10th Circuit affirms Bauchman (high school choir case)

[LoAndEd]

Eric Treene writes:

"I  feel compelled to address some aspects of the case that
may have caused confusion.   The complaint that was dismissed alleged
that the singing of `explicitly' religious songs and performance of
concerts at churches constituted an Establishment Clause violation. No
other facts relating to the songs and the concerts were alleged in the
complaint.  The majority and the dissent agreed that this complaint was
properly dismissed.  The majority and dissent's agreement as to the
conclusion of the reasonable observer  was that a mere allegation of the
singing of religious songs and performance at churches, without more,
does not state a cause of action.  After the complaint was dismissed by the
District Court, the Plaintiff filed a motion to amend.  All of the allegations
about
emphasizing religion in the music curriculum over a twenty-year period,
performance at religious services, and other allegations that  might
give rise to an inference of subjective intent favoring religion were
contained in a proposed amended complaint filed after the court's ruling
on the 12(b)(6) motion.  The District Court denied the motion to amend
on grounds of futility and timeliness--but that amended complaint was
never dismissed on the pleadings."

Not having been involved in the case, I cannot say first-hand what Bauchman
alleged in her complaint(s).  But the published opinions belie Eric Treene's
attempt to limit the holdings in the case.  In dismissing Bauchman's
*original* complaint, the district court concluded that Bauchman could not
prove an EC violation despite her allegations  that "[t]he works of
contemporary Christian songwriters constituted a preponderance of the choir's
musical curriculum," and that "Torgerson . . . has required plaintiff and
other choir members to perform at religious sites as part of the choir's
regular curriculum."  900 F. Supp. at 260.  The court of appeals affirmed this
decision, concluding that "[w]e will not infer an impermissible purpose or
effect in the absence of any supporting factual allegations," where plaintiff
"simply alleges Mr. Torgerson selected and required her to perform a
*preponderance* of `Christian devotional' songs in places dominated by crosses
and other religious symbols."  1997 WL 778108 at *10.  (Even the dissenting
judge accepted this conclusion as to the original complaint.)  More
importantly, the reason that both the district court and the Tenth Circuit
majority rejected Bauchman's motion to amend the complaint as "futile" was
that each court concluded that the additional facts alleged — those that I
canvassed in my prior posts — as a matter of law *could not* establish an EC
violation, even if they all were proven.  See id. at *17, *19, *20; 1996 WL
407856 at *9.  As for the "alternative ground" on which the district court
denied the motion to amend — that the motion was untimely — the court of
appeals "question[ed] the district court's rationale," but declined to resolve
the question, having already decided that the amended complaint would fail to
state a viable EC claim.  1997 WL 778108 at *20.

Just curious:  Does anyone on the list think that the Tenth Circuit's decision
is defensible, i.e., that Bauchman's amended complaint fails to state an
Establishment Clause claim?  If so, on what theory?  What about the original
complaint, assuming arguendo that Bauchman "only" alleged that 23 of 38 songs
chosen were works of "contemporary Christian songwriters" and that the choir
was required to perform predominantly in religious settings?  Doesn't that at
the very least raise factual questions sufficient to state a cognizable claim?

Marty Lederman -- DoJ Office of Legal Counsel
(writing in my personal capacity, not as a representative of the
Department of Justice or of the U.S. Government)