supreme Court jurisprudence that summary reversal

is appropriate. See, e.g., Hughes v. Rowe, 449 U.S. 5, 12 (1980)

(per curiam) (summarily reversing improper dismissal of

procedural due process claim at the pleading stage); Cruz v.

Beto, 405 U.S. 319, 321-23 (1972) (summarily reversing

improper dismissal of free exercise claim at the pleading stage).

Conclusion

For the foregoing reasons, the Court should grant certiorari

and reverse the judgment of the court of appeals imposing

unwarranted and improper procedural obstacles to pleading

Establishment Clause claims.

Respectfully submitted,

Edward A. Harris Andrew C. Hruska

Georgina E. Hayden Counsel of Record

Michael W. Martin 131 Fifth Avenue

Joseph E. Neuhaus New York, New York 10003

125 Broad Street (212) 777-7404

New York, New York 10004

(212) 558-4000

Ross C. Anderson

Nathan B. Wilcox

ANDERSON & KARRENBERG

700 Bank One Tower

50 West Broadway

Salt Lake City, Utah 84101-2006

(801) 534-1700

Of Counsel April 28, 1998

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Nos. 95-4084 & 96-4101

CHERYL BAUCHMAN, as parent and guardian for Rachel

Bauchman,

Plaintiff-Appellant,

WEST HIGH SCHOOL, et al.,

Defendants-Appellees.

ORDER

Filed January 28, 1998

Before SEYMOUR, PORFILLO, ANDERSON, TACHA,

BALDOCK, BRORBY, EBEL, KELLY, HENRY,

BRISCOE, LUCERO, and MURPHY, Circuit Judges.

Chery! Bauchman’s petition for rehearing is denied by

the panel that rendered the decision.

The suggestion for rehearing en banc was transmitted

to all of the judges of the court who are in regular active

service as required by Fed. R. App. P. 35. The en banc court

was polled on the rehearing suggestion. By an equally

divided court the suggestion was denied. Chief Judge

Seymour, and Judges Ebel, Henry, Briscoe, Lucero and

Murphy voted to grant rehearing. The suggestion for en banc

rehearing is also denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

by: /s/ L. Balzano

Deputy Clerk

CHERYL BAUCHMAN, as parent and guardian for Rachel

BAUCHMAN,

Plaintiff-Appellant,

WEST HIGH SCHOOL; SALT LAKE CITY SCHOOL

DISTRICT; RICHARD TORGERSON; WILLIAM

BOSTON; GENE BONELLA; TERESA PIELE;

DOLORES RILEY; DARLINE ROBLES; DALE

MANNING; MARY JO RASMUSSEN,

Defendants-Appellees,

and LEILA QUINONES BARELA, by and through her

father, Luke J. Barela, LUKE J. BARELA, in his own

capacity; TAMRA M. BADGER, by and through her parent

and guardian, William A. Badger; WILLIAM A. BADGER,

in his own capacity; CINDY R. BADGER; ERIC

MICHAEL NIELSEN, by and through his parent and

guardian Greg Nielsen; GREG NIELSEN, in his own

capacity; JO RITA NIELSEN; HEATHER PETTIT, by and

through her parent and guardian, RALPH PETTIT; RALPH

PETTIT, in his own capacity; ELAINE PETTIT; JOY M.

WARTHEN, by and through her parent and guardian, Lee

Warthen; ALEXANDER B. WARTHEN, by and through his

parent and guardian, Lee Warthen; LEE WARTHEN, in his

own capacity; BARBARA WARTHEN; STEVEN C.

EROR, JR., by and through his parent and guardian, Steven

C. Eror;, STEVEN C. EROR, in his own capacity; JUDY H.

ERROR; JANE CURTIS, by and through her parent and

guardian, Marvin R. Curtis, Jr.; MARVIN R. CURTIS, JR.,

in his own capacity; JOAN C. CURTIS,

Defendants-Intervenors.

PRESBYTERIAN CHURCH (U.S.A.); UNITED CHURCH

BOARD FOR HOMELAND MINISTRIES OF THE

UNITED CHURCH OF CHRIST; AMERICAN JEWISH

COMMITTEE; ANTI-DEFAMATION

LEAGUE; GENERAL CONFERENCE OF SEVENTH-

DAY ADVENTISTS; UNION OF AMERICAN HEBREW

CONGREGATIONS,

Amicus Curiae.

Nos. 95-4084, 96-4101.

United States Court of Appeals,

Tenth Circuit.

Dec. 18, 1997.

Affirmed and remanded with instructions; claims for injunctive

and declaratory relief dismissed.

Murphy, Circuit Judge, concurred in part, dissented in part, and

filed opinion.

*545 Andrew C. Hruska, New York City (Edward A. Harris,

Georgina E. Hayden, Michael W. Martin and Joseph E.

Neuhaus, New York City; Ross C. Anderson and Nathan B.

Wilcox of Anderson & Karrenberg, Salt Lake City, UT, with

him on the briefs), for Plaintiff-Appellant.

David J. Jordan, of Stoel Rives LLP, Salt Lake City, UT, and

Debra J. Moore, Assistant Attorney General, Salt Lake City, UT

(Kenneth R. Black of Stoel Rives LLP, Salt Lake City, UT, with

them on the briefs), for Defendants-Appellees.

Eric W. Treene (Kevin J. Hasson and Nancy E. Smith of The

Becket Fund for Religious Liberty, Washington, DC, with him

on the briefs) for Defendants- Intervenors.

Marc D. Stern and Lois C. Waldman of The American Jewish

Congress, New York City; Colby A. Smith and Alan H.

Scheiner of Debevoise & Plimpton, New York City; Judith E.

Schaeffer and Elliot M. Mincberg of People for the American

Way, Washington, DC; Steven K. Green and Julie A. Segal of

Americans United for Separation of Church and State,

Washington, DC, filed amici curiae briefs.

Before BRORBY, BARRETT and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

I. INTRODUCTION

Rachel Bauchman, by and through her mother and

guardian, Chery! Bauchman sued her music teacher, Mr.

Richard Torgerson, West High School, the Salt Lake City

School District and several West High School and School

District Administrators, claiming that defendants violated the

Establishment, Free Exercise and Free Speech clauses of the

United States Constitution and her civil rights under 42 U.S.C.

§ 1983 (1994), her rights under the Religious Freedom and

Restoration Act, 42 U.S.C. § 2000bb (1994), and the Religion

and Speech clauses of the Utah Constitution.

The constitutional issues raised in this appeal are issues

of acute public interest--issues which evoke diverse opinions

and strong emotions. The fact Ms. Bauchman's claims focus on

religious neutrality in public schools only intensifies that

interest and emotion.' This is no more true than in Salt Lake

' As the United States Supreme Court has recognized:

The public school is at once the symbol of our

democracy and the most pervasive means for

promoting our common destiny. In no activity

of the State is it more vital to keep out divisive

forces than in its schools, to avoid confusing,

not to say fusing, what the Constitution sought

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City, Utah--a community and state whose unique social and

political history reveals a longstanding tension involving the

separation of church ("The Church of Jesus Christ of Latter-day

Saints" or "Mormon Church") and state.’

Acknowledging this unique history and tension, we have

taken particular care in studying Ms. Bauchman's claims and

legal arguments. We take seriously our obligation to uphold the

First Amendment of the Constitution, which fundamentally

operates to protect minority interests. Our study of the relevant

facts and law leads us to affirm the district court's dismissal of

Ms. Bauchman's complaint and denial of her motion to amend

the complaint.

Il. BACKGROUND

A. SUMMARY OF FACTS AND ALLEGATIONS

Rachel Bauchman was a sophomore at Salt Lake City's

West High School during the 1994-95 school year. During that

same year, Ms. Bauchman auditioned for and was admitted into

Mr. Richard Torgerson's a capella choir class (the "Choir"), an

elective course offered for credit.

By way of her original complaint and proposed amended

complaint, Ms. Bauchman, who is Jewish, generally alleges Mr.

to keep strictly apart.

Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203,

231, 68 S.Ct. 461, 475, 92 L.Ed. 649 (1948) (Frankfurter, J.,

concurring).

> For an excellent discussion of this unique history see Society

of Sepurationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993)

(Utah Supreme Court upheld Salt Lake City Council's practice

of permitting prayer during opening portion of council

meetings).

Torgerson "engaged for many years, and continues to engage,

in the advocacy, promotion, endorsement and proselytizing of

his [Mormon] religious beliefs and practices" during his public

school classes and Choir performances. More specifically, she

claims (1) as a member of the Choir she was required to

perform a preponderance of Christian devotional music; (2) Mr.

Torgerson selected songs for the religious messages they

conveyed; (3) the Choir was required to perform Christian

devotional songs at religious sites dominated by crucifixes and

other religious symbols; (4) Mr. Torgerson selected religious

sites for Choir performances with the purpose and effect of

publicly identifying the Choir with religious institutions; (5)

Mr. Torgerson berated and ostracized students, like herself, who

dissented against his religious advocacy; (6) Mr. Torgerson

covertly organized a Choir tour for select Choir members to

perform religious songs at religious venues in southern

California; and (7) Mr. Torgerson deliberately scheduled the

Choir to sing two explicitly Christian devotional songs during

West High School's 1995 graduation. Ms. Bauchman also

presents a long list of Mr. Torgerson's alleged unconstitutional

practices as a public school teacher beginning some seventeen

years prior to Ms. Bauchman's enrollment in his class. She

alleges the remaining defendants’ had ‘“»wledge of but

* During all relevant time periods, Defendant William Boston

was Principal of West High School; Defendants Gene Bonella

and Teresa Piele were assistant principals; Defendant Dolores

Riley was the School District's Minority Liaison Coordinator;

Defendant Darline Robles was the School District

Superintendent beginning in January 1995; Defendant Dale

Manning was the School District Interim Acting

Superintendent from August 1994--January 1995; and

Defendant Mary Jo Rasmussen was the Salt Lake City School

Board President.

consistently failed to take any effective measures to stop Mr.

Torgerson from promoting religion in his Choir classes.

Ms. Bauchman left West High School and enrolled in a

private school for the 1996-97 school year--her senior year.

Although she expressed a desire to sing in the Choir during her

senior year, she declined an invitation to audition for the 1996-

97 Choir. In June 1997, subsequent to oral argument in this

appeal, Ms. Bauchman graduated from high school. Hence, she

will no longer have occasion to enroll in Salt Lake City public

schools.

B. PROCEDURAL HISTORY

Ms. Bauchman filed her complaint requesting

declaratory and injunctive relief as well as damages at the end

of the 1994-95 school year. Along with the complaint, Ms.

Bauchman filed a Motion for a Temporary Restraining Order

and Preliminary Injunction, seeking specifically to enjoin the

Choir's planned performance of two songs at West High

School's 1995 graduation, and more generally, to enjoin the

defendants from compelling the Choir to perform or practice

Christian devotional songs. Following an emergency hearing,

which dealt solely with the evidence and issues pertaining to the

graduation songs, the district court denied Ms. Bauchman's

motion for emergency injunctive relief. The district court

deliberately avoided taking evidence on or ruling with regard to

Ms. Bauchman's request for broader, preliminary injunctive

relief, noting that such request would require an evaluation of

the merits of her constitutional claims as a whole. Ms.

Bauchman nevertheless interpreted the district court's order as

a final order denying all requested injunctive relief and filed her

first appeal to this court.‘ *547 Bauchman v. West High

4 Ms. Bauchman also requested an injunction pending appeal,

which we granted, thereby enjoining the singing of two songs,

School, No. 95-4084.

Meanwhile, both Mr. Torgerson and the School District

moved to dismiss Ms. Bauchman's complaint. They were

joined by a group of Choir students and their parents who

sought and were granted leave to intervene as defendants. For

purposes of considering the motions to dismiss, the district

court permitted Ms. Bauchman to file a "Verified Supplemental

Pleading" containing allegations relating to the defendants'

conduct at West High School's 1995 graduation exercises. After

briefing and oral argument, the district court granted defendants’

motions and dismissed the complaint.

Ms. Bauchman then filed a Motion to Alter or Amend

Judgment and for Reconsideration of Order Granting

Defendants' Motions to Dismiss pursuant to Fed.R.Civ.P. 59(e).

In the alternative, Ms. Bauchman sought leave to amend her

complaint and proffered a proposed amended complaint

together with eight affidavits. The proposed amended

complaint included additional allegations regarding the

knowledge and actions of the individual school district

defendants, numerous allegations pertaining to Mr. Torgerson's

conduct prior to the 1994-95 school year and, for the first time,

allegations that Mr. Torgerson selected religious songs and

"The Lord Bless You and Keep You" and "Friends," by the

Choir at West High School's 1995 graduation ceremonies.

When a group of students and members of the audience sang

"Friends" notwithstanding this court's injunction, Ms.

Bauchman petitioned for an adjudication of contempt. We

partially remanded the matter to the district court judge to act

as special master to conduct whatever proceedings were

necessary to resolve the allegations of the contempt petition.

After careful review of the district court's report, findings of

fact and recommendation, we denied Ms. Bauchman's

contempt petition.

performance sites for the purpose of promoting religion. The

district court denied Ms. Bauchman's motion for

reconsideration, but held her motion to amend in abeyance

pending discovery on the issue of whether, during the 1994-95

school year, Mr. Torgerson's "selection and rehearsal of

Christian songs as part of the music class curriculum, and the

performance of such songs by the [Choir] at religious venues

was primarily for a secular purpose or primarily for the purpose

of promoting or proselytizing religion." Following completion

of discovery, Ms. Bauchman renewed her motion for leave to

amend, electing to stand on the amended pleading proffered

prior to discovery; she did, however, present the district court

with numerous affidavits and deposition excerpts to consider in

conjunction with the proposed amended complaint. The district

court denied Ms. Bauchman's renewed motion after full briefing

and oral argument.

Ms. Bauchman's second appeal contests the district

court's orders (1) dismissing her complaint, (2) denying her

motion for reconsideration and (3) denying her motion for leave

to amend her complaint. Bauchman v. West High School, No.

96-4101. We consolidated Ms. Bauchman's two appeals for

purposes of argument and disposition. Additionally, we

permitted The American Jewish Congress to file a brief as

amicus curiae in appeal No. 95-4084, and Americans United for

Separation of Church and State and People for the American

Way, Presbyterian Church (U.S.A.), United Church Board for

Homeland Ministries of the United Church of Christ, The

American Jewish Committee, Anti-Defamation League, General

Conference of Seventh-Day Adventists, and Union of American

Hebrew Congregations to file briefs as amici curiae in appeal

No. 96-4101.

In June 1997, subsequent to oral argument, the

Defendant-Intervenors filed a "Suggestion of Mootness." Mr.

Torgerson and the School District joined in this suggestion,

which asserts Ms. Bauchman's graduation from high school

Al0

renders her claims for injunctive and declaratory relief moot and

requests that we dismiss those claims. Mr. Torgerson and the

School District further assert Ms. Bauchman's damage claims

under 42 U.S.C. § 1983 should be dismissed as (1) the

individual defendants are qualifiedly immune, and (2) Ms.

Bauchman has failed to allege sufficient facts to establish

supervisory liability against the school district. In response,

Ms. Bauchman denies any of her claims are moot and urges this

court to retain jurisdiction over all aspects of her appeal, except

for her Religious Freedom Restoration Act claims.*

Ill. MOOTNESS AND PENDENT JURISDICTION

DETERMINATIONS

A. DISMISSAL OF APPEAL NO. 95-4084

As indicated above, Ms. Bauchman's first appeal

challenges the district court's denial of her Motion for

Temporary Restraining Order and Preliminary Injunction.

Notably, however, this court's injunction pending appeal and

subsequent order adopting the district court's recommendation

to dismiss Ms. Bauchman's contempt petition effectively

resolved all issues pertaining to the Choirs performance of

"Friends" and "The Lord Bless You and Keep You" at West

High School's 1995 graduation. After carefully examining the

briefs and record in both appeals, we conclude that all issues

concerning the merits of Ms. Bauchman's broader request for a

preliminary injunction are subsumed into the issues raised in her

second appeal, Bauchman v. West High School, No. 96- 4101.

* As Ms. Bauchman does not appeal the dismissal of her

Religious Freedom and Restoration Act claim, nor, apparently,

the dismissal of her claims against the High School itself, we

do not further address those claims.

All

We therefore dismiss appeal No. 95-4084 as moot and limit our

discussion to the issues raised in appeal No. 96-4101.

B. DISMISSAL OF DECLARATORY AND

INJUNCTIVE CLAIMS

This court may only adjudicate live controversies--

controversies that exist at all stages of appellate review, not just

on the date the lawsuit or appeal is initiated. Fischbach v. New

Mexico Activities Ass'n, 38 F.3d 1159, 1160 (10th Cir.1994).

We have held that when an individual graduates from school

there no longer exists a live controversy necessary to support an

action to participate in interscholastic activity. Accordingly,

such action is deemed moot upon graduation. /d. at 1160. As

Ms. Bauchman has now graduated from high school, there can

be no reasonable expectation that she could again be subjected

to the alleged unconstitutional conduct of Mr. Torgerson or the

other Salt Lake City School District defendants. The defendants

no longer have the power or opportunity to adversely affect Ms.

Bauchman's constitutional rights. We therefore agree with

defendants Ms. Bauchman's claims for injunctive relief are

moot and dismiss her appeal as to those claims. For these same

reasons we deny Ms. Bauchman's Application for an Injunction

Pending Appeal filed August 21, 1996.

Although the question is a closer one, we further agree

with defendants Ms. Bauchman's claims for declaratory relief

are now moot. Green v. Branson, 108 F.3d 1296 (10th

Cir.1997) controls our decision. Since Ms. Bauchman has

successfully completed her secondary education, she is no

longer subject to the curriculum chosen by or the conduct of Mr.

Torgerson or the other school district defendants. The entry of

a declaratory judgment in Ms. Bauchman's favor therefore

would have no effect on the defendants’ behavior toward her as

a student. It would merely amount to a declaration the

defendants had violated her constitutional rights. Thus, as in

Al2

Green, declaratory relief would be superfluous to the

adjudication of Ms. Bauchman's § 1983 damages claim. /d. at

1299, 1300.

Ms. Bauchman's attempt to salvage her claims for

declaratory relief by suggesting both she and her mother, Chery]

Bauchman, "maintain an active legal interest in the education of

the younger Bauchman children," is to no avail. The only rights

and interests asserted in the complaint and amended complaint

are those personal to Ms. Rachel Bauchman. Her mother is

referenced in the pleadings solely as the "parent and guardian"

(i.e. representative) of Ms. Rachel Bauchman. Under these

circumstances where (1) the parent is not described as a

plaintiff, (2) no theories have been advanced to support an

individual action by the parent, and (3) the complaint contains

no allegations as to other children, we conclude Ms. Rachel

Bauchman is the only plaintiff before the court. See Adler v.

Duval County Sch. Bd., 112 F.3d 1475, 1478 (11th Cir.1997);

see also Laurenzo v. Mississippi High Sch. Activities Ass'n, 662

F.2d 1117, 1120-21 (Sth Cir.1981). As the law requires that

Ms. Bauchman's legal interest in the outcome of this appeal be

greater than the mere satisfaction of a declaration she was

wronged, we *549 deem her claims for declaratory relief moot

and dismiss her appeal as to those claims.°

* Relying on Anderson v. Green, 513 U.S. 557, 115 S.Ct.

1059, 130 L.Ed.2d 1050 (1995) (per curiam), Ms. Bauchman

requests that we remand her claims for declaratory and

injunctive relief to the district court with instructions to vacate

all parts of the district court's decisions that concerned those

claims. While we agree with Ms. Bauchman the circumstances

in this case involuntarily mooted her declaratory and injunctive

claims, this case differs from Anderson in one important

respect--in Anderson the Supreme Court dismissed the entire

appeal, not just certain claims. /d. at 560, 115 S.Ct. at 1060-61.

Since we proceed to decide the substantive merits of Ms.

Al3

c. REMAND FOR DISMISSAL OF STATE

CONSTITUTIONAL CLAIMS

Ms. Bauchman asserts defendauts' conduct violated her

state as well as federal constitutional rights. More specifically,

she alleges the defendants’ policies and actions (1) "constitute

the enactment of a law respecting the establishment of religion

and infringing plaintiff's right of conscience in violation of

Article I, Section 4 of the Constitution of Utah," (2) "have

prevented [her] from freely exercising her own religion ... in

violation of Article I, Section 4 of the Constitution of Utah," (3)

"deprived [her] of her freedom of speech ... in violation of

Article I, Section 15 of the Constitution of Utah," and (4)

"deprived [her] of her rights to a public education free from

sectarian control in violation of Article X, Section 1 of the

Constitution of Utah." After disposing of Ms. Bauchman's

federal claims, the district court dismissed Ms. Bauchman's

state constitutional claims on the merits, concluding the state

constitutional provisions upon which Ms. Bauchman relies "are

not self-executing and contain no provisions or mechanism for

a court action or remedy." The district court further ruled Ms.

Bauchman's state law claims were barred by the Utah

Governmental Immunity Act, Utah Code Ann., § 63-30-3(1).

The district court considered Ms. Bauchman's state law

claims under the doctrine of pendent jurisdiction. Pendent

jurisdiction is exercised on a discretionary basis, keeping in

Bauchman's § 1983 claim, we decline to parse out and vacate

certain portions of the district court's decision which, in fact,

may be inseparable from the substantive issues we address.

However, by dismissing Ms. Bauchman's appeal as to her

claims for injunctive and declaratory relief we do not intend to

prohibit the parties from making any appropriate requests to

the district court regarding its final disposition of those claims.

Al4

mind considerations of judicial economy, convenience and

fairness to the litigants. United Mine Workers v. Gibbs, 383

U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1956); see

also 28 U.S.C. § 1367(c)(3). The United States Supreme Court

has counseled, pendent jurisdiction "need not be exercised in

every case in which it is found to exist.... Needless decisions of

state law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them a

surer-footed reading of applicable law." Gibbs, 383 U.S. at 726,

86 S.Ct. at 1139. If federal claims are dismissed before trial,

leaving only issues of state law, "the federal court should

decline the exercise of jurisdiction by dismissing the case

without prejudice." Carnegie-Mellon University v. Cohill, 484

U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988);

Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139.

The district court dismissed Ms. Bauchman's federal

claims on the pleadings. We are upholding that decision. The

State law questions presented in this appeal concern whether the

Utah Constitution provides a private right of action against

government establishment of religion, infringement of freedom

of conscience and sectarian control of public schools. Utah

courts have never squarely addressed this issue. Accordingly,

any exercise of federal jurisdiction over Ms. Bauchman's state

claims seriously implicates principles of comity. Under these

circumstances, Carnegie-Mellon University and Gibbs counsel

us to leave the development and application of private causes of

action under the Utah Constitution to the Utah courts. See Ball

v. Renner, 54 F.3d 664, 669 (10th Cir.1995). The beneficial

effect of permitting a Utah state court to determine the private

rights of action under the Utah Constitution far outweighs any

negative consequences (i.e., delay) of declining to exercise

pendent jurisdiction. We therefore decline *550 to review the

merits of Ms. Bauchman's state law claims. Instead, we

conclude the district court abused its discretion by exercising

jurisdiction over those claims and remand Ms. Bauchman's state

Al5

law claims to the district court with instructions to dismiss

without prejudice for want of federal jurisdiction.

IV. DISCUSSION

Having narrowed our adjudication to Ms. Bauchman's

§ 1983 claim, we proceed to address the threshold inquiry in the

examination of such a claim: whether Ms. Bauchman has

sufficiently alleged a violation of her clearly established

constitutional rights. Because we hold the facts alleged by Ms.

Bauchman cannot be held to state a claim for denial of her

constitutional rights under the Free Speech, Free Exercise and

Establishment clauses of the First Amendment, we do not

further consider whether the various defendants are entitled to

immunity. Siegert v. Gilley, 500 U.S. 226, 227, 233, 111 S.Ct.

1789, 1791, 1793-94, 114 L.Ed.2d 277 (1991); see also, Doe v.

Bagan, 41 F.3d 571, 577 n. 7 (10th Cir. 1994).

A. DISMISSAL OF MS. BAUCHMAN'S ORIGINAL

COMPLAINT

The district court dismissed Ms. Bauchman's original

complaint inter alia because the complaint and supplemental

pleading, construed in a light most favorable to Ms. Bauchman,

failed to allege sufficient facts to support her Establishment,

Free Exercise and Free Speech claims. On appeal, Ms.

Bauchman argues her original complaint satisfied liberal federal

pleading requirements and adequately stated a cause of action

under the federal constitution.

1. Standard of Review.

It is well established the sufficiency of a complaint to

withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is a

Al6

question of law we review de novo.’ Jojola v. Chavez, 55 F.3d

488, 490 (10th Cir.1995). In conducting such review, we must

accept all the well-pleaded facts of the complaint as true and

must construe them in the light most favorable to the plaintiff.

Id.; Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,

586 (10th Cir.1994). Dismissal is appropriate only if the

plaintiff can prove no set of facts in support of the claim

entitling her to relief. Ramirez, 41 F.3d at 586. However,

counsel may not overcome pleading deficiencies with

arguments that extend beyond the allegations contained in the

complaint. The complaint itself must show Ms. Bauchman is

"entitled to relief" under each claim raised. Fed.R.Civ.P.

8(a)(2).

2. Sufficiency of Allegations to Support Ms. Bauchman's

First Amendment Claims

a. Establishment Clause.

The gravamen of Ms. Bauchman's complaint is her

claim the defendants’ policies and actions violate the

Establishment Clause of the First Amendment. The First

” We acknowledge this court has never settled on a standard

for review of "constitutional facts" such as a district court's

findings concerning First Amendment violations. Gaylor v.

United States, 74 F.3d 214, 216 (10th Cir.), cert. denied, ---

U.S. ----, 116 S.Ct. 1830, 134 L.Ed.2d 934 (1996); Robinson

v. City of Edmond, 68 F.3d 1226, 1230 n. 7 (10th Cir.1995),

cert. denied, --- U.S. ----, 116 S.Ct. 1702, 134 L.Ed.2d 801.

Nevertheless, we decline an opportunity to do so in this case as

the facts are insufficient to support Ms. Bauchman's

constitutional claims under either a de novo or a clearly

erroneous standard.

Al7

Amendment states the government "shall make no law

respecting an establishment of religion." This prohibition

extends to state government, including the Utah public schools,

by operation of the Fourteenth Amendment.

Determining whether Ms. Bauchman has alleged facts

sufficient to support her claim that defendants have violated this

prohibition is not an easy task, as there is no bright line standard

we can apply. The United States Supreme Court repeatedly has

recognized there can be no precise Establishment Clause test

capable of ready application, and therefore has resisted

confining such sensitive analyses to "any single test or

criterion." Lynch v. Donnelly, 465 U.S. 668, 678-79, 104 S.Ct.

1355, 1362, 79 L.Ed.2d 604 (1984). Moreover, the Supreme

Court has never specifically addressed circumstances like those

*551 presented here, i.e., the constitutionality of a public school

teacher's conduct in selecting course materials with religious

content as part of a broader, secular curriculum. To the extent

the Supreme Court has attempted to prescribe a general analytic

framework within which to evaluate Establishment Clause

claims, its efforts have proven ineffective. Indeed, many

believe the Court's modern Establishment Clause jurisprudence

is in "hopeless disarray," Rosenberger v. University of Virginia,

515 U.S. 819, 861, 115 S.Ct. 2510, 2532, 132 L.Ed.2d 700

(1995) (Thomas, J. concurring), and in need of "[s]ubstantial

revision." County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573, 656, 109 S.Ct. 3086, 3134-35, 106

L.Ed.2d 472 (1989) (Kennedy, J. concurring in part and

dissenting in part).

Our attempt to glean an appropriate standard for this

case from existing, muddled Establishment Clause precedent

begins with Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105,

29 L.Ed.2d 745 (1971), which is recognized as the benchmark

case for Establishment Clause analysis. Applying Lemon,

government action does not violate the Establishment Clause so

long as it (1) has a secular purpose, (2) does not have the

Al8

principal or primary effect of advancing or inhibiting religion,

and (3) does not foster an excessive entanglement. 403 U.S. at

612-13, 91 S.Ct. at 2111-12.

Beginning in the 1980s, however, the Lemon analysis

came under vigorous attack by Justices and commentators alike.

See. e g., County of Allegheny, 492 U.S. at 655, 109 S.Ct. at

3134 (Kennedy, J. concurring in part and dissenting in part)

(does not advocate or adopt Lemon test as primary guide for

resolving difficult Establishment Clause issues); Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 33, 109 S.Ct. 890, 909,

103 L.Ed.2d 1 (1989) (Scalia, J., dissenting) (use of Lemon to

deny tax exemption not founded on Constitution, precedent, or

history); Edwards v. Aguillard, 482 U.S. 578, 639-40, 107

S.Ct. 2573, 2606-07, 96 L.Ed.2d 510 (1987) (Scalia, J.,

dissenting) (criticizing inconsistent application of Lemon test);

Aguilar v. Felton, 473 U.S. 402, 419, 105 S.Ct. 3232, 3241-42,

87 L.Ed.2d 290 (1985) (Burger, C.J., dissenting) (Lemon test

too formalistic); Wallace v. Jaffree, 472 U.S. 38, 112, 105 S.Ct.

2479, 2518-19, 86 L.Ed.2d 29 (1985) (Rehnquist, C.J.,

dissenting) (Lemon test blurred and indistinct); Lynch, 465

U.S. at 679, 104 S.Ct. at 1362 (Lemon test not overriding

criteria); Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062,

3066-67, 77 L.Ed.2d 721 (1983) (Lemon test nothing but

helpful signpost); Marsh v. Chambers, 463 U.S. 783, 792-95,

103 S.Ct. 3330, 3336-38, 77 L.Ed.2d 1019 (1983) (Court

ignored Lemon in favor of historical argument); see also, Stuart

W. Bowen, Jr., Js Lemon a Lemon? Crosscurrents in

Contemporary Establishment Clause Jurisprudence, 22 St.

Mary's L.J. 129 (1990) ("the Court should clarify its

{Establishment Clause] analysis by abandoning Lemon and

adopting a test that more accurately reflects the framers' original

understanding of the word ‘establishment’ "). Acknowledging

Lemon's weaknesses, Justice O'Connor seized the opportunity

in Lynch v. Donnelly to draft a concurring opinion encouraging

the Court to refine the Lemon analysis to focus more on whether

Al9

the government is "endorsing" religion. 465 U.S. at 687-94, 104

S.Ct. at 1366-70.

Applying Justice O'Connor's refined analysis, the

government impermissibly endorses religion if its conduct has

either (1) the purpose or (2) the effect of conveying a message

that "religion or a particular religious belief is favored or

preferred." County of Allegheny, 492 U.S. at 592-93, 109 S.Ct.

at 3101; see also Capitol Square Review & Advisory Bd. vy.

Pinette, 515 U.S. 753, 763, 115 S.Ct. 2440, 2447, 132 L.Ed.2d

650 (1995) (plurality); Lynch 465 U.S. at 687-94, 104 S.Ct. at

1366-70 (O'Connor, J., concurring). Recent cases suggest the

purpose component of the endorsement test should evaluate

whether the government's "actual" purpose is to endorse or

disapprove of religion (i.e., did the government intend to

endorse or disapprove of religion); Edwards, 482 U.S. at 585.

107 S.Ct. at 2578; Jaffree, 472 U.S. at 56, 105 S.Ct. at 2489-90

(adopting Justice O'Connor's revision of the purpose component

from Lynch v. Donnelly). The effect component, on the other

hand, should evaluate whether a "reasonable observer," aware

of the history and context of the community in which the

conduct *552 occurs, would view the practice as

communicating a message of government endorsement or

disapproval. Capitol Square, 515 U.S. at 779-81, 115 S.Ct. at

2455 (O'Connor, J., concurring).

Justice O'Connor's "endorsement test" is now widely

accepted as the controlling analytical framework for evaluating

Establishment Clause claims. See James M. Lewis & Michael

L. Vild, A Controversial Twist of Lemon: The Endorsement

Test as the Establishment Clause Standard, 65 Notre Dame

L.Rev. 671 (1990). It would be wrong, however, to suggest the

Court is unanimous in its adoption of the endorsement test.

Moreover, even the Justices who have adopted the endorsement

test do not agree on how it should be applied. /d. at 687-88.

For example, although the Court has indicated a failure

to satisfy the purpose component of the endorsement test alone

A20

is sufficient to invalidate government action, Edwards, 482 U.S.

at 585, 107 S.Ct. at 2578; cf, id. at 610, 107 S.Ct. at 2591-92

(Scalia, J., dissenting) (questioning the premise that government

action can be invalidated on the basis of motivation alone,

without regard to the effect), the Court rarely has decided cases

based solely on the purpose component. See Jaffree, 472 U.S.

at 75, 105 S.Ct. at 2499-500 (O'Connor, J. concurring). When

it has, the overriding religious purpose of the government action

has been obvious, leaving little need to elaborate on the

appropriate scope of the purpose inquiry. See Edwards, 482

U.S. at 613, 107 S.Ct. at 2593 (Scalia, J., dissenting) (citations

omitted); Lynch, 465 U.S. at 680, 104 S.Ct. at 1362-63

(citations omitted). To the extent the Court has delved into the

government's subjective intent in its evaluation of the actual

purpose, such approach has been openly condemned by two

members of the present Court--Chief Justice Rehnquist and

Justice Scalia. Edwards, 482 U.S. at 610, 107 S.Ct. at 2591-92

(Rehnquist, C.J, and Scalia, J., dissenting). According to Justice

Scalia, who has proposed eliminating the purpose component

altogether, discerning the government's subjective intent is

"almost always an impossible task ... [t]o look for the sole

purpose of even a single legislator is probably to look for

something that does not exist." Id. at 636-37, 107 S.Ct. at 2605-

06 (emphasis in original). Consequently, despite Sisyphean

efforts, application of this component yields unprincipled

results. /d. at 636, 107 S.Ct. at 2605; Jaffree, 472 U.S. at 112,

105 S.Ct. at 2518-19 (Rehnquist, J., dissenting).

Having struggled to meaningfully apply the purpose

component of the endorsement test to the alleged Establishment

Clause violation in this case, we agree it is an unworkable

standard that offers no useful guidance to courts, legislators or

other government actors who must assess whether government

conduct goes against the grain of religious liberty the

Establishment Clause is intended to protect. Nevertheless, the

uncertainty surrounding the present Court's position regarding

A2]

the appropriate scope of the endorsement test and the

appropriate Establishment Clause analysis, in general, cautions

us to apply both the purpose and effect components of the

refined endorsement test, together with the entanglement

criterion imposed by Lemon, when evaluating Ms. Bauchman's

Establishment Clause claim.* To survive a motion to dismiss,

Ms. Bauchman *553 must allege facts which, accepted as true,

suggest a violation of any part of this analysis.

Ms. Bauchman's factual allegations concerning violation

of her Establishment Clause rights fall into three categories: the

performance of religious music, the performance at religious

* The Court also has examined the coercive effect a school-

sponsored religious activity may have on students. See Lee v.

Weisman, 505 U.S. 577, 592, 112 S.Ct. 2649, 2658, 120

L.Ed.2d 467 (1992). In Lee, the Court reaffirmed its

longstanding recognition "that prayer exercises in public

schools carry a particular risk of indirect coercion," and

rejected the government's argument that providing a student

with the option of not attending her high school graduation

excused any inducement or coercion inherent in the ceremony

itself. Jd. at 592-99, 112 S.Ct. at 2658-62. According to the

Court, it is overly formalistic to suggest a teenage student has a

real choice not to attend her graduation--"one of life's most

significant occasions." Jd. at 595, 112 S.Ct. at 2659.

For reasons discussed more thoroughly below, we do

not believe the singing of religious songs alone constitutes

prayer. Nor do we consider the singing of religious songs in

religious venues to constitute prayer without additional facts

showing that such activity took place in a worshipful context.

The facts as alleged by Ms. Bauchman simply do not identify a

religious activity analogous to that addressed in Lee or other

school prayer cases. “Accordingly, we conclude a coercion

analysis is inapplicable to the facts at hand.

A22

sites, and the public ridicule and harassment she experienced as

a result of the defendants’ collective response to her objections.

More precisely, Ms. Bauchman first claims she was repeatedly

required to practice and publicly perform Christian devotional

music with lyrics that sing praise to "Jesus Christ our savior"

and "Jesus Christ our Lord," and that include other devotional

references to God. She alleges a preponderance of the religious

songs represented the works of contemporary Christian

songwriters. Second, Ms. Bauchman claims Mr. Torgerson

selected explicitly Christian religious sites such as the Church

of the Madeleine, the First Presbyterian Church and Temple

Square for Choir performances. She alleges these sites are

dominated by crosses and other religious images. Finally, Ms.

Bauchman alleges when she and her parents expressed their

opposition to Mr. Torgerson's selection of songs and

performance venues, Mr. Torgerson (1) criticized Ms.

Bauchman in front of her classmates, "specifically and by

inference"; (2) blamed Ms. Bauchman and her parents for the

cancellation of the Choir's spring tour and rebuffed Ms.

Bauchman's inquiry regarding the "Covert Tour" organized for

Christian Choir members "under the guise of creating a Boy

Scout Explorer Post"; (3) "directed the Choir class's attention

to the fact that plaintiff is a Jew in such a way as to emphasize

that her beliefs deviated from those of the Christian majority's";

(4) shared a letter he had received from Mr. Bauchman with the

father of another Choir member "with the expectation and desire

that [the Choir member's father] would distribute the letter to

other parents of students in the Choir Class so as to incite those

parents and their children to punish [Ms. Bauchman] and her

parents by means of public ridicule and vilification"; and (5)

stated he would not change his conduct. Ms. Bauchman alleges

Mr. Torgerson "intended to promote hostility toward and

ridicule of [Ms. Bauchman] by her fellow students as

punishment for her assertion of her constitutional rights or in an

attempt to pressure her to abandon those rights," and as a result

A23

of Mr. Torgerson's actions, she "was subjected to public ridicule

and humiliation, manifesting itself, in part, in racial and

religious epithets from her fellow students."

We first consider whether allegations regarding the

singing of religious songs at religious sites, alone, state a claim

under the criteria we have set forth. Notably, in her original

complaint, Ms. Bauchman alleges no facts to expressly indicate

the purpose for selecting a majority of religious songs to be

sung at religious venues or that the Choir curriculum has the

effect on a reasonable observer of advancing or endorsing

religious beliefs. Nor does she allege she was required to sing

religious songs as part of a religious exercise per se. Rather,

Ms. Bauchman simply alleges Mr. Torgerson selected and

required her to perform a preponderance of "Christian

devotional" songs in places dominated by crosses and other

religious symbols. We will not infer an impermissible purpose

or effect in the absence of any supporting factual allegations.

See Lynch, 465 U.S. at 680, 104 S.Ct. at 1362-63 (district court

erroneously inferred from religious nature of creche that city

had no secular purpose for display); Mueller v. Allen, 463 U.S.

388, 394- 95, 103 S.Ct. 3062, 3066-67, 77 L.Ed.2d 721 (1983)

(Court is reluctant to attribute unconstitutional motives to the

states). However, we will evaluate whether Ms. Bauchman's

allegations concerning the selection and performance of songs

alone suggest religious endorsement or the school's excessive

entanglement with religion.

Endorsement

Vis a Vis Purpose

Notwithstanding existing uncertainty regarding the

propriety or scope of this component of the endorsement test,

certain principles governing our inquiry into the government's

actual purpose are beyond dispute. Namely, the Constitution

A24

does not require that the purpose of every government-

sanctioned activity be unrelated to religion. Jaffree, 472 U.S.

at 64, 105 S.Ct. at 2493-94; *554 City of Albuquerque v.

Browner, 97 F.3d 415, 428 (10th Cir.1996), cert. denied, ---

U.S. ----, 118 S.Ct. 410, 139 L.Ed.2d 314 (1997). Courts have

long recognized the historical, social and cultural significance

of religion in our lives and in the world, generally. Courts also

have recognized that "a variety of motives and purposes are

implicated" by government activity in a pluralistic society.

Lynch, 465 U.S. at 680, 104 S.Ct. at 1363. Accordingly, there

is a legitimate time, manner and place for the discussion of

religion in the public classroom. School Dist. of Abington v.

Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d

844 (1963); Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d

1311, 1315-16 (8th Cir.1980).

To sustain her Establishment Clause claim, Ms.

Bauchman therefore must allege facts indicating the defendants

have no "clearly secular purpose" for selecting songs with

religious content and requiring the choir to perform in religious

venues. See Jaffree, 472 U.S. at 56, 105 S.Ct. at 2489 (conduct

violates the Establishment Clause if it is "entirely motivated by

a purpose to advance religion"). In the alternative, Ms.

Bauchman can allege facts showing that in spite of the existence

of a legitimate secular purpose(s), the defendants’ "actual"

purpose is to endorse or disapprove of religion. See County of

Allegheny, 492 U.S. at 592, 109 S.Ct. at 3100; Edwards, 482

U.S. at 585, 107 S.Ct. at 2578; Jaffree, 472 U.S. at 56, 105

S.Ct. at 2489-90; Lynch, 465 U.S. at 690, 104 S.Ct. at 1368

(O'Connor, J. concurring). Notably, however, we cannot allow

Ms. Bauchman to support her claim with allegations focused

solely on the religious component of classroom activity, since

such approach would inevitably lead to invalidation of the

activity under the Establishment Clause. See Lynch, 465 U.S.

at 680, 104 S.Ct. at 1362. At the same time, our inquiry into the

government's purpose should be "deferential and limited."

A25

Jaffree. 472 U.S. at 74, 105 S.Ct. at 2499 (O'Connor, J.,

concurring) We should resist attributing unconstitutional

motives to the government, particularly where we can discern

a plausible secular purpose. See id. at 74-75, 105 S.Ct. at 2499-

500; Mueller, 463 U.S. at 394-95, 103 S.Ct. at 3066-67 (1983).

Here, we discern a number of plausible secular purposes

for the defendants’ conduct.’ For example, it is recognized that

a significant percentage of serious choral music is based on

religious themes or text. See, e.g., Doe v. Duncanville Indep.

Sch. Dist., 70 F.3d 402, 407-08 (Sth Cir.1995). Any choral

curriculum designed to expose students to the full array of vocal

* This is not a case in which we can evaluate the legitimacy

and sincerity of a legislative statement regarding a statute's

secular purpose, as the Supreme Court has so often done in its

Establishment Clause cases. Moreover, since Ms. Bauchman's

Complaint was dismissed pursuant to Fed.R.Civ.P. 12(b)(6),

and our review therefore is limited to the allegations in her

complaint, we cannot evaluate direct statements from Mr.

Torgerson or the other defendants regarding the purpose for

selecting religious songs and religious venues as part of the

broader vocal music curriculum at West High School. We do

not believe, however, that the procedural posture of this case

should prevent us from acknowledging prevalent, archetypical

secular purposes for defendants' conduct. See Jaffree, 472 U.S.

at 75, 105 S.Ct. at 2499 (O'Connor, J., concurring) (reasoning

even if there is no express secular purpose, a statute "should be

held to have an improper purpose only if it is beyond purview

that endorsement of religion or a religious belief ‘was and is the

law's reason for existence’ ") (quoting Epperson v. Arkansas,

393 U.S. 97, 108, 89 S.Ct. 266, 272, 21 L.Ed.2d 228 (1968)).

If we were so limited, Establishment Clause claims would be

immune from attack under Fed.R.Civ.P. Rule 12(b)(6).

A26

music culture therefore can be expected to reflect a significant

number of religious songs. Moreover, a vocal music instructor

would be expected to select any particular piece of sacred choral

music, like any particular piece of secular choral music, in part

for its unique qualities useful to teach a variety of vocal music

skills (i.e., sight reading, intonation, harmonization, expression).

Plausible secular reasons also exist for performing school choir

concerts in churches and other venues associated with religious

institutions. Such venues often are acoustically superior to high

school auditoriums or gymnasiums, yet still provide adequate

seating capacity. Moreover, by performing in such venues, an

instructor can showcase his choir to the general public in an

atmosphere conducive to the performance of serious choral

music.

Ms. Bauchman does not allege in her complaint that

defendants lacked a secular purpose. *555 Ms. Bauchman

further fails to allege any facts indicating (1) West High

School's vocal music curriculum was out of step with traditional

public high school vocal music curricula, (2) the acoustics

and/or seating at the selected performance venues were

unsuitable for the performance and public enjoyment of serious

vocal music, or (3) the defendants' "actual" purpose was

otherwise inconsistent with the prevalent secular objectives

noted above. Ms. Bauchman's allegations instead focus solely

on (1) the religious component of the Choir's activities--she was

required to practice and perform songs with religious lyrics at

sites dominated by crosses and other religious images, and (2)

the defendants’ conduct, not in selecting such songs and venues

(the challenged activity), but in response to her objections--she

was ridiculed for objecting to such songs and performance sites,

and defendants inadequately and inappropriately responded to

her objections. These allegations are insufficient to support her

Establishment Clause claim given the obvious secular purposes

for defendants' conduct. We see no reason to conclude that

defendants' selection of religious songs and religious

A27

performance venues serves an impermissible purpose simply

because some of those songs and venues, which undisputedly

represent only part of the Choir's repertoire and performance

venues, may coincide with religious beliefs different from those

of Ms. Bauchman. See Edwards, 482 U.S. at 605, 107 S.Ct. at

2589 (Powell, J., concurring) (emphasizing that a decision

respecting the subject matter to be taught in public schools does

not violate the Establishment Clause simply because the

material to be taught happens to coincide or harmonize with the

tenets of some or all religions) (quotations omitted); Bowen v.

Kendrick, 487 U.S. 589, 604 n. 8, 108 S.Ct. 2562, 2571 n. 8,

101 L.Ed.2d 520 (1988). Accordingly, Ms. Bauchman's

complaint fails to state an Establishment Clause claim under the

purpose component of the endorsement test.

Vis a Vis Effect

To state a claim under this component of the

endorsement test, Ms. Bauchman must allege facts indicating

the Choir curriculum or Choir activities have a principle or

primary effect of advancing or endorsing religion. United

States Supreme Court precedent "plainly contemplate[s] that on

occasion some advancement of religion will result from

governmental action." Lynch, 465 U.S. at 683, 104 S.Ct. at

1364. However, not every governmental activity that confers a

remote, incidental or indirect benefit upon religion is

constitutionally invalid. Jd. Thus, as noted above, the

Constitution does not forbid all mention of religion in public

schools. The Establishment Clause prohibits only those school

activities which, in the eyes of a reasonable observer, advance

or promote religion or a particular religious belief. This is an

objective inquiry, not an inquiry into whether particular

individuals might be offended by the content or location of the

Choir's performance, or consider such performances to endorse

religion. Gaylor, 74 F.3d at 217.

A28

We believe a reasonable observer aware of the purpose,

context and history of public education in Salt Lake City,

including the historical tension between the government and the

Mormon Church, and the traditional and ubiquitous presence of

religious themes in vocal music, would perceive the following

with respect to Ms. Bauchman's factual allegations concerning

the Choir curriculum and performance venues: the Choir

represents one of Salt Lake City's public high schools and is

comprised of a diverse group of students; many of the Choir's

songs have religious content--content predominately

representative of Judeo-Christian beliefs; in contrast to a church

choir, this Choir also performs a variety of secular songs; the

Choir's talent is displayed in the diverse array of songs

performed and in a number of different public (religious and

nonreligious) settings, all of which reflect the community's

culture and heritage. Certainly, any given observer will give

more or less meaning to the lyrics of a particular song sung in

a particular venue based on that observer's individual

experiences and spiritual beliefs. However, the natural

consequences of the Choir's alleged activities, viewed in context

and in their entirety by a reasonable observer, would not be the

advancement or endorsement of religion. Ms. Bauchman's

complaint therefore fails to *556 support a claim that the Choir

curriculum or Choir activities have a principle or primary effect

of endorsing religion.

Entanglement

The entanglement analysis typically is applied to

circumstances in which the state is involving itself with a

recognized religious activity or institution. See Florey, 619 F.2d

at 1318. For the reasons discussed above, we have rejected the

notion that Ms. Bauchman's allegations regarding the Choir's

singing of religious songs in religious venues alone support a

claim that defendants’ conduct endorses religion. Instead, we

A29

believe a reasonable observer would conclude the selection of

religious songs from a body of choral music predominated by

songs with religious themes and text, and the selection of public

performance venues affiliated with religious institutions,

without more, amount to religiously neutral educational

choices.'® Consequently, we perceive no state involvement with

recognized religious activity.

To the extent Ms. Bauchman suggests her allegations

regarding past Spring Choir tours and a "covert" 1995 Spring

tour are sufficient to support a claim of impermissible

entanglement, we disagree. Ms. Bauchman fails to allege she

participated in any past Spring tours and thus cannot be heard

to claim her constitutional rights were violated as a result of any

alleged Choir participation in religious services which may have

occurred during those tours. Ms. Bauchman's allegation Mr.

Torgerson "covertly organized a new Choir Class tour ... on

public school property under the pretense of creating a Boy

Scout ‘Explorer Post' " lacks any facts to indicate such tour was

conducted or actions were taken to involve the Choir in

religious activity. In sum, we find no basis in Ms. Bauchman's

complaint to suggest Defendants' alleged conduct amounts to

unconstitutional entanglement.

° Accordingly, we decline Ms. Bauchman's invitation to more

closely evaluate the number and quality of religious songs

selected for the Choir. The Constitution does not contemplate

nor require judicial micro-management of the religious content

of public education. Indeed, it would be entirely impractical to

attempt such an endeavor.

A30

Extraneous Allegations

Having determined Ms. Bauchman's allegations

concerning the singing of religious songs at religious sites do

not implicate the Establishment Clause, we must next address

the relevance, if any, of her remaining allegations that she was

subjected to public ridicule and harassment as a result of

defendants’ conduct. Certainly, Ms. Bauchman's allegations she

was criticized and retaliated against for opposing the religious

content of the Choir curriculum, taken as true, evidence a lack

of sensitivity, crudeness and poor judgment unbefitting of high

school students, their parents, and especially, public school

teachers and administrators. However, such claims do not rise

to the level of a constitutional violation. Nor can they be used

to breathe constitutional life into otherwise unactionable

conduct. The fact that the defendants did not change their

behavior in accordance with Ms. Bauchman's demands and

reacted negatively and/or offensively to those demands simply

cannot be viewed as support for her claim that the Choir's

performance of religious music at religious venues furthered a

religious purpose, advanced or favored religion or a particular

religious belief, or otherwise entangled the public school with

religion. We reject this "backdoor" attempt to substantiate an

otherwise flawed constitutional claim and conclude the district

court properly dismissed Ms. Bauchman's Establishment Clause

claim.

b. Free Exercise Clause.

Ms. Bauchman claims defendants violated the Free

Exercise Clause by compelling her to participate in religious

exercises in a public school setting, against her expressed

desires and religious convictions. Her factual allegations in

support of this contention can be summarized as follows: Mr.

Torgerson repeatedly required Ms. Bauchman, a Jewish student,

A31

to practice and publicly perform Christian devotional music

containing lyrics referencing praise to Jesus Christ and God at

religious sites dominated by crosses and other religious images,

as part of the regular, graded, required Choir activities. Ms.

Bauchman further alleges when she opposed such activity in the

context *557 of the Choir's Christmas concert series, Mr.

Torgerson gave her the choice of not participating in the singing

of songs she found offensive and told her that her

nonparticipation would not adversely affect her Choir grade.'!

Relying largely on Lee v. Weisman, 505 U.S. 577, 112 S.Ct.

2649, 120 L.Ed.2d 467 (1992), Ms. Bauchman's counsel

nevertheless concludes that such a choice is "constitutionally

infirm", and proclaims that Ms. Bauchman's allegations

therefore establish a Free Exercise violation.

To state a claim for relief under the Free Exercise

Clause, Ms. Bauchman must allege something more than the

fact the song lyrics and performance sites offended her personal

religious beliefs. She must allege facts demonstrating the

challenged action created a burden on the exercise of her

religion. United States v. Lee, 455 U.S. 252, 256-57, 102 S.Ct.

1051, 1054-55, 71 L.Ed.2d 127 (1982). A plaintiff states a

claim her exercise of religion is burdened if the challenged

action is coercive or compulsory in nature. See Lyng v.

Northwest Indian Cemetery Protective Ass'n., 485 U.S. 439,

448-51, 108 S.Ct. 1319, 1324-27, 99 L.Ed.2d 534 (1988);

"' We take judicial notice of the fact that Ms. Bauchman's

opportunity to waive participation in the Christmas concerts or

any other Choir activity was protected by Utah's "Recognizing

Constitutional Freedoms in Public School Act," Utah Code

Ann. § 53A-13-101.2, and the State Office of Education's

regulations implementing that Act, Utah Admin. Code R. 277-

105-5.

A32

School Dist. of Abington, 374 U.S. at 222, 83 S.Ct. at 1571-72;

Messiah Baptist Church v. Jefferson County, 859 F.2d 820, 824

(10th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1638,

104 L.Ed.2d 154 (1989). Therefore, to state a Free Exercise

claim, Ms. Bauchman must allege facts showing she was

"coerced" into singing songs contrary to her religious beliefs.

Messiah Baptist Church, 859 F.2d at 824. This she has failed

to do.

On its face, Ms. Bauchman's complaint states the songs

and performances were a required, graded component of Choir

participation, but she was given the option of not participating

to the extent such participation conflicted with her religious

beliefs. Moreover, she was assured her Choir grade would not

be affected by any limited participation. We conclude the fact

Ms. Bauchman had a choice whether or not to sing songs she

believed infringed upon her exercise of religious freedom, with

no adverse impact on her academic record, negates the element

of coercion and therefore defeats her Free Exercise claim. See

Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1533 (9th

Cir.) (court held no Free Exercise violation where student was

given permission to avoid classroom discussion of book The

Learning Tree ), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88

L.Ed.2d 70 (1985); Florey, 619 F.2d at 1318 (court held no

Free Exercise violation where school board expressly provided

students may be excused from activities permitted under rules

outlining the bounds of permissible school activities on

religious holidays), cert. denied, 449 U.S. 987, 101 S.Ct. 409,

66 L.Ed.2d 251 (1980).

The district court correctly concluded Lee v. Weisman

fails to support Ms. Bauchman's Free Exercise claim. In Lee,

the Supreme Court rejected the notion that providing a student

an option whether to participate in graduation was sufficient to

avoid the Establishment Clause problem with graduation prayer.

505 U.S. at 594-95, 112 S.Ct. at 2659-60. The Lee Court did

not address state coercion in the Free Exercise context. For Ms.

A33

Bauchman to argue it is impermissible to excuse her from

participation, but rather she must be allowed to participate in a

Choir that only performs songs of the nature she demands,

appears to be an attempt to bootstrap her Free Exercise claim

with her Establishment Clause argument. Courts have long

recognized that absent an Establishment Clause violation, the

existence of a conflict between an individual student's or her

parents’ religious beliefs and a school activity does not

necessarily require the prohibition of a school activity. Such

conflicts are inevitable. Florey, 619 F.2d at 1318. In other

words, while the Free Exercise clause protects, to a degree, an

individual's right to practice her religion within the dictates of

her conscience, it does not convene on an individual the right to

dictate a school's curricula to conform to her religion.

*558 " '[T]he Free Exercise clause is written in terms of

what the government cannot do to the individual, not in terms

of what the individual can exact from the government.' " Lyng

v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439,

451, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988) (quoting

Sherbert v. Verner, 374 U.S. 398, 412, 83 S.Ct. 1790, 1798, 10

L.Ed.2d 965 (1963) (Douglas, J. concurring)). Accordingly,

"public schools are not required to delete from the curriculum

all materials that may offend any religious sensibility." F. lorey,

619 F.2d at 1318. Having concluded the State of Utah is not

coercing Ms. Bauchman to violate her religious beliefs, we

reject any invitation to obscure the appropriate scope of her Free

Exercise claim by addressing issues of curriculum content. We

leave those issues to our analysis of Ms. Bauchman's

Establishment Clause claim, and uphold the district court's

conclusion she failed to state a Free Exercise claim.

c Freedom of Speech Clause.

Ms. Bauchman relies on the same allegations she

asserted in her Free Exercise claim to support her Free Speech

A34

claim. In essence, she argues the practice and performance of

Christian devotional music at religious sites as part of the

regular, graded, Choir curriculum have deprived her of her

constitutional right to refrain from speaking.

The First Amendment certainly prohibits the

government from compelling speech. See, e.g., Wooley v.

Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d

752 (1977). Here again, however, a threshold element of Ms.

Bauchman's claim is coercion or compulsion. See id. at 714-15,

97 S.Ct. at 1435-36; Mountain States Legal Foundation v.

Costle, 630 F.2d 754, 769-70 (10th Cir.1980), cert. denied, 450

U.S. 1050, 101 S.Ct. 1770, 68 L.Ed.2d 246 (1981). For the

same reasons discussed in the context of Ms. Bauchman's Free

Exercise claim, we conclude her complaint fails to allege facts

sufficient to show she was coerced or compelled to engage in

any Choir activities (practicing or performing songs she found

offensive in venues she found offensive) against her will. The

district court properly dismissed Ms. Bauchman's Free Speech

claim for having failed to establish a necessary element of the

alleged violation.

B. DENIAL OF OPPORTUNITY TO AMEND”

The district court concluded the only material difference

between Ms. Bauchman's proposed amended complaint and her

original pleadings was a "new" allegation or theory that it was

not just the singing of Christian songs in religious venues that

'2 We have fully addressed the issues Ms. Bauchman raised in

protest of the district court's denial of her motion for

reconsideration in our affirmance of the district court's order

dismissing Ms. Bauchman's complaint. The remainder of our

analysis there fore focuses on Ms. Bauchman's motion to

amend her complaint.

A35

violated her constitutional rights, but rather the fact that Mr.

Torgerson selected and performed Christian music at religious

venues for the specific purpose of promoting religion. In light

of this new theory, the district court deferred ruling on Ms.

Bauchman's motion to amend until the parties had an

opportunity to complete limited discovery regarding the purpose

of Mr. Torgerson's alleged unconstitutional conduct. The

district court further limited discovery to Mr. Torgerson's

actions during the year Ms. Bauchman was a Choir member,

unless Ms. Bauchman could establish a "clear and concise

nexus" between Mr. Torgerson's alleged past conduct and the

injuries she claims she incurred in 1994-95.

After considering the parties’ post-discovery evidence

and argument pertaining to the motion to amend, the district

court rejected Ms. Bauchman's efforts to resurrect her Free

Exercise, Free Speech, Religious Freedom Restoration Act, and

State constitutional claims, and reaffirmed its original ruling

that "choir singing of religious music does not automatically

equate with praying, and that the selection of Christian songs

and the singing of Christian music in religious venues does not

per se constitute a violation of the Establishment Clause." As

to Ms. Bauchman's claim Mr. Torgerson pursued religious

rather than secular purposes, the district court ruled that Ms.

Bauchman's allegations and evidence, when judged by a

reasonable *559 observer standard, were insufficient to sustain

an Establishment Clause claim. According to the district court,

any pursuit of Ms. Bauchman's proposed amended complaint

would be futile, as the allegations failed to state an

Establishment Cause claim, and the undisputed materials facts

would support a dismissal on summary judgment. The district

court further concluded Ms. Bauchman's motion to amend was

untimely, since the essential facts upon which she based her

proposed amendment were known prior to dismissal of her

original complaint.

Ms. Bauchman challenges these rulings, arguing (1) the

A36

proposed amended complaint adequately states a cause of action

and therefore is not futile; (2) the district court committed plain

error by refusing to permit discovery of, or to consider,

evidence of Mr. Torgerson's conduct prior to the 1994-95 school

year; (3) the district court improperly applied a summary

judgment standard to her motion to amend; and, (4) her motion

to amend was timely. We consider Ms. Bauchman's arguments

in turn.

l. Standard of Review.

To safeguard a plaintiff's opportunity to test her claims

on the merits, Rule 15(a) of the Federal Rules of Civil

Procedure provides that leave of the court to amend the

pleadings should be freely given when justice requires.

Fed.R.Civ.P. 15(a). Accordingly, a district court must justify its

denial of a motion to amend with reasons such as futility of

amendment or undue delay. See Foman v. Davis, 371 U.S. 178,

182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Hom v. Squire,

81 F.3d 969, 973 (10th Cir.1996). We review the district court's

decision that Ms. Bauchman's motion to amend her complaint

was both futile and untimely for abuse of discretion. Hom, 81

F.3d at 973.

2. Futility.

As to the allegations supporting Ms. Bauchman's Free

Exercise and Free Speech claims, we agree with the district

court there is no material difference between the two

complaints. Consequently, because we hold the district court

did not err in dismissing Ms. Bauchman's Free Exercise and

Free Speech claims, we necessarily conclude the district court

did not abuse its discretion by denying Ms. Bauchman's motion

to amend. Further analysis beyond our evaluation of the district

court's order dismissing those claims is unnecessary.

A37

As to Ms. Bauchman's Establishment Clause claim, we

note the following material differences between the original and

amended complaints: (1) the amended complaint clearly asserts

defendants’ conduct was motivated by a religious purpose; (2)

the amended complaint contains numerous allegations to

support Ms. Bauchman's claim that Mr. Torgerson has

unconstitutionally promoted his religious beliefs in the

classroom for over twenty years; and (3) the amended

complaint meticulously identifies each individual defendant

together with his or her alleged responsibility for Mr.

Torgerson's conduct or curriculum choices. Ms. Bauchman also

presented the district court with eight affidavits in support of her

amended complaint. Aside from Ms. Bauchman's affidavit

concerning her Choir experiences during the 1994-95 school

year and Ms. Deirdre Lynch's affidavit concerning the events at

West High School's 1995 graduation exercises, the remaining

affidavits describe Mr. Torgerson's alleged conduct as a music

teacher during the two decades prior to the 1994-95 school year.

Both parties relied on deposition transcripts and exhibits

collected during the course of discovery to support their

respective arguments regarding the propriety of Ms.

Bauchman's motion to amend. The test is whether the proposed

amendments, as supported by the affidavits or other evidence,

cure the deficiencies in the original complaint. See, e.g.,

Mountain View Pharmacy v. Abbott Lab., 630 F.2d 1383, 1386,

1389 (10th Cir.1980) (court of appeals gave plaintiffs benefit of

any supporting allegations contained in sworn factual certificate

submitted with the amended complaint when evaluating motion

for leave to amend).

We first consider the allegations and evidence

concerning Mr. Torgerson's conduct prior to the 1994-95 school

year. Relying on Justice O'Connor's concurring opinion in

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,

777-79, 115 S.Ct. 2440, *569 2454-55, 132 L.Ed.2d 650 (1995),

Ms. Bauchman asserts Mr. Torgerson's "pattern of conduct"

A38

dating back twenty years is necessary to understand the "pattern,

history and context" of the alleged unconstitutional conduct and

thus establish that Mr. Torgerson was furthering a religious

purpose through his direction of Choir activities in 1994-95.

Thus, she argues the district court improperly curtailed

discovery to that period of time Ms. Bauchman was a Choir

member. We disagree.

Ms. Bauchman's allegations regarding Mr. Torgerson's

past conduct are irrelevant to her Establishment Clause claim

for three reasons. First, as previously discussed, the “actual”

purpose component of the endorsement analysis begins by

asking whether there is a lack of a clearly secular purpose, not

whether there is any religious purpose present. See Jaffree, 472

U.S. at 56, 105 S.Ct. at 2489-90; Lynch, 465 U.S. at 680-81,

104 S.Ct. at 1362- 63. This threshold determination is an

objective one, removed from any subjective intent Mr.

Torgerson may have. As previously discussed, Ms. Bauchman

never alleged the defendants lacked a secular purpose.

Second, while Justice O'Connor noted a reasonable

observer evaluating whether government conduct has the effect

of endorsing religion "must be deemed aware of the history and

context of the community and forum" in which the conduct

occurs, she imparted such knowledge to the reasonable observer

in the broad sense of community awareness, not in the sense

that a reasonable observer would have knowledge of every

alleged past constitutional violation of a particular defendant.

Capitol Square, 515 U.S. at 776-81, 115 S.Ct. at 2454-55

(O'Connor, J., concurring). There simply is no indication

Justice O'Connor intended her statements to condone the use of

alleged past violations suffered by nonparties to bootstrap the

constitutional claims of a present litigant. Ms. Bauchman has

never claimed to be suing in a representative capacity for past

Choir members. Her standing to sue therefore is limited to

claims related to the infringement of her own constitutional

rights while she was a Choir member. Accordingly, the

+ Why ha c ee a

A39

allegations and evidence relevant to Ms. Bauchman's claims are

limited to defendants’ conduct and events during the 1994-95

school year. The district court did not abuse its discretion by so

limiting discovery and its analysis of Ms. Bauchman's claims.

Finally, any attempt to use allegations regarding Mr.

Torgerson's past conduct to evidence a continual, controlling

unexpressed or psychological motive to further a religious

purpose by selecting religious songs and religious performance

venues oversteps what we believe are pragmatic limits on the

nature of our inquiry into the "actual" purpose of the challenged

conduct. Put simply, our examination must stop short of an

attempt to discern a defendant's psychological motives vis a vis

his past conduct, underlying belief system or religious character.

See Westside Community Bd. of Educ. v. Mergens, 496 U.S.

226, 249, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191 (1990)

(plurality) (recognizing distinction between "actual" religious

purpose and possible religious motives); Jaffree, 472 U.S. at

74, 105 S.Ct. at 2499 (O'Connor, J., concurring) (same). We

must focus instead on objectively discernible conduct or

communication that is temporally connected to the challenged

activity and manifests a subjective intent by the defendant to

favor religion or a particular religious belief.

We focus our inquiry on concrete manifestations of

intent for a number of reasons. First, it is likely impossible to

discern a sole psychological motive for Mr. Torgerson's

conduct, past or present. See Edwards, 482 U.S. at 636- 37, 107

S.Ct. at 2605-06 (Scalia, J., dissenting). Additionally, we fear

that to impose constitutional liability on curriculum decisions

based on psychological motives inferred from a teacher's past

conduct or religious character would be to (1) impermissibly

subject religious teachers to a unique disability simply by virtue

of their devout status, see Mergens, 496 U.S. at 248, 110 S.Ct.

at 2370-71 (O'Connor, J., plurality opinion); Edwards, 482

U.S. at 615, 107 S.Ct. at 2594 (Scalia, J. dissenting) (court does

not presume "the sole purpose of a law is to advance religion

A40

merely because it is supported strongly by organized religions

or by adherents of particular faiths"); (2) render legitimate *561

public school curricula decisions affecting a diverse array of

students vulnerable to protracted litigation initiated by a single,

"offended" student, thereby involving the courts in educational

policy decisions best left to the states and locally elected school

boards, Edwards, 482 U.S. at 605, 107 S.Ct. at 2589 (Powell, J.,

concurring) (interference with the decisions of local public

school authorities is "warranted only when the purpose for their

decisions is clearly religious"); (3) discourage school districts

from hiring teachers known to have strong religious beliefs;

and (4) due to the inherent difficulty of attempting to discern an

individual's unexpressed or psychological motive, exacerbate

what is already perceived to be a morass of inconsistent

Establishment Clause decisions. The Establishment Clause

does not require such results. Instead, an Establishment Clause

claim like the one before us must be supported by allegations of

conduct or statements that expressly (without resorting to

psychoanalysis) indicate the defendant believed his selection of

songs and performance venues would serve a religious purpose-

-e.g., constitute religious exercises, cause students to become

religious, or cause students to adopt particular religious beliefs.

Ms. Bauchman's allegations concerning Mr. Torgerson's past

conduct provide no such indication of a religious purpose

during the 1994-95 school year.

Next, we evaluate whether the remaining allegations or

evidence change our earlier analysis that Ms. Bauchman failed

to allege an Establishment Clause violation. Ms. Bauchman's

proposed amended complaint and supplemental materials

expand upon and emphasize certain conduct and events related

to the allegations in her original complaint (i.e., the performance

of religious music, the performance at religious sites, and the

public ridicule and harassment she experienced as a result of the

defendants’ collective response to her objections.) The specific

nature of Ms. Bauchman's augmented allegations and the

ceererrrteerenieiniatiieiiianiitiiaiiiiiititaiataibiaiiiiaaiiniiaiiiaal

A4l

evidence pertaining to those allegations are thoroughly

addressed in the district court's Memorandum Decision and

Order Denying Leave to Amend. Bauchman v. West High Sch.,

1996 WL 407856 (D.Utah May 30, 1996). We can add little to

the district court's analysis. Having carefully reviewed the

entire record before the district court, we respect Ms.

Bauchman's individual perception as to the religious purpose

and effect of these events and Mr. Torgerson's conduct,

generally. Ultimately, however, we conclude that although Ms.

Bauchman's allegations may support an observation that Mr.

Torgerson is a religious man who struggles to expunge his

spiritual convictions from his teaching, they fall short of

supporting the required elements of an Establishment Clause

claim--e.g., Mr. Torgerson actually taught or proselytized his

religious beliefs, advocated Christianity in general, condemned

or criticized others’ beliefs, conducted or permitted prayer or

other religious exercises by or with Choir members. "2

Apparently based on the district court's statement that

her proposed amended complaint "would be subject to dismissal

under a motion for summary judgment," Ms. Bauchman urges

us to conclude the district court improperly applied a summary

judgment standard when considering her motion to amend. The

district court's order, read as a whole, makes clear the court did

not grant summary judgment against Ms. Bauchman. Rather,

the district court thoroughly considered Ms. Bauchman's

amended complaint together with any support for her

allegations from the affidavits, deposition transcripts and

exhibits presented by both parties, and after such review

concluded Ms. Bauchman still failed to state a claim under the

* It follows that absent sufficient factual allegations to support

an Establishment Clause claim, the remaining allegations in

Ms. Bauchman's amended complaint concerning the identity,

role and liability of individual defendants are of no import.

A42

Establishment Clause. As discussed above, we agree with and

uphold that conclusion. The district court went further to

conclude the relevant undisputed facts related to defendants’

conduct during the 1994-95 school year would subject Ms.

Bauchman's proposed amended complaint to dismissal on

summary judgment as well. This conclusion in and of itself did

not convert the district court's analysis into a ruling on summary

judgment. It simply provided an alternative ground for *562

application of the futility doctrine. A court properly may deny

a motion for leave to amend as futile when the proposed

amended complaint would be subject to dismissal for any

reason, including that the amendment would not survive a

motion for summary judgment. See, e.g., AM Int'l, Inc. v.

Graphic Management Assocs., Inc., 44 F.3d 572, 578 (7th

Cir.1995); Wilson v. American Trans Air, Inc., 874 F.2d 386,

392 (7th Cir.1989). Ms. Bauchman's argument to the contrary

is without merit and seems disingenuous, since she herself

participated in discovery and presented supporting materials for

the court's consideration.

In sum, we agree with the district court that Ms.

Bauchman's proffered amended complaint and supporting

evidence and affidavits fail to cure the deficiencies in her

original complaint. As such, the district court did not abuse its

discretion by denying Ms. Bauchman's motion for leave to

amend as futile.

3. Timeliness.

The district court cited Ms. Bauchman's failure to amend

prior to a ruling on defendants’ motion to dismiss and her failure

to allege any "essential" facts not otherwise known prior to the

dismissal of her original complaint as an alternative ground for

denying Ms. Bauchman's motion to amend her complaint. We

question the district court's rationale under circumstances

where, as here, the court deliberately deferred ruling on Ms.

ERO M YY Nis.

HS les SB 3 ia es SSE NEON ME rT Oe PROSE TOE A Am LS See ENE Sree ERR TE eis PREP TEE RDS NDT CT MERE OF MENT Ue :

A43

Bauchman's motion to amend pending the completion of

additional, limited discovery related to her newly asserted

theory that defendants’ conduct was primarily for the purpose of

promoting or proselytizing religion. We need not decide this

issue, however, in light of our concurrence with the district

court's decision that Ms. Bauchman's motion to amend was

futile. Further discussion of the timeliness of an amended

complaint proffered after dismissal and subsequent court-

authorized discovery is best left for another day.

V. CONCLUSION

We acknowledge, as has the United States Supreme

Court, that jurisprudence in this arena "is of necessity one of

line-drawing, of determining at what point a dissenter’s rights of

religious freedom are infringed by the State." Lee v. Weisman,

505 U.S. at 598, 112 S.Ct. at 2661. The task of distinguishing

between real constitutional threat and " 'mere shadow’ " is a

difficult one, id. (quoting School Dist. of Abington v. Schempp,

374 U.S. 203, 308, 83 S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963)

(Goldberg, J., concurring)), and is perhaps more appropriately

undertaken on summary judgment or after trial. However, for

the reasons stated above, we conclude Ms. Bauchman has failed

to demonstrate a real constitutional threat by way of her

complaint or proposed amended complaint. We therefore

AFFIRM the district court's dismissal of Ms. Bauchman's §

1983 claims. We also AFFIRM the district court's decision

denying Ms. Bauchman leave to amend her complaint. We

REMAND Ms. Bauchman's state constitutional claims to the

district court, with instructions to dismiss those claims without

prejudice for lack of federal subject matter jurisdiction. Finally,

we DISMISS Ms. Bauchman's claims for injunctive and

declaratory relief as moot.

A44

MURPHY, Circuit Judge, concurring in part and dissenting in

part.

I. INTRODUCTION

The court today holds that detailed allegations of

deliberate, intentional, and purposeful endorsement of religion

by a public high school teacher are insufficient to state an

Establishment Clause civil rights claim. Majority Op. at 559-

61. Because the majority's ruling, reasoning, and the necessary

consequences thereof are inconsistent with the Establishment

Clause as interpreted by the Supreme Court, I respectfully

dissent.

The majority appears to reach its conclusion by finding

a distinction between Richard Torgerson's' "motive" and

"purpose." In *563 light of this distinction, never before

applied by this court or the Supreme Court in the context of an

Establishment Clause civil rights claim, the majority holds that

Torgerson's "psychological motive" in selecting the Choir's

repertoire and performance venues is constitutionally irrelevant

in determining whether he acted with the "actual purpose" of

;

' Because the liability of each defendant in this case is in some

sense derivative from Torgerson's liability, the majority

opinion focuses exclusively on the alleged conduct of

Torgerson in analyzing whether Bauchman's original or

proposed amended complaint states a claim upon which relief

can be granted. This separate opinion does likewise. This is

not to say, however, that the governmental defendant, Salt

Lake City School District, is in any way responsible for

Torgerson's or the other individual defendants’ alleged

unconstitutional acts under the doctrine of respondeat superior.

See Monell v. Department of Soc. Servs., 436 U.S. 658, 690-

91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

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see

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A45

advancing religion. Id. at 560-61. Finally, taking its new

constitutional rule of relevance to an extreme, the majority

holds that Torgerson's alleged past acts of religious endorsement

are also irrelevant because past acts demonstrate only

"psychological motive," not "actual purpose." Id.

As detailed below, the majority's rigid view of pleading

and proof of an Establishment Clause civil rights claim is

inconsistent with Supreme Court precedent. In sharp contrast

to the constitutional distinction drawn by the majority, the

Supreme Court has routinely used the terms "motive" and

"purpose" interchangeably in this context. F urthermore, the

cases cited by the majority for the conclusion that motive is

never relevant under the endorsement test's purpose prong are

inapplicable and the policy concerns identified by the majority

in support of its new rule of relevance are far from compelling.

Finally, the majority's unexplained conclusion that past acts of

misconduct are always irrelevant is inconsistent with the

Federal Rules of Evidence and with precedent in an analogous

area of the law.

The majority has so radically restricted pleading and

proof of an improper purpose as to nullify the endorsement test's

purpose prong. Beyond eviscerating the Establishment Clause

as a protective citadel against religious and antireligious

conduct by teachers and other public employees, the majority's

approach defies a fundamental constitutional precept: "If there

is any fixed star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion or

force citizens to confess by word or act their faith therein."

West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63

S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). Unfortunately, that

"fixed star" shines less brightly today.

A46

Il. THE ENDORSEMENT TEST'S PURPOSE PRONG

The Establishment Clause of the First Amendment

provides that the federal government "shall make no law

respecting an establishment of religion." U.S. Const. amend. I.

This prohibition extends to state governments and their political

subdivisions by operation of the Fourteenth Amendment. See

Wallace v. Jaffree, 472 U.S. 38, 48-49, 105 S.Ct. 2479, 2485-

86, 86 L.Ed.2d 29 (1985); Engel v. Vitale, 370 U.S. 421, 430,

82 S.Ct. 1261, 1266-67, 8 L.Ed.2d 601 (1962). To determine

whether Bauchman's original or proposed amended complaint

states a claim upon which relief can be granted, this court must

evaluate whether Torgerson's alleged conduct violates the

Establishment Clause under the criteria set forth by the Supreme

Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct.

2105, 2111-12, 29 L.Ed.2d 745 (1971), and its progeny.

In Lemon, the seminal Establishment Clause case, the

Supreme Court set forth a three-part test for evaluating the

constitutionality of government action. Under that test, a

government action will not violate the Establishment Clause as

long as (1) it has a secular purpose, (2) does not have a principal

or primary effect that either advances or inhibits religion, and

(3) does not foster an excessive government entanglement with

religion. See id.

Although the Supreme Court continued to apply the

three-part Lemon test ‘to Establishment Clause claims

throughout the 1970s, Lemon came under increasing attack in

the early 1980s. See Majority Op. at 551 (collecting cases

attacking Lemon ). In 1984, Justice O'Connor utilized the

opportunity presented in Lynch v. Donnelly, 465 U.S. *564 668,

104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), to suggest a

"clarification" of the Supreme Court's Establishment Clause

jurisprudence. That "clarification" has come to be known as the

endorsement test.

In Lynch, a divided Supreme Court held that the city of

A47

Pawtucket's inclusion of a creche, along with a wide array of

secular Christmas decorations, in a downtown Christmas

display did not violate the Establishment Clause. See id at 685,

687, 104 S.Ct. at 1365, 1366 (plurality opinion); id. at 694, 104

S.Ct. at 1370 (O'Connor, J., concurring). In a concurring

opinion, Justice O'Connor identified the bedrock principles

underlying the Establishment Clause and opined that there was

not a clear nexus between those principles and the criteria set

out in Lemon. According to Justice O'Connor:

The Establishment Clause prohibits

government from making adherence to a religion

relevant in any way to a person's standing in the

political community. Government can run afoul

of that prohibition in two principal ways. One is

excessive entanglement with religious

institutions... The second and more direct

infringement is government endorsement or

disapproval of religion....

Our prior cases have used the three-part

test articulated in Lemon v. Kurtzman, 403 U.S.

602, 612-13 [, 91 S.Ct. 2105, 2111-12, 29

L.Ed.2d 745] (1971), as a guide to detecting

these two forms of unconstitutional government

action. It has never been entirely clear,

however, how the three parts of the test relate to

the principles enshrined in the Establishment

Clause. Focusing on institutional entanglement

and on endorsement or disapproval of religion

clarifies the Lemon test as an analytical device.

Id. at 687-89, 104 S.Ct. at 1366-68 (O'Connor, J., concurring)

(citations and footnote omitted).

As to the endorsement component of her clarified

Establishment Clause analysis, Justice O'Connor noted:

The central issue in this case is whether

Pawtucket has endorsed Christianity by its

Ds tn aaa iat te SS ae ee ee ee es

HERR i i le ele oa

A48

display of the creche. To answer that question,

we must examine both what Pawtucket intended

to communicate in displaying the creche and

what message the city's display actually

conveyed. The purpose and effect prongs of the

Lemon test represent these two aspects of the

meaning of the city's action.

The meaning of a statement to its

audience depends both on the intention of the

speaker and on the "objective" meaning of the

statement in the community. Some listeners need

not rely solely on the words themselves in

discerning the speaker's intent: they can judge

the intent by, for example, examining the

context of the statement or asking questions of

the speaker. Other listeners do not have or will

not seek access to such evidence of intent. They

will rely instead on the words themselves; for

them the message actually conveyed may be

something not actually intended. If the audience

is large, as it always is when government

"speaks" by word or deed, some portion of the

audience will inevitably receive a message

determined by the "objective" content of the

statement, and some portion will inevitably

receive the intended message. Examination of

both the _ subjective and the _ objective

components of the message communicated by a

government action is therefore necessary to

determine whether the action carries a

forbidden meaning.

The purpose prong of the Lemon test

asks whether government's actual purpose is to

endorse or disapprove of religion. The effect

prong asks whether, irrespective of

A49

government's actual purpose, the practice under

review in fact conveys a message of

endorsement or disapproval. An affirmative

answer to either question should render the

challenged practice invalid. -

Id. at 690, 104 S.Ct. at 1368 (O'Connor, J., concurring)

(emphasis added).

In focusing specifically on the purpose prong of her

endorsement test, Justice O'Connor noted that "[t]he purpose

prong of the Lemon test requires that a government activity have

a secular purpose." Jd. (O'Connor, J., concurring). According

to Justice O'Connor, however, "{t}hat requirement is *565 not

satisfied ... by the mere existence of some secular purpose,

however dominated by religious purposes." /d. at 690-91, 104

S.Ct. at 1368 (O'Connor, J., concurring) (emphasis added).

Thus, under the endorsement test formulated by Justice

O'Connor, "[t]he proper inquiry under the purpose prong of

Lemon . . .. is whether the government intends to convey a

message of endorsement or disapproval of religion." Jd. at 691 ‘

104 S.Ct. at 1368 (O'Connor, J., concurring).

The above-quoted passages establish that Justice

O'Connor, the originator of the endorsement test, believes the

proper focus of the purpose prong is the subjective purpose of

the governmental actor. The question then becomes whether a

majority of the Court has embraced the endorsement test and, if

so, whether a majority has embraced Justice O'Connor's views

of the purpose prong. Unfortunately, the task of parsing the

Supreme Court's recent Establishment Clause cases is nothing

short of Herculean. A careful reading of the Court's post-Lynch

opinions, however, leads to the conclusion that a majority of the

Court has adopted Justice O'Connor's emphasis on endorsement.

See County of Allegheny v. ACLU, 492 U.S. 573, 592, 109 S.Ct.

3086, 3100, 106 L.Ed.2d 472 ( 1989) (holding for majority of

court that "[iJn recent years, we have paid particularly close

attention to whether the challenged governmental practice either

A50

has the purpose or effect of ‘endorsing’ religion"). Although the

Supreme Court's discussion of the issue is perhaps opaque,

recent cases support the conclusion that a majority of the Court

would invalidate any governmental action subjectively intended

to endorse religion.

In Wallace v. Jaffree, 472 U.S. 38, 56-61, 105 S.Ct.

2479, 2489-92, 86 L.Ed.2d 29 (1985), the Supreme Court struck

down under Lemon 's purpose prong an Alabama statute

authorizing a one-minute moment of silence in all public

schools "for meditation or voluntary prayer." Citing to Justice

O'Connor's concurring opinion and Justice Brennan's dissenting

opinion in Lynch, the Court in Wallace noted that "even though

a statute that is motivated in part by a religious purpose may

satisfy [Lemon's] first criterion, the First Amendment requires

that a statute must be invalidated if it is entirely motivated by a

purpose to advance religion." Id. at 56, 105 S.Ct. at 2489

(citation omitted). According to Wallace, "In appiying the

purpose test, it is appropriate to ask ‘whether government's

actual purpose is to endorse or disapprove of religion.'" /d.

(quoting Lynch, 465 U.S. at 690, 104 S.Ct. at 1368 (O'Connor,

J., concurring)). In concluding that the statute at issue was

actually motivated by a religious purpose, the Court examined

the legislative history of the statute, focusing particularly on

statements of the Act's sponsor that the motivation behind the

Act was to return prayer to public schools. See id. at 56-57, 57

n. 43, 105 S.Ct. at 2489-90, 2490 n. 43.

It is clear that the Court focused on the Alabama

legislature's subjective legislative purpose, rather than some

possible objectively identifiable secular purpose for enacting the

statute at issue. That focus on subjective legislative purpose is

mirrored and amplified in the concurring opinions of Justices

Powell and O'Connor. In his concurring opinion, Justice Powell

stated the test as follows: "The first inquiry under Lemon is

whether the challenged statute has a ‘secular legislative

purpose.’ As Justice O'Connor recognizes, this secular purpose

EE ——— |

ASI

must be 'sincere'; a law will not pass constitutional muster if the

secular purpose articulated by the legislature is merely a 'sham.'

" Id. at 64, 105 S.Ct. at 2494 (Powell, J. concurring) (citations

omitted).

Employing the analysis she developed in Lynch, Justice

O'Connor also found the Act at issue unconstitutional. As was

the case with Justice Powell, it is clear that Justice O'Connor's

opinion is based on an analysis of the legislature's subjective

intent in passing the Act. See id. at 75-79, 105 S.Ct. at 2499-502

(O'Connor, J., concurring in judgment); cf Edwards vy.

Aguillard, 482 U.S. 578, 585, 590-92, 107 S.Ct. 2573, 2578,

2581-82, 96 L.Ed.2d 510 (1987) (striking down Louisiana

Creationism Act because _ legislature's "preeminent,"

"predominant," "primary," and "actual" purpose in passing the

legislation was to advance religion); id. at 610, 107 S.Ct. at

2591-92 (Scalia, J., dissenting) ("Even if | agreed with the

questionable premise that legislation can be invalidated under

the Establishment *566 Clause on the basis of its motivation

alone, without regard to its effects, I would still find no

justification for today's decision.").

The decisions in Wallace and Edwards illustrate that in

recent years the Supreme Court has focused on the subjective

intent of the governmental actor in analyzing whether

governmental action fails for an improper purpose.’ Cf Board

* According to Justice O'Connor, the Supreme Court's focus on

“actual” subjective intent is the reason that so few cases are

decided under Lemon's purpose prong. Evidence of a

subjective intent to advance religion is often difficult to

develop. Nevertheless, Justice O'Connor, the developer of the

endorsement test, seems undeterred by this fact. According to

Justice O'Connor:

It is not a trivial matter ... to require that the

legislature manifest a secular purpose and omit

AS2

of Educ. v. Grumet, 512 U.S. 687, 737, 114 S.Ct. 2481, 2508,

129 L Ed.2d 546 (1994) (Scalia, J., dissenting) (noting that

Court's decision to strike down specially created school district

s was based, in part, on its conclusion that creation of district was

"religiously motivated"). Thus, it is equally clear that this court

must focus on subjective purpose in deciding whether

Bauchman's original or proposed amended complaint states a

viable Establishment Clause civil rights claim.

Ill. THE MAJORITY OPINION

The majority begins its analysis of Lemon in a

all sectarian endorsements from its laws. That

requirement is precisely tailored to the

Establishment Clause's purpose of assuring that

government not intentionally endorse religion or

a religious practice. It is of course possible that

a legislature will enunciate a sham secular

purpose for a statute. I have little doubt that our

courts are capable of distinguishing a sham

secular purpose from a sincere one, or that the

Lemon inquiry into the effect of an enactment

would help decide those close cases where the

validity of an expressed secular purpose is in

doubt. While the secular purpose requirement

alone may rarely be determinative in striking

down a statute, it nevertheless serves an

important function. It reminds government that

when it acts it should do so without endorsing a

particular religious belief or practice that all

citizens do not share.

Wallace v. Jaffree, 472 U.S. 38, 75-76, 105 S.Ct. 2479, 2499-

500, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring in

judgment).

AS3

seemingly unexceptional manner. It correctly notes that this

court must apply the Lemon criteria as clarified by recent

Supreme Court cases which focus on whether the challenged

governmental action "endorses" religion. See Majority Op. at

550-53. As to the endorsement test, the majority notes the

effect prong "should evaluate whether a ‘reasonable observer,’

aware of the history and context of the community in which the

conduct occurs, would view the practice as communicating a

message of government endorsement or disapproval." /d at

552. The majority also grudgingly recites that the purpose

prong encompasses a subjective analysis which "should

evaluate whether the government's ‘actual’ purpose is to endorse _

or disapprove of religion." Jd. at 552 (concluding that purpose

prong contains a subjective test of "actual purpose" but opining

that the purpose prong is an "unworkable standard" that "yields

unprincipled results"). Finally, after again expressing its

displeasure, the majority correctly concludes that a violation of

either the subjective purpose prong or the objective effect prong

is sufficient to invalidate the challenged practice under the First

Amendment. See id at 552-53.

Thus, the majority's initial articulation of the

endorsement test's purpose prong appears no different than the

articulation in this separate opinion. Compare id. at 550-53 with

supra Section II of this separate opinion. The majority departs,

however, when it applies the endorsement test's purpose prong

to Bauchman's proposed amended complaint. In concluding

that the proposed amended complaint fails to state an

Establishment Clause civil rights claim, the majority holds as

follows:

[A]ny attempt to use allegations regarding Mr.

Torgerson's past conduct to evidence a

continual, controlling unexpressed or

psychological motive to further a religious

purpose by selecting religious songs and

religious performance venues oversteps what we

A54

believe are pragmatic limits on the nature of our

inquiry into the "actual" purpose of the

challenged conduct. Put simply, our

examination must stop short of an attempt to

discern a defendant's psychological *567

motives vis a vis his past conduct, underlying

belief system or religious character. We must

focus instead on objectively discernible conduct

or communication that is temporally connected

to the challenged activity and manifests a

subjective intent by the defendant to favor

religion or a particular religious belief.

Majority Op. at 560 (citations omitted) (third emphasis added).

The majority thereafter repeatedly declares that Torgerson's

motivation in undertaking the acts at issue here is irrelevant and,

furthermore, that his alleged past acts of endorsement are only

demonstrative of motive and, therefore, are also irrelevant. See

id. at 559-61. Finally, the majority concludes that an

Establishment Clause civil rights claim will always fail at the

pleading stage unless it is supported by allegations of "conduct

or statements" which are "temporally connected to the

challenged activity" and "expressly (without resorting to

psychoanalysis) indicate the defendant believed his" actions

would serve a religious purpose. See id.

The limitations imposed by the majority on the pleading

and proof of an improper purpose under the Establishment

Clause are unprecedented. The distinction drawn by the

majority between motive and purpose finds no support in

Supreme Court precedent. Furthermore, the majority's rigid

views of allegations supportive of an improper purpose claim is

at odds with the well- established rule that evidence of prior acts

is relevant and admissible for the purpose of demonstrating

"motive, opportunity, intent, preparation, plan, [and]

knowledge." Fed.R.Evid. 404(b).

AS5

A. Supreme Court Precedent

The primary problem with the distinction drawn by the

majority, and its concomitant rule of relevance, is that it finds

no support in the Supreme Court's Establishment Clause

jurisprudence.’ In fact, the Supreme Court has routinely used

the terms "motive" and "purpose" interchangeably in discussing

and applying the endorsement test's purpose prong. See, e.g.,

Wallace, 472 U.S. at 56, 105 S.Ct. at 2489 ("For even though a

statute that is motivated in part by a religious purpose may

satisfy the first criterion, the First Amendment requires that a

statute must be invalidated if it is entirely motivated by a

purpose to advance religion." (citation omitted) (emphasis

added)); id. at 59-60, 105 S.Ct. at 2491 ("We must, therefore.

conclude that the Alabama Legislature ... was motivated by the

same purpose that the Governor's answer the second amended

complaint expressly admitted ...." (Emphasis added)); id. at 64

n. 6, 105 S.Ct. at 2494 n. 6 (Powell, J., concurring) (agreeing

with majority that " 'a statute must be invalidated if it is entirely

motivated by a purpose to advance religion’ "); id. at 86-87, 105

S.Ct. at 2505 (Burger, C.J., dissenting) (dissenting from

majority conclusion that Alabama moment of silence statute

was motivated by an improper purpose on ground that there was

* It is clear that the law generally draws a distinction between

an actor's motive and his intent or purpose. See Black's Law

Dictionary 1014 (6th ed.1990) (setting out differences between

motive and intent). The question, however, is whether the

Supreme Court has recognized that distinction in the context of

the endorsement test's purpose prong and, more importantly,

whether the Supreme Court has adopted a constitutional rule of

relevance which makes evidence of motive invariably

inadmissible to prove purpose. As detailed more fully below,

the answer to both questions is no.

AS6

"not a shred of evidence that the legislature as a whole shared

the sponsor's motive" (emphasis added)); Edwards, 482 U.S. at

613, 107 S.Ct. at 2593 (Scalia, J., dissenting) ("It is clear, first

of all, that regardless of what "legislative purpose" may mean

in other contexts, for the purpose of the Lemon test it means the

"actual" motives of those responsible for the challenged action."

(emphasis added)); id. at 614, 107 S.Ct. at 2594 (Scalia, J.,

dissenting) ("In all three cases in which we struck down laws

under the Establishment Clause for lack of a secular purpose,

we found that the legislature's sole motive was to promote

religion." {emphasis added)); id. at 619, 107 S.Ct. at 2597

(Scalia, J., dissenting) (dissenting from majority's conclusion of

improper purpose because court had "relatively little

information upon which to judge the motives of those who

supported the Act" (emphasis added)); Bowen v. Kendrick,*568

487 U.S. 589, 602-03, 108 S.Ct. 2562, 2570-71, 101 L.Ed.2d

520 (1988) (repeatedly using the terms "motive" and "purpose"

interchangeably in discussing whether act violated

Establishment Clause); Texas Monthly, Inc. v. Bullock, 489

U.S. 1, 14.n. 4, 109 S.Ct. 890, 899 n. 4, 103 L.Ed.2d 1 (1989)

(using terms interchangeably in concluding exemption violated

Establishment Clause); Grumet, 512 U.S. at 737, 114 S.Ct. at

2508 (Scalia, J., dissenting) (noting that Court's decision to

strike down specially created school district was based, in part,

on its conclusion that creation of district was "religiously

motivated" (emphasis added)). As this lengthy list of citations

and quotations demonstrates, the Supreme Court has never

drawn the sharp distinction between motive and purpose

advocated in the majority opinion and has certainly never stated

that a governmental actor's motives are immutably irrelevant to

determining whether he acted with the purpose of approving or

disapproving religion.

To the extent that the majority opinion relies on the

Supreme Court's decision in Board of Education v. Mergens,

496 U.S. 226, 249, 110 S.Ct. 2356, 2371, 110 L.Ed.2d 191

grea

A57

(1990) (plurality opinion) to Support its conclusion that

Torgerson's motive is constitutionally irrelevant, the majority

misreads the opinion. See Majority Op. at 560.

In Mergens, the Supreme Court upheld the Equal Access

Act, 20 U.S.C. §§ 4071-4074, against, inter alia, an

Establishment Clause challenge. See 496 U.S. at 247-53, 110

S.Ct. at 2370-74 (plurality opinion); id. at 260-62, 110 S.Ct. at

2377-78 (Kennedy, J., concurring in part and concurring in the

judgment); id. at 262-70, 110 S.Ct. at 2377-83 (Marshall, J.,

concurring in the judgment). During the process of applying the

purpose prong to the Equal Access Act, a plurality of the Court

noted as follows: "Even if some legislators were motivated by

a conviction that religious speech in particular was valuable and

worthy of protection, that alone would not invalidate the Act,

because what is relevant is the legislative purpose of the statute,

not the possibly religious motives of the legislators who enacted

the law." Id. at 249, 110 S.Ct. at 2371 (plurality opinion).

Contrary to the majority's implicit assertion to the contrary,

Mergens does not stand for the proposition that the personal

motives of the sole state actor in this case, Torgerson, are

invariably irrelevant under the endorsement test's subjectively

oriented purpose prong.

There is a simple, clear, and threshold distinction

rendering Mergens inapplicable to cases such as this one:

Mergens did not involve a § 1983 civil rights claim against an

individual state actor. Mergens instead involved the

constitutionality of a legislative enactment. See id at 247- 53,

110 S.Ct. at 2370-74 (plurality opinion). The majority's

reliance on Mergens in addressing the wholly distinguishable

setting in which Bauchman challenges the acts of a single state

actor, who was solely or principally responsible for the

challenged conduct, is misplaced.

The plurality in Mergens noted that any inquiry into the

purpose of a legislative enactment should be deferential and

limited. See id. at 248-49, 110 S.Ct. at 2370-71 (plurality

AS8

opinion). Such deference is predicated on the Supreme Court's

respect for the role of Congress as a coequal branch of the

federal government. See id. at 251, 110 S.Ct. at 2372-73

(plurality opinion). Nothing in this case indicates that the Court

is likely to apply a similarly deferential standard to the actions

of an individual state actor in an Establishment Clause civil

rights suit under § 1983. In contrast to its deference to the

collective actions of legislatures, the Supreme Court has

specifically noted the unique power which public school

teachers may wield over students. See Edwards, 482 U.S. at

583-84, 107 S.Ct. at 2577-78. More importantly, the Supreme

Court refused to analyze the motives of individual legislators in

Mergens because the individual views of a single legislator say

little about the legislative body's collective purpose in enacting

a statute. See Mergens, 496 U.S. at 249, 110 S.Ct. at 2371

(plurality opinion). Because it is the collective purpose of the

legislative body that is at issue when a statute is challenged

under the Establishment Clause, a particular legislator's

impermissible motives for introducing or voting for a statute are

irrelevant. The motive, intent, and purpose of a state actor

solely or principally responsible for conduct *569 challenged

under § 1983, however, is paramount.

B. Constitutional Policy

In addition to its. reliance on Mergens, the majority

asserts that constitutional policy compels indifference to

Torgerson's individual motivation. According to the majority,

"to impose constitutional liability on curriculum decisions based

on psychological motives inferred from a teacher's past

conduct" would (1) "impermissibly subject religious teachers to

a unique disability simply by virtue of their devout status"; (2)

render legitimate curriculum decisions vulnerable to litigation

and involve "the courts in educational policy decisions best left

to the states and locally elected school boards"; (3) discourage

Pi ccocon enzo cr sc. tRNA ON RR RSC peta mmremrrceeat

AS9

school districts from hiring teachers known to have strong

religious beliefs; and (4) "exacerbate what is already perceived

to be a morass of inconsistent Establishment Clause decisions."

Majority Op. at 560- 61. Unfortunately, the majority merely

recites this litany and does not further elaborate.

The majority's concern that religiously devout teachers

will be disabled if their motives are deemed probative, the first

and third policy arguments in the majority's litany, confuses the

concepts of belief and purpose. Torgerson's religious beliefs are

irrelevant to the determination of his purpose. See Mergens,

496 U.S. at 248, 110 S.Ct. at 2370-71 (plurality opinion).

Allegations that Torgerson included religious songs in the

Choir's repertoire, that he chose religious sites for performances,

or that he is a devoutly religious man are insufficient to State a

civil rights claim under the endorsement test's purpose prong.

See Edwards, 482 U.S. at 605, 107 S.Ct. at 2589 (Powell, J.,

concurring); see also infra (concluding that Bauchman's

original complaint fails to state a civil rights claim under the

Establishment Clause). But merely because a religious person

is not constitutionally presumed to have a religious purpose

does not immunize that person from civil rights liability for

intentional endorsement or disapproval of religion.‘

* To the extent that the majority's public policy concerns focus

on the dangers of considering a governmental actor's deeply

held religious beliefs, as opposed to specific instances of past

religious endorsement or disapproval, the concerns identified

by the majority are not triggered in this case. Bauchman never

argued on appeal that allegations regarding Torgerson's

religious beliefs, either standing alone or in combination with

his alleged past acts of misconduct, were sufficient to state a

civil rights claim under the Establishment Clause. Instead, she

has simply argued the unremarkable position that Torgerson's

alleged past acts of misconduct, set out more fully below, are

A60

The second policy in the majority's litany, the

importance of local control over education, is equally

unavailing. This court has not been asked to overturn a

religiously neutral state or local school board policy, but has

simply been asked whether the following allegation states a

claim upon which relief can be granted: an individual teacher

undertook certain actions in a secondary education classroom

for the direct and specific purpose of advancing religion.

Answering that question in the affirmative would not

necessarily subject local school boards to any special danger.

Instead, it would provide content to the Establishment Clause

by prohibiting public school teachers from purposefully using

their positions in the classroom to endorse or disapprove

religion. Furthermore, although states and local school boards

| are "generally afforded considerable discretion in operating

public schools,"* the Supreme Court has recognized "that the

discretion of the States and local school boards in matters of

education must be exercised in a manner that comports with the

transcendent imperatives of the First Amendment." Board of

Educ. v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806-07, 73

L.Ed.2d 435 (1982). Moreover, the Court has repeatedly

expressed the necessity of "monitoring compliance with the

Establishment Clause in elementary and secondary schools."

Edwards, 482 U.S. at 583-84, 107 S.Ct. at 2577-78. Its

reasoning is unassailable:

Families entrust public schools with the

education of their children, but condition their

trust on the understanding that the classroom

will not purposely be used to *570 advance

relevant to the question of whether he chose the Choir's

repertoire and performance venues for the purpose of

advancing religion.

* Edwards, 482 U.S. at 583, 107 S.Ct. at 2577.

Be ieteeeeeeneentenrnereeneiiniiieettaticiiia ileal

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religious views that may conflict with the

private beliefs of the student and his or her

family. Students in such institutions are

impressionable and _ their attendance is

involuntary. The State exerts great authority

and coercive power through mandatory

attendance requirements, and because of the

students' emulation of teachers as role models

and the children's susceptibility to peer pressure.

Furthermore, "[t]he public school is at once the

symbol of our democracy and the most

pervasive means for promoting our common

destiny. In no activity of the State is it more

vital to keep out divisive forces than in its

schools..."

Id. at 584, 107 S.Ct. at 2577-78 (quoting J/linois ex rel

McCollum v. Board of Educ., 333 U.S. 203, 231, 68 S.Ct. 461,

475, 92 L.Ed. 649 (1948) (Opinion of Frankfurter, J.)) (citations

Omitted) (alteration and ellipses in original).

Finally, the majority concludes its litany with the wholly

unsupported suggestion that to attribute any significance to a

public school teacher's motives wil] "exacerbate what is already

perceived to be a morass of inconsistent Establishment Clause

decisions." Majority Op. at 561. Conceding for the sake of

argument the characterization of the Supreme Court's

Establishment Clause jurisprudence as being in "hopeless

disarray" and in need of "[s]ubstantial revision," id at 551,

attributing constitutional Significance to the motives of a public

school teacher, who is principally, if not solely, responsible for

the challenged conduct neither contributes to the disarray nor

creates the need for revision. Consideration of the motivation

of a teacher who is alleged to have deliberately, intentionally,

and purposefully endorsed or disapproved of religion will not

further complicate Establishment Clause jurisprudence.

A62

ie Relevance of Prior Acts

It must be further noted the majority's conclusion that

Torgerson's alleged past acts are irrelevant is suspect for the

following three reasons: (1) the majority offers no reasoning at

all for its conclusion that Torgerson's past acts of misconduct

only demonstrate a "continual, controlling ... motive to further

a religious purpose," Majority Op. at 560, as opposed to a

continual, controlling purpose to endorse religion; (2) the

conclusion of irrelevance is at odds with Federal Rule of

Evidence 404(b), which specifically provides that evidence of

past conduct is admissible for the purpose of proving motive,

intent, and knowledge; and (3) the conclusion of irrelevance is

inconsistent with analogous case law under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17.

At the very heart of the majority's decision in this case

is the conclusion that Torgerson's past conduct of endorsement

is irrelevant because it only serves to demonstrate a continuing

psychological "motive" to "further a religious purpose,” rather

than a distinct purpose to endorse religion.® Majority Op. at

560; see also id. ("[A]llegations and evidence relevant to Ms.

Bauchman's claims are limited to defendants’ conduct and

events during the 1994-95 school year."). The problem is that

the majority never explains why past instances of misconduct

only show a continuing motive rather than a continuing

purpose to advance religion. Under the majority's rigid rule of

relevance, a past expression of "actual purpose" is apparently

converted into an irrelevant expression of motive by the mere

° It is worth noting, albeit repetitiously, that the Supreme

Court, using language identical to that rejected by the majority,

has held "the First Amendment requires that a statute must be

invalidated if it is entirely motivated by a purpose to advance

religion." Wallace, 472 U.S. at 56, 105 S.Ct. at 2489

(emphasis added).

A63

passage of time. Under this novel view of relevance, an

admission by a public school teacher that she constructed the

curriculum for the direct purpose of advancing religion is

somehow converted into a mere expression of motive during a

subsequent year, even if the curriculum in question remains

unchanged. Unfortunately, the majority has not cited any

support for this novel proposition. A review of the relevant

Supreme Court jurisprudence reveals the reason: no support for

the proposition exists. Even assuming for the sake of argument

that the majority's novel rule of past conduct is correct and

allegations of Torgerson's past conduct of endorsement are

somehow converted *571 into mere expressions of motive, that _

motive is still relevant to prove that Torgerson acted with an

improper purpose during the year in

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