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

Supreme Court, U.S. Bs

2 a.. Soe

MAY 29 1998

No. 97-1764 CLERK

In The

Supreme Court of the United States

October Term, 1997

«

RACHEL BAUCHMAN,

Petitioner,

WEST HIGH SCHOOL, et al.,

Respondents.

>

On Petition For A Writ Of Certiorari

To The Tenth Circuit Court Of Appeals

¢

BRIEF OF

UNITARIAN UNIVERSALIST ASSOCIATION,

ET AL. AS AMICI CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI BY

PETITIONER RACHEL BAUCHMAN

+

Epwarp P. L&IBENSPERGER

Counsel of Record

KATHRYN K. CONDE

Nutter, McCiennen & Fish LLP

One International Place

Boston, MA 02110

(617) 439-2000

May 29, 1998

COCKLE LAW BRIEF PRINTING CO., (600) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Statement of Interest of Amici Curiae.............. 1

NE PUNRIINONE onc oS ncwi scawektieves cuss 2

Pee er ry eee 3

PE fp oak cect aad hs chek Vd edk 095 5ss Ss eddi ens 7

I. The Standard of Proof Adopted by the Tenth

Circuit Conflicts with the Analysis of Actual

Purpose Applied by this Court ............... 7

A. Circumstantial and Historical Evidence Are

Relevant to an Inquiry into the Govern-

ment’s Purpose Under the Court’s Estab-

a ge errr rrr ee ee 7

B. The Tenth Circuit Improperly Excluded Evi-

dence of Torgerson’s Subjective Intent... .. 10

Il. The Pleading Standard Adopted by the Tenth

Circuit Deprives Public School Students Chal-

lenging Religious Practices in the Schools of the

Ordinary Inferences Made on a Motion to Dis-

SOP ST EPO EE ECON PET TY EEE ECE EET ET TELT 13

III. The Policy Rationales Presented by the Tenth

Circuit to Justify the Heightened Standards of

Pleading and Proof Are Contrary to the Consti-

tutional Principle of Strict Enforcement of the

Establishment Clause in the Public Schools.... 17

ER SPER HG Fee Ere Pre ee nt Cae rae 20

ii

TABLE OF AUTHORITIES

CASES

Bauchman v. West High School, 132 F.3d 542 (1997)

ine Peay nbs Geen yanked weeniaees 10, 12, 14, 15, 17, 18

Bauchman v. West High School, No. 95-C-506G, 1996

WL 407856 (D. Utah May 30, 1996)............... 15

Conley & Geleen, 350 US. SE (USSF) oe occ cccccicscis 13

County of Allegheny v. American Civil Liberties

a rr re ee 7,9

Doe v. Duncanville Independent School District, 994

oe eS Ee et Serres rr tere 19

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

patikak« kes 44 bck ve cuekyaneauetmd 7, 8, 11, 12, 17, 18

Epperson v. Arkansas, 393 U.S. 97 (1968) ........... 8, 18

Hishon v. King & Spaulding, 467 U.S. 69 (1984)....... 13

Lee v. Weisman, 505 U.S. 577 (1992)....... 12. && i7, 18

Lynch v. Donnelly, 465 U.S. 668 (1983)......... 9, 11, 14

Neitzke v. Williams, 490 U.S. 319 (1989).............. 13

Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th

ee ene ree ste ead re 16

School District of Abington Township v. Schempp,

BP Sh IE SEN sna in ceuns vawekns Seeecdhiaas « 17

Stone v. Graham, 449 U.S. 39 (1980)................ 7, 15

Wallace v. Jaffree, 472 U.S. 38 (1985) ............... 9, 11

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624

CRO sh n5 nadnnsncd desinkeaietguscneeqshaneeunasen 20

ili

TABLE OF AUTHORITIES - Continued

Page

RULES AND REGULATIONS

ee RE ee a ee ee

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae,’ the Unitarian Universalist Association,

the American Humanist Association, Americans for Reli-

gious Liberty, the Council for Secular Humanism, the

Freedom to Learn Network, the American Ethical Union,

the American Association of University Women, and

Americans for Democratic Action are religious institu-

tions and civic and educational organizations dedicated

to preserving the strict separation of church and state.

Each amicus strongly endorses the idea that the separa-

tion of church and state is particularly important in our

public schools, which should be preserved as neutral

havens for secular education. Amici are submitting this

brief because the Tenth Circuit decision will leave public

schools susceptible to the risk of sectarian strife, subject

students to religious proselytization in the classroom and

substantially erode the wall of separation between church

and state. Each amicus has filed a separate statement of

interest attached in the appendix to this brief. Letters of

consent for the submission of this brief are filed herewith.

+

* Counsel for amici curiae authored this brief in its entirety.

No one other than amici curiae, their members, or their counsel

made a monetary contribution to the preparation or submission

of this brief.

SUMMARY OF ARGUMENT

Rachel Bauchman’s petition for a writ of a certiorari

involves a constitutional question which has serious ram-

ifications for the preservation of the fundamental princi-

ple of separation of church and state. In affirming the

dismissal of Bauchman’s Complaint by the district court,

the Tenth Circuit adopted standards of proof and plead-

ing for Establishment Clause claims which conflict with

the decisions of this Court and which impose unprece-

dented burdens on Establishment Clause claimants.

This narrowing of Establishment Clause jurispru-

dence is particularly important in the context of the pub-

lic schools, where there are heightened concerns about

the effect of religious advocacy on impressionable school

children. The new standards adopted by the Tenth Circuit

deprive public school students of a fair opportunity to

prove that a school policy or practice is motivated by a

purpose to advance religion since the standards exclude

from the court’s review all historical and circumstantial

evidence of intent. Such pleading standards are well

beyond the notice pleading requirements of the Federal

Rules of Civil Procedure.

Consequently, public school students in the Tenth

Circuit seeking to challenge religious proselytizing in the

schools will be subject to special burdens in bringing

their case to trial. Short of an express and contemporane-

ous admission of culpability by a school official, they will

not be able to do so. Amici believe that, allowed to stand,

the decision leaves public school classrooms subject to

the sectarian control of teachers and poses a threat to the

proper adjudication of Establishment Clause cases.

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STATEMENT OF THE CASE

At the time that this action was commenced, peti-

tioner Rachel Bauchman (“Bauchman”) was a public high

school student at the West High School in Salt Lake City,

Utah and a member of the West High School Choir

(“Choir”). In her original and Amended Complaints, Bau-

chman alleged that the choir director, Mr. Torgerson

(“Torgerson”), with the knowledge and consent of West

High School officials, routinely used the West High

School Choir as an instrument to promote his own reli-

gious views, proselytized students during class time, and

coerced choir members into participating in religious

activities as a part of their mandatory choir class require-

ments in violation of the Establishment Clause of the First

Amendment.

Bauchman’s Amended Complaint, and the evidence

presented from the strictly circumscribed discovery

allowed by the district court, document a nearly two-

decade long history of Torgerson’s classroom advocacy of

his religious beliefs. As early as 1977, Torgerson, then the

director of the South High School Choir in Salt Lake City,

began his practice of arranging for the public school choir

to perform at worship services for the Church of Jesus

Christ of Latter Day Saints (“LDS”) and at LDS religious

buildings as a part of the students’ mandatory class

requirements. Amended Complaint (“AC”) J 16(b); TCA

158.2

Torgerson continued to arrange performances at LDS

services on a regular basis as instructor of the West High

School Choir. AC J 16(e); TCA 159. During the perfor-

mances, the choir sang Christian religious songs, includ-

ing LDS hymns. AC { 16(f); TCA 159. Prayers and

sacraments were offered at the services, and on at least

one occasion, sacrament was passed among the LDS

Choir members and over the non-members. AC {¥ 16(b),

(f), (j); TCA 158-60. During these services, some of the

LDS Choir members stood and “bore their testimonies”

about the role of Jesus Christ in their life and their belief

that the LDS Church is the only true church. AC { 16(f);

TCA 159.

In addition to regular choir performances, Torgerson

scheduled several out-of-state tours where the choir per-

formed its repertoire of predominantly Christian music at

predominantly Christian religious venues. AC {{ 16(f),

(1); TCA 159, 161. The year before Bauchman joined the

choir, Torgerson conducted a spring concert tour in the

Pacific Northwest — the religious purpose of which was

unmistakable. To mark the opening of the tour, Torgerson

recited a prayer praising Jesus and invoking the assis-

tance of “our heavenly father.” AC ¥ 16(k); TCA 160-61.

The choir performed primarily at LDS religious sites,

with only two of the performances being at non-LDS

sites. AC J 16(1); TCA 161. One of the performances was

2 Citations to “TCA” refer to the Appendix to Bauchman’s

appeal No. 96-4101 to the United States Court of Appeals for the

Tenth Circuit.

conducted at an LDS “fireside” service where Torgerson

presented the choir as an LDS religious choir and where

the LDS Choir members “bore their testimonies.” AC

{ 16(m); TCA 161-62. Upon returning from the tour, more

than twenty students signed a petition in protest of the

religious nature of the tour. AC ¥ 16(n); TCA 162.

Torgerson also made use of regular choir class time to

instruct his students in his religious beliefs. AC {¥ 16(b),

(g), (h), (i), (J); TCA 158-161. Torgerson improperly

brought religion into the classroom by commemorating

class events with prayer and by instructing the class

during rehearsals to understand and believe the religious

| meaning of the lyrics. AC { 16(k); TCA 160-61, 250, 329,

346, 352. On one occasion while the choir was rehearsing

“Lamb of God,” Torgerson shut off the lights in the

classroom and instructed the students to visualize “Jesus

dying for our sins.” AC ¥ 16(i); TCA 160.

Torgerson continued these practices during the

1994-95 school year when Bauchman joined the choir.

While Bauchman was a member of the choir, Torgerson

exhorted students during a class rehearsal to accept the

message of the Christian lyrics. TCA 219C, 770-71. On

another occasion, following a class performance at a Bap-

tist church, Torgerson offered a prayer of thanks to the

“heavenly father.” TCA 331, 338. Throughout the year,

the choir continued to perform predominantly Christian

music predominantly at Christian religious sites, partic-

ularly Mormon churches. TCA 219B, 219E, 334-35, 342-43,

672-74.

When Rachel complained of these practices and

requested that Torgerson diversify the musical repertoire,

ee

Torgerson retaliated by ostracizing Rachel from her class-

mates and embarrassing and harassing her during class.

Torgerson repeatedly used his class lectures to berate

Rachel for her opposition to his practices, emphasizing

that as a Jew she should understand how Mormons are

persecuted for their religious beliefs. AC {J 17(i), (j), (k);

TCA 167-68. Rather than modify the repertoire and per-

formance locations for the scheduled spring tour to

deemphasize its religious focus, Torgerson himself can-

celled the official tour and then surreptitiously organized

a tour of religious venues which excluded the non-Chris-

tian members of the choir. AC {¥ 19(f), 17(g); TCA 166,

173.

In a further attempt to arouse sentiment against

Rachel, Torgerson gave a letter from Rachel’s father com-

plaining of his practices to another choir member’s par-

ent to enlist the parents and their children’s support in

isolating Bauchman. AC { 17(d); TCA 166. As a result of

this conduct, Bauchman was ostracized from her class-

mates and subjected to epithets such as “Jew Bitch” and

“Dirty Jew.” AC {I 37, 49; TCA 21, 187, 191, 219F. She

was told by her classmates to “go back to Israel,” and a

Nazi swastika was drawn on one of her posters for class

office. Id. Fearing continued retribution for her religious

views, Rachel decided not to join the choir in the 1995-96

academic year. AC ¥ 37; TCA 187-88.

Throughout his tenure, Torgerson made no effort to

keep secret the religious purpose for his method of con-

ducting the choir class. During the 1994-95 school year,

Torgerson explained that “I bring religion into the class-

room, and I ask my students to do the same.” TCA 774.

On several previous occasions in response to students’

complaints about his conduct in the choir class, Torgerson

told students that he disagreed with Supreme Court law

forbidding the advocacy of religion in the classroom and

that he intended to continue to do so even though it was

illegal. AC JY 16(h), (n); TCA 160, 162. Torgerson also

once explained that he preferred having Mormon stu-

dents in the choir because it made it easier to perform at

LDS services. AC ¥ 16(d); TCA 158-59, 222.

¢

ARGUMENT

I. The Standard of Proof Adopted by the Tenth Circuit

Conflicts with the Analysis of Actual Purpose

Applied by this Court.

A. Circumstantial and Historical Evidence Are Rel-

evant to an Inquiry into the Government’s Pur-

pose Under the Court’s Establishment Clause

Cases.

This Court’s jurisprudence makes clear that “the con-

tent of a public school’s curriculum may not be based on

a desire to promote religious beliefs.” County of Allegheny

v. American Civil Liberties Union, 492 U.S. 573, 590 n.40

(1989) (emphasis added). Although the Court generally

gives great weight to the government’s stated purpose,

Establishment Clause jurisprudence requires courts to

look behind the stated purpose to determine the govern-

ment’s actual purpose. See Edwards v. Aguillard, 482 U.S.

578, 586-87 (1987) (“[I]t is required that the statement of

such purpose be sincere and not a sham.”); Stone v.

Graham, 449 U.S. 39, 41 (1980) (per curiam) (Act is uncon-

stitutional when, despite an avowed secular purpose, the

“pre-eminent purpose . . . is plainly religious in nature.”)

In determining the government’s purpose, this Court has

never limited its examination to the explicit statements of

purpose by legislators or other government actors, as the

Tenth Circuit decision now requires courts to do.

Circumstantial and historical evidence have long

been essential to the Court’s evaluation of the govern-

ment’s actual purpose. In Epperson v. Arkansas, 393 U.S. 97

(1968), the Court invalidated an Arkansas statute prohib-

iting the teaching of creationism in the public schools

based on its religious purpose, even though the statute

did not explicitly state such a purpose. In evaluating the

legislature’s actual purpose, the Court looked beyond the

contemporaneous statements of legislators to a similar

“antecedent” statute which “candidly stated its purpose.”

Id. at 107-108. The Court also relied on circumstantial

evidence indicating that “the statute was a product of the

upsurge of ‘fundamentalist’ religious fervor.” Id. at 98,

106-107.

This Court invalidated another creationism statute

without an express statement of its religious purpose in

Edwards v. Aguillard, 482 U.S. 578 (1987). In Edwards, the

Court rejected as a “sham” the legisiature’s stated pur-

pose of furthering “academic freedom” and “fairness”

based on circumstantial evidence that its stated purposes

could have been achieved more directly without advanc-

ing or promoting a particular religious belief. See id. at

586-589. Historical evidence of the legislature’s intent was

also relevant to the inquiry, as the Court determined the

purpose of the current statute based on the legislature’s

purpose in drafting a previous “model” statute. Id. at 601

(Powell, J., concurring).

ON

Once again, in Wallace v. Jaffree, 472 U.S. 38 (1985), the

Court invalidated a statute calling for a moment of

silence or prayer because of the statute’s religious pur-

pose. In discerning the statute’s purpose, the Court did

not limit its inquiry to statements by legislators, but

rather considered the statute in light of its historical

context, by gleaning its purpose from the history of three

similar statutes passed at different times. Id. at 58, 65.

Indeed, this Court’s endorsement analysis emphas-

izes the importance of context in evaluating whether the

government’s purpose is to endorse religion.* Lynch v.

Donnelly, 465 U.S. 668, 694 (1983) (“Every government

practice must be judged in its unique circumstances to

determine whether it constitutes an endorsement of reli-

gion.”) (O’Connor, J., concurring). “The endorsement test

depends on a sensitivity to the unique circumstances and

context of a particular challenged practice.” County of

Allegheny, 492 U.S. at 629. Although the Tenth Circuit

acknowledged that the endorsement test calls for a con-

sideration of historical context, it refused to consider

Tergerson’s twenty-year history of classroom advocacy of

religion, holding that the endorsement test inquiry into

3 Under the endorsement test, the context of a challenged

practice is relevant both to the question of effect and intent. As

explained by Justice O’Connor: “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 intent: they can discern the intent by, for example,

examining the context of the statement.” Lynch, 465 U.S. at 690

(O’Connor, J., concurring) (emphasis added).

10

context does not include “every alleged past constitu-

tional violation.” 132 F.3d 542, 560 (1997).

The Tenth Circuit’s holding that a claimant can prove

intent only through an express, contemporaneous state-

ment of religious purpose finds no support in Establish-

ment Clause jurisprudence and, indeed, is in direct

conflict with this Court’s decisions. Exclusion of all his-

torical, circumstantial and contextual evidence of intent is

contrary to the constitutional command that the court

determine the actual purpose of a challenged act. More

importantly, the Tenth Circuit standard poses nearly

insurmountable obstacles to claims by public school stu-

dents that a teacher is advocating religion in the class-

room. The dismissal of Bauchman’s complaints, which so

clearly present evidence of Torgerson’s religious purpose,

dramatically illustrates how even the most egregious and

long-standing abuses of a teacher’s power will go

unchecked and, indeed, unreviewed under the Tenth Cir-

cuit standard.

B. The Tenth Circuit Improperly Excluded Evi-

dence of Torgerson’s Subjective Intent.

In excluding all evidence of Torgerson’s intent, the

Tenth Circuit incorrectly held that the “ ‘actual’ purpose

component of the endorsement analysis . . . is an objec-

tive one, removed from any subjective intent Mr. Torger-

son may have.” 132 F.3d 542, 560 (1997). To the contrary,

the endorsement test, expanding upon the purpose and

effect prongs of the Lemon test, is intended to identify

those practices which by virtue of the subjective intent of

11

the government or the objective effect of the practice con-

vey a message of government support or disapproval of

religion. As explained in Lynch v. Donnelly, 465 U.S. 668

(1983):

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 . . . Examination of both the

subjective and objective components of the mes-

sage communicated by a government action is

therefore necessary to determine whether the

action carries a forbidden meaning.

Id. at 690 (O’Connor, J., concurring).

The subjective intent of a public school teacher’s

curriculum decisions is especially relevant in determining

whether the teacher has communicated a message of

endorsement to students. As recognized by this Court’s

Establishment Clause cases, public school teachers can

affect the thoughts and behavior of impressionable school

children. Wallace v. Jaffree, 472 U.S. 38, 81 (1985) (When

“religious exercises are directed at impressionable chil-

dren who are required to attend school, . . . government

endorsement is much more likely to result in coerced

religious beliefs.”) (O’Connor, J., concurring). By virtue of

their authority and the tendency of students to emulate

them, teachers have a unique power to endorse religion

in the classroom. See Edwards v. Aguillard, 482 U.S. 578,

584 (1987). If courts.are to determine whether a public

school teacher’s conduct or teaching communicates an

intention to promote religion, they must consider all evi-

dence of the teacher’s subjective intent.

12

By excluding this probative evidence, the Tenth Cir-

cuit standard simply ignores the fact that students at

West High School, like Bauchman, were aware of the

history of Torgerson’s conduct and statements. TCA 21,

219F, 227, 237, 250. A student with knowledge of Torger-

son’s course of conduct would reasonably perceive that

he intended to advocate a belief in Christianity or in

religion in general. It is this perspective, that of the

student, which the court must examine in understanding

whether Torgerson’s ccnduct communicated an intent to

promote religion. The court’s suggestion that a reason-

able observer would not view the conduct as motivated

by a religious purpose because of the “historical tension

between the government and the Mormon Church” not

only discounts the students’ unique perspective, but also

turns the analysis on its head by suggesting that prosely-

tization in the public schools is legitimate as long as it has

been tolerated historically. 132 F.3d at 555.

As illustrated by Lee v. Weisman, 505 U.S. 577 (1992),

the court must consider the special context of the public

schools to understand how students might perceive

intent differently than adults. Id. at 592 (Religious “exer-

cises in public schools carry a particular risk of indirect

coercion.”); see also, Edwards, 482 U.S. at 585 (court must

apply the Lemon test, “mindful of the particular concerns

that arise in the context of public elementary and second-

ary schools.”). Lee recognizes that in the context of the

public schools, the dissenter of school age may more

readily perceive that the public school intends to promote

or endorse religion. See Lee, 505 U.S. at 592-94. As stated

in Lee:

|

13

what to most believers may seem nothing more

than a reasonable request that the nonbeliever

respect their religious practices, in a school con-

text may appear to the nonbeliever or dissenter

to be an attempt to employ the machinery of the

State to enforce a religious orthodoxy.

Id. at 592-93.

By excluding all evidence of a school official’s subjec-

tive intent and ignoring the unique perspective of high

school students, the Tenth Circuit’s endorsement analysis

leaves students without adequate protection from the

advocacy of religious beliefs in public classrooms.

II. The Pleading Standard Adopted by the Tenth Cir-

cuit Deprives Public School Students Challenging

Religious Practices in the Schools of the Ordinary

Inferences Made on a Motion to Dismiss.

Liberal federal pleading standards require that on a

motion to dismiss the court must construe the allegations

in the light most favorable to the plaintiff. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957). A court ruling on a

motion to dismiss under Fed. R. Civ. P. 12(b)(6) must

therefore assume the truth of the facts as alleged and

draw any reasonable inferences consistent with the alle-

gations. Neitzke v. Williams, 490 U.S. 319, 327 (1989); see

Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984) (motion

should be granted only if relief cannot be granted under

any set of facts consistent with allegations). Furthermore,

when pleading intent, a plaintiff need only plead it gener-

ally. Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and

other conditions of mind of a person may be averred

generally.”)

14

The Tenth Circuit declined to apply these well-estab-

lished rules of pleading in evaluating Bauchman’s

Amended Complaint and instead improperly weighed

the evidence, made inferences and assumptions favorable

to defendants, and altogether disregarded evidence pre-

sented by Bauchman. Although the court explicitly stated

that “the amended complaint contains numerous allega-

tions to support Ms. Bauchman’s claim that Mr. Torgerson

has unconstitutionally promoted his religious beliefs in

the classroom for over twenty years,” the court concluded

that Bsuchman had not pled Torgerson’s “reiigious pur-

pose.” 132 F.3d 542, 559 (1997). Rather than draw reason-

able inferences of religious purpose suggested by

Torgerson’s own statements, his harassment and exclu-

sion of Bauchman, and his routine performance of Chris-

tian music at Mormon churches, the court drew

inferences favorable to the defendants, explaining that the

court could “discern a number of plausible secular pur-

poses for the defendants’ conduct.” Id. at 554.

By depriving Establishment Clause claimants of the

ordinary inferences made on a motion to dismiss, the

Tenth Circuit decision effectively requires a plaintiff

pleading religious intent to disprove secular intent in the

pleadings. According to this new standard, Establishment

Clause plaintiffs must allege that there is “no ‘clearly

secular purpose’ “4 for the challenged practice and must

4 The Tenth Circuit incorrectly held that under the Lemon

test, a government practice is constitutional as long as there is

some secular purpose. To the contrary, the “purpose prong of

the Lemon test .. . is not satisfied . . . by the mere existence of

some secular purpose, however dominated by religious

purposes.” Lynch v. Donnelly, 465 U.S. 668, 690-691 (1984); see

15

also allege facts sufficient to disprove any hypothetical

secular purpose. Id. at 554, 555. The court found Bauch-

man’s pleading of purpose insufficient to support her

Establishment Clause claim because she failed to allege

facts showing that (1) Torgerson’s repertoire was mark-

edly different from other school choirs, or (2) that the

acoustics or seating at the church venues were unsuitable

for performance. Id. at 555. This standard imposes

unprecedented burdens on Establishment Clause plain-

tiffs by requiring them to anticipate in their pleadings

every possible secular purpose imagined by the court.

Although the Tenth Circuit concluded that “the

amended complaint clearly asserts defendants’ conduct

was motivated by a religious purpose,” the court adopted

the district court’s decision which rejected Bauchman’s

Amended Complaint on the basis that her allegations

were “unsupported or at odds with an objective view of

evidence developed in discovery.” 1996 WL 407856, at *3.

The district court decision adopted by the Tenth Circuit

improperly engaged in a weighing of the evidence, at

times, simply ignoring or dismissing the evidence alto-

gether. Of particular importance is the district court’s

holding that Bauchman’s allegations concerning Torger-

son’s organization of a covert spring tour and concerning

her allegations of his criticism of her during class were

“unsupported by [the] evidence produced.” Id. at *6-*7.

Perhaps most importantly, the district court refused to

draw any inference of Torgerson’s religious purpose from

also Stone v. Graham, 449 U.S. 39 (1980) (posting of Ten

Commandments in school unconstitutional due to its religious

purpose, even though the state had some secular objectives).

16

his admission that he brought religion into the classroom

and expected his students to do the same. Id. at *4.

In addition to denying Establishment Clause claim-

ants the benefit of favorable inferences at the pleading

stage, the Tenth Circuit decision imposes an unprece-

dented pleading requirement for pleading intent which is

inconsistent with the longstanding federal rule, and

indeed, with Tenth Circuit precedent, allowing intent to

be pled generally. See Phelps v. Wichita Eagle-Beacon, 886

F.2d 1262, 1269-1270 (10th Cir. 1989) (to plead racial

animus for purposes of an equal protection claim, it is

sufficient to make general averments of intent unaccom-

panied by supporting factual allegations). Under the

Tenth Circuit’s highly particularized pleading standard,

an Establishment Clause plaintiff must plead an explicit,

contemporaneous and specific statement of the govern-

ment actor’s religious purpose — a generalized pleading

supported by circumstantial evidence is insufficient.

The heightened pleading standards adopted by the

Tenth Circuit impose a unique hardship on Establishment

Clause claimants. Without an admission of culpability by

a government official and allegations which exclude all

possible secular purposes, an Establishment Clause claim

based on the religious purpose of a government practice

will not survive a motion to dismiss. This harsh pleading

standard is especially unjust in the context of challenges

brought by public school students — a particularly impor-

tant area of Establishment Clause law. As Bauchman’s

Amended Complaint illustrates, the Tenth Circuit’s

restrictive pleading standard deprives claimants who

clearly state violations of the Establishment Clause of a

fair opportunity to prove their case.

17

III. The Policy Rationales Presented by the Tenth Cir-

cuit to Justify the Heightened Standards of Pleaa-

ing and Proof Are Contrary to the Constitutional

Principle of Strict Enforcement of the Establish-

ment Clause in the Public Schools.

As this Court has noted, “there are heightened con-

cerns with protecting freedom of conscience from subtle

coercive pressure in the elementary and secondary public

schools.” Lee v. Weisman, 505 U.S. 577, 592 (1992). Thus,

“[t]he Court has been particularly vigilant in monitoring

compliance with the Establishment Clause in elementary

and secondary schools.” Edwards v. Aguillard, 482 U.S.

578, 583-84 (1987). This heightened scrutiny is necessary

because the system of public education presents a unique

opportunity for the state to infringe students’ freedom of

conscience. “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 pres-

sure.” Id. at 584. Public schools must, therefore, “maintain

a strict and lofty neutrality as to religion.” School District

of Abington Township v. Schempp, 374 U.S. 203, 218 (1963).

The unprecedented pleading and proof standards

imposed by the Tenth Circuit turn these constitutional

principles on their head, substituting heightened protec-

tion of school children for heightened protection of the

decisions of school teachers, administrators and school

boards. In justifying these heightened standards, the

Tenth Circuit states that they are necessary to avoid

involving courts in education decisions best left to the

states and local school boards. 132 F.3d 542, 561 (1997).

18

Such a holding is contrary to the very essence of Estab-

lishment Clause jurisprudence.

This Court has never exempted public school curricu-

lum decisions or practices from review since these deci-

sions go to the very heart of Establishment Clause

concerns in the context of the public schools. This Court’s

decisions in Epperson, Edwards, and Lee reflect that reli-

gious practices and curriculum decisions in the schools

are not immune from review, even if they are long-stand-

ing practices traditionally left to the authority of school

officials. See Lee, 505 U.S. 577 (invalidating graduation

benediction); Edwards, 482 U.S. 578 (invalidating statute

requiring simultaneous teaching of evolution and cre-

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

(invalidating statute requiring teaching of creationism).

That the curriculum decisions in this case were made by a

teacher rather than a state legislature or school board in

no way minimizes the need for court review of practices

which bring religion into the classroom in an impermissi-

ble manner. To exclude the classroom conduct of public

school teachers from review would be to leave public

school students without protection against the decisions

which most directly affect their education and over which

there is the least public review.

In further support of the heightened pleading and

proof standards, the Tenth Circuit states that to hold

otherwise would be to subject religious public school

teachers to a “unique disability” simply by virtue of their

religious beliefs and would make school districts less

amenable to hiring openly religious teachers. 132 F.3d at

560-561. Although the case law does support the notion

that teachers have free speech and free exercise rights as

vf

4

i

19

employees of the public schools, “even the most cursory

reading of the Court’s school prayer cases belies any

notion that these may trump schoolchildren’s Establish-

ment Clause rights.” Doe v. Duncanville Independent School

District, 994 F.2d 160, 166 (5th Cir. 1993).

In any case, allowing challenges like the one pre-

sented in Bauchman’s Amended Complaint does not

threaten to subject public school teachers to a special

disability due merely to their religious beliefs. Bauch-

man’s Amended Complaint alleges much more than the

mere fact that Torgerson was a religious man or that he

selected religious music. The gravamen of her complaint

is that Torgerson brought his religion into the classroom

in an attempt to advance his beliefs.

The heightened pleading and proof standards

adopted by the Tenth Circuit violate the principles of

strict enforcement of the Establishment Clause in the

public schools by protecting public school teachers at the

expense of public school students, thus imposing a unique

disability on public school students seeking to prove that a

public school official has violated the Establishment

Clause. Amici are concerned that these standards threaten

to break down the wall between church and state in the

public schools and to undermine our public schools as

neutral havens for secular educa,.»n. As this Court has

emphasized, the importance of keeping our nation’s pub-

lic schools free of sectarian strife cannot be understated

“if we are not to strangle the free mind at its source and

teach youth to discount important principles of our

20

government as mere platitudes.” West Virginia Bd. of Educ.

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

¢

CONCLUSION

Because the decision below conflicts with the Estab-

lishment Clause decisions of this Court and with the

constitutional principle of careful scrutiny of public

school decisions involving religion and because it

imposes unwarranted burdens at the pleading stage for

Establishment Clause claimants, Bauchman’s petition for

a writ of certiorari should be granted.

Respectfully submitted,

Epwarp P. LEIBENSPERGER

Counsel of Record

KATHRYN K. CONDE

Nutter, McC.Lennen & Fisu, LLP

One International Place

Boston, MA 02110

(617) 439-2000

May 29, 1998

Al

APPENDIX

STATEMENTS OF INTEREST

OF INDIVIDUAL AMICUS

Unitarian Universalist Association

The Unitarian Universalist Association is a religious

association of more than one thousand congregations in

the United States, Canada and elsewhere. Through its

democratic process, the Association adopts resolutions

consistent with its fundamental principles and purposes.

In particular, the Association has adopted numerous reso-

lutions affirming the principles of separation of church

and state and personal religious freedom. The Associa-

tion’s resolutions include, specifically, statements in

opposition to religious practices, observances and indoc-

trinations in public schools.

Americans for Religious Liberty

The Americans for Religious Liberty, founded in

1981, is a nationwide nonprofit public interest educa-

tional organization dedicated to defending religious lib-

erty, freedom of conscience, and the constitutional

principle of separation of church and state. ARL has

participated as an amicus in other cases before this Court

that have implicated these concerns.

American Humanist Association

The American Humanist Association, founded in

1941, is an educational, philosophical, and religious orga-

nization with members and local affiliates throughout the

A2

United States. The Association has adopted formal state-

ments in support of the principle of church-state separa-

tion and the religious neutrality of our common public

schools. The Association has participated as an amicus

curiae in a number of cases before this and other courts.

Council for Secular Humanism

The Council for Secular Humanism is dedicated to

furthering the ideals of freedom of conscience, as

espoused by Thomas Jefferson, James Madison, and other

founding fathers of the United States. We are committed

to the First Amendment of the Constitution and the prin-

ciple of separation of church and state. We represent

millions of Americans, who are nonbelievers — agnostics,

atheists, and secular humanists. In our view, all citizens

of this great country should be afforded the same liberty

of conscience — to believe or not believe in any orthodox

religious tenet or doctrine. The public schools should

provide the same protections for all citizens, including

Rachel Bauchman. If her rights can be abrogated in the

public schools, then who is safe? Hence, we wish to join

in this amicus brief on her behalf.

Freedom to Learn Network

The Freedom to Learn Network, an all-volunteer

grassroots organization that began in 1992 in response to

challenges to public education, believes that all children

have the basic right to educational freedom. The common

goal of our diverse membership is to support and main-

tain public education while striving to improve its qual-

ity. As stated in our Declaration of Principles, “we believe

ene CERT ap enon Ceres

A3

in the separation of church and state, and in its obvious

corollary, separation of church and public school. Public

officials should not seek to promote one set of religious

be ts over others. Religious doctrine should be appro-

priately taught at home, in church, and in other private

religious settings.”

American Ethical Union

The American Ethical Union is a federation of Ethical

Culture/Ethical Humanist Societies. Ethical Culture

began in 1876 with the founding of the New York Society

for Ethical Culture. Today there are twenty-two societies

in the United States. Ethical Culture is a humanistic reli-

gious and educational movement inspired by the ideal

that the supreme aim of human life is working to create a

more humane society. The American Ethical Union has

from time to time together with other religious organiza-

tions signed on to Amicus Curiae Briefs in support of

Separation of Church and State. From the time of its

inception, Ethical Culture has consistently supported the

Constitutional separation of Church and State.

American Association of University Women

. For well over a century, the American Association of

University Women (AAUW), an organization of 160,000

members, has been a catalyst for the advancement of

women and their transformations of American society. In

more than 1,600 communities across the country, AAUW

members work to promote education and equity for all

women and girls. Current legislative priorities include

gender equity in education, reproductive choice, and

A4

workplace and civil rights issues. AAUW affirms the

doctrine of separation of church and state.

Americans for Democratic Action

Americans for Democratic Action, Inc. (“ADA”) is an

independent liberal political organization, founded in

1947, dedicated to promoting individual liberty and eco-

nomic justice. ADA publishes a weekly legislative news-

letter for liberal activists, a quarterly newsletter, special

reports, including an annual voting record report that

ranks Members of Congress according to a liberal quo-

tient, based on a full spectrum of domestic and interna-

tional policy issues. In addition to its legislative

advocacy, ADA maintains a political action committee to

support liberal candidates for Congress. ADA also

engages in independent campaign activity in support of

presidential candidates.