Bauchman v. West High School (1997)
Court Decisions on Religious Liberty
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Background Information
While a sophomore in Salt Lake City's West High School, Rachel Bauchman auditioned for and was admitted to the a cappella choir class taught by Mr. Richard Torgerson. Rachel was happy in the class until she received the repertoire for the Christmas holiday concerts containing ten songs praising Jesus as Lord, Savior and King. These were were contemporary Christian compositions, not classic pieces by composers such as Handel.
Rachel, who is Jewish, was uncomfortable with participating in such a program - one or two such pieces might not have been a problem, but every single piece praised an individual who, for her, is a false messiah. Also, the eight major performances were all to be held in Christian churches or other church-owned facilities. By and large, Rachel's concerns were met with little interest or consideration by either Mr. Torgerson or the school administration. After she started to seek legal assistance, Torgerson told her that she would receive an A in the class so long as she simply sat out December in the school library.
Rachel also suffered a great deal of harassment by other students and the wider community. She was the target of rumors, taunting, accusations and even threats. This occurred not just at school, but also through phone calls at home. Quite frequently the harassment was anti-semitic in nature, for example some lamenting that Hitler didn't "finish the job."
In the Spring, problems started again because the choir had normally made trips to various Mormon churches to perform during Mormon religious ceremonies. The choir would be advertised as a Mormon choir bearing witness that Mormonism is the true religion - something which could not be done because of Rachel. The harassment started again.
The ultimate cause for the lawsuit was the attempt by Mr. Torgerson to have the choir sing two religious songs during graduation. Attendance was mandatory for all choir members - Rachel was not given the option of sitting it out. A federal District Court refused to stop the songs, but the 10th Circuit Court of Appeals issued an injunctions, preventing them from being performed.
Court Decision
On December 18, 1997, the 10th Circuit Court of Appeals dismissed many of Rachel Bauchman complaints, but did agree to rule on whether or not her constitutional rights were violated. The decision found that the school district did not, in fact, infringe upon her First Amendment rights when she was expected to sing religious Christian songs as part of her participation with the school choir.
The Court based its reasoning on the test devised by Justice Sandra Day O'Connor in the case of Lynch v. Donnelly, according to which a government is acting improperly if it "endorses" religion; such endorsement, in turn, occurs whenever the government either has the purpose or effect of communicating the message that "religion or a particular religious belief is favored or preferred." The mere existence of a religious aspect is not enough for a successful claim because "the Constitution does not require that the purpose of every government-sanctioned activity be unrelated to religion."
According to the decision, there are a number of possible secular purposes for a school to require students in a choir to sing entirely religious music. For one thing, most choral music is religious in nature - the fact that this choir is an a cappella choir and most a cappella music secular was considered irrelevant. Also, there are secular reasons for having students perform religious music in religious venues like churches, for example because the are "acoustically superior to high school auditoriums or gymnasiums."
The harassment she had to endure, even that from her teacher, was found to be irrelevant to her claim that her constitutional rights. According to the Court, such actions:
...evidence a lack of sensitivity, crudeness and poor judgment unbefitting of high school students, their parents, and especially, public school teachers and administrators. However, such claims do not rise to the level of a constitutional violation. Nor can they be used to breathe constitutional life into otherwise unactionable conduct. The fact that the defendants did not change their behavior in accordance with Ms. Bauchman's demands and reacted negatively and/or offensively to those demands simply cannot be viewed as support for her claim that the Choir's performance of religious music at religious venues furthered a religious purpose, advanced or favored religion or a particular religious belief, or otherwise entangled the public school with religion.
In other words, it is not a sign that Torgerson was attempting to advance any particular religious beliefs when he harassed her and ridiculed her religious beliefs simply because she objected to the pervasively sectarian content of a musical program.
The dissent took issue with the above ruling, pointing out that in order to reach these conclusions, the majority had to argue for a relevant difference between Torgerson's "psychological motive" for choosing religious music and his "actual purpose" in choosing religious music - even though such a distinction never before used in such a case and even though the Supreme Court has repeatedly used "motive" and "purpose" interchangeably. The dissent also complained about the fact that the majority decision simply dismissed Torgerson's past acts of religious endorsement as irrelevant.
At the very heart of the majority's decision in this case is the conclusion that Torgerson's past conduct of endorsement is irrelevant because it only serves to demonstrate a continuing psychological "motive" to "further a religious purpose," rather than a distinct purpose to endorse religion. ("[A]llegations and evidence relevant to Ms. Bauchman's claims are limited to defendants' conduct and events during the 1994-95 school year."). The problem is that the majority never explains why past instances of misconduct only show a continuing motive rather than a continuing purpose to advance religion. Under the majority's rigid rule of relevance, a past expression of "actual purpose" is apparently converted into an irrelevant expression of motive by the mere passage of time.
Under this novel view of relevance, an admission by a public school teacher that she constructed the curriculum for the direct purpose of advancing religion is somehow converted into a mere expression of motive during a subsequent year, even if the curriculum in question remains unchanged. Unfortunately, the majority has not cited any support for this novel proposition. A review of the relevant Supreme Court jurisprudence reveals the reason: no support for the proposition exists. Even assuming for the sake of argument that the majority's novel rule of past conduct is correct and allegations of Torgerson's past conduct of endorsement are somehow converted into mere expressions of motive, that motive is still relevant to prove that Torgerson acted with an improper purpose during the year in question.
What sorts of things did Torgerson so? The dissent offered the following:
In 1977, while employed as director of the A Cappella Choir Class at South High School in Salt Lake City, Torgerson forced the students in his Choir class to attend the offering of prayers and sacraments at LDS worship services a[s] part of the regular, required, graded public school curriculum.
During 1980, through his position as the director of the A Cappella Choir Class at South High School, Torgerson used an application form for admission to the Choir Class that inquired as to the applicant's religious affiliation. Torgerson inquired about the applicants religious affiliations in order to limit the Choir Class to members of the Church of Jesus Christ of Latter-Day Saints ("LDS Church") because the Choir Class regularly participated in LDS religious services, which participation included speaking and singing presentations by students. The Choir Class did not participate in the religious services of any other religious organization.
During the 1992-93 school year, when Torgerson was employed as the director of the A Cappella Choir class at West High School, Torgerson required the Choir Class to perform approximately once each month at LDS worship services.
During the 1992-93 school year, and in the years following, Torgerson frequently discussed the religious content of the many religious devotional songs he required the West High School Choir Classes to sing and used the religious content of the songs to advocate his own religious beliefs.
During the 1993-94 school year, while employed as the director of the A Cappella Choir Class at West High School, Torgerson repeatedly advocated his religion in the Choir Class, frequently stated that he was aware of and disagreed with the United States Supreme Court decisions forbidding the advocacy of religion in public school classes, and frequently stated that he would continue in his advocacy of religion in public school classes even though he knew that doing so violated established law.
During the 1993-94 school year, Torgerson required the West High School Choir Classes to practice the religious song, "Lamb of God." During the practicing of "Lamb of God," Torgerson turned off the lights in the classroom and, to the outrage of several students, instructed the Choir Class to visualize "Jesus dying for our sins."
During [a] Pacific Northwest Tour in Salem, Oregon, the West High School Choir Class performed at an LDS "fireside" service, where Torgerson portrayed the Choir Class as an LDS religious choir. At the "fireside", LDS Choir Class members "bore their testimonies" about their personal relationship with Jesus and proclaimed that the LDS Church is the only true religion. The Choir Class performed solely Christian devotional music as part of the LDS worship services.
According to the majority opinion, however, none of this was relevant when it came to determining whether or not Torgerson was improperly advancing his religion through his position as teacher.
Significance
This decision, if used as precedent by other courts, drastically narrows the ability of public school students to get legal relief when school officials use their positions to endorse one religion or disparage another. Based upon this decision, even a school official with a long and disturbing history of misusing his office to advance his religious beliefs could still be found not in violation of the Constitution, at least so long as the court in question can think up some vaguely plausible reasons for the immediately challenged actions.
This decision is often cited as precedent for the idea that public schools are permitted to include religious compositions in various choral or orchestral music programs, even though the decision itself was most directly related to graduation ceremonies. This usage is based upon the following comments in the decision:
...the Constitution does not require that the purpose of every government- sanctioned activity be unrelated to religion. ...Courts have long recognized the historical, social and cultural significance of religion in our lives and in the world, generally. Courts also have recognized that "a variety of motives and purposes are implicated" by government activity in a pluralistic society. Accordingly, there is a legitimate time, manner and place for the discussion of religion in the public classroom.
As they stand, these comments are entirely valid and express an important principle: the mere fact that something religious has gotten mixed in with a government activity does not, by itself, mean that this activity is necessarily and automatically unconstitutional. However, the Court seems to err by going too far in the other direction when it argues that the mere existence of a possible secular motive is sufficient to validate such activities - especially when abundant evidence of past religious motivation is dismissed.
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