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

Supreme Court, U.s

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| WAY 29 1995

No. 97-1764

CUT ;

piel

IN THE

qc

Dupreme Court of the United States

JUCTOBER TERM, 1997

RACHEL BAUCHMAN,

Pentic mer,

WEST HIGH SCHOOL, ef ai..

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUTI

BRIEF OF PRESBYTERIAN CHURCH (U.S.A.),

ET AL., AS AMICI CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

Colby A. Smith

Counsel of Record

Peter Johnson

DEBEVOISE & PLIMPTON

555 13th Street, N.W

Washington, D.C. 20004

(202) 383-8000

Counsel for Amici Cuntae

(Complete Listing of Amici Curiae

May 29, 1998 ppears on the Inside Front Cover)

Listing of Amict Curiae Submitting

this Bnef in Support of Rachel Bauchman’s

Jorn oT {prt rr

Petition for a Wnt of Certioran

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

Union of American Hebrew Congregations

Hadassah

Jewish Council for Public Affairs

Jewish Reconstructionist Federation

National Council of Jewish Women

National Organization for Women Foundation

TABLE OF CONTENTS

PAGE

eRGe Ca MCE GCUMEO 6 ou ks od we ee oe abe |

ier resis ot dls ce coo dee ag SO ey ee 2

ARGUMENT IN SUPPORT OF GRANTING

THE PETITION FOR A WRIT OF CERTIORARI 5

. THE TENTH CIRCUIT DEPARTED FROM THIS COURT'S

PURPOSE ANALYSIS, CONSTRUCTING ITS OWN, AD Hoc.

REQUIREMENTS FOR PLEADING AN IMPROPER PURPOSE

UNDER THE ESTABLISHMENT CLAUSE ............. 5

{l. THE TENTH CIRCUIT DEPARTED FROM THIS COURT'S

EFFECTS ANALYSIS, CONSTRUCTING ITS OWN, AD Hoc,

REQUIREMENTS FOR PLEADING AN IMPERMISSIBLE EFFECT

UNDER THE ESTABLISHMENT CLAUSE

Ill. THE TENTH CIRCUIT DEPARTED FROM THIS COURT'S

ENTANGLEMENT ANALYSIS, CONSTRUCTING ITS OWN, AD

Hoc, REQUIREMENTS FOR PLEADING AN EXCESSIVE

ENTANGLEMENT UNDER THE ESTABLISHMENT CLAUSE . 13

CONCLUSION

“-

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

tg Ree gs: ree, ey ert se a 5 ie

American Civil Liberties Union of New Jersey Vv.

Black Horse Pike Regional Board of Education,

OS Fe Pere eras Ph oo 5 vo eee eee 13

American Civil Liberties Union of New Jersey v. Schundler,

ei 8g Lt ee Se ee ne 13

Bauchman v. West High School,

132 F.2d 542 (10th Cir. 1997)

Serre eee ee passim

Bauchman v. West High School,

Fao t. . Fe A Se bo ain ene een es 14, 15

Board of Education of Kiryas Joel Village School

District v. Grumet,

ER el! Eee rer rer er Per Ce fae 5

Capitol Square Review and Advisory Board v. Pinette,

RS DAS. rae. ow hb aoe eee 9.11

Committee for Public Education and Religious

Liberty v. Nyquist,

SIS BS. TO 66 sk te Ses ae eee 13

County of Allegheny v. American Civil Liberties Union,

492 U.S. 573 (1989) ...... i rea eN 3, 4, 8,9, 10, 11, 12

Crawford-El v. Britton,

66 U.S.L.W. 4311 (May 4, 1998)

iil

Edwards v. Aguillard,

I i 6,8

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit,

BRP GRERE SS SGN RSS oe a Gc Ri ere 7

Lee v. Weisman,

NN: eee 4, 10, 16

Lemon v. Kurtzman,

IR gO cg Sa Jac ay passim

Lynch v. Donnelly,

SI REI oF. geet Se Sie 4, 13, 16

School District of Abingdon Township v. Schempp,

I I ee 8, 15

School District of Grand Rapids v. Ball.

I I SS oc ation “10

Stone v. Graham,

BRET MG en ai ar ni eel es i 6,8

Wallace v. Jaffree,

I os ee 2,6, 8

West Virginia Board of Education v. Barnette,

A i 6

Constitutional Provisions

U.S. Const. amend. | 3

No. 97-1764

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 PRESBYTERIAN CHURCH (U.S.A.),

ET AL., AS AMICI CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

INTEREST OF AMICI CURIAE

Amici represent two broad assemblages of groups whose

interests in this case are two sides of the same coin - mainstream

church organizations and organizations whose mission is to oppose

discrimination, including discrimination based upon religion.! Each

1. The consents of the parties to the filing of this brief have been submitted

contemporaneously to the Clerk of the Court. The amici have prepared this

brief in support of Ms. Bauchman’s Petition without the substantive or

financial help of any party. No counsel for any party authored the brief in

whole or in part, and no person or entity other than amici, their members or

their counsel made a monetary contribution to the preparation or submission

(continued...)

5

~

amicus believes strongly in preserving religious freedom and in the

Constitutionally mandated separation of church and state - especially

in the field of public education. Amici support Rachel Bauchman’s

petition for a writ of certiorari because the Tenth Circuit has

improperly construed this Court’s precedents to be so muddled and

unclear that they provide no meaningful guidance to the courts of

appeals. As a result, the Tenth Circuit applied an Gd hoc analysis that

renders the Establishment Clause so amorphous as to undermine its

efficacy. The Tenth Circuit's ruling presents a danger to mainstream

religions wherever they find themselves a local minority, and a similar

danger to minority groups everywhere. Individual statements of

interest for each of the amici curiae are collected in an Appendix to

this brief.

SUMMARY OF ARGUMENT

In Wallace v. Jaffree, Justice Powell warned that continued

criticism of this Court's Establishment Clause jurisprudence “could

encourage other courts to feel free to decide Establishment Clause

cases on an ad hoc basis.” 472 U.S. 38, 63 (1985) (Powell, J.,

concurring). The Presbyterian Church (U.S.A.), the United Church

Board for Homeland Ministries of the United Church of Christ, the

American Jewish Committee, the Anu-Defamation League, the

General Conference of Seventh-Day Adventists, the Union of

American Hebrew Congregations, Hadassah, the Jewish Council for

Public Affairs, the Jewish Reconstructionist Federation, the National

Council of Jewish Women and the National Organization for Women

Foundation, aS amici curiae, urge this Court to grant Rachel

Bauchman’s petition for a writ of certiorari not only for the reasons

set forth in Ms. Bauchman’s petition, but also because the opinions of

the United States Court of Appeals for the Tenth Circuit and the

United States District Court for the District of Utah have, as Justice

Powell predicted, cast aside this Court’s three-pronged Establishment

Clause analysis in Lemon v. Kurtzman, 403 U.S. 602 (1971), and

1. (...continued)

of the bref

3

replaced it with an ad hoc, “I know it when I see it,” standard for

assessing Ms. Bauchman’s claims.

The Tenth Circuit Court of Appeals, in particular, openly

expressed its disdain for this Court's Establishment Clause

jurisprudence, which it called “muddled.” “unworkable” and of “no

useful guidance.” Bauchman v. West High School, 132 F.2d 542,

551-52 (10th Cir. 1997). As a result, although the Tenth Circuit

nominally structured its analysis around the “purpose,” “effects” and

“entanglement” prongs of the Lemon framework, its analysis under

each prong departed dramatically from the manner in which this Court

has applied that framework.

First, in applying the “purpose” prong of the Lemon analysis,

the Tenth Circuit ignored numerous allegations that provided

circumstantial support for Ms. Bauchman’s claim that the Salt Lake

City School District and one of its teachers had the actual purpose of

favoring one religious belief over another. See County of Allegheny

v. ACLU, 492 U.S. 573, 592-93 (1989). Instead. the Tenth Circuit

fashioned a new requirement that the purpose analysis must be

supported by “concrete manifestations of intent” that are “temporally

connected to the challenged activity.” 132 F.3d at 560. That

requirement is not supported by this Court’s Establishment Clause

Cases, especially where the issue is the purpose of a teacher's

improper conduct in public school classes attended by impressionable

high school students. Moreover, the standard used by the Tenth

Circuit provides would-be violators of the Establishment Clause with

a virtual road map for committing such violations while avoiding any

legal prohibition, simply by avoiding direct statements about the

purpose of his or her actions at or around the time those actions

occur.

Second, in applying the “effects” prong of the Lemon analysis,

the Tenth Circuit did not assess whether the actions of school Officials

and Ms. Bauchman’s teacher had the effect of advancing or inhibiting

religion. In the past, this Court has used the effects analysis to assess

activities that seemingly advance or inhibit religion, to determine

4

whether they may have “largely lost their religious significance over

ume,” County of Allegheny v. ACLU, 492 U.S. at 631, or may be

such that “a reasonable dissenter in this milieu could believe that the

group exercise [did not] signif|y] her own participation or approval”

of religion, Lee v. Weisman, 505 U.S. 577, 593 (1992). The Tenth

Circuit, in contrast, applied an effects analysis that asked whether an

observer steeped in local culture and history, and knowing that the

Church of Jesus Christ of Latter Day Saints (the “LDS Church” or

the “Mormons”) comprised a majority of the local population, would

be surprised by the alleged activities. This application of the effects

standard virtually excludes consideration of minority interests from

Establishment Clause analysis, instead giving prominence to the

history, culture and context of a community’s religious majority.

Third, in applying the “entanglement” prong of the Lemon

analysis, the Tenth Circuit ignored Ms. Bauchman’s allegations of

religious strife resulting from the school’s actions - allegations that,

if proven at trial, would allow a fact-finder to determine that West

High School has become excessively entangled with the community's

religious institutions. See Agostini v. Felton, 117 S. Ct. 1997, 2015

(1997); Lynch v. Donnelly, 465 U.S. 668, 689 (1983) (O’Connor, J.

concurring). The Tenth Circuit instead limited its “entanglement”

analysis to “circumstances in which the state is involving itself with a

recognized religious activity or institution.” 132 F.3d at 556. This

limitation allowed the Tenth Circuit to ignore Ms. Bauchman’s

allegations of religious strife and uphold the District Court's decision

to deny Ms. Bauchman leave to amend her complaint.

The Tenth Circuit's truncated interpretation of each of the three

prongs of this Court's Lemon framework departed from and

significantly narrowed the application of this Court’s Establishment

Clause jurisprudence. The Tenth Circuit misused the complexities

presented by this Court’s Establishment Clause cases as license to

conduct its own ad hoc analysis. Lemon, however, still provides the

general principles that guide Establishment Clause analysis, see

Agostini v. Felton, 117 S. Ct. at 2010, and remains this Court's only

framework for assessing government action under the Establishment

5

Clause. Although that framework may have become somewhat

“distorted” over the years, Board of Educ. of Kiryas Joel Village Sch.

Dist. v. Grumet, 512 U.S. 687, 721 (1994) (O’Connor, J., concurring

in part and concurring in the judgment), the Tenth Circuit and the

other Courts of Appeals should not be allowed to abandon the Lemon

framework in favor of an amorphous, ad hoc assessment of

government action. The Court should grant Ms. Bauchman’s petition

for a writ of certiorari to send a clear message to the Courts of

Appeals and the District Courts that such ad hoc analyses are

improper - especially where they result in a narrowing of

Establishment Clause protection for students in the nation’s primary

and secondary schools. The posture of this case, arriving at this

Court upon a denial of leave to amend that presents purely legal

questions wholly divorced from any legitimate controversy over the

facts alleged, provides a particularly appropriate opportunity for the

Court to clarify the legal structure of a proper Establishment Clause

analysis.

ARGUMENT IN SUPPORT OF GRANTING

THE PETITION FOR A WRIT OF CERTIORARI

THE TENTH CIRCUIT DEPARTED FROM THIS COURT’S

PURPOSE ANALYSIS, CONSTRUCTING ITS OWN, AD Hoc,

REQUIREMENTS FOR PLEADING AN IMPROPER PURPOSE

UNDER THE ESTABLISHMENT CLAUSE.

In Lemon v. Kurtzman, this Court ruled that a government-

sponsored program must have a secular purpose in order to be valid

under the Establishment Clause. 403 U.S. at 612-13. Last Term the

Court reaffirmed the “general principles” underlying Lemon and

Stated in particular that the Court “continue[s] to ask whether the

government acted with the purpose of advancing or inhibiting

religion.” Agostini v. Felton, 117 §. Ct. at 1997. The Court

reaffirmed that “the nature of [the purpose] inquiry has remained

largely unchanged.” /d.

6

In recent years, the Court has referred to the “actual” purpose

of the government actors as the critical component of this analysis.

See, e.g., Edwards v. Aguillard, 482 U.S. 578, 585 (1987); Wallace

v. Jaffree, 472 U.S. 38, 56 (1985). “This secular purpose must be

‘sincere’; a law will not pass constitutional muster if the secular

purpose articulated by the legislature is a ‘sham.*” Wallace v.

Jaffree, 472 U.S. at 64 (Powell, J., concurring); accord Stone v.

Graham, 449 U.S. 39, 41 (1980) (per curiam) (“[A]n ‘avowed’

secular purpose is not sufficient to avoid conflict with the First

Amendment. ”).

In the field of public education, this Court has expressed the

need for particular vigilance so 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.” Edwards v. Aguillard,

482 U.S. at 584. The Court has characterized the need for vigilance

in this area as part of the bond of trust between the families of public

school students and the school system that provides family members

with their education. See id. “That [Boards of Education] are

educating the young for citizenship is reason for scrupulous protection

of Constitutional freedoms of the individual, if we are not to strangle

the free mind at its source and teach youth to discount important

principles of our government as mere platitudes.” West Virginia Bd.

of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

Rachel Bauchman’s complaints clearly allege actions that

evidence a purpose by school authorities in Salt Lake City to advance

the Mormon religion: Richard Torgerson, the teacher of Ms.

Bauchman’s Choir Class, engaged past Choir Classes in religious

worship services, often at religious sites; had the Choir Class attended

by Ms. Bauchman practice almost exclusively religious songs; and, in

order to escape detection of what he knew was improper, sought to

organize Certain class members covertly in order to continue those

past practices. [See Amended Complaint (“A.C.”) | 17(g);

Complaint (“C.”) {4 32, 34.] Torgerson allegedly advocated the

Mormon religion in class, while stating he knew the law forbade him

to do so. [See A.C. ¢ 16(h), (n), (0).] He asked his class to “accept”

7

the religious message of the songs he assigned. [See id. { 16(1).]

Torgerson also led the Choir Class in prayer and caused it to

Participate in religious services on a number of occasions. [See id.

{ 16(e), (f), (k); see also C. ¢ 32.] All of these allegations support

Ms. Bauchman’s claim that Torgerson’s purpose, and the purpose of

the School officials who allowed him to continue these practices, was

to promote religion in public high school classes.

In analyzing Ms. Bauchman’s allegations, however, the Tenth

Circuit cast aside all allegations related to prior conduct as irrelevant

to the purpose inquiry and said the remaining allegations failed to

satisfy the Tenth Circuit's newly-minted requirement of “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.” 132 F.3d

at 560.7 The Tenth Circuit could not cite any of this Court’s cases -

or any Cases ~ that provided support for this new standard. In fact,

the Tenth Circuit acknowledged that its purpose analysis did not even

attempt to implement this Court's teachings on the subject:

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

te

In addition to applying the wrong legal standard, the Tenth Circuit also

required Ms. Bauchman to plead her claims with a degree of specificity that

this Court has said is not necessary to the assertion of a Constitutional or civil

rights claim. See Leatherman vy. Tarrant Cty. Narcotics Intelligence and

Coordination Unit, 507 U.S. 163. 168 (1993) (rejecting heightened pleading

Standard inconsistent with “notice pleading” standard of Fed. R. Civ. P.

8(a)); see also Crawford-El v. Britton, 66 U.S.L.W. 4311, 4316-17 (May 4,

1998) (rejecting heightened procedural standards for Constitutional claims

that require proof of an improper purpose). Even if the Tenth Circuit had

applied the proper substantive standards. their application of the wrong

pleading standards alone would warrant the grant of Ms. Bauchman’s

petiuon.

8

conduct goes against the grain of religious liberty the

Establishment Clause is intended to protect.

132 F.3d at 552.

The Tenth Circuit’s new standard casts aside the veil that

separates the classroom from the sanctuary and instead openly grants

public schools permission to advance religion, so long as the

Statements advancing religion are not accompanied by a

contemporaneous and explicit admission that they are made for that

purpose. Under the Tenth Circuit's standard, evidence that a

purported secular purpose was not “sincere” or that it was a “sham,”

see Wallace v. Jaffree, 472 U.S. at 64 (Powell, J., concurring); id. at

75-76 (O'Connor, J., concurring), is irrelevant to the purpose inquiry,

unless the evidence is contemporaneous with the government actions

that allegedly supported religion. The Tenth Circuit's standard flouts

this Court’s rulings in a number of cases where government action

was ruled unconstitutional, despite contemporaneous statements that

the purpose of the action was secular. See, e.g., County of Allegheny

v. ACLU, 492 U.S. at 601 (nature and context of créche overrode

Stated secular purpose of celebrating Christmas as a “national

holiday”); Edwards v. Aguillard, 482 U.S. at 590-94 (Louisiana

Legislature’s stated purpose of ; romoting academic freedom in linking

evolutionary theory and creationism was found unpersuasive, given

history of religious purpose for similar prior enactments); Wallace v.

Jaffree, 472 U.S. at 57-61 (legislative history confirmed religious

purpose of statute requiring one minute for meditation or voluntary

prayer); Stone v. Graham, 449 U.S. at 40-42 (Kentucky Legislature's

“avowed” secular purpose for posting Ten Commandments in a public

school was not sufficient to avoid conflict with Establishment Clause);

School Dist. of Abingdon Twp. v. Schempp, 374 U.S. 203, 223-24

(1963) (Court looked beyond stated secular purpose in scrutinizing

Bible readings at the opening of the school day, considering, among

other things, the manner in which the individual school administrators

carried out the legislative mandate).

9

If it is allowed to stand without substantive review by this

Court, the Tenth Circuit’s ruling will have the insidious effect of

permitting the advancement of religion in public schools in all but the

most narrow of cases where government actors are brash enough to

announce that their purpose is to promote religion. Apart from

rendering the “purpose” analysis of Lemon a virtual nullity, the Tenth

Circuit’s analysis provides a road map for public school teachers to

convert their lectern into a pulpit, so long as they do not

simultaneously admit that their purpose is to promote or endorse

religion. Such an analysis cannot be consistent with this Court's

precedents or, indeed, with the very provisions and historical

underpinnings of the Establishment Clause itself.

THE TENTH CIRCUIT DEPARTED FROM THIS

COURT’S EFFECTS ANALYSIS, CONSTRUCTING ITS Own,

AD HOC, REQUIREMENTS FOR PLEADING AN IMPERMISSIBLE

EFFECT UNDER THE ESTABLISHMENT CLAUSE.

In determining whether government action has the effect of

advancing or inhibiting religion, see Lemon v. Kurtzman. 403 U.S. at

612, this Court has several times asked whether a “reasonable

observer . . . aware of the history and context of the community and

forum,” would conclude that “a challenged governmental practice

conveys a message of endorsement of religion,” County of Allegheny

v. ACLU, 492 U.S. at 630: accord Capitol Square Review and

Advisory Bd. v. Pinette, 115 S. Ct. 2440. 2455-56 (1995) (O'Connor,

J., concurring in part and concurring in the judgment).

The “reasonable observer” test asks whether a person having

the general characteristics of the plaintiff and an appropriate

awareness of history and context would see the challenged practices

as having the effect of establishing either a particular religion or

religion in general. In particular, the Court has used the “reasonable

observer” test to ask whether practices that seem at first glance to

endorse religion, do not do so because a reasonable observer would

10

conclude that they “have largely lost their religious significance over

time.” County of Allegheny v. ACLU, 492 U.S. at 631 (holding that

a lone créche at Christmas in a courthouse had zor lost its religious

significance). Furthermore, in examining the perceptions of school-

age children as to whether a particular practice constituted an

establishment of religion, the Court has looked to whether, “given our

social conventions, a reasonable dissenter in this milieu could believe

that the group exercise signified her own participation or approval of

it.” Lee v. Weisman, 505 U.S. 577, 593 (1992).

As with the purpose prong, this Court has shown particular

sensitivity to the impressionable nature of school-age children.

“There are heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the elementary and

secondary public schools.” Lee v. Weisman, 505 U.S. at 592; accord

School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 383 (1985) (“The

government's activities in this area can have a magnified impact on

impressionable young minds... .”).

Ms. Bauchman’s complaints allege nat her public high school

teacher, with the acquiescence of school authorities, sought to limit

the choir class to Mormon students, [see A.C. 4 16(d)]; sought to

restrict class tours to Mormon students, [see A.C. ¢ 17(g); C. 4 34]:

prayed with and over students, (see A.C. { 16(k)]; forced students to

attend Mormon worship services, [see A. C. 4 16(b); C. 44 23-26,

32]; belittled religious minorities, [see A. C. ¢ 17(i), (k)]; used the

religious content of assigned songs to preach Mormonism, [see A.C.

§ 16(g); C. ¢ 19]; stated his intention to continue such advocacy

despite knowing he was violating the Constitutional rights of class

members, [A.C. ¢ 16(0)]; and sought to isolate minority students from

class participation, rather than accommodating them [see A.C.

17(e)].

The Court of Appeals ruled that this conduct did not have the

effect of endorsing the Mormon religion, because “a reasonable

observer aware of the purpose, context and history of public education

in Salt Lake City, including the historical tension between the

1]

government and the Mormon Church,” would not conclude that the

alleged actions had “a principle or primary effect of endorsing

religion.” 132 F.3d at 555-56. According to this analysis, a

“reasonable observer” might (7) examine the history and context of a

community ’s dominant religion, (ii) decide how much of that religion

he or she could reasonably expect to seep into civic and governmental

matters, and (iit) test the challenged practice against that threshold

expectation.

The Tenth Circuit's analysis turns the Lemon test’s effects

prong on its head by taking a small piece of this Court’s reasonable

observer analysis (awareness of history and context) and allowing it

to become the analysis itself. While the Tenth Circuit's allusions to

the “unique history” of the Mormon religion in the “community ,

culture and heritage” are somewhat opaque, the Court of Appeals

appears to have converted an awareness of history that would be

reasonable for an observer standing in Ms. Bauchman’s shoes into a

perspective so sweeping as to permit a dominant religion to dominate

every aspect of the community, including the public elementary and

secondary schools. The Tenth Circuit did not attempt to analyze

whether the religious songs that the choir allegedly sings, the religious

venues at which it allegedly performs, or the Mormon prayers their

teacher allegedly recited had “lost their religious significance over

time.” County of Allegheny v. ACLU, 492 U.S. at 631. Nor did it

attempt to determine whether the singing of religious songs at

religious venues would be interpreted by a reasonable observer as

something other than government endorsement of religion. See

Capitol Square Review and Advisory Bd. v. Pinette, 115 S. Ct. at

2456 (O'Connor, J. concurring in part and concurring in the

judgment) (finding that a Christian cross placed by a private

organization in a state-owned square would not strike a reasonable

observer as government endorsement, because of the Square's history

as a forum for private expression). Utterly absent from the Tenth

Circuit's analysis is any vestige of asking what the effects on a school-

age child would be of the overt government action in a government-

controlled forum like the school in this case.

12

In stark contrast with the Tenth Circuit's analysis, this Court's

“reasonable observer” has never found conduct that is overtly

religious and plainly government-sponsored to be permissible simply

because it is consistent with the “community’s culture and heritage.”

In fact, the Court has said just the opposite. See County of Allegheny

v. ACLU, 492 U.S. at 603 (“[H]istory cannot legitimate practices that

demonstrate the government’s allegiance to a particular sect or

creed.”); see also id. at 630 (O’Connor, J., concurring in part and

concurring in the judgment) (reasonable observer is not required to

suffer or forgive a government-endorsed religious practice “by virtue

of [its] historical longevity alone”). The approach adopted by the

Tenth Circuit in this case potentially exempts any action that the

community has come to expect because of a particular religion's

historical dominance of local culture and heritage. As a result, it

requires “any given . . . observer's individual experiences and

spiritual beliefs” to yield to “the community’s [religious and

nonreligious] culture and heritage.” 132 F.3d at 555.

The potential effect of the Tenth Circuit’s analysis is truly

devastating. It could require religious minorities everywhere to defer

to state endorsement of majority religious practices where that

endorsement historically has gone unchallenged. Furthermore, it

would allow a majority religion a certain leeway in public affairs

wherever it could demonstrate “historical” roots in a “community's

culture and heritage” and “historical tension” between itself and the

government. See id. A “reasonable observer,” for instance, aware

of the history of the Quakers in southeastern Pennsylvania, would

expect a certain amount of Quaker religious doctrine to invade the

public schools there. Judaism would be allowed to dominate public

education in certain parts of Brooklyn, while Baptists would hold sway

in Rhode Island, Southern Baptists in Arkansas, Catholics in New

Orleans, and Mennonites in the Upper Shenandoah Valley. Maryland

schools would demonstrate a Catholic heritage while Methodists

would rule in Ohio and Lutherans in parts of Minnesota. The country

would Balkanize along majority-religious lines and minority children

would have no choice but to be inculcated in the majority religion

wherever they went to school.

13

‘ This Court has never condoned using the “reasonable observer”

: analysis to allow state promotion of religion simply because the

religion has been historically dominant and the promotion has gone

historically unchallenged. Yet, uncertainty as to the role of history in

Establishment Clause jurisprudence has led to inconsistent rules of

decision, even within individual federal circuits. Compare American

Civil Liberties Union of New Jersey v. Black Horse Pike Rey. Bd. of

Educ. , 84 F.3d 1471, 1486 (3d Cir. 1996) (“history and ubiquity” are

relevant to the context in which a reasonable observer evaluates a

possible endorsement of religion) with American Civil Liberties Union

of New Jersey v. Schundler, 104 F.3d 1435, 1448 (3d Cir. 1997)

(declining to impute a sense of a community’s history to a reasonable

observer). Certiorari should therefore be granted to determine the

scope and manner of accounting for “history and context” in

Establishment Clause analysis. Failure to address this important

question would be to abandon this Court's specific “reasonable

observer” standard and to replace it with an utterly amorphous and

uncertain case-by-case accommodation of “history and context.”

II.

THE TENTH CIRCUIT DEPARTED FROM THIS COURT’S

ENTANGLEMENT ANALYSIS, CONSTRUCTING ITS OWN, AD HOC,

REQUIREMENTS FOR PLEADING AN EXCESSIVE ENTANGLEMENT

UNDER THE ESTABLISHMENT CLAUSE.

In determining whether state action excessively entangles

government with religion, this Court historically has analyzed whether

political or other conflict along religious lines has arisen in connection

with the complained-of action. See Committee for Pub. Educ. and

Religious Liberty v. Nyquist, 413 U.S. 756, 795-96 (1973); Lemon vy.

Kurtzman, 403 U.S. at 622. More recently, the Court has limited its

analysis to the relationship between government and religious

institutions. See Agostini v. Felton, 117 S. Ct. at 2015. In this

context, political or other conflict constitutes evidence of

governmental entanglement with religious institutions. See Lynch v.

Donnelly, 465 U.S. at 689 (O'Connor, J., concurring).

ES eo

14

In her complaints, Ms. Bauchman has alleged numerous

examples of the kind of inter-faith strife, resulting from the actions of

school authorities, that provides evidence that the school system has

become overly identified and entangled with particular religious

institutions. For instance, many students besides Ms. Bauchman

complained of the Choir’s participation in religious services, [see

A.C. ¢ 16(0)]; Torgerson excluded dissenting students, including Ms.

Bauchman, from a covert Special Tour he tried to assemble, [see

A.C. 17(g)-(h); C., 447], and attempted to “limit the Choir Class

to members of [the LDS Church],” [A.C. ¢ 16(d); see also C. ¥ 47].

In a Choir Class lecture, Torgerson “directed the attention of the

Choir Class to the fact that Rachel is a Jew” and encouraged her

“ridicule and ostracism” by fellow students. [A.C. ¢ 17(k); see also

C.¢ 36.] Most egregiously, Torgerson initiated a campaign among

parents and students to “punish and ostracize those who disagreed

with his advocacy of religion.” [A.C. ¢ 17(d); see also C. 44 39-42.]

As described by the district court,

Upon receipt of a letter from plaintiff's father, Eric Bauchman,

detailing plaintiff's constitutional claims, Torgerson forwarded

the letter to Preston Naylor, the father of another member of

the choir. Torgerson’s purpose in forwarding the letter was to

assist Mr. Naylor in publicizing the letter and the Bauchman’s

views, allegedly to engender hostility against plaintiff. The

private letter from Mr. Bauchman was, in fact, publicly

distributed as an attachment to a letter from Mr. Naylor to choir

students’ parents that criticized plaintiff and her parents for

asserting plaintiff's constitutional claims. Plaintiff asserts that

distribution of Mr. Bauchman’s letter resulted in her being

subjected to public humiliation and hostility.

Bauchman v. West High School, 900 F. Supp. 254, 261 (D. Utah

1996). Bauchman’s complaints also alleged her subjection to explicit

religious epithets from other students, such as “Jew bitch.” [A.C.

4 37; see C. 44 36-52.] The divisiveness culminated at Bauchman’s

high school graduation ceremony when, notwithstanding an order

from the Tenth Circuit enjoining performance of a particular religious

15

song, and as school teachers and administrators sat by, the song was

performed by members of the choir and the audience, as Bauchman

left the auditorium in tears. See 900 F. Supp. at 262.

This degree of civil strife certainly provides ample evidence that

Mr. Torgerson, with the acquiescence of school officials, allowed his

high school lectern to become a pulpit from which to promote the

religious institutions in which he believes. Such proselytizing in a

public school, if left unchecked, inevitably leads to an excessive

entanglement of the school and the religious institutions being

promoted by the teacher. If Ms. Bauchman were allowed to prove

her allegations at trial, a reasonable fact-finder surely could find

excessive government entanglement.

In its truncated “entanglement” analysis, however, the Tenth

Circuit limited its examination “to circumstances in which the state is

involving itself with a recognized religious activity or institution.”

132 F.3d at 556. It then decided that having a public school class

participate in Mormon worship services, “alone” and “without more”

did not amount to government entanglement, see id. ignoring that

these activities were not alleged to have occurred “alone” and

“without more,” but amidst many other subtle and coercive uses of

State power by Mr. Torgerson. More significantly, the Tenth Circuit

completely ignored Ms. Bauchman’s allegations of resulting civil

strife - the key circumstantial evidence of excessive entanglement in

this case.

The Tenth Circuit's overly narrow analysis ignored the effect

on minorities that excess government entanglement in religion carries

with it. In case after case, confronted with government entanglement

in a majority religion, minority students like Ms. Bauchman are faced

with an unconstitutional choice: they may acquiesce in silence, as the

children did in School District of Abington Twp. v. Schempp, 374 U.S.

at 208 n.3 (children did not ask to be excused from daily prayers in

public school for fear of being “labeled as ‘odd balls’” or forced to

stand in the hallway during prayers, which “carried with it the

imputation of punishment for bad conduct” (internal quotation marks

16

omitted)), or they may speak up, as Ms. Bauchman did, and suffer,

with the acquiescence of school authorities, opprobrium, ridicule,

insults, slurs, oppression and exclusion. This is precisely the dilemma

from which this Court’s Establishment Clause jurisprudence seeks to

protect schoolchildren. See Lee v. Weisman, 505 U.S. at 593-95

(public schools may not “require[] participation in a religious

exercise” that “place objectors in the dilemma of participating . . . or

protesting”).

Justice Blackmun, concurring in Lee, summarized the potential

impact on students and others of excess government entanglement in

religion:

When the government puts its imprimatur on a particular

religion, it conveys a message of exclusion to all those who do

not adhere to the favored beliefs. A government cannot be

premised on the belief that all persons are created equal when

it asserts that God prefers some.

Id. at 606-607 (1992) (foomotes and citations omitted); see also Lynch

v. Donnelly, 465 U.S. at 688 (O’Connor, J., concurring) (government

“[{e]ndorsement sends a message to nonadherents that they are

outsiders, not full members of the political community”).

The Tenth Circuit, however, ignored the dilemma facing high

school students who are members of a religious minority and

fashioned its own, narrow entanglement analysis in which the only

question is whether West High School or its choir had directly

involved themselves in religious institutions. As a result, the Tenth

Circuit ignored Ms. Bauchman’s allegations of strife and division

along religious lines within the school community. Short of legislation

specifically adopting a state religion, one must wonder what, if

anything, a potential plaintiff could allege that would meet the Tenth

Circuit's extraordinary requirements.

17

CONCLUSION

Like other areas of Constitutional analysis, the Establishment

Clause gives rise to complex standards that must be applied by the

lower courts. Faced with such complexities, courts must not be

allowed simply to throw their hands in the air, declare the

jurisprudence confused and then apply their own ad hoc analyses.

Ms. Bauchman, as a member of a religious minority in Salt Lake

City, deserves a more thorough analysis, and the protection of the

Constitutional liberties of all of us demands that courts do the work

necessary to apply those complex standards in all cases. The petition

for a writ of certiorari should be granted.

Respectfully submitted,

Colby A. Smith

Counsel of Record

Peter Johnson

DEBEVOISE & PLIMPTON

555 13th Street, N.W.

Washington, D.C. 20004

(202) 383-8000

Counsel for Amici Curiae 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, Union of American Hebrew

Congregations, Hadassah, Jewish Council

for Public Affairs, Jewish Reconstructionist

Federation, National Council of Jewish

Women and National Organization of

Women Foundation