BAUCHMAN, BY AND THROUGH BAUCHMAN v. West High

• Decision Date: 13 September 1995
• Docket Number: Civ. No. 95-C-506G.
• Citation: 900 F. Supp. 254
• Parties: Rachel BAUCHMAN, By and Through her parent and guardian Cheryl BAUCHMAN, Plaintiff, v. WEST HIGH SCHOOL; Salt Lake City School District; William Boston; Gene Bonella; Teresa Piele; Dolores Riley; Darline Robles; Dale Manning; and Mary Jo Rasmussen, Defendants, Liela 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. Eror; Jane Curtis, By and Through her parent and guardian, Marvin R. Curtis, Jr.; Marvin R. Curtis in his own capacity; and Joan C. Curtis, Defendant Intervenors.
• Court: U.S. District Court — District of Utah

900 F. Supp. 254

Rachel BAUCHMAN, By and Through her parent and guardian Cheryl BAUCHMAN, Plaintiff, v. WEST HIGH SCHOOL; Salt Lake City School District; William Boston; Gene Bonella; Teresa Piele; Dolores Riley; Darline Robles; Dale Manning; and Mary Jo Rasmussen, Defendants Liela 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. Eror; Jane Curtis, By and Through her parent and guardian, Marvin R. Curtis, Jr.; Marvin R. Curtis in his own capacity; and Joan C. Curtis, Defendant Intervenors.

Civ. No. 95-C-506G.

United States District Court, D. Utah, Central Division.

September 13, 1995.

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Andrew C. Hruska, Sullivan & Cromwell, New York City, Ross C. Anderson, Anderson & Karrenberg, Salt Lake City, UT, Lisa H. Thuran, New York City, for plaintiff.

John Robson, Fabian & Clendenin, Salt Lake City, UT.

Dan R. Larsen, Utah Attorney General, Salt Lake City, UT, for defendants.

Mark Ward, Utah Attorney General, Salt Lake City, UT, for Richard Torgerson.

James W. McConkie, III, Richard B. McKeown, Parker, McKeown & McConkie, Salt Lake City, UT, Kevin J. Hasson, Nancy E. Smith, Becket Fund for Religious Liberty, Washington, DC, for defendant-intervenors.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

J. THOMAS GREENE, District Judge.

This matter is before the court on separate motions to dismiss by Defendant Richard Torgerson and by the remaining defendants, and on Plaintiff's Motion for Leave to Submit a Supplemental Pleading. Plaintiff is represented by Ross Anderson,¹ Andrew C. Hruska, and Lisa H. Thurau. Defendant Richard Torgerson is represented by Mark Ward of the Utah Attorney General's Office. The remaining defendants are represented by Dan R. Larsen of the Utah Attorney General's Office. Defendant-Intervenors are represented by Kevin J. Hasson and Nancy E. Smith of the Beckett Fund for Religious Liberty, and James W. McConkie and Richard B. McKeown of Parker, McKeown & McConkie.

A hearing was held on the pending motions on August 28, 1995, following which the matter was taken under advisement. After due consideration of the issues presented, this court renders its memorandum decision and order.

STANDARD OF REVIEW

In considering a motion to dismiss under Rule 12(b)(6), the court looks only to the complaint and construes it in the light most favorable to the plaintiff, assuming all allegations to be true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Only well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984); Mitchell v. King, 537 F.2d 385 (10th Cir.1976). In determining whether to grant a motion to dismiss, courts look solely to the material allegations of the complaint. Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir.1992). A motion to dismiss will not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

BACKGROUND — PLAINTIFF'S MATERIAL ALLEGATIONS OF FACT²

Plaintiff Rachel Bauchman is a Jewish student enrolled at Defendant West High School, a public secondary school within the Defendant Salt Lake City School District. At times relevant in the complaint, during the 1994-95 school year, plaintiff was enrolled in the tenth grade as a sophomore. Plaintiff was a member of West High School's A'Cappella Choir, an elective class offered for credit. Admittance to the choir is by audition, which plaintiff successfully accomplished.

Defendant Richard Torgerson ("Torgerson") is the choir instructor at West High School, and in that position is an employee of Defendant Salt Lake City School District. Defendant William Boston is the principal of West High School, and Defendants Gene Bonella and Teresa Piele are assistant principals. Defendant Dolores Riley is the School District's Minority Liaison Coordinator. Defendant Darline Robles has been the School District's superintendent since January 1995. Defendant Dale Manning was the School District's interim acting superintendent from August 1994 until January 1995. Defendant Mary Jo Rasmussen is the President of the Salt Lake City School Board.

During the time that plaintiff has been a member of the A'Cappella Choir, Torgerson has selected some songs of an explicitly religious derivation for performance by the choir. The lyrics of such songs might language such as, "We glorify Thee God of Hosts. We love Thee and exalt Thee," and praise for Jesus Christ. Practice and performance of these songs was part of the required curriculum of the West High School A'Cappella Choir class. The works of contemporary Christian songwriters constituted a preponderance of the choir's musical curriculum. Torgerson required plaintiff, as well as other choir members, to perform in public such songs of a religious character in connection with the choir's activities.

Torgerson also has required plaintiff and other choir members to perform at religious sites as part of the choir's regular curriculum. For some performances, Torgerson selected explicitly Christian religious sites, such as The Church of the Madeleine (Roman Catholic), the First Presbyterian Church, and Temple Square (The Church of Jesus Christ of Latter-Day Saints). Present at some of these sites were items of religious significance, such as replicas of a cross. Performance at these sites was in conjunction with a "Christmas Concerts" program that was part of the regular curriculum of the West High A'Cappella Choir class.

In response to complaints by plaintiff and her parents, Torgerson refused to alter the choir class curriculum, or to change the sites for performance. Defendant Boston supported Torgerson in the face of opposition to the curriculum by the Bauchman family. Torgerson personally spoke to plaintiff about the matter, and gave her the choice of either (1) continuing to participate in the choir's scheduled performances and curriculum, or (2) voluntarily resigning from participation in the choir for the period of the Christmas Concerts program, with the entry of an automatic "A" grade and an "Honors" citizenship mark for choir class on her high school transcript.³

In the past, the West High School A'Cappella Choir has organized and sponsored a tour in the spring ("Spring Tour"). The Spring Tours have routinely included performances at some religious sites, performance of religious and devotional music, and attendance at Christian religious services in which choir class members participate. During class periods, Torgerson expressly criticized and blamed plaintiff's opposition to the religious music component of the choir's curriculum, and impliedly blamed her opposition as having caused the cancellation of the 1995 Spring Tour. In addition, plaintiff asserts that at several times during the 1994-1995 school year, Torgerson took occasion during class lecture periods to criticize plaintiff both specifically and inferentially in front of her choir classmates for the assertion of her constitutional claims. Plaintiff also asserts that in front of the choir class, Torgerson mentioned that plaintiff was Jewish, in such a way as to emphasize the distinction of her beliefs from those of the Christian majority of the other choir students. Plaintiff claims that by these actions, Torgerson intended to promote hostility and ridicule toward her by her classmates for her religious beliefs and for the assertion of her constitutional rights. Plaintiff also claims that following the lectures, she was subjected to public ridicule and humiliation, and was the subject of racial and religious epithets spoken by her fellow students.

Plaintiff learned that Torgerson covertly planned a secret tour to take the place of the canceled Spring Tour. She claims that the planning took place on West High School property and under the guise of a Boy Scout activity. When plaintiff inquired of Torgerson on this matter, she says that she was rebuffed and was unable to obtain further information.

Upon receipt of a letter from plaintiff's father, Eric Bauchman, detailing plaintiff's constitutional claims, Torgerson forwarded the letter to Preston Naylor, the father of another member of the choir. Torgerson's purpose in forwarding the letter was to assist Mr. Naylor in publicizing the letter and the Bauchman's views, allegedly in order to engender hostility against plaintiff. The private letter from Mr. Bauchman was, in fact, publicly distributed as an attachment to a letter from Mr. Naylor to choir students' parents that criticized plaintiff and her parents for asserting plaintiff's constitutional claims. Plaintiff asserts that distribution of Mr. Bauchman's letter resulted in her being subjected to public humiliation and hostility.

Plaintiff claims that defendants have not discontinued or changed the policies and practices which plaintiff alleges to be in violation...