Opposition Brief — Dibari v. Bedford Central School District

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if Supreme Gourt, U.S.

7) FILED

No. 00-1932 JUL 27 2001

FICE OF

In the Supreme Court of the-ntted States

OcTOBER TERM, 2000

MARY ANN DiBARL, individually and as lawful guardian

of minor children, Krystal M. DiBari and Tiana N. DiBari,

Petitioner,

_

BEDFORD CENTRAL SCHOOL DISTRICT et al.,

~and-

ROBERT M. ALTMAN et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

INGERMAN SMITH LLP

by: Neil M. Block, Esq.

Counsel of Record

Attorneys for Respondents

Bedford Central School

District et al.

167 Main Street

Of peo Northport, New York 11768

WARREN H. RICHMOND (631) 261-8834

LAWRENCE W. REICH

Dated: July 24, 2001

Virgil Mountain, Inc. (212) 779-4046 L5650

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TABLE OF CONTENTS

Page

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Reasons for Denying the Petition for Writ of Certiori ......... 12

I. Certiorari should not be granted when the Circuit

Court's holding that the Earth Day celebration did not

constitute an endorsement of religion was consistent

with established First Amendment law and in addition

was based upon a factual finding that the challenged

re te ih sicnctrcti citric iicicceisss 12

II. Certiorari should not be granted to modify the well

settled rule that a governmental act of compulsion

must exist for there to be a violation of the Free

INN Ns icccipicscseihcatcincasachnandvadnictnbacdblnnbendinnoniea 17

III. Certiorari should not be granted when the Circuit

Court's holding that the petitioner, a municipal

taxpayer, lacked standing to challenge school

activities was based on a factual finding that petitioner

did not Show a measurable appropriation or loss of

revenue attributable to the challenged activities............... 19

RINE BIR ae 00 Fe MS nS aE ES CTY SOD Pe NY 23

TABLE OF AUTHORITIES

Page

Cases Cited:

Abington School District v. Schempp, 374 U.S. 203

Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025

CEC, FRB ED viccaissarixanienidempnanieaatcndaniaiaadliaaiais 13

Alvarado v. City of San Jose, 94 F.3d 1223 (9" Cir.

FOR ones cxsncontscsnnsanctnauneonuianee uaaeasse aaa ia 13, 14

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989).........0.0.... 22

Bown v. Gwinnett County School District, 112 F. 3d

£466 (42° Che. FOr accerccacnc tema 16

Brown v. Woodland Joint Unified School District, 27

F.3d 1373-00" Ga. Sh oa eee 16

Cammack v. Waihee, 932 F.2d 765 (9" Cir. 1991) .....cccccc0e. 21

Commonwealth of Massachusetts v. Mellon, 262 U.S.

96? CPIIEDD oienickcsnsssicctsadaansanacinieneanameiaiee 22

County of Allegheny v. ACL, 492 U.S. 573 (1989)............. 13

: umont In ndent School District, 173 F.3d

ye hale | Ett eRe Mes AE 13

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

QOS CFP OR. Ta hicccncsicnisiomosniineiieciagemaiainen ae eae 21

Doe v. Madison School District No. 321, 177 F.3d 789

(FP CE PIN oii scnstsisitindcpiaaiaaeiiaiadsa elie eiin 21

Doremus v. Board of Education of Borough of

Hawthorne, 342 U.S. 429 (1952)... cccceceeeeeeees 20, 21

Edwards v. Aquillard, 482 U.S. 578 (1987) .0.....cccccccccteeeeee 16

Fleischfresser v. Directors of School District 200, 15

Fd GRRC7” CAE. Pinkie ciation, 14, 17, 22

Good News Club _v. Mi n SS

U.S, , NEE RR, ae sda ciated 16

rs

TABLE OF AUTHORITIES

Page

Cases Cited:

Grove v. Mead, 753 F.2d 1528 (9" Cir. 1985) ............c... 18, 23

Koenick v. Felton, 190 F.3d 259 (4" Cir. 1999) 000. 2

Lee v. Weissman, 505 U.S. 577 (1992) ............cccccesseeees 12, 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......ccccccceceseeeeeees 12

Lynch v. Donnelly, 465 U.S. 668 (1984) 0.0.0... eee eee 17

Inak v. j, 592 F.2d 197 (3d Cir. 1979).................00000. 13

McCollum v. Board of Education, 333 U.S. 203 (1948)... 17

McGowan v. Maryland, 366 U.S. 420 (1960)..............00000.. 23

Mozert v. Hawki unt rd of Education, 827

eg ree 17,18

Peloza v. Capistrano Unified School District, 37 F.3d

TT I cc cee ad 14

Sante Fe Independent School District v. Doe, 530 U.S.

SUITED ci tilldistatinihsinnetseadnteeeandantiidiabsiadatinhbaelanaiimbinainccneeieh 15

Sherbert v. Verner, 374 U.S. 398 (1963)..............ccccccccceeeeeee 17

Thomas v. Review Board, 450 U.S. 707 (1981)..........0........ 17

Federal Constitutional Provisions:

United States Constitution

BeOS CRG nn a....cnccccccccccsscccscccnscesescccencess passim

SI I I Slaps stcsciecensiiciniciadichaioncemsinticeloee passim

No. 00-1932

In the United States Supreme Court

OcTOBER TERM, 2000

MARY ANN DiBARI, individually and as lawful guardian

of minor children, Krystal M. DiBari and Tiana N. DiBari,

Petitioner,

pia

BEDFORD CENTRAL SCHOOL DISTRICT et al.,

—and—

ROBERT M. ALTMAN et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

UESTIONS P NTED

1. Should certiorari be granted when the Circuit Court's

holding that the Earth Day celebration did not constitute an

endorsement of religion was consistent with established First

Amendment law and in addition was based upon a factual

finding that the challenged activity was not coercive?

2. Should certiorari be granted to modify the well settled

rule that a governmental act of compulsion must exist for there

to be a violation of the Free Exercise Clause?

3. Should certiorari be granted when the Circuit Court's

holding that the petitioner, a municipal taxpayer, lacked

Standing to challenge school activities was based on a factual

finding that petitioner did not show a measurable appropriation

or loss of revenue attributable to the challenged activities?

STATEMENT OF THE CASE

The Circuit Court held that the District’s annual

observation of “Earth Day”, a day of activities centered

around the theme of conservation of the environment and

preservation of the planet, did not violate the Establishment

Clause and the Free Exercise Clause of the First Amendment.

The Establishment Clause was not violated in that the

District’s sponsorship of the Earth Day program, which was,

in part, an effort to comply with §810 of the New York

Education Law that designates the last Friday of April as

“Conservation Day”, had a secular purpose, students were not

compelled to participate in the ceremonies, and a reasonable

observer would not find that the ceremonies had the effect of

endorsing a religion. There was no violation of the Free

Exercise Clause because the Earth Day ceremonies did not

have a religion-burdening effect and attendance was not

compulsory.

Other challenged activities occurring at the Pound Ridge

Elementary School, consisting of assigning elementary school

students to make a paper cutout of the elephant-headed Hindu

God “Ganesha”, the making of “worry dolls” and the sale of

“worry dolls” in a school store, and the playing of a tape

called ‘Listening to Nature” in a class at the Fox Lane Middle

School were dismissed on the ground that at the time of the

trial no plaintiff had standing to challenge those activities. !

The Circuit Court’s holding that the Earth Day ceremonies

do not violate the Establishment Clause and Free Exercise

Clause of the First Amendment and its dismissal of the claims

pertaining to Ganesha, worry dolls and the Listening to Nature

tape for lack of standing are the subject of the Petition for Writ

of Certiorari.

The Petition for a Writ of Certiorari should be denied

because it is mostly comprised of argument that the Circuit

Court made erroneous factual findings concerning the nature

of the Earth Day ceremonies and the attendance requirement.

The decision does not conflict with decisions of other circuits.

This Court's well established tests for review of alleged

violations of the Establishment Clause and the Free Exercise

Clause were recognized and applied by the Circuit Court. The

Petition for a Writ of Certiorari represents nothing more than

petitioner's disagreement with the Circuit Court's application of

the established law to the facts of this case. These are not

grounds for the granting of certiorari under Rule 10 of the

Rules of the Supreme Court of the United States.

STATEMENT OF THE FACTS

Earth Day

In April of each year, the students and faculty of the Fox

Lane High School gather in front of the school for one hour in

celebration of “Earth Day”. The Earth Day celebration is

1 The plaintiffs challenged numerous programs of the District

as being in violation of their constitutional rights. The District

Court dismissed the majority of their claims except for the

Earth Day ceremonies and the three other activities which were

eventually dismissed by the Circuit Court for lack of standing.

3

organized by Youth in Action, a high school club involved in

social and environmental activity. (App. 10a).2 Sean Scorsone

(“Scorsone”), a high school senior who was President of

Youth in Action, testified that the purpose of the event is “to

inform students about the situation with the environment and

also to help promote respect for the environment and for each

other”. (A.877)9

In recent years the center of the Earth Day celebration has

been a large globe on a tripod which is placed in the circle in

front of the school. Drums are played to draw the student body

around the globe. (App. 10a). Scorsone testified that senior

citizens are invited to attend “to foster respect, to show the

school community and show the senior citizens themselves that

they are an important part of the community”.(A.879). He

added that each class presents metaphorical gifts during the

celebration such as wisdom, knowledge and respect. (A.879).

Traditionally, the faculty advisor, Dale Saltzman (“Saltzman”),

makes some opening remarks and guest speakers address the

student body. (App. 10a).

Plaintiff Jon DiNozzi testified that at one such event,

Saltzman stated, “We come from the Earth, we’re part of the

Earth and we’re all involved in this cycle. One day we’ll

become them [senior citizens] and then we’ll go back to the

earth.” (A.129). On a second occasion, Saltzman was quoted

by Jon DiNozzi as saying, “There’s just too many people on

this Earth. We need to do something about it.” (App. 11a).

Plaintiffs placed into evidence an affidavit from Defendant

High School Principal Richard Kraemer (“Kraemer”) which

had been submitted in support of Defendant’s motion for

2 App. refers to the appendix of the Petition for Writ of

Certiorari.

3 Refers to the Record before the Circuit Court.

4

summary judgment. In that affidavit, Kraemer stated that

attendance at the Earth Day celebration “is not required.”

(A.1107 at 14). He added that

The suggestion by Plaintiffs that the observance of

Earth Day constitutes the celebration of “Gaiaism the

religion of Earth Worship” or otherwise constitutes a

religious activity is without any factual basis. There is

no religious purpose to this observance and any

religious content, if it occurs, is purely incidental.

(A.1107 at 15).

In an attempt to characterize this benign ceremony as

“religious”, Petitioner, Mary Ann DiBari (“DiBari”)

misrepresents the globe on the tripod as an “Earth-totem”, the

ceremony as a “ritual”, and Salzone’s remarks as a

“sermon”. (Petition, pp. 3-4).

DiBari submits as part of a lodging an article written by a

student in the school newspaper in an effort to show that the

Earth Day ceremonies were religious. (Lodging, p.1).4 The

article, which describes the previous year’s ceremonies, noted

that “symbolic structures such as the teepee last year, are

provided along with a chorus of drums to add to the

festivities.” DiBari misreports the “chorus of drums” and

festivities as “[a] chorus of ceremonial tom-toms played

throughout the ritual.” (Petition, p. 4)

The student journalist also notes that each year symbolic

gifts are given to the Earth by representatives of each class.

4 Copies of documents not in the record that shed light on the

arguments in a case may be “lodged” with the Court. Robert

L. Stern et al., Supreme Court Practice, p. 556 (7" ed. 1993).

The documents lodged by the petitioner are trial exhibits which

are part of the record. (Petition, p.3, n.1). The documents are

therefore improperly “lodged” with the Court.

5

The “gifts” are merely in the form of a speech. The article

reports that previous Earth Day ceremonies included such

obvious non-religious events as the celebration of the 50"

anniversary of the United Nations wherein 50 students

carrying the flags of their representative countries paraded

around the circle. Also, a theme of Earth Day the previous year

was the conditions of rain forests throughout the world.

Students marched around the circle carrying banners

displaying the current state of the world’s rain forests.

DiBari portrays the theme of Earth Day as “honoring the

Earth” as if the District is compelling its students to engage in

some type of ritualistic “Earth worship”. The student

journalist reports otherwise. She states that “the recurring

theme that Mr. Saltzman, the coordinator of the Earth Day, has

provided for us in all his presentations is that Earth Day is

about reflecting on the simple things that the Earth provides for

us and maybe, for one day, not taking them for granted.”

In an article written by another student journalist reporting

on the 1998 Earth Day ceremony, she describes the program

as “speeches by several Fox Lane faculty members and a

musical performance [by two students]. Presentations of

several national flags to add to Fox Lane’s collection were

made, along with individual presentations of symbolic gifts to

the earth presented by the president and vice-president of each

class.” (Lodging, p.2). A student she interviewed declared: “I

enjoyed the ethnic diversity of the multicultural presentation of

flags.” The student journalist concluded: “[n]o doubt ...

students and teachers alike enjoyed the opportunity to take in

some fresh air and sunshine, listen to some excellent music,

and take a break from their regular routine.”

The 1998 Saltzman memorandum to faculty which

comprises page 3 of the Lodging is merely a plea to staff to

make the students aware of the Earth Day celebration.

Contrary to DiBari’s assertion that the entire high school

student body attended every year (Petition, p.11), attendance

was not required as explained in the Kramer affidavit

referenced supra. Dibari claims that students were expected to

attend the “ritual” in order to have the District’s message

“reinforced” and “driven home”. As depicted in the

memorandum, Saltzman notes that the message conveyed at

Earth Day ceremonies is merely that there should be an

“honoring of the elders” [referring to the senior citizens who

attend the ceremonies], and “respect for the Earth”.

Ganesha

During the 1992-1993 and 1993-1994 school years,

Jacqueline Reizes (“Reizes”), a teacher at the District’s

Pound Ridge Elementary School, included in her classroom

instruction a unit on India and its culture. As part of the India

unit, the children were exposed to various aspects of Indian

culture including music, art, dance and foods. Reizes decorated

her classroom with wall hangings of saris, textiles, travel

posters and pictures of Indian life, one of which depicted a

statue of Ganesha, an elephant-headed Indian God being

carried through the streets of Bombay during the Ganapathy

Festival. (App. 7a). Next to the picture was a written

description which stated in part:

Ganesha is a round bellied, good natured Hindu god.

He loves to eat.

Those who worship Ganesha bring him gifts of fruit.

Ganesha is the god of wisdom and success. People

pray to him before they begin important projects.

(A.1098)

Reizes also read to her class a two page story entitled

“How Ganesha Got His Elephant Head” as part of the unit on

India and its culture. She testified that she was not attempting

to promote Hinduism by these activities, and that neither the

Ganesha picture or story had any religious significance to her.

(A.741-742, 748).

In addition to the foregoing, Reizes engaged her students

in an arts and crafts project in which they made construction

paper cutouts of Ganesha. (App. 8a). An example of one

student’s cartoon-like project was admitted into evidence

(A.1126). Reizes testified that no religious message was

intended by this activity project. When asked why she had

chosen Ganesha as an arts and crafts project, Ms. Reizes

responded,

Most children I know really like animals. It could have

been a monkey. I could have read another story about a

monkey, but I went with elephant. This was a light-

hearted craft project which followed the reading of a

story. (A. 742-743).

Melissa Landau and J. C. O’Brien, each of whom had

been students in Reizes’ 1992-93 fourth grade class, testified

that the making of a construction paper “Ganesha elephant”

had no religious significance to them. (A.763-773).

Reizes stated that she developed the India unit for her third

grade class in accordance with the New York State Department

of Education third grade social studies curriculum guide. This

guide, entitled “Communities Around the World”, provides

suggested approaches for teaching about individual world

communities. For the study of Indian culture, the guide

suggests teaching third grade students about the Hindu festival

of Diwali which celebrates the homecoming of Rama, reading

the story of Rama and Sita, and conducting a mini-Diwali

festival. Finally, the guide suggests as an arts and crafts

project, having the students make monkey stick puppets, which

represent the “Monkey King” and his army of clever

monkeys [who] helped Rama kill the mean King Ravana and

rescue Princess Sita.” (A.113-129).

Reizes said that in her class she substituted Ganesha for

Rama and Sita because it was easier for her to find materials

about Ganesha. Her India unit followed the same sequence and

general structure as was recommended by the guides, with the

construction of a paper Ganesha replacing the “Monkey

King” puppet as an arts and crafts project. (A.746-747).

DiBari’s claim that Reizes instructed the students to make

the images in clay is not supported by the Record. (Petition,

p.7). While plaintiffs Krystal and Niki DiBari and Joseph

DiNozzi testified that Reizes had instructed her classes to

make likenesses of Ganesha out of clay but that these projects

were never completed, their testimony was flatly disputed by

four other students who had been in either Ms. Reizes’ 1992-

93 or 1993-94 class (A.764, 770, 774, 785) and by Ms. Reizes

who testified that not only had she not given her students such

an assignment, but also that such an activity would not be

appropriate for third grade students who do not have the

manual dexterity to make complex little clay figures. (A.748).

“Worry Dolls”

Several of the infant Plaintiffs, as well as other student

witnesses testified that, as elementary school students, they

made “worry dolls” as a crafts project in the school’s

Discovery Center. Similar dolls were sold in the school store.

(App. 9a). “Worry dolls” are multicolored little dolls made

out of toothpicks, thread and wire with a painted face. (App.

9a). Joseph DiNozzi and Russell Altman testified that they

were told by school personnel that if they placed these dolls

under their pillows at night they would ward away bad dreams.

(App. 9a). There is no evidence in the record that such

comments, if made, were in any way authorized by Defendants.

Rachel Ostrow, one of the student witnesses called to testify by

Defendants, said that she had been told “that it was

Guatemalan culture, that the childrerrthere would make a worry

doll and put it under their bed and it was supposed to take bad

dreams away”. She stated, however, neither she nor any

members of her class were told to place the “worry dolls”

under their own pillow. (A.807, 808).

Listening to Nature Tapes

Plaintiffs introduced into evidence an audio tape entitled

“Listening to Nature” which was played to students at the

Fox ne Middle School. The District Court, quoting at length

from the text of a tape recording entitled “Listening to

Nature” found that the tape contained Native American

“prayers to Mother Earth” and that the playing of these tapes

for students violated the First Amendment in that “this activity

was a direct presentation to the children of an Earth-centered

religious belief”. (App. 146a-148a). The Court’s ruling was

made despite the fact that there is absolutely no evidence in the

record that any student ever heard the prayers, or that it was

ever intended that any student hear the prayers. (App. 14a).

The only witness to testify at trial regarding the playing of

the tapes was Ruthann Funari, a life science teacher at the Fox

Lane Middle School. Ms. Funari testified that she purchased

the tape, which was described by the District Court as

interspersing “prayers and invocations sonorously uttered

along with background sounds of forest and ocean” (A.974)

because she wanted to use the nature sounds as background

for an in-class writing assignment regarding the natural

environment. (A.811-814).

10

Ms. Funari stated that she played the tape on one occasion

in November 1998. She did not introduce the tape before she

played it nor did she use the accompanying text in any way.

Most significantly, because she only wanted the students to

hear the nature sounds and did not intend them to hear the

words, she turned down the volume on the tape whenever the

voices came on so that only the sounds could be heard. She

Stated that she did not believe any of the students heard the

prayers. (A.816).

rhe Standing Issue

When this action was commenced, at least one plaintiff was

eligible to attend Pound Ridge Elementary School, at least one

was attending or eligible to attend Fox Lane Middle School,

and at least one was attending or eligible to attend Fox Lane

High School. When the case was tried, however, plaintiff Ross

Altman was the only plaintiff of elementary-school age; and he

and his family had previously moved out of the District. Thus,

by the time of the tnal, no plaintiff could claim any direct

injury from the Ganesha and Worry Doll activities conducted

at Pound Ridge Elementary School. (App. 47a).

Similarly, at the time of trial, the only plaintiff attending

Fox Lane Middle School was Tiani DiBari. However, she

graduated from that school in 1999. Although one or more of

the DiNozzi children remained age-eligible to attend the

school, the DiNozzi family relocated from the District the day

after judgment was entered in the District Court. Thus, no

plaintiff could claim any direct injury from the playing of the

“Listening to Nature” tape. (App. 48a).

The Circuit Court ruled that Mary Ann DiBari did not have

standing as a municipal taxpayer to claims under the Free

Exercise Clause because none of the DiBaris could meet the

requirement that they assert violations of their own particular

11

freedoms. (App. 47a). DiBari also lacked standing under the

Establishment Clause because there was no showing of a

measurable appropriation or loss of revenue attributable to the

challenged activities at the schools. (App. 48a-49a).

REASONS FOR DENYING THE PETITION

FOR WRIT OF CERTIORARI

I. Certiorari should not be granted when the Circuit

Court's holding that the Earth Day celebration did

not constitute an endorsement of religion was

consistent with established First Amendment law

and in addition was based upon a factual finding

that the challenged activity was not coercive.

DiBari argues that due to the “heightened scrutiny”

accorded First Amendment claims in the public school setting,

the Circuit Court erred in not concluding that the Earth Day

ceremonies subtly coerced impressionable students to engage

in “Earth Worship” in violation of the Establishment Clause.

(Petition, p.16).

There are three tests used by the Supreme Court to

determine whether the Establishment Clause has been violated.

The first is the three pronged Lemon test enunciated in Lemon

v. Kurtzman, 403 U.S. 602 (1971) wherein the challenged

school practice must (1) have a secular legislative purpose, (2)

have a principal or primary effect that neither advances nor

inhibits religion, and (3) not foster an excessive government

entanglement with religion.

The second test, which the Court set forth in Lee v.

Weissman, 505 U.S. 577 (1992) is the so-called “Coercion

Test” under which school-sponsored religious activity is

analyzed to determine the extent, if any, of its coercive effect on

students. "Although it is conjunctive, this, too, is a tripartite

12

test: ‘Unconstitutional coercion [occurs] when: (1) the

government directs (2) a formal religious exercise (3) in such a

way as to oblige the participation of objectors.’” Doe _v.

Beaumont Independent School District, 173 F.3d 274 (5" Cir.

1999), citing Jones v. Clear Creek Independent School District,

977 F.2d 963, 970 (5" Cir. 1992), cert. denied, 508 U.S. 967

(1993).

The third test is known as the “Endorsement Test”. It

seeks to determine whether the government endorses religion

by means of the challenged action. County of Allegheny v.

ACL, 492 U.S. 573 (1989).

Under any of these tests, the initial inquiry is whether the

challenged activity is “religious” within the meaning of the

Establishment Clause. While attempting to define religion in a

given case can be a “notoriously difficult” task, Alvarado, v.

City of San Jose, 94 F.3d 1223, 1226 (9" Cir. 1996), one

circuit court has identified the essential characteristics, or

indicia of religious beliefs as follows,

First, a religion addresses fundamental and ultimate

questions having to do with deep and imponderable

matters. Second, a religion is comprehensive in nature;

it consists of a belief system as opposed to an isolated

teaching. Third, a religion often can be recognized by

the presence of certain formal and external signs.

Africa _v. Commonwealth of Pennsylvania, 662 F.2d

1025, 1032 (3d Cir. 1981)

As noted by Judge Adams in his concurring opinion in

Malnak v. Yogi, 592 F.2d 197, 209 (3d Cir. 1979), the “formal

and external signs” include “formal services, ceremonial

functions, the existence of clergy, structure and organization,

efforts at propagation, observance of holidays, and other

similar manifestations associated with the _ traditional

religions.”

In applying the above analysis, the Ninth Circuit rejected

the contention that so-called “New Age” beliefs constituted a

religion for Establishment Clause purposes. Alvarado, supra.

In so doing, that court noted the absence of any text, creed or

associated organized group, stating,

The New Age proponents cited by plaintiffs clearly

indicate that there is no New Age organization, church-

like or otherwise; no membership; no moral or

behavioral obligations; no comprehensive creed; no

particular text, rituals or guidelines; no particular object

or objects of worship; no requirement or suggestion

that anyone give up the religious beliefs he or she

already holds. 94 F.3d at 1229.

Similarly, in Fleischfresser v. Directors of School District

200, 15 F.3d 680 (7" Cir. 1994), the court addressed a claim

by various parents that the use of a textbook series which

allegedly focused upon “wizards, sorcerers, and unspecified

creatures with supernatural powers” violated the Establishment

Clause. In rejecting that claim, the court stated,

The parents insist that the reading series presents

religious concepts found in paganism and branches of

witchcraft and satanism, this hardly sounds like the

establishment of a coherent religion. 15 F.3d at 687.

See also Peloza v. Capistrano Unified School District, 37 F.3d

517, 520 (9" Cir. 1994) (holding that neither evolution nor

secular humanism is a religion).

The Earth Day ceremonies are certainly not a formal

religious exercise where the recurring theme as noted in one of

14

the student newspaper articles lodged by the petitioner is

respect for one’ elders and the environment. While DiBari

attempts to portray Earth Day as a form of “Earth Worship”

by misrepresenting the annual ceremonies as the “Earth Day

Liturgy”, the globe on a tripod as an “Earth-totem”, speeches

as “sermons” and the playing of drums as “ceremonial tom-

toms”, the record reveals that the day is merely one of

environmental and social awareness and appreciation.

The District was not advancing religion at the Earth Day

ceremonies. Furthermore, the element of coercion identified in

Lee, supra, was also not met in that there was no obligation on

the part of the students to participate in the ceremonies. The

Kraemer affidavit states that attendance was not mandatory and

there is no contrary evidence in the record that students were

compelled to attend. To the extent that DiBari claims that the

Circuit Court made an erroneous factual finding in concluding

that attendance was not mandatory, Rule 10 of the Rules of the

Supreme Court provides that “[a] petition for a wnt of

certiorari is rarely granted when the asserted error consists of

erroneous factual findings ...”.

DiBari cites the decision in Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000) in which the Court found

that student-led prayers at school football games violated the

Establishment Clause, for the proposition that mandatory

attendance is not a prerequisite for a determination that

students were coerced into participating in the challenged

activity. In Santa _Fe, attendance at football games was

mandated for cheerleaders, members of the band and the team

members themselves. For those students who were not

mandated to attend, there existed “immense social pressure, or

truly genuine desire, felt by many students to be involved in the

extra-curricular event that is American high school football.”

Id. at 292.

15

The facts in this case do not indicate that the school district

created a situation in which students were faced with public

pressure Or peer pressure to participate in religious activities.

See Bown v. Gwinnett County School District, 112 F.3d 1464

(11" Cir. 1997) (no pressure to participate in silent meditation

during class). It is highly unlikely that students have an

overwhelming desire or face public pressure or peer pressure

to attend a ceremony in which the focus is on resnect for

senior citizens and the environment.

In addition, the "impressionability of students" is not

relevant if the school is not actually advancing religion. In

Good News Club Et Al. v. Milford Central School, ____ U.S.

, 121 S.Ct. 2093 (2001), the Court, commenting on its

decision | in Edwards v. Aguillard, 482 U.S. 578 (1987), stated:

Moreover, we did note that mandatory attendance

requirements meant that State advancement of religion

in a school would be particularly harshly felt by

impressionable students. But we did not suggest that,

when the school was not actually advancing religion,

the impressionability of students would be relevant to

the Establishment Clause issue. id at 2105.

In analyzing whether there is an endorsement of religion in

the public school context, the inquiry must be undertaken from

the perspective of an “objective observer in the position of an

elementary school student.” Brown v. Woodland Joint

Unified School District, 27 F.3d 1373, 1378 (9" Cir. 1994),

citing Kreisner v. City of San Diego, 1 F.3d 775, 783 (9" Cir.

1993) cert. denied, 510 U.S. 1044 (1994). As noted in Brown,

to apply a subjective standard would have a devastating impact

on school programs.

If an Establishment Clause violation arose each time a

student believed that a school practice either advanced

16

or disapproved of a religion, school curricula would be

reduced to the lowest common denominator, permitting

each student to become a “curriculum review

committee” unto himself or herself. 27 F.3d at 1379.

See also Fleischfresser, 15 F.3d at 689 n. 9 (rejecting

subjective “impressionable child” standard).

The Circuit Court correctly concluded that no objective

observer would perceive the Earth Day ceremonies as a

message of endorsement of the Gaia religion or any other

religious practice. (App. 57a-59a). The activities were not

intended to be religious, which, contrary to DiBari’s assertion

(Petition, p.16), is extremely relevant in determining the context

of a challenged activity. Lynch v. Donnelly, 465 U.S. 668

(1984) (O’Connor, J., concurring in judgment); nor was there

any evidence that the District was advancing religion during the

Earth Day celebration.

Il. Certiorari should not be granted to modify the well

settled rule that a governmental act of compulsion

must exist for there to be a violation of the Free

Exercise Clause.

It is well-settled that in order to prevail on a claim alleging

a violation of the Free Exercise Clause of the First

Amendment, it must be proven that there was governmental

compulsion to engage in conduct that violated the Plaintiffs’

religious convictions. Sherbert v. Verner, 374 U.S. 398 (1963);

Thomas v. Review Board, 450 U.S. 707 (1981); see also

Mozert _v. Hawkins County Board of Education, 827 F.2d

1058, 1065 (6th Cir. 1987).

As observed by Justice Jackson fifty years ago in

McCollum v. Board of Education, 333 U.S. 203 (1948), it is

essential to a claim of infringement of a public school student's

17

free exercise rights that there exist some compulsion to

perform a religiously prohibited ritual or make a religiously

prohibited affirmation. Noting the large number of separate

religious bodies existing in the United States, he wrote:

If we are to eliminate everything that is objectionable to

any of these warring sects or inconsistent with any of

their doctrines, we will leave public education in shreds.

Nothing but educational confusion and a discrediting

of the public school system can result from subjecting

it to constant law suits. 333 U.S. at 235.

v. Hawkins nt rd o tion, supra,

Plaintiffs alleged that a public school requirement that all

students use a prescribed set of reading textbooks which

contained material contrary to their religious beliefs violated

their rights under the Free Exercise Clause. Finding the

element of compulsion absent, the Sixth Circuit denied the free

exercise claim,

EPA ist SYOEMP RRR CHEE 0m A Proves ner (AB iinet

The requirement that students read the assigned

materials and attend reading classes, in the absence of a

showing that the participation entailed affirmation or

denial of a religious belief, or performance or non-

performance of a religious exercise or practice, does :

not place an unconstitutional burden on the students’ \

free exercise of religions. 827 F.2d at 1065.

Similarly, in Grove v. Mead, 753 F.2d 1528 (9" Cir. 1985),

the Ninth Circuit rejected a “religiously based” parental

challenge to a particular classroom reading assignment which

the parent argued was offensive to her religious beliefs. The

Court concluded that the use of the book at issue was not a

religious activity but served a secular educational function.

Judge Canby's concurring opinion is particularly apt. He noted

that while the Free Exercise Clause “protects individuals from

acon Soc oa een ne

18

governmental interference with their religion in the absence of

compelling justification (citations omitted), it does not protect

the individual from being religiously offended by what the

government does”. 753 F.2d at 1542. Moreover, “[t]he

inevitability of this conflict between Plaintiffs’ religious

rejection of ‘secularism’ and the secularization of society

Suggests why antipathy alone, however sincere, is never

enough to sustain a free exercise challenge ... were the free

exercise Clause violated whenever governmental activity is at

; variance with sincerely held religious precepts, virtually no

governmental program would be constitutionally possible.” Id.

In the instant case, the Circuit Court correctly held that no

violation of the Free Exercise Clause existed when the students

were not compelled to attend the Earth Day ceremonies. A

relaxation of the coercion standard when there are

“impressionable students” involved, as advocated by DiBari,

would invariably give rise to a plethora of Free Exercise

challenges to activities which have no religion-burdening effect,

but are merely found offensive to a plaintiff’s beliefs. None of

this Court’s rulings suggest that its Free Exercise Clause

jurisprudence has gone this far.

LOT Set UNE PLAN CHIR R ROSI OTH

Ill. Certiorari should not be granted when the Circuit

Court's holding that the petitioner, a municipal

taxpayer, lacked standing to challenge school

activities was based on a factual finding that

petitioner did not show a measurable appropriation

or loss of revenue attributable to the challenged

activities.

RN ETO TONS TOTES A, TASTE: TAAPONES OILY ENS ESR a

As noted in the Statement of Case, by the time this action

was before the Circuit Court, no plaintiff could claim any direct

injury from the “Ganesha” and “worry doll” activities at

Pound Ridge Elementary School and the playing of the

“Listening to Nature” tape at the Fox Lane Middle School as

19

the result of aging-out of the school building or moving from

the District. In that both the DiNozzi and Altman families

relocated from the District, the only remaining plaintiff was

DiBari whom the Court found lacked standing as a municipal

taxpayer under the Establishment Clause and Free Exercise

Clause.

The Circuit Court’s decision followed this Court’s ruling

in Doremus v. Board of Education of Borough of Hawthorne,

342 U.S. 429 (1952). Doremus, the seminal case regarding

taxpayer standing to assert a violation of the Establishment

Clause, involved a parental challenge to the reading of the Old

Testament in a public school. Because the child had graduated

from school prior to the appeal, the Court found that no

standing existed as a result of the parental relationship. 342

U.S. at 432-433. Turning to the issue of the plaintiffs’ status

as taxpayers, the Court similarly rejected the argument that

such status provided them with standing to raise the

Establishment Clause claim, finding the plaintiffs had failed to

allege “that this activity [Bible reading] is supported by any

separate tax or paid for from any particular appropriation or

that it adds any sum whatever to the cost of conducting the

school.” Id, 433. The Court noted:

It is apparent that the grievance which it is sought to

litigate here is not a direct dollars-and-cents injury but

is a religious difference . . . the appellants cannot obtain

a decision from this Court by a feigned issue of

taxation. Id. 434-435.

In the instant case, it has only been shown that DiBari is a

resident and taxpayer whose tax contributions go to support

the Bedford Central School District. The record is devoid of

any proof as to how her pecuniary interests are impacted by

the challenged activities. Likewise, Plaintiffs have never alleged

that the challenged activities are supported by any separate tax

20

or appropriation or that they add any sum whatsoever to the

cost of school operations.

“In order to establish state or municipal taxpayer standing

to challenge an Establishment Clause violation, a plaintiff must

not only show that he pays taxes to the relevant entity, he must

also show that tax revenues are expended on the disputed

practice.” Doe v. Duncanville Independent School District, 70

F.3d 402, 408 (5" Cir. 1995) (emphasis added). See also

Cammack v. Waihee, 932 F.2d 765, 770 (9" Cir. 1991); Doe

v. Madison School District No. 321, 177 F.3d 789 (9" Cir.

1999).

In Doe _v. Madison School District No. 321, supra, a

municipal taxpayer contested the reading of a prayer during

high school graduation ceremonies. The Court noted that the

plaintiff did not identify any tax dollars that defendants spent

solely on the graduation prayer. Instead, the plaintiff alleged

that defendant spent tax dollars on renting a hall, printing

graduation programs, buying decorations, and hiring security

guards. “But those are ordinary costs of graduation that the

school would pay whether or not the ceremony included a

prayer. Therefore, those expenditures cannot establish taxpayer

standing.” Id., 794. The Court continued:

This case is legally indistinguishable from Doremus, in

which the school’s expenditures for teachers’ salaries,

equipment, building maintenance, and the like were

insufficient to confer taxpayer standing despite their

indirect support of the Bible reading. Id.

As in the above-cited cases, Plaintiffs do not assert a direct

dollars-and-cents injury but rather a religious difference. As

Doremus and its progeny make clear, this is insufficient to

support a taxpayer standing to raise an Establishment Clause

claim.

21

The decision of the Fourth Circuit in Koenick v. Felton

190 F.3d 259 (4™ Cir. 1999) is factually distinguishable. In

that case, a retired teacher and state taxpayer challenged the

constitutionality of a statute which provided for paid school

holidays of the Friday before Easter and the Monday

following. In contrast to the instant case, the plaintiff was able

to maintain standing upon a showing that her tax dollars

funded the paid, statutory holidays for school employees.

The Court's recitation in ASARCO, Inc. v. Kadish, 490

U.S. 605 (1989), of the principle articulated in Commonwealth

of Massachusetts v. Mellon, 262 U.S. 447 (1923), commonly

known as Frothingham v. Mellon, that a municipal taxpayer's

relationship to the municipality is "direct and immediate", does

not compel the conclusion advocated by DiBari that the only

injury a municipal taxpayer need show is an improper

municipal expenditure. As the Circuit Court noted, "under

Frothingham we presume a municipal taxpayer's relationship

to the municipality is ‘direct and immediate’ such that the

taxpayer suffers concrete injury whenever the challenged

activity involves a measurable appropriation or loss of

revenue." (App. 46a). DiBari has utterly failed to show a

measurable appropriation or loss of revenue attributable to the

challenged activities at the schools.

With respect to DiBari’s Free Exercise claim, she has to

demonstrate that a particular law or practice has a coercive

effect which operates against the plaintiffs practice of his/her

religion. Fleischfresser v. Directors of School District 200, 15

F.3d 680, 689 (7" Cir., 1994), citing Abington School District

22

v. Schempp, 374 U.S. 203, 223. The requirements for standing

to challenge state or municipal action under the Free Exercise

Clause include proof that particular religious freedoms are

infringed. McGowan v. Maryland, 366 U.S. 420 (1960);

Abington v. Schempp, 374 U.S. at 225, n.9. Thus, Free

Exercise claims, by their very nature, require a plaintiff who

has allegedly been subjected to the objected religious activity.

A municipal taxpayer who is not directly affected by the

alleged religious activity lacks standing to maintain an action

under the Free Exercise Clause because his/her interest is only

financial. See McGowan, 366 U.S. at 429, 81 S.Ct. at 1106-

07; Grove v. Mead School District No. 354, supra.

CONCLUSION

For the foregoing reasons, the petition for a wnt of

certiorari should be denied.

Dated: Northport, New York

July 24, 2001

Respectfully submitted,

NEIL M. BLOCK

Counsel of Record

WARREN H. RICHMOND

LAWRENCE W. REICH

INGERMAN SMITH, L.L.P.

167 Main Street

Northport, New York 11768

(631) 261-8834

Attorneys for Respondents

Bedford Central School District et al.

23