10th Circuit affirms Bauchman (high school choir case)

[Eric W. Treene]

LoAndEd wrote:

> 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)

This thread may be old, but I have been away until today and wish to
address the two allegations in the original complaint in Bauchman  that
Marty Lederman discusses.

    First, the original complaint did not allege that the majority of
the choir's songs were works by contemporary Christian song-writers (not
Marty's error but a mistatement by the district court in the facts
section, which he quotes).  As the Tenth Circuit correctly stated, the
original complaint alleged that the Choir sang "Christian devotional
music", and that "a preponderance of the religious songs represented the
works of contemporary Christian songwriters."  There is no allegation
regarding the percentage of the choir's works that were religious, only
that a majority of the religious songs were written by contemporary
songwriters.  (as it turned out, many or  most of these "songwriters"
are not of the Contemporary Christian pop-songrwriting genre as the
complaint suggests, but rather are contemporary composers of Choral
music like John Rutter, the composer of  "The Lord Bless You and Keep
You.").  More significant than the absence of an allegation regarding
the number of religious songs is the absense of any allegation of unduly
emphasizing religion in the selection of works to perform.

    Second, the complaint does allege that the plaintiff was "required"
to perform religious music and to perform in concerts at churches.  But
the language of the complaint itself undercut this allegation:  it
stated that Ms. Bauchman was given the choice of singing the
objectionable songs and concerts or "isolation from regular, graded,
required Choir Class activities for the entire three-week period of
practice for and performances of the 'Christmas Concerts' in return for
a sham notation in the Choir Class register denoting a grade of 'A' and
a grade of 'Honors' in 'Citizenship' for the semester, depicting,
contrary to fact, that plaintiff had satisfied all class requirements."
Both the District Court and the Court of Appeals were able to see what
was going on:  the choir director had given her the ability to opt out
of the objectionable activities without penalty to her grade.   This is
what I would hope any school would do for a child objecting to school
activities based on conscience.  Indeed, if the school had not done
this, the Becket Fund would have been on Rachel Bauchman's side in this
case.


Eric Treene
The Becket Fund for Religious Liberty
2000 Pennsylvania Av., N.W., Suite 3580
Washington, D.C. 20006