Amicus Curiae Brief — Bauchman ex rel. Bauchman v. West High School

Supreme Court, U.S

FILED

No. 97-1764 MAY 20 j908

| OFFACE OF THE CLER

In The

Supreme Court of the United States

OCTOBER TERM, 1997

RACHEL BAUCHMAN,

” Petitioner,

WEST HIGH SCHOOL, et ai.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF THE AMERICAN FEDERATION OF

SCHOOL ADMINISTRATORS AND THE ASSOCIATION

FOR SUPERVISION & CURRICULUM DEVELOPMENT

AS AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

DAVID B. ISBELL

Counsel of Record

ERIKA F. KING

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044-7566

(202) 662-6000

May 29, 1998 Counsel for Amici

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ........... 1

Asmeerene GN AUSUMEENE . 8k ee ce eee we ee l

IE ee ea) re a otras 2

A. THIS COURT’S ESTABLISHMENT CLAUSE

JURISPRUDENCE, WHICH THE TENTH CIRCUIT

CHARACTERIZED AS "MUDDLED," IS IN NEED

i CRN Sk ee eo ee Coe ee 3

B. THE TENTH CIRCUIT IN BAUCHMAN

MISCONSTRUED THIS COURT’S

ESTABLISHMENT CLAUSE JURISPRUDENCE. . 4

1. The Tenth Circuit’s approach to the "purpose"

inquiry was fundamentally flawed. ........ 4

a. The "endorsement" test neither replaces nor

eviscerates the purpose prong of the Lemon

MM aetk's 5 ok aa 6 dee he oe ee 3

b. There is no basis for the Tenth Circuit’s

refusal to consider Mr. Torgerson’s actual

Ngee a oi ewe wok era Ns eS 7

c. Articulation of some "plausible" secular

purpose is insufficient to pass Establishment

SIN oe hn Gia wk eS 8

——————

il

d. The Tenth Circuit’s purpose analysis

undermines amici’s ability to protect minority

and dissenting students. ........... 1]

i)

The Tenth Circuit’s approach to the “effect”

inquiry was also clearly incorrect. ....... 1]

a. The Establishment Clause requires an inquiry

into the purpose and the effect of a challenged

OU ce ek eke eee 11

b. The Tenth Circuit was incorrect to hold Ms.

Bauchman to a “reasonable observer" standard

with respect to the effect of Mr. Torgerson’s

OG, an ke eke ee es 12

Le)

The notion, seemingly embraced by the Tenth

Circuit, that unconstitutional coercion cannot occur

outside the context of a formal prayer exercise, was

0 CG 3? Os a SLRS a eee 14

C. THE TENTH CIRCUIT DECISION, IF ALLOWED

TO STAND, WILL MAKE COMPLIANCE WITH

THE LAW MORE DIFFICULT FOR THE AMICI. 17

1. As a matter of principle, the wall of separation

between church and state should be impenetrable in

eee oe ee 17

Nm

As a practical matter as well, the wall of separation

between church and state should be impenetrable in

the public schools, and the ban on proselytism

Ce OE GR. . ao wh ee 18

L.A sh 05. beeen eee ee ea 20

ee

lil

TABLE OF AUTHORITIES

Cases Page

Abington v. Schempp, 374 U.S. 203 (1963) ..... 16, 17

Agostini v. Felton, 117 S. Ct. 1997 (1997) ..... 3, 16

Bauchman v. West High School, 132 F.3d 542 (10th Cir.

ee ie Rs Ok ne a dors Re oe Passim

Board of Education v. Mergens, 496 U.S. 226 (1990) .. 7

Board of Education v. Pico, 457 U.S. 853 (1982) ... 10

Capitol Square Review & Advisory Board v. Pinette, 515

nL ON ts ya Ce eg Ce a 12

County of Allegheny v. ACLU, 492 U.S. 573

DUR i tye ee oa a ee eed 2, O40,

Doe v. Duncanville Independent School District, 70 F.3d

EI I a ey a a na Svc wee eee 3,4

Edwards v. Aguillard, 482 U.S. 578 (1987) . 3,9, 10, 16

Empe: ¥. Viale; 370 U.S. 421 (19GZ) ... 2. ek. 15

Epperson v. Arkansas, 393 U.S. 97 (1968) ....... 10

Everson v. Board of Education, 330 U.S. 1 (1947) .. 17

iV

Florey v. Sioux Falls School District, 619 F.2d 1311 (8th

Cae Se ee a ee ee a a ae Ae es 3

Grand Rapids v. Ball, 473 U.S. 373 (1985) ..... 16, 18

Lee v. Weisman, SUD U.S: 371 G92) ww cae. 4,15

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...... passim

Lynch v. Donnelly, 465 U.S. 668 (1984) ...... 6, 8, 13

McCollum v. Board of Education, 333 U.S. 203

FRE eos ee ewe Ce eee eee eee 16

Rosenberger v. University of Virginia, 515 U.S. 819

CE sates S Glee ee a ee ee ek ae

Wallace v. Jaffree, 472 U.S. 38 (1985) ....... 9, 15

Washington v. Davis, 426 U.S. 229 (1976) ....... 12

Other Authority

Charles Black, Structure and Relationship in Constitutional

ES a rk ee eG ee ee ee 9

Note, Religion and the State, 100 Harv. L. Rev. 1606

SUP eee Oe ee eee ee ee ee 14

Laurence Tribe, American Constitutional Law

ae Oe Pe i a a a a re we 14

INTEREST OF THE AMICI CURIAE

Amici” are the American Federation of School

Administrators and the Association For Supervision &

Curriculum Development. They are national organizations of

educators and administrators, charged with teaching a

complete, well-rounded, public school curriculum to the

roughly 40 million school-age children attending this nation’s

public schools. In carrying out their educational tasks, amici

are also obliged to ensure the safety of the children and

adolescents entrusted to their care, and to ensure the

protection of their constitutional and civil rights. Amici seek

to ensure that each public school curriculum (and extra-

curriculum) reflects, to the extent appropriate and to the extent

constitutional, the needs and desires of the particular

community in which the school lies. They also have a duty to

protect the academic freedom and religious freedom of the

teachers employed by the public schools. Amici urge review

and reversal of the decision below, Bauchman v. West High

School, 132 F.3d 542 (10th Cir. 1995), because that decision

improperly dismantles the wall of separation between church

and state in the public schools, and will make their

discharging of these varying goals and responsibilities

considerably more difficult, if not impossible. All parties

have consented to the filing of this Brief and their letters of

consent have been filed with the Court.

SUMMARY OF ARGUMENT

Citing the "confusion" and "inconsistency" in this Court’s

Establishment Clause jurisprudence, and apparently as a

consequence misconstruing the pertinent precedents, the Tenth

“ Counsel for the amici curiae authored this brief in its entirety. No

person or entity, other than the amici curiae, their members, or their

counsel, made a monetary contribution to the preparation or submission of

this brief.

ee eens

2

Circuit in Bauchman effectively dismantled the wall of

separation between church and state in the public schools,

allowing a public school teacher to continue a 20-year

program of proselytism and harassment of religious dissenters.

In dismissing Ms. Bauchman’s claims and denying her

leave to amend her complaint, the Tenth Circuit relied on

numerous incorrect statements of the controlling law. Most

notably, it dispensed with the first two prongs of Lemon v.

Kurtzman, 403 U.S. 602 (1971), altogether, on the ground

that the purpose prong of Lemon "is an unworkable standard

that offers no useful guidance to courts,” 132 F.3d at 552,

substituting a watered-down version of the endorsement test,

and then relying on the proposition that the Establishment

Clause is violated only if the State has no plausible secular

purpose for its actions. /d. at 554. It further suggested that

the inquiry into "purpose" does not entail consideration of the

government actor’s subjective intent. Jd. at 560. Further, the

Tenth Circuit applied a "reasonable observer" standard in

assessing whether the effect of Mr. Torgerson’s actions was

to advance religion. Jd.

These are clear errors of law. Amici submit that despite

the fragmentation in the governing Supreme Court precedent,

Mr. Torgerson’s conduct was unquestionably beyond the pale.

The Court should make it perfectly clear that Courts of

Appeals may not hide behind conflicting dicta in the

governing jurisprudence in order to sanction proselytism.

ARGUMENT

Amici adopt the statement of the case in the Petition For

Writ of Certiorari filed by Rachel Bauchman on April 27,

1998. They write separately to emphasize one aspect of the

factual makeup of the case.

3

The Tenth Circuit’s most fundamental error was its view

that it fell within an existing line of cases involving "religious

choral music." See Doe v. Duncanville Independent School

District, 70 F.3d 402 (Sth Cir. 1995); Florey v. Sioux Falls

School District, 619 F.2d 1311 (8th Cir. 1980). This case,

however, is not about the constitutionality of the inclusion of

religious songs in a choral curriculum. It is about the

constitutionality of proselytism in a public high school setting.

A. THIS COURT’S ESTABLISHMENT CLAUSE

JURISPRUDENCE, WHICH THE TENTH CIRCUIT

CHARACTERIZED AS "MUDDLED," IS IN NEED

OF CLARIFICATION.

This Court’s Establishment Clause jurisprudence is often

criticized for a lack of clarity and consistency. See, e.g.,

Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J.,

dissenting) (deploring the Court’s "embarrassing Establishment

Clause jurisprudence"); Rosenberger v. University of Virginia,

S15 U.S. 819, 861 (1996) (Thomas, J., concurring)

(characterizing the Court’s Establishment Clause jurisprudence

as in "hopeless disarray"); County of Allegheny v. ACLU, 492

U.S. 573, 656 (1989) (Kennedy, J., concurring in part and

dissenting in part) (observing that jurisprudence may be in

need of "[s]ubstantial revision").

The fragmentation of the Court’s decisions in this area,

see, €.g., Agostini v. Felton, 117 S. Ct. 1997 (1997) (Opinion

of the Court delivered by O’Connor, J., in which Rehnquist,

C.J., and Scalia, Kennedy, and Thomas, JJ, joined) (dissent

of Souter, J., in which Stevens and Ginsburg, JJ, joined, and

in which Breyer, J., joined as to Part ITI) (dissent of Ginsburg,

J., in which Stevens, Souter, and Breyer, JJ, joined), and the

seeming-adoption of a multitude of potentially applicable tests

4

for the public school context,* have prompted Courts of

Appeals addressing religion in the public schools to preface

their analyses with remarks on the confusion in the governing

law. See, e.g., Bauchman, 132 F.3d at 551 (referring to the

"existing, muddled Establishment Clause precedent"). In

short, the "confusion" and "muddle" in the Supreme Court

cases — a natural, but unfortunate, result of fragmentation in

the Court’s opinions — has seemingly left some Courts of

Appeals with the impression that they have a wide latitude of

choice among the Court’s dicta in this critical area of First

Amendment law, allowing them to acquiesce in impermissible

breaches of the wall of separation between church and state.

The decision of the Tenth Circuit below is illustrative.

B. THE TENTH CIRCUIT IN BAUCHMAN

MISCONSTRUED THIS COURT’S

ESTABLISHMENT CLAUSE JURISPRUDENCE.

1. The Tenth Circuit’s approach to the "purpose"

inquiry was fundamentally flawed.

This case presents fundamental issues as to the nature of

the "purpose" inquiry in Establishment Clause cases: whether

the "endorsement" test has replaced the Lemon test; whether

a defendant need only articulate some plausible secular

= The Courts of Appeals appear to believe there are three “separate” tests

of constitutionality under the Establishment Clause: the Lemon test from

Lemon vy. Kurtzman, 403 U.S. 602 (1971), an endorsement test stemming

from Justice O’Connor’s concurrence in Lynch v. Donnelly, 465 U.S. 668

(1984), and a coercion test stemming from Justice Kennedy’s opinion in

Lee v. Weisman, 505 U.S. 577 (1992). See, e.g., Duncanville, 70 F.3d

at 406 (using all three "tests" to affirm an injunction against a school and

its employees from leading, encouraging, promoting, and participating in

prayers with or among students during curricular or extracurricular

activities).

Ee

5

purpose; how a state actor’s intent is to be probed by a

reviewing court; and what sort of factual allegations on the

issue Of purpose suffice to defeat a motion to dismiss in

federal court. The Tenth Circuit’s approach to the purpose

inquiry, in which it dispensed with Lemon, ruled that the

Establishment Clause is violated only when the conduct in

question is wholly motivated by religious considerations, and

concluded that the Clause does not require a subjective inquiry

into the intent of the state actor whose conduct is at issue, was

plainly wrong.

a. The "endorsement" test neither replaces nor

eviscerates the purpose prong of the Lemon

test.

Writing that the endorsement test "is now widely accepted

as the controlling analytical framework for evaluating

Establishment Clause claims," the Tenth Circuit chose to

"apply both the purpose and effect components of the refined

endorsement test" when evaluating Ms. Bauchman’s claim.

132 F.3d at 552. It then held her to a requirement of showing

that Mr. Torgerson had no secular purpose for selecting songs

with religious content and having the choir perform in

religious venues (thus conveniently dispensing with the

remaining factual allegations relating to proselytism). Finding

a number of "plausible" secular purposes (outside the record),

the court ruled that Ms. Bauchman’s complaint "fail[ed] to

state an Establishment Clause claim under the purpose

component of the endorsement test." /d. at 555.

The Tenth Circuit’s analysis reflects a fundamental

misunderstanding of the role of the three prongs of Lemon.

As the Court wrote in Lemon itself, to be constitutional, a

challenged statute (or, here, a state actor’s conduct) must have

a secular purpose, its principal or primary effect must be one

that neither advances nor inhibits religion, and it must not

6

foster excessive entanglement with religion. See Lemon, 403

U.S. at 613. This is nothing more than an articulation of a

straightforward and traditional "purpose and effect" inquiry,

and a recognition of the clause’s ban on government

"intermeddling" in the affairs of religion.

The endorsement inquiry articulated in Lynch by Justice

O’Connor (but not accepted as a substitute for Lemon by the

Court)* does not dispense with this traditional inquiry into

the purpose and effect of a challenged government action.

Indeed, the Tenth Circuit erred in further "watering down" the

endorsement test by dispensing with the subjective inquiry into

actual purpose. As the dissent in Bauchman noted, "Justice

O’Connor, the originator of the endorsement test, believes the

proper focus . . . is the subjective purpose of the

governmental actor." 132 F.3d at 565 (Murphy, J.,

concurring in part and dissenting in part). Judge Murphy

concluded from his own review of the post-Lynch cases that

"a majority of the Court would invalidate any governmental

action subjectively intended to endorse religion." /d.

In short, contrary to the ruling of the Tenth Circuit, the

Lemon test requires a rigorous examination of a government

actor’s subjective purpose and his actual effect; and the so-

called endorsement test (which in any event does not "replace"

Lemon) requires nothing less.

2 See, e.g., Allegheny, 492 U.S. at 669 (Kennedy J., concurring in part

and dissenting in part) (joined by Rehnquist, C.J., and White and Scalia,

JJ.) ("{ T]he endorsement test is flawed in its fundamentals and unworkable

in practice.").

|

7

b. There is no basis for the Tenth Circuit’s

refusal to consider Mr. Torgerson’s actual

intent.

The Tenth Circuit next took the puzzling position that

“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 . . . 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." 132

F.3d at 560. The majority continued, "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

advancing religion." Jd. at 563.

The Tenth Circuit’s erroneous dichotomy between

"subjective motive" and “objective purpose" reflects its

misreading of a comment in the Mergens decision (which in

any event dealt with a statute, rather than individual conduct).

As Justice Stevens observed in that case, the government may

not act with the person»! subjective view “that it would be

desirable for people to be religious or to adhere to a particular

religion." Board of Educ. v. Mergens, 496 U.S. 226, 286

n.21 (1990) (Stevens, J., dissenting). At the same time, the

Establishment Clause is not ordinarily concerned with

"whether the legislature [or a government actor] itself behaved

religiously." Jd. Amici agree that the Clause does not require

an inquiry into whether Mr. Torgerson himself acted out of

religious fervor (i.e., whether he believed his own religion

compelled him to the actions in question). However, the

Clause unquestionably required the Tenth Circuit to determine

8

whether Mr. Torgerson subjectively intended to convert, to

further religion, to preach, or to proselytize.* And the

allegations in Ms. Bauchman’s amended complaint

unequivocally point to an intent to proselytize.*

c. Articulation of some "plausible" secular

purpose is insufficient to pass Establishment

Clause review.

The Tenth Circuit’s position that the Establishment Clause

is Only violated when the conduct in question is wholly

motivated by religious considerations — i.e., when the

reviewing court can identify no plausible secular purpose, 132

F.3d at 553-55 — is incorrect as a matter of law.

Although dicta in Lynch suggest that a plaintiff must show

that the defendant’s actions were “motivated wholly by

$

The distinction is between “why” a person takes a step, and "to what

end” he takes that step. Both are subjective inquiries. The Establishment

Clause may well forbid the former inquiry (was he acting religiously, i.e.,

did Mr. Torgerson believe he would suffer eternal damnation if he failed

to proselytize, or did he merely believe he would not be fulfilling his duties

as a member of the Mormon Church); however, it requires the latter

inquiry (did he intend to convert and proselytize, or did he intend

something more innocuous).

> See, e.g., Amended Complaint (AC) ¢ 16b (forcing students to attend

offering of prayers and sacraments); ¢ 16g (frequent discussion of religions

content of songs in order to advocate his own beliefs); ¢ 16k (invoking

prayers during choir tours); ¢ 16e (frequent performance at religious

venues); ¢ 161 (instructing class that they should understand and accept the

religious message of the songs); see also Petition at 3-4 (Torgerson

admitted his preference for Mormon students; the class under Torgerson’s

direction regularly participated in Mormon worship services; Torgerson

wrote to choir parents that he had “trouble with this separationist concept” ;

and he instructed his class that a true appreciation of music comes through

religious experience).

9

religious considerations," 465 U.S. at 680, the author of the

endorsement test has herself taken a different position. See id.

at 690-91 (O’Connor, J., concurring) ("The purpose prong of

the Lemon test requires that a government activity have a

secular purpose. That requirement is not satisfied, however,

by the mere existence of some secular purpose, however

dominated by religious purposes.").

To be sure, the Tenth Circuit’s position draws comfort

from Justice O’Connor’s concurrence in Wallace v. Jaffree,

where she wrote that "the inquiry into the purpose of the

legislature in enacting a moment of silence law should be

deferential and limited,” and that "[ijf a legislature expresses

a plausible secular purpose . . . , then courts should generally

defer to that stated intent." 472 U.S. 38, 74-75 (1985)

(O’Connor, J., concurring). This dictum, however, reflects

merely the conventional wisdom that (federal) courts should

be deferential to (federal and state) legislatures regarding the

purpose of legislation. Deference is inappropriate and

unnecessary when a case involves instead the behavior of an

individual state actor. Concerns expressed by Justice Scalia

and Chief Justice Rehnquist about discerning the motive of

individual legislators, see, e.g., Aguillard, 482 U.S. at 625,

632-33, 636-38 (Scalia, J., dissenting), simply do not apply in

the context of an individual actor who can be cross-examined.

See also Charles Black, Structure and Relationship in

Constitutional Law 77-93 (1969) (arguing that review of

articulated purpose should become less deferential the smaller

the government body in question). Moreover, deference to a

state's articulation of secular purpose is belied by the Supreme

10

Court’s actual practice. The Court has repeatedly made it

plain that a "sham" secular purpose will not be tolerated.®

Amici contend that the proper result at the initial pleading

stage was articulated in Board of Education v. Pico, 457 U.S.

853 (1982), and continues to apply in "mixed motive" cases.

A complaint survives dispositive motions if it alleges facts

showing any actual (subjective) improper purpose behind the

challenged actions. In Pico, for instance, the plaintiff's

factual allegation of an actual improper purpose for the school

board’s removal of books from the school library in question

(disagreement with the social and political views expressed

therein) was deemed sufficient to defeat a motion to dismiss,

despite the obvious possibility of other plausible explanations.

Under the Pico precedent, Ms. Bauchman’s allegations of

improper purpose are more than adequate to keep her case in

federal court and to require a trial on the issue. See id. at 875

(noting that the "evidence at most creates a genuine issue of

material fact on the critical question of the credibility of

petitioners’ justifications for their decision").

© See e.g., Aguillard, 482 U.S. at 586-87 ("While the Court is normally

deferential to a State’s articulation of a secular purpose, it is required that

the statement of such purpose be sincere and not a sham."); Epperson v.

Arkansas, 393 U.S. 97, 108 (1968) (striking down anti-evolution statute

that forbade public school teachers from teaching theory of evolution,

citing newspaper advertisements and letters supporting adoption of the

statute, and observing that it is “clear that fundamentalist sectarian

conviction was and is the law’s reason for existence"). Both of these

decisions entailed a fairly rigorous judicial inquiry into the actual purpose

of the measures at issue.

11

d. The Tenth Circuit’s purpose analysis

undermines amici’s ability to protect minority

and dissenting students.

The Tenth Circuit’s approach to the purpose inquiry tells

teachers that they may attempt to convert, and that they may

preach, discriminate, and harass, so long as they also have a

plausible (not even an “actual") secular goal in so doing. It

tells administrators that they should not bother to police

classrooms for harassment, and tells principals that it would

be a waste of time to sanction teachers for proselytism.

Indeed, under the "any plausible secular purpose" standard,

students and parents have little incentive to report arguably

unconstitutional incidents to the authorities. This casual

approach to protection of fundamental constitutional rights —

extreme deference to any plausible explanation for harassing

behavior — would be flatly unacceptable in the context of

racial harassment and discrimination; it should be equally

unacceptable in the context of proselytism.

2. The Tenth Circuit’s approach to the "effect"

inquiry was also clearly incorrect.

a. The Establishment Clause requires an inquiry

into the purpose and the effect of a challenged

action.

Amici do not suggest that a state action violates the

Establishment Clause simply because the motives of the state

actors in question were improper. If Mr. Torgerson had

intended to advance Christianity in his classroom but had been

wholly ineffective — not in fact advancing it, not in fact

endorsing it, and not in fact pushing dissenting adolescents to

the social outskirts of his classroom — then although his

actions would have been improper, the clause might not have

12

been contravened. (One might call this "harmless error."

This is not such a case. Ms. Bauchman has made a clear

showing that Mr. Torgerson’s motives were improper, and —

as explained below — that the effect of his actions was

impermissible.

b. The Tenth Circuit was incorrect to hold Ms.

Bauchman to aé “reasonable observer"

standard on the question of the effect of Mr.

Torgerson’s actions.

Another issue in the case is whether the "effect" of a

challenged practice is to be measured by an objective or

subjective standard. The Tenth Circuit was plainly wrong in

its approach to the issue, which was to judge by a reasonable

observer standard and to discount Ms. Bauchman’s allegation

of the effect of Mr. Torgerson’s actions on the grounds that

she was describing the "subjective effect of the curriculum on

(herself]." 132 F.3d at 555.

The "reasonable observer standard” finds limited support

in the writings of Justice O’Connor. See Capitol Square

Review & Advisory Board v. Pinette, 515 U.S. 753, 779

(1995) (O’Connor, J. concurring) (stating that "the

- To say that improper purpose alone will not prove an Establishment

Clause violation is not to say that it is irrelevant. Take by way of analogy

the inclusion of Mark Twain’s Huckleberry Finn in a sixth grade public

school classroom. Imagine that the sole black pupil in the class were to

complain that the inclusion of the book and, particularly, class discussions

and enactment of certain portions of the book demeaning to blacks, made

her feel "second class." Absent discriminatory intent, an equal protection

claim would not lie. Washington v. Davis, 426 U.S. 229 (1976). But if

there were evidence that the teacher’s intent in assigning the book and

assigning “skits” from the storyline was, precisely, to stamp the black

students with the stigma of the past (a “badge” of "slavery"), then the

equal protection claim would be complete.

rr

13

endorsement inquiry is not about the perceptions of particular

individuals or saving isolated nonadherents from the

discomfort of viewing symbols of a faith to which they do not

subscribe"). And it may make sense in the sort of

Establishment Clause challenges wherein it was first

articulated — cases involving government symbols that give

the appearance of institutional endorsement of religion. See,

e.g., Allegheny, 492 U.S. at 595 (Blackmun, J.) (suggesting

endorsement test is "a sound analytical framework for

evaluating governmental use of religious symbols").

But the "reasonable observer standard" is wholly

inconsistent with the "“insider/outsider doctrine" also

articulated by Justice O’Connor. Under this principle, which

reflects in part the religious persecution to which our founding

generations had been exposed in the Old World, government

action is invalid under the Establishment Clause if it "sends a

message to nonadherents that they are outsiders, not full

members of the political community, and an accompanying

message to adherents that they are insiders, favored members

of the political community." Lynch, 465 U.S. at 688. This

is inherently and inescapably a subjective inquiry, and the

facts of this case suggest precisely this insider/outsider

effect.*

If the "effect" inquiry is to be meaningful in a case, it

must be situationally specific. In this case, the inquiry must

be the effect of Mr. Torgerson’s practice on a "reasonable

adolescent religious dissenter" under the circumstances and on

Rachel Bauchman in particular. See Note, Religion and the

* See, e.g., AC § 16d (application form for choir class inquiring about

religious affiliation); { 160 (berating dissenting students); ¢ 17d (inciting

Mormon parents and children to punish and ostracize Ms. Bauchman); §

17e (suggesting Ms. Bauchman leave choir class).

14

State, 100 Harv. L. Rev. 1606, 1648 (1987) ("[If the test] is

governed by the perspective of the majority, it will be

inadequately sensitive to the impact of government actions on

religious minorities, thereby in effect basing the protection of

religious minorities on the judgment of the very majority that

is accused of infringing the minority’s religious autonomy. If

the Establishment Clause is to prohibit government from

sending the message to religious minorities or nonadherents

that the state favors certain beliefs and that as nonadherents

they are not fully members of the political community, its

application must turn on the message received by the minority

or nonadherent."); see also Laurence H. Tribe, American

Constitutional Law § 14-5 at 1177 (2d ed. 1988) ("At least

concerning public schools, the endorsement question ought to

be asked from two perspectives: that of an objective observer

sympathetic to free exercise concerns, and that of the students

involved.").

The Tenth Circuit’s abandonment of a subjective effect

inquiry eviscerates the basic proposition that the Establishment

Clause promises protection from majoritarian oppression. It

would render meaningless efforts by amici to police the

schools for harassment of individual students by teachers. It

would deny amici their ability to respond to complaints from

individual students, and indeed provides no guidance to amici

when faced down by religious majorities seeking to impose a

sectarian agenda in the local public schools.

3. The notion, seemingly embraced by the Tenth

Circuit, that unconstitutional coercion cannot

occur outside the context of a formal prayer

exercise, was also erroneous.

The Tenth Circuit declined to examine the coerciveness of

Mr. Torgerson’s religious agenda, 132 F.3d at 552 n.8,

essentially on the theory that the case was not a "school

15

prayer" case. This reflects a misunderstanding of the Court’s

coercion analysis. While a plaintiff need not prove coercion

in order to prove an Establishment Clause violation, coercion

can occur in the public schools outside the context of a formal

religious exercise, and Ms. Bauchman made a plain showing

of coercion.

The First Amendment "guarantees that government may

not coerce anyone to support or participate in religion or its

exercise." Lee v. Weisman, 505 U.S. 577, 587 (1992). See

also Engel v. Vitale, 370 U.S. 421, 431 (1962) ("When the

power, prestige, and financial support of government is placed

behind a particular religious belief, the indirect coercive

pressure upon religious minorities to conform to the prevailing

officially approved religion is plain."); see also Wallace, 472

U.S. at 60 n.51 ("This comment has special force in the

public school context where attendance is mandatory."). The

observation that religious coercion has no place in our system

of separated church and state, however, does not mean that

Establishment Clause plaintiffs must always allege and prove

coercion. Indeed, as Justice O’Connor observed in the

Allegheny case, a rule of law that "fails to take account of the

numerous more subtle ways that government can show

favoritism to particular beliefs or convey a message of

disapproval to others, would not . . . adequately protect the

religious liberty or respect the religious diversity of the

members of our pluralistic political community." Allegheny,

492 U.S. at 627-28 (O’Connor, J., concurring in part and

concurring in the judgment, joined by Brennan and Stevens,

JJ.)

In any event, Ms. Bauchman presented considerable

evidence that Mr. Torgerson’s religious agenda was coercively

ee aN TREE RENT TE

16

imposed.* Her ability to excuse herself from choir (i.e.,

because the class was elective and because she was given the

option of sitting out of religious programs while still receiving

an A) cannot as a matter of law wipe out the improper

purpose and effect of Mr. Torgerson’s proselytism.

Permitting the excusal option to negate Establishment Clause

violations effectively amounts to a rule that individual school

teachers and the school systems may preach and proselytize in

class, so long as the classes are elective. This is, of course,

flatly inconsistent with the rulings in Edwards v. Aguillard,

482 U.S. 578 (1987), and Grand Rapids v. Ball, 473 U.S.

373 (1985). In both of these cases, the Court made it clear

that religious activities on public school premises from which

students may excuse themselves are — despite the excusal

option — impermissible.”

Moreover, as Justice Brennan’s detailed concurrence in

Schempp explains, the excusal option does not remedy the

Establishment Clause problem in the public school systems

precisely because school children in particular are highly

susceptible to peer group pressure where important norms and

values are involved. Abington School District v. Schempp,

374 U.S. 203, 290-91 (1963). See also McCollum v. Board

of Education, 333 U.S. 203, 227 (1948) (Frankfurter, J.,

concurring) ("That a child is offered an alternative may reduce

9

> See, e.g., AC ¢ 16b (requiring prospective students to identify their

religion on class application forms); ¢ 16h (stating he disagreed with

Supreme Court decisions forbidding advocacy of religion in public

schools); € 16n (suggesting students who dislike prayer at graduation

should “plug their ears").

~ Portions of Ball were overruled last term, see Agostini v. Felton, 117

S. Ct. 1997 (1997), but the jurisprudential evolution in question involved

the extent to which "Shared Time" programs constitute aid in furtherance

of religion. The excusal option was not at issue.

17

the constraint; it does not eliminate the operation of influence

by the school in matters sacred to conscience and outside the

school’s domain. The law of imitation operates, and non-

conformity is not an outstanding characteristic of children.").

C. THE TENTH CIRCUIT DECISION, IF ALLOWED

TO STAND, WILL MAKE COMPLIANCE WITH

THE LAW MORE DIFFICULT FOR THE AMICI.

1. As a matter of principle, the wall of separation

between church and state should be impenetrable

in the public schools.

Any intrusion of church into the public schools is

inconsistent with the basic mission of the public school

system. Public education is designed to prepare the young for

fully-educated participation in the civic democracy, to educate

them in secular and worldly subjects, so that they may make

informed decisions as adults. See Everson v. Board of

Education, 330 U.S. 1, 23-24 (1947) (Jackson, J., dissenting)

(noting that the public schools are organized "on the premise

that secular education can be isolated from all religious

teaching so that the school can impart all needed temporal

knowledge and also maintain a strict and lofty neutrality as to

religion" and that "[t]he assumption is that after the individual

has been instructed in worldly wisdom he will be better fitted

to choose his religion"). These goals cannot be effectuated if

the school system has become a machine for the advancement

of particular religions, or if internal strife and division along

religious lines has become a primary feature of the classroom.

See Schempp, 374 U.S. at 241-42 (Brennan, J., concurring)

(noting that “the public schools serve a uniquely public

function: the training of American citizens in an atmosphere

free of parochial, divisive, or separatist influence of any sort

— an atmosphere in which children may assimilate a heritage

common to all American groups and religions").

18

Further, intrusion of church into the public schools is

particularly problematic given the unique susceptibility of

children and adolescents to peer pressure when social norms

are involved. Indeed, this fact exacerbates and magnifies the

possibility of violations of religious liberty and the possibility

of coercion. This Court has consistently and correctly

recognized that children and adolescents are uniquely subject

to the influence of teachers, administrators, and other

students. They are particularly vulnerable to policies

exhibiting a preference for one religion or another. See Bail,

473 U.S. at 390 ("The symbolism of a union betweem church

and state is most likely to influence children of tender years,

whose experience is limited and whose beliefs consequently

are the function of environment as much as of free and

voluntary choice."). The risk of undue influence warrants

especial vigilance on the part of educators and on the part of

the courts regarding any practice that might plausibly be

unconstitutional.

2. As a practical matter as well, the wall of

separation between church and state should be

impenetrable in the public schools, and the ban on

proselytism should be absolute.

Court decisions that permit "some" intrusion of religion,

on a complicated set of facts, leave the door open for

considerable disagreement at the student, school, school

board, parent, and community level about "what else is

permissible." Thus, for instance, if the same facts were to

arise in a different high school in the Tenth Circuit, subject to

just slightly nuanced variation — for example, all of the same

alleged facts plus the choir’s adoption of "The Lord Bless You

And Keep You" as a "theme song"; or all of the same alleged

facts minus the covert religious tour but plus the assignment

of even more contemporary religious pop songs; or all of the

same facts and also choir class being mandatory for all

19

students — amici would find themselves with conflicting

obligations and responsibilities. They would be forced to

predict the results of a lawsuit brought by a dissenting student,

in the wake of unstable Tenth Circuit precedent clearly out of

line with the Supreme Court precedent, while balancing

(a) the need to protect students from harassment with (b) the

need to ensure education is well-rounded and complete and (c)

the need to protect the academic freedom of teachers and

respond fairly to the requests of the community regarding

curricular and extra-curricular decisions. How, in the wake

of the Bauchman decision, could the amici effectively assess

any of the three examples above?

Amici have specific responsibilities with respect to

religious freedom and the church-state clauses. These include

intervening in teacher-on-student or student-on-student

coercive situations, maintaining a constant alert for

proselytism, warding off conflict or strife on the basis of

religious belief within the school (and within the community

regarding the school), and maintaining a constant alert for

harassment of and discrimination- against students in a

religious minority. Amici submit that ambiguities and

fragmentation in the Court’s Establishment Clause cases

permit wildcard decisions like Bauchman, and leave school

teachers and administrators without guidance in matters of

religion. Reversal of the Tenth Circuit decision and

clarification of the controlling Establishment Clause law are

seriously needed.

“ The Tenth Circuit precedent is particularly unstable given the split

panel and the subsequent evenly-divided vote on Petitioner’s request for

rehearing. Amici have little confidence that Bauchman lays out a reliable

"rule of law" for even the Tenth Circuit.

20

CONCLUSION

The Court should grant the writ of certiorari because

the case was decided wrongly, because the Court’s

Establishment Clause jurisprudence is in need of

clarification if it is to provide guidance to the lower courts

and to public school teachers and administrators, and

because maintaining the wall of separation is vital in the

public school system.

Respectfully submitted,

DAVID B. ISBELL

Counsel of Record

ERIKA F. KING

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 662-6000

Counsel for Amici

May 29, 1998