Bauchman for Bauchman v. West High School

Page 542

132 F.3d 542

122 Ed. Law Rep. 1133, 97 CJ C.A.R. 3445

Cheryl BAUCHMAN, as parent and guardian for Rachel BAUCHMAN Plaintiff-Appellant, v. WEST HIGH SCHOOL; Salt Lake City School District; Richard Torgerson; William Boston; Gene Bonella; Teresa Piele Dolores Riley; Darline Robles; Dale Manning; Mary Jo Rasmussen, Defendants-Appellees and Leila Quinones Barela, by and through her father, Luke J Barela; Luke J. Barela, in his own capacity; Tamra M. Badger, by and through her parent and guardian, William A. Badger; William A. Badger, in his own capacity; Cindy R. Badger; Eric Michael Nielsen, by and through his parent and guardian Greg Nielsen; Greg Nielsen, in his own capacity; Jo Rita Nielsen; Heather Pettit, by and through her parent and guardian, Ralph Pettit; Ralph Pettit, in his own capacity; Elaine Pettit; Joy M. Warthen, by and through her parent and guardian, Lee Warthen; Alexander B. Warthen, by and through his parent and guardian, Lee Warthen; Lee Warthen, in his own capacity; Barbara Warthen; Steven C. Eror, Jr., by and through his parent and guardian, Steven C. Eror; Steven C. Eror, in his own capacity; Judy H. Error; Jane Curtis, by and through her parent and guardian, Marvin R. Curtis, Jr.; Marvin R. Curtis, Jr., in his own capacity; Joan C. Curtis, Defendants-Intervenors. Presbyterian Church (U.S.A.); United Church Board for Homeland Ministries of the United Church of Christ; American Jewish Committee; Anti-Defamation League; General Conference of Seventh-Day Adventists; Union of American Hebrew Congregations, Amicus Curiae.

Nos. 95-4084, 96-4101.

United States Court of Appeals, Tenth Circuit.

Dec. 18, 1997.

Andrew C. Hruska, New York City (Edward A. Harris, Georgina E. Hayden, Michael W. Martin and Joseph E. Neuhaus, New York City; Ross C. Anderson and Nathan B. Wilcox of Anderson & Karrenberg, Salt Lake City, UT, with him on the briefs), for Plaintiff-Appellant.

David J. Jordan, of Stoel Rives LLP, Salt Lake City, UT, and Debra J. Moore, Assistant Attorney General, Salt Lake City, UT (Kenneth R. Black of Stoel Rives LLP, Salt Lake City, UT, with them on the briefs), for Defendants-Appellees.

Eric W. Treene (Kevin J. Hasson and Nancy E. Smith of The Becket Fund for Religious Liberty, Washington, DC, with him on the briefs) for Defendants-Intervenors.

Marc D. Stern and Lois C. Waldman of The American Jewish Congress, New York City; Colby A. Smith and Alan H. Scheiner of Debevoise & Plimpton, New York City; Judith E. Schaeffer and Elliot M. Mincberg of People for the American Way, Washington, DC; Steven K. Green and Julie A. Segal of Americans United for Separation of Church and State, Washington, DC, filed amici curiae briefs.

Before BRORBY, BARRETT and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

I. INTRODUCTION

Rachel Bauchman, by and through her mother and guardian, Cheryl Bauchman sued her music teacher, Mr. Richard Torgerson, West High School, the Salt Lake City School District and several West High School and School District Administrators, claiming that defendants violated the Establishment, Free Exercise and Free Speech clauses of the United States Constitution and her civil rights under 42 U.S.C. § 1983 (1994), her rights under the Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb (1994), and the Religion and Speech clauses of the Utah Constitution.

The constitutional issues raised in this appeal are issues of acute public interest--issues which evoke diverse opinions and strong emotions. The fact Ms. Bauchman's claims focus on religious neutrality in public schools only intensifies that interest and emotion. ¹ This is no more true than in Salt Lake City, Utah--a community and state whose unique social and political history reveals a longstanding tension involving the separation of church ("The Church of Jesus Christ of Latter-day Saints" or "Mormon Church") and state. ²

Acknowledging this unique history and tension, we have taken particular care in studying Ms. Bauchman's claims and legal arguments. We take seriously our obligation to uphold the First Amendment of the Constitution, which fundamentally operates to protect minority interests. Our study of the relevant facts and law leads us to affirm the district court's dismissal of Ms. Bauchman's complaint and denial of her motion to amend the complaint.

II. BACKGROUND

A. SUMMARY OF FACTS AND ALLEGATIONS

Rachel Bauchman was a sophomore at Salt Lake City's West High School during the 1994-95 school year. During that same year, Ms. Bauchman auditioned for and was admitted into Mr. Richard Torgerson's a capella choir class (the "Choir"), an elective course offered for credit.

By way of her original complaint and proposed amended complaint, Ms. Bauchman, who is Jewish, generally alleges Mr. Torgerson "engaged for many years, and continues to engage, in the advocacy, promotion, endorsement and proselytizing of his [Mormon] religious beliefs and practices" during his public school classes and Choir performances. More specifically, she claims (1) as a member of the Choir she was required to perform a preponderance of Christian devotional music; (2) Mr. Torgerson selected songs for the religious messages they conveyed; (3) the Choir was required to perform Christian devotional songs at religious sites dominated by crucifixes and other religious symbols; (4) Mr. Torgerson selected religious sites for Choir performances with the purpose and effect of publicly identifying the Choir with religious institutions; (5) Mr. Torgerson berated and ostracized students, like herself, who dissented against his religious advocacy; (6) Mr. Torgerson covertly organized a Choir tour for select Choir members to perform religious songs at religious venues in southern California; and (7) Mr. Torgerson deliberately scheduled the Choir to sing two explicitly Christian devotional songs during West High School's 1995 graduation. Ms. Bauchman also presents a long list of Mr. Torgerson's alleged unconstitutional practices as a public school teacher beginning some seventeen years prior to Ms. Bauchman's enrollment in his class. She alleges the remaining defendants ³ had knowledge of but consistently failed to take any effective measures to stop Mr. Torgerson from promoting religion in his Choir classes.

Ms. Bauchman left West High School and enrolled in a private school for the 1996-97 school year--her senior year. Although she expressed a desire to sing in the Choir during her senior year, she declined an invitation to audition for the 1996-97 Choir. In June 1997, subsequent to oral argument in this appeal, Ms. Bauchman graduated from high school. Hence, she will no longer have occasion to enroll in Salt Lake City public schools.

B. PROCEDURAL HISTORY

Ms. Bauchman filed her complaint requesting declaratory and injunctive relief as well as damages at the end of the 1994-95 school year. Along with the complaint, Ms. Bauchman filed a Motion for a Temporary Restraining Order and Preliminary Injunction, seeking specifically to enjoin the Choir's planned performance of two songs at West High School's 1995 graduation, and more generally, to enjoin the defendants from compelling the Choir to perform or practice Christian devotional songs. Following an emergency hearing, which dealt solely with the evidence and issues pertaining to the graduation songs, the district court denied Ms. Bauchman's motion for emergency injunctive relief. The district court deliberately avoided taking evidence on or ruling with regard to Ms. Bauchman's request for broader, preliminary injunctive relief, noting that such request would require an evaluation of the merits of her constitutional claims as a whole. Ms. Bauchman nevertheless interpreted the district court's order as a final order denying all requested injunctive relief and filed her first appeal to this court. ⁴ Bauchman v. West High School, No. 95-4084.

Meanwhile, both Mr. Torgerson and the School District moved to dismiss Ms. Bauchman's complaint. They were joined by a group of Choir students and their parents who sought and were granted leave to intervene as defendants. For purposes of considering the motions to dismiss, the district court permitted Ms. Bauchman to file a "Verified Supplemental Pleading" containing allegations relating to the defendants' conduct at West High School's 1995 graduation exercises. After briefing and oral argument, the district court granted defendants' motions and dismissed the complaint.

Ms. Bauchman then filed a Motion to Alter or Amend Judgment and for Reconsideration of Order Granting Defendants' Motions to Dismiss pursuant to Fed.R.Civ.P. 59(e). In the alternative, Ms. Bauchman sought leave to amend her complaint and proffered a proposed amended complaint together with eight affidavits. The proposed amended complaint included additional allegations regarding the knowledge and actions of the individual school district defendants, numerous allegations pertaining to Mr. Torgerson's conduct prior to the 1994-95 school year and, for the first time, allegations that Mr. Torgerson selected religious songs and performance sites for the purpose of promoting religion. The district court denied Ms. Bauchman's motion for reconsideration, but held her motion to amend in abeyance pending discovery on the issue of whether, during the 1994-95 school year, Mr. Torgerson's "selection and rehearsal of Christian songs as part of the music class curriculum, and the performance of such songs by the [Choir] at religious venues was primarily for a secular purpose or primarily for the purpose of promoting or proselytizing religion." Following completion of discovery, Ms. Bauchman renewed her motion for leave to amend, electing to stand on the amended pleading proffered prior to discovery; she did, however, present the district court with numerous affidavits and deposition excerpts to consider in conjunction with the proposed amended complaint. The district court denied Ms....