Altman v. Bedford Central School DistrictAltman v. Bedford Central School District
CHRISTOPHER A. FERRARA, Ramsey, New Jersey (James M. Bendell, American Catholic Lawyers Association, Inc., Ramsey, New Jersey, on the brief), for Plaintiffs-Appellees-Cross-Appellants.
WARREN H. RICHMOND, Northport, New York (Lawrence W. Reich, Neil M. Block, Ingerman Smith, Northport, New York, Gerald A. Rosenberg, Frances K. Brown, Stacey B. Creem, Rosenman & Colin, New York, New York, on the brief), for Defendants-Appellants-Cross-Appellees.
ELLIOT M. MINCBERG, Washington, D.C. (People for the American Way Foundation, Washington, D.C., of counsel), filed a brief on behalf of Amicus Curiae Bedford Parents, in support of defendants-appellants-cross-appellees.
JAY WORONA, Albany, New York, filed a brief on behalf of Amicus Curiae New York State School Boards Association, Inc., in support of defendants-appellants-cross-appellees.
JAMES R. SANDNER, New York, New York (Katherine A. Levine, New York, New York, of counsel), filed a brief on behalf of Amicus Curiae New York State United Teachers, in support of defendants-appellants-cross-appellees.
MARC D. STERN, New York, New York, filed a brief on behalf of Amicus Curiae American Jewish Congress, principally in support of defendants-appellants-cross-appellees.
ARTHUR N. EISENBERG, New York, New York (Beth Haroules, New York Civil Liberties Union Foundation, New York, New York, on the brief), filed a brief on behalf of Amicus Curiae New York Civil Liberties Union, principally in support of defendants-appellants-cross-appellees.
Before: WALKER, Chief Judge, KEARSE and POOLER, Circuit Judges.
Appeal from so much of a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, as declared certain school activities to be in violation of plaintiffs’ rights under the Establishment and Free Exercise Clauses of the First Amendment to the Constitution, enjoined such activities, and awarded plaintiffs attorneys’ fees. Cross-appeal by plaintiffs from parts of the judgment dismissing their challenges to other activities. See 45 F.Supp.2d 368 (1999).
Affirmed in part, vacated in part, and reversed in part.
Defendants Bedford Central School District et al. (“Bedford” or “School District“) appeal from so much of a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, as (a) declared that certain school activities violated plaintiffs’ rights under the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution, (b) enjoined the School District and certain of its administrators and other personnel from sponsoring or encouraging those activities, and (c) awarded attorneys’ fees to plaintiffs. Following a bench trial, the district court found, to the extent pertinent to Bedford‘s appeal, that the Establishment and Free Exercise Clauses were violated by certain activities involving a Hindu god (“Ganesha” or “Ganesh“), “worry dolls,” and celebrations of the Earth and nature. On appeal, Bedford contends principally that the court should have dismissed all challenges to activities at one of its schools because at the time of trial no plaintiff had standing to challenge those activities, and that the court erred in its application of First Amendment principles to the enjoined activities. Plaintiffs cross-appeal from other parts of the judgment, contending that the court erred in dismissing their challenges to certain other activities.
For the reasons that follow, we conclude principally that the judgment should be (1) vacated insofar as it dealt with activities at two schools as to which plaintiffs no longer have standing; (2) reversed insofar as it declared School District programs to violate the First Amendment, ordered the School District to issue guidelines and cease certain activities, and awarded plaintiffs attorneys’ fees pursuant to
I. BACKGROUND
The following description is taken principally from the district court‘s posttrial findings of facts and conclusions of law. Except as indicated, the facts are largely undisputed.
A. The Parties and the Present Action
Bedford, located in Westchester County, New York, operates public schools including the Pound Ridge Elementary School (“Pound Ridge Elementary“), the Fox Lane Middle School (“Fox Lane Middle“), and the Fox Lane High School (“Fox Lane High“). The individual defendants are School District administrators sued in their official capacities.
Plaintiffs are members of three families who, when the present action was commenced in 1996, were residents and/or taxpayers in the School District. Robert M. Altman and Victoria L. Altman (collectively “the Altmans“) are the parents of Russell and Ross Altman. Russell had attended Pound Ridge Elementary until fifth grade; Ross had attended a Bedford elementary school until third grade. In or about 1996, the Altmans enrolled Russell and Ross instead in parochial school pending resolution of the family‘s criticisms of certain Bedford school activities.
Plaintiff Mary Ann DiBari is the grandmother and legal guardian of Krystal M. DiBari and Tiana N. DiBari. At the time of trial, Krystal attended Fox Lane High and previously had attended Fox Lane Middle. Tiana N. DiBari attended Fox Lane Middle at the time of trial and previously had attended Pound Ridge Elementary.
Plaintiffs brought the present action in October 1996 principally under
(a) The promotion of satanism and occultism, pagan religions and “New Age spirituality“, the latter being a religion which promotes as the goal of spiritual progress the full actualization of the human person as the godhead;
(b) Instruction in techniques of meditation, yoga, guided-imagery and self-hypnosis; “crystal power“, use of the “right-brain” and other “self-realization” techniques;
(c) Psychological evaluation and treatment by means of contrived incidents for self-revelation, psychodrama, role-playing, “stress management“, so-called “stress thermometers“, relaxation and deep-breathing, blindfold walks, encounter groups and other techniques designed to modify human behavior or to pry into the student‘s innermost thoughts and family life;
(d) Instruction in “decision-making” by which matters of morality are reduced to a process of choosing options divorced from objective moral norms, in which process the child, not the parents or God, is the final arbiter of what is right or wrong conduct in a given situation;
(e) Transpersonal “affective” teaching methods by which students are subjected to “learning” intuitively by “sharing” innermost fears, dreams, likes, dislikes, aversions, failures, insecurities and the intimate details of their personal and family lives with strangers in a classroom.
(Amended and Supplemental Complaint ¶18.) Plaintiffs asserted principally that the challenged activities, including those described in Parts I.B. and I.C. below, violated the Establishment and Free Exercise Clauses of the First Amendment, the Fourteenth Amendment rights of plaintiff parents to raise their children as they see fit, and the Fourteenth Amendment rights of the minor plaintiffs to privacy.
When this action was tried in early 1999, Ross Altman was the only plaintiff who was not beyond elementary-school age. Approximately one year prior to trial, however, as discussed in Parts I.E. and II below, the Altman family had relocated to the State of Connecticut, leaving no plaintiff who attended or was eligible to attend Pound Ridge Elementary. In addition, after trial and prior to this appeal, Tiana DiBari graduated from Fox Lane Middle and the DiNozzi Family relocated to the State of Delaware. These events left no plaintiff attending or eligible to attend Fox Lane Middle.
B. Activities Found Impermissible by the District Court
Following a five-day bench trial in February and March 1999, the district court found, to the extent pertinent to Bedford‘s appeal, that certain aspects of four of the challenged activities, to wit, those involving Ganesha, worry dolls, Earth Day, and a “Listening to Nature” tape, violated plaintiffs’ rights under the Establishment and Free Exercise Clauses of the First Amendment to the Constitution. See 45 F.Supp.2d 368 (1999). The evidence with respect to those activities was as follows.
During the 1992-93 school year, Pound Ridge Elementary conducted an international enrichment theme week. In one fourth-grade class, Jacqueline Reizes taught her students, who included Krystal DiBari, about India. Reizes selected India because she felt it suitable to the theme week‘s goal of supplementing the curriculum with music, art, dance, and cooking. She designed an elaborate lesson plan that included instruction in the geography and culture of India, and she decorated her classroom with travel posters of India and with Indian textiles and fabrics. Classroom activities included instruction in cooking Indian food, making batik textiles and paisley designs, constructing mosaics out of beans, and replicating an Indian board game.
In addition, on one afternoon the class read a two-page story entitled “How Ganesh got his Elephant Head.” The story described how, in a fit of anger, “SHIVA, THE MIGHTY GOD with the blue throat,” who initially did not realize that Ganesha was his son, cut off Ganesha‘s head and then restored Ganesha to life by slaying an elephant and fitting the elephant‘s head on Ganesha‘s body. But see 45 F.Supp.2d at 383 nn.9-10 (According to legend, Ganesha was made of clay by his mother Parvati, Hindu goddess wife of Shiva. According to the Encyclopedia Britannica, Ganesha was beheaded by Shiva‘s attendants in battle; to ease Parvati‘s pain, Shiva promised to cut off the head of the first living creature he encountered--an elephant, as it happened--and join it to Ganesha‘s body.) Reizes displayed in her classroom a variety of signs describing Ganesha, including the following:
Ganesha‘s head was accidentally cut off when he was a child. Shiva, in a panic, replaced it with the first head he found an elephant‘s head.
Ganesha is a round bellied, good natured Hindu God. He loves to eat.
Those who worship Ganesha bring him gifts of fruit.
Ganesha is the god of wisdom and success. People pray to him before they begin important projects.
45 F.Supp.2d. at 383. Following the reading of the story, students constructed depictions of Ganesha. One, introduced at trial, consisted of a construction-paper representation of the head of an elephant with eyes, ears, and a trunk.
During the 1993-94 school year, Reizes taught a third-grade class that included Joseph DiNozzi and Tiana DiBari. In a social studies unit on India, Reizes again read the Ganesha story. She also planned for her students to construct likenesses of Ganesha out of clay; however, the class ran out of time, and that project was not begun. Reizes testified at trial that there was no religious significance in her instruction about Ganesha or about India in general and that she was not attempting to convey any religious message.
Plaintiffs contended that the compulsion inherent in such classroom activities violated the minor plaintiffs’ Free Exercise rights. In addition, Mary Ann DiBari and plaintiffs’ expert witness, Father Mitchell Pacwa, S.J., testified at trial that creating representations of Ganesha violated the Second Commandment‘s proscription against fashioning images of gods of other religions.
2. Worry Dolls
The construction of worry dolls was part of a project sponsored by Pound Ridge Elementary‘s Discovery Center for arts and crafts. These brightly colored dolls are about 1 inch high and appear to be made from toothpicks, thread, and wire. Joseph DiNozzi made worry dolls as part of the project. Such dolls were also sold at the school store, and Joseph testified that a store employee told him that if he put the dolls under his pillow at night, they “would chase away... bad dreams.”
Father Pacwa testified that such instructions violated Catholic tenets against the use of charms.
3. Earth Day
Each year, Fox Lane High observed “Earth Day,” a day of activities centered around the theme of conservation of the environment and preservation of the planet. The general thrust of the program was usually the same. The celebration was organized by Youth in Action, a high-school club that promoted social and environmental awareness. Customarily, a globe five feet in diameter was placed in a circular outdoor area; students, grouped by grade, gathered around the globe. Local senior citizens were invited to the ceremony in order to foster community spirit. Representatives of each class presented symbolic gifts to the Earth in the form of speeches. Youth in Action‘s faculty advisor Dale Saltzman normally spoke of “reflecting on the simple things that the Earth provides for us and maybe, for one day, not taking them for granted.”
The program components varied somewhat from year to year. In some years, the ceremony would begin with a drum roll as students took their places. One year, a display of tombstones was used to symbolize endangered and extinct species. In 1996, Earth Day focused on the preservation of rain forests, with students marching around the circle carrying banners displaying the current state of rain forests around the world. In 1998, the event included speeches by Fox Lane High faculty members as well as a musical performance.
Jon DiNozzi testified that at one Earth Day event, Saltzman stated that “[w]e came from the Earth, we‘re part of the Earth and we‘re all involved in this cycle. One day we‘ll become [dead] and then we‘ll go back to the Earth.” 45 F.Supp.2d at 394 (alteration in original). DiNozzi testified that in another year, Saltzman made a speech “mainly about there‘s just too many people on this Earth” and about how “[w]e need to do something about it.”
Bedford characterized the Earth Day activities as, in part, an effort to comply with
It shall be the duty of the authorities of every public school in this state to assemble the pupils in their charge on that day in the school building, or elsewhere, as they may deem proper, and to provide for and conduct (1) such exercises as shall tend to encourage the planting, protection and preservation of trees and shrubs, and an acquaintance with the best methods to be adopted to accomplish such results, and (2) such lectures, pictures or tours, as shall tend to increase the interest and knowledge of such pupils in the fish and wild life, soil and water of the state.
4. The “Listening to Nature” Tape
Ruthann Funari, who taught life sciences at Fox Lane Middle, instructed her students to compile “data sheets” in class with respect to each season of the year. While students were noting their observations in their respective science research notebooks, Funari would occasionally play music in the background, which she regarded “as a way to have the natural environment which they had observed be more present in the classroom.” For the summer study, she played Vivaldi‘s “Four Seasons.” During the fall, she played a tape called “Listening to Nature.” The latter, which has a companion book that was not read to the students, contains various sounds of nature, such as birds, frogs, rivers, and ocean waves. At several times on the tape, a voice can be heard intoning nature-theme passages such as the following excerpt (attributed in the accompanying book to turn-of-the century naturalist John Muir):
Here is calm so deep, grasses cease waving... wonderful how completely everything in wild nature fits into us, as if truly part and parent of us. The sun shines not on us, but in us. The rivers flow not past, but through us, thrilling, tingling, vibrating every fiber and cell of the substance of our bodies, making them glide and sing.
J. Cornell, Listening to Nature, How to Deepen Your Awareness of Nature 42 (1987). The tape also included prayers such as the following Taos Indian invocation:
Now this is what we believe.
The Mother of us all is Earth.
The Father is the Sun.
The Grandfather is the Creator
Who bathed us with his mind
And gave life to all things.
The Brother is the beasts and trees.
The Sister is that with wings.
We are the children of Earth
And do it no harm in any way.
Nor do we offend the Sun
By not greeting it at dawn.
We praise our Grandfather for his creation.
We share the same breath together --
The beasts, the trees, the birds, the man.
Id. at 64. The tape also included the following passage (attributed in the book to Saint Francis of Assissi):
Lord, make me an instrument of Thy peace.
Where there is hatred, let me sow love;
Where there is injury, pardon;
Where there is doubt, faith;
Where there is despair, hope;
Where there is darkness, light;
Where there is sadness, joy.
O Divine Master, grant that I may not so much seek
To be consoled, as to console,
To be understood, as to understand,
To be loved, as to love.
For it is in giving that we receive,
It is in pardoning, that we are pardoned, It is in dying to self that we are born to eternal life.
Id. at 74. Funari testified that she lowered the volume on the tape whenever words were being spoken. Mary Ann DiBari testified, however, that her granddaughter Tiana heard the prayers or invocations.
C. Other Challenged Activities
Plaintiffs also challenged a number of other programs. They included the following.
1. Magic: The Gathering
Magic: The Gathering (“MTG” or “Magic“) is a complex, strategy-based card game that was played by students in extracurricular clubs that met before school at Pound Ridge Elementary and after school at Fox Lane Middle. Each MTG player is a “wizard” attempting to reduce his opponents’ “life total” points from twenty to zero. By drawing and playing cards, players attempt to summon “creatures” and cast “spells” in order to reduce their opponents’ point total. The playing cards include depictions of zombies, goblins, vampires, and similar creatures. Students were allowed to participate in MTG only with prior written parental consent.
2. Yoga Exercises
In 1998, Fox Lane High‘s athletic director invited Agia Akal Singh Khalsa, a Sikh minister, to conduct yoga exercises for students in gym class. Khalsa, who wore a Sikh turban, a traditional Sikh robe, and the beard of a Sikh minister, has a trademark name of “the Yoga Guy.” He led the class in breathing and stretching exercises designed to achieve relaxation, followed by “positive affirmation[s]” such as “I am happy, I am good.” He received a small stipend from School District funds for his time and travel.
Jon DiNozzi, on request, was allowed to opt out of the yoga exercises. Krystal DiBari testified that she was told that if she did not attend the yoga exercise class, she would be recorded as having cut class and would be ordered to serve detention; but she conceded that, although she did not attend, she did not in fact receive either penalty.
Plaintiffs contended that use of a Sikh priest to conduct such exercises on school premises constituted an endorsement of Eastern religions.
3. Buddha
Reizes testified that she read to her third or fourth grade class a story about the life of Buddha. Plaintiffs contended that reading that story to young children had the effect of promoting Buddhism, and that because, they assumed, reading about the life of Jesus Christ would not be permissible, reading about the life of Buddha should likewise be impermissible.
4. Quetzalcoatl
A teacher at Pound Ridge Elementary, as part of a historical presentation on Mexico, read her fifth-grade class a story about the Aztec bird god Quetzalcoatl. Some students were instructed to make an image of Quetzalcoatl out of cardboard, paper, and pipe cleaners. Students were also told that some persons believe that Quetzalcoatl will return to the world in the year 2012.
Plaintiffs contended that the study of Aztec religion, to the exclusion of the Christianity subsequently practiced by the majority of Mexicans, constituted a violation of the Establishment Clause, and that instructing students to create a depiction of Quetzalcoatl violated the Free Exercise Clause as well.
5. “God Messed Up” and Other Poems
Another teacher at Pound Ridge Elementary gave her fourth-grade students the assignment of writing poems on topics of their choice. Thereafter, a collection of 32 of the poems, selected by the students, was published as a booklet entitled “Poetry by 4H.” Most of the poems concerned such commonplace topics as flowers, telephones, and dogs. Another, about a “fatman,” read:
There once was a fatman
Who lived in a trash can
Who outran Pac Man
All the way to Spokane.
Plaintiffs complained, however, of the inclusion of two poems about God. One read
GOD Messed Up.....
When he made cats
He gave them the brains of bats
With bloated legs
And pointy ears.
And some claws
Made of SPEARS.
God messed up when he made dogs
He gave them the brains of frogs. (tiny)
He gave them deformed bodies and
Really shrimpy legs and hands
And bushy tails and butts, P.U
Guess what, he messed up on frogs, too.
Plaintiffs contended that the inclusion of these two poems contradicted Catholic teaching that God is omniscient and omnipotent, and hence violated the neutrality required by the Establishment Clause.
6. The “DARE” Program
The Drug Abuse Resistance Education (“DARE“) Program is a nationwide, copyrighted educational program designed to teach public and parochial students to avoid drug abuse and violence. Trained police officers taught the DARE curriculum in the Bedford public schools. DARE teachings included several lessons that portrayed students in a variety of roles in which they might be lured into abusing drugs or committing violence. Students were provided with advice and instructions about approaches to avoiding such temptations. The program included a “DARE box,” in which children could place questions--anonymously if they wished--that they were hesitant to ask in class. The DARE program did not include an instruction as to the morality of drug use; it did instruct that possession and use of unlawful substances is illegal.
Plaintiffs’ expert witness, psychologist Dr. William R. Coulson, testified that the DARE program constituted “nondirective psychotherapy“--that is, the encouragement of the expression of attitudes and feelings deriving from the “inner sel[f],” with the goal of spontaneously producing insightful understanding, without the need for a “wise man” to give instruction. Coulson testified that DARE had this effect because it encouraged students, in Coulson‘s words, to “get... in touch with their deeper feelings about using drugs” even if they had never had occasion to consider using drugs in the first place. Plaintiffs contended principally that the DARE program violated the Free Exercise Clause, the Fourteenth Amendment right to privacy, and
7. Brain Stimulation Exercises
In 1995, Reverend Nancy Weber, a self-described psychic and minister in the Life Spirit Congregational Church, taught exercises in creativity, learning, and memory at Pound Ridge Elementary. She received a modest stipend to compensate her for her time and travel. Her activities at the school included playing music, conducting breathing exercises, and leading drawing exercises with the nondominant hand, designed to stimulate the brain, in particular its nondominant hemisphere. Weber did not mention her ministry when she spoke with the students.
Plaintiffs contended that attempting to stimulate the brain‘s nondominant hemisphere promoted New Age religion, was antithetical to Catholic belief, and violated the Establishment and Free Exercise Clauses and their rights to privacy.
8. Peer Facilitator Program
The Peer Facilitator Program at Fox Lane High brought juniors and seniors in contact with ninth graders starting high school in an attempt to orient the new students and help them adjust to high-school life. Topics discussed with peer facilitators ranged from academic issues regarding classes and teachers to social issues such as how to avoid succumbing to peer pressure with regard to sex, drugs, and alcohol. Peer Facilitator Program materials included hypothetical questions for students to answer, such as imagining what they would do if they suddenly changed gender, or how their conduct and perspective would change if they were told they had only one year to live. In general, teachers were not present at Peer Facilitator Program meetings.
9. Meditation Exercises
In various classes at Pound Ridge Elementary and Fox Lane Middle, students were exposed to meditation exercises in which classroom lights were turned off and students were asked to imagine themselves in a strange place, or to imagine that their bodies were filling with blue liquid, and to attempt to empty their minds. Plaintiffs contended that these exercises principally violated the First and Fourteenth Amendments and
10. The Ropes Challenge
The Ropes Challenge was a physical challenge course at Fox Lane High designed to promote leadership skills and teamwork in outdoor activities. Older students helped lead the course. Activities included a wide variety of exercises in which students climbed over or through obstacles or transported themselves and each other by means of ropes or logs, in all cases working together in order to achieve a common goal. Plaintiffs’ expert witness, Dr. Coulson, testified at trial that this program was “an elaborate exercise in non-directive psychotherapy... using group encounter therapeutic techniques.”
11. Other Activities
Plaintiffs also challenged a variety of other activities, from which they sought to secure a right of opt-out. Those activities included
- The Yale Decision Making Program at Fox Lane Middle, which included lessons on stress and stress management, as well as a relaxation exercise, in an effort to help students learn how to make productive and informed choices.
- The Myers-Briggs Personality Test, a multiple-choice examination used to assess personality types, administered to students at Fox Lane High.
- Psychological counseling at Fox Lane High by a social worker on a variety of issues, occasionally including suicide counseling.
- A homework assignment to Pound Ridge Elementary students to keep a journal on their observations of their daily lives and family members. The teacher gave instructions as to how to prevent others from reading portions the student did not want to share.
D. The District Court‘s Findings of Fact and Conclusions of Law
In a decision issued on May 21, 1999, the district court found that “[s]ome of the conduct complained of does not seem to have religious overtones, but much of it does.” 45 F.Supp.2d at 372. Noting that the basic thrust of the First Amendment‘s Establishment Clause is “one of government neutrality towards religion,” id. at 375, the court discussed United States Supreme Court cases addressing First Amendment issues, and concluded that “[b]ecause this case affect[ed] elementary and secondary public school children of young and impressionable age,” 45 F.Supp.2d at 377, the appropriate test was the coercion test set out in Lee v. Weisman, 505 U.S. 577, 587, 591 (1992). In Lee, the Supreme Court stated that “at a minimum, the Constitution guarantees that government may not coerce anyone to... participate in religion or its exercise,” 505 U.S. at 587. The district court stated that with respect to young persons, “[e]ven a subtle coercive pressure by a government official to engage in religious activity may violate the First Amendment.” 45 F.Supp.2d at 376 (internal quotation marks omitted).
The court described the issues in the present case as “the students’ right[s] to exercise their own religious beliefs free from state coercion, as well as the right[s] of the parents to control the religious upbringing and training of their minor children.” Id. In order to prevail on a given claim, plaintiffs were required to show that coercion “infringe[d] on the Plaintiff‘s ability to receive an ‘important benefit’ from the state at the expense of the Plaintiff‘s right to the free exercise [of] his or her religion.” Id. Applying the above principles, the court found, to the extent pertinent to these appeals, that aspects of the programs involving Ganesha, worry dolls, Earth Day, and “Listening to Nature,” described in Part I.B. above, violated plaintiffs’ Establishment Clause and Free Exercise Clause rights, and that the other challenged activities were not impermissible.
1. Ganesha, Worry Dolls, Earth Day, and the Nature Tape
The court found that the Pound Ridge Elementary lessons about Ganesha were largely permissible, but that the classes violated plaintiffs’ First Amendment rights to the extent that they required the students to create images of the Hindu god:
Mrs. Reizes’ only purpose in teaching about Ganesha was to educate her students about the Indian culture and society. Although Lord Ganesha is a deity of the modern Hindu religion worshiped by hundreds of millions of people, reading a story common to the Indian culture, as part of an innovative, structured lesson plan about a foreign country and its culture, does not have the purpose or effect of advancing or inhibiting religion.... Considering the relative amount of time that Mrs. Reizes spent on reading the Ganesha story, this challenged activity should be seen as neither advancing or promoting the Hindu religion, but simply educating students about the Indian culture.... Likewise, in the context in which the story was read, the Court finds no indicia of any subtle coercive pressure to engage in the Hindu religion.
This subtle coercive pressure is found, however, in the classroom projects of constructing images of Ganesha. It is merely fortuitous that the third grade students never actually made the clay images of Ganesha, as instructed, because they ran out of time. While reading the Ganesha story can be part of a neutral secular curriculum, this Court fails to find any educational justification for telling young impressionable students to construct images of a known religious god. This part of the lesson, however benign in purpose or intent, has the appearance to a child of that age that the school is communicating a message endorsing Lord Ganesha and the Hindu religion. Equally impermissible under the First Amendment is the subtle coercive pressure of instructing young impressionable students to make images of a god other than their own in violation of their religious beliefs....
a rank example of teaching superstition to children of a young and impressionable age. It assumes that an inanimate object has some occult power to relieve us from worry and assure a good night‘s sleep. Father Pacwa testified, without contradiction,... that the use of charms is forbidden by scripture and is an offense against the First Commandment. As Father Pacwa testified, “[t]he recent Catholic Catechism... [prohibits] all forms of divination, magic and sorcery.”
The court found the Earth Day ceremonies at Fox Lane High violated the First Amendment because “[t]he worship of the Earth is a recognized religion (Gaia), which has been and is now current throughout the world.” Id. at 393. The Court found that “[t]he liturgy of Earth Day at Fox Lane High School... evolved into a proceeding which takes on much of the attributes of the ceremonies of worship by organized religions” and which was in many respects “truly bizarre.” Id. The court stated that Saltzman‘s statement that all humans came from the Earth and will one day return to it was “clearly religious teaching” that echoed
To state this unproven fact as an absolute... involved the school district in teaching a doctrine directly contrary to the views of Roman Catholic students and many others. As Father Pacwa pointed out, “the implication would be that you would have to use some sort of birth control to stop this. Also it takes a stance, a moral stance, on what is the problem of the world today, namely, too many people, instead of dealing with other moral issues of more political nature that prevent food from getting to people that need it.”
The district court also found that playing the “Listening to Nature” tape at Fox Lane Middle promoted “a creed worshiping the Earth.” Id. Implicitly rejecting Funari‘s belief that, because she lowered the volume, her students could not hear the prayers on the tape, the court found that the playing of the tape constituted a “direct presentation to the children of an Earth centered religious belief.” Id. at 395. Describing the tape‘s “essential thrust” as the “promotion of Earth worship and prayer to the Earth,” the court held that its playing to students “offend[ed] both aspects of [the religion clauses of] the First Amendment.” Id.
2. Other Challenged Activities
The court dismissed plaintiffs’ challenges to other activities, including those described in Part I.C. above, finding that those activities were nonreligious in nature and did not violate any of plaintiffs’ rights under the First or Fourteenth Amendments or under state law.
As to Magic, or MTG, the court found that “[n]o reasonable person could regard sponsoring this game as a teaching of religion.” 45 F.Supp.2d at 381. It stated that
[a]s the game itself is not religious in nature, Plaintiffs’ argument that the Defendants by allowing this extracurricular activity are advancing or promoting Satanism as a religion or the occult also fails. Furthermore, since participation was voluntary and permitted only with written parental consent, and not during school hours, this Court finds that the school district neither asserted coercive pressure for students to participate in the game, nor did it infringe on plaintiffs’ right to the free exercise of their religion.
Assuming, solely for the argument, that Magic: “The Gathering” was religious in nature, the evidence shows, and the Court finds, that no reasonable observer or participant could believe that the school district‘s actions communicated a message of endorsement of the beliefs, if any, contained within the game. To the contrary, the school district‘s precautions to present the club as a mere extracurricular activity not endorsed by the school, but simply offered on school grounds not during school hours, is consistent with the Supreme Court‘s decisions on the interplay between the competing principles of Free Speech, Free Exercise, and Establishment clauses of the First Amendment.
The court also found that the yoga exercises did not violate the constitution because “although the presenter was dressed in a turban and wore the beard of a Sikh minister, he did not in his yoga exercise presentation advance any religious concepts or ideas.” Id. at 385. Similarly, the court found that the brain stimulation exercises did not violate the constitution because plaintiffs failed to produce any “evidence that Rev. Weber, during her brief visit to the school, taught any religion or performed intuitive counseling, exercised her psychic powers or engaged in telepathy.” Id. at 392. Thus, the court noted that although “[t]he entire Nancy Weber lecture may well have been nothing but humbug,” Weber had not “required the students to engage in a ‘bogus mystical experience’ as charged,” and the court “conclude[d] that on the totality of the evidence [the brain stimulation exercises] did not rise to the level of a First Amendment violation.” Id.
Nor did the court see any constitutional violation in the studies of the lives of Buddha and Quetzalcoatl. It found no evidence that the Buddha reading was “conducted in such a fashion as to sponsor belief in Buddha or to violate the First Amendment rights of Plaintiffs.” Id. at 387. It likewise found that the study of Quetzalcoatl did not promote belief in Quetzalcoatl and that no student was compelled to create a physical likeness of Quetzalcoatl. See id. The court also noted that “[u]nlike Lord Ganesha, Quetzalcoatl is not currently worshiped in the world and [that] hanging the Quetzal Bird in class should not be regarded as the adoption of a religious symbol.” Id. Although students were informed that “some persons believe Quetzalcoatl will return to the world in the year 2012,” the court noted that “telling students ‘some persons believe’ is not the same as sponsoring that idea in the minds of the children.” Id.
As to the “God Messed Up” poems, the district court rejected plaintiffs’ contention that the poetry writing program violated the neutrality required by the Establishment Clause. The court noted that
[t]he reasonable person or child reading the book of poems would assume that the authors meant it to be funny. The inclusion of these poems on a subject not dictated by the teacher does not constitute the endorsement of an anti-religious message, and indeed it is not certain that the message is intended to be anti-religious. The poetry may have been inspired by “Ma and God,” a poem for children written by Shel Silverstein (deceased May 10, 1999), a distinguished humorous poet for children writing in the tradition of A.A. Milne.
Id. at 388. The Silverstein poem, introduced by plaintiffs at trial, reads as follows:
MA AND GOD
God gave us fingers Ma says, “Use your fork.”
God gave us voices -- Ma says, “Don‘t scream.”
Ma says eat broccoli, cereal and carrots.
But God gave us tasteys [sic] for maple ice cream.
God gave us fingers Ma says, “Use your hanky.”
God gave us puddles Ma says, “Don‘t splash.”
Ma says, “Be quiet, your father is sleeping.”
But God gave us garbage can covers to crash.
God gave us fingers Ma says, “Put your gloves on.”
God gave us raindrops Ma says, “Don‘t get wet.”
Ma says be careful, and don‘t get too near to Those strange lovely dogs that God gave us to pet.
God gave us fingers Ma says, “Go wash ‘em.” But God gave us coal bins and nice dirty bodies.
And I ain‘t too smart, but there‘s one thing for certain--
Either Ma‘s wrong or else God is.
S. Silverstein, Where the Sidewalk Ends 119 (1974). The district court found that Silverstein too was
apparently intending to be funny. Without endorsing any of the poetry, the Court does not perceive that this evidence arises to the level of a promotion or disparagement of a religious concept.... No First Amendment violation is found....
45 F.Supp.2d at 388 (footnote omitted).
Similarly, the court found no religious significance in the other programs described in Part I.C. above, such as DARE, the Peer Facilitator Program, and meditation exercises, nor any cognizable violation of state law. It found, for example, that [t]he DARE Program is relatively free of moral overtones, contains no religious emphasis whatsoever, and leaves the “decision” whether or not to use tobacco, alcohol or drugs to the student after evaluating both positive and negative effects.
Finally, the court held that the various claimed invasions of family privacy did not violate any constitutional or statutory provision. Citing Immediato v. Rye Neck School District, 73 F.3d 454, 462 (2d Cir.) (“Immediato“), cert. denied, 519 U.S. 813 (1996), the district court stated that an activity that is alleged to violate the claimed right of a parent to direct the upbringing of his or her children... [is to] be analyzed only under the minimal rational basis standard of review. Thus, the defendants need only prove that the activities at issue are based on a legitimate state interest and that the activities are rationally related to furtherance of that objective.
45 F.Supp.2d at 396. The court further noted that Immediato recognized that the state has a “‘compelling’ interest in educating its youth, to prepare them to participate effectively and intelligently in our open political system, and to be self reliant and self sufficient participants in society.” 45 F.Supp.2d at 396 (quoting Immediato, 73 F.3d at 461). Finding that the journal assignments, “although intrusive in nature, do further the state‘s compelling objective of education,” the court held that they did not constitute a violation of the Fourteenth Amendment. 45 F.Supp.2d at 396.
E. Denial of Bedford‘s Motion To Dismiss Challenges to the Pound Ridge Elementary Activities for Loss of Standing
After the district court‘s decision and prior to the entry of judgment, the parties brought to the district court‘s attention two changes that had occurred or were about to occur in the residence of the plaintiff families. First, Bedford informed the court that it had just learned that in March 1998, the Altman family had moved to Connecticut. Since Ross Altman was the only plaintiff who at the time of trial in 1999 was young enough to attend elementary school, and he and his family had by that time moved out of the School District, Bedford moved to dismiss all claims challenging activities at Pound Ridge Elementary on the ground of lack of subject matter jurisdiction because no plaintiff any longer had standing to challenge those activities.
In a Memorandum and Order dated July 23, 1999 (“Standing Opinion“), the district court denied Bedford‘s motion. The court noted that because the Altman family no longer resided within the district as of March 1998, and the departure of the DiNozzi family was imminent, the only plaintiffs who might have standing were Mary Ann DiBari and her grandchildren. The DiBari grandchildren were beyond elementary-school age by time of trial; but the court concluded that “[a] municipal taxpayer such as Ms. DiBari has standing to complain about Free Exercise or Establishment Clause violations accomplished in a school within the municipality by its paid employees.” Standing Opinion at 5 (emphasis in original).
Ms. DiBari is still a taxpayer within the defendant Bedford Central School District, and thus responsible for the funding of the education of her two grandchildren who are still enrolled in schools within the defendant district, as well as funding the general budget for general school district expenses. The Court also notes that the final injunction granted to the plaintiffs is to be enforced district-wide and is not limited to the specific school where the challenged activity occurred initially.
As a taxpayer, Ms. DiBari continues to have a personal stake in the outcome of this litigation....
This Court‘s decision after trial in this case is explicit that the defendant district has engaged in conduct that violated the Establishment Clause of the First Amendment of the Constitution. The record is clear that unless prevented by the court, the activities will continue in the future. Public money supported that conduct and those who engaged in it. Actions of the school district are funded, in large part, by local real property taxes. Accordingly, the Court maintains subject matter jurisdiction over this case by reason of the municipal taxpayer standing of plaintiff Mary Ann DiBari as well as her status as legal guardian of her two grandchildren.
Id. at 3-4.
F. Final Judgment
On July 23, 1999, the court entered its final judgment, holding, to the extent pertinent to Bedford‘s appeal, that activities with respect to Earth Day ceremonies, nature worship, worry dolls, and Ganesha image construction activities on school premises violated plaintiffs’ rights under the Establishment and Free Exercise Clauses of the First Amendment. To the extent pertinent to the cross-appeal, the court dismissed all of plaintiffs’ challenges to other activities.
The court entered an injunction containing mandatory and prohibitory provisions. It ordered Bedford to
adopt and publish guidelines to teachers and others to insure that they will abide by the Supreme Court‘s standards set forth in the cases quoted in this Court‘s Order and Opinion, so as to avoid coercing any student to participate in religion or its exercise or to violate any religious precept held by a child or his or her parents, and to further avoid sponsoring or disparaging religious beliefs held by students and or their parents.
Final Judgment and Permanent Injunction at 2. It enjoined and restrained Bedford and most of the named individual defendants
A. From sponsoring worship of the Earth or presentation of a liturgy addressed to the Earth as if it were a creator or divine, including any symbolic presentation of gifts to the Earth, the erection of “symbolic structures” equal to an altar, a chorus of ceremonial drums, or any globe on bamboo sticks or other totem serving as a focal point of the worship service, or any religious teaching in connection therewith;
B. From sponsoring prayers to the Earth or any creed of worshiping the Earth by means of audio tape or otherwise; C. From sponsoring, instructing or encouraging the fashioning of charms in the form of so-called “worry dolls” by students in the Discovery Center at Pound Ridge Elementary School or elsewhere in the District, the sale of said charms in any school store, or from instructing or suggesting to students through school personnel or otherwise that said charms have supernatural powers to “chase away your bad dreams,” “take away all our worries,” or any other supernatural or occult power;
D. From directing or encouraging students to make likenesses or images of the Hindu god, Lord Ganesha, or any other god.
Id. at 3-4. The judgment also granted plaintiffs attorneys’ fees and disbursements totaling $106,856.61.
G. The Present Appeals
The School District has appealed, contending principally that the injunction and the rulings that the School District violated plaintiffs’ rights should be vacated. Plaintiffs have cross-appealed, contending that the district court erred in dismissing their challenges to the activities described in Part I.C. For the reasons that follow, we conclude principally that the district court should have dismissed for lack of subject matter jurisdiction, because of mootness, plaintiffs’ challenges to any activities that were not found to have occurred at schools other than Pound Ridge Elementary; that the challenges to the activities at Fox Lane Middle likewise became moot after the entry of judgment and must also be dismissed; that the court erred in ruling that plaintiffs’ First Amendment rights were violated; and that the district court‘s dismissals of plaintiffs’ nonmoot claims were correct.
II. SUBJECT MATTER JURISDICTION
We turn first to Bedford‘s challenge to the denial of its posttrial motion to dismiss, for lack of jurisdiction due to plaintiffs’ loss of standing, all challenges to activities at Pound Ridge Elementary, and to the matter of whether challenges to the activities at Fox Lane Middle also have become moot.
A. Standing and Mootness
The Constitution limits the jurisdiction of Article III courts to matters that present actual cases or controversies. See
[t]here is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school. No information is given as to what kind of taxes are paid by appellants and there is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it.
[t]he taxpayer‘s action can meet this test, but only when it is a good faith pocketbook action. It is apparent that the grievance which it is sought to litigate here is not a direct dollars and cents injury but is a religious difference. If appellants established the requisite special injury necessary to a taxpayer‘s case or controversy, it would not matter that their dominant inducement to action was more religious than mercenary. It is not a question of motivation but of possession of the requisite financial interest that is, or is threatened to be, injured by the unconstitutional conduct. We find no such direct and particular financial interest here. If the Act may give rise to a legal case or controversy on some behalf, the appellants cannot obtain a decision from this Court by a feigned issue of taxation.
C. The Present Case
A. Earth Day and the Establishment Clause
[t]here is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.
(A) all present except those in uniform should stand at attention facing the flag with the right hand over the heart;
(B) men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart; and
(C) individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note.
B. Earth Day and the Free Exercise Clause
has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.
Cantwell v. Connecticut, 310 U.S. 296, 303-304 (1940). Where there is no indication that a restriction of a plaintiff‘s religious activities was the defendant‘s actual objective, but only that its actions, neutral on their face, had a restrictive effect, the proper inquiry is “‘whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.‘” Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 384-85 (1990) (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)); see Wisconsin v. Yoder, 406 U.S. 205, 220 221 (1972).
C. Plaintiffs’ Cross-Appeal
IV. THE RELIEF GRANTED
the Supreme Court‘s standards set forth in the cases quoted in this Court‘s Order and Opinion, so as to avoid coercing any student to participate in religion or its exercise or to violate any religious precept held by a child or his or her parents, and to further avoid sponsoring or disparaging religious beliefs held by students and or their parents.
Final Judgment and Permanent Injunction at 2. Even leaving aside our rejection of the district court‘s application of Supreme Court First Amendment doctrine, see Part III above, the terms of this injunctive provision are impermissibly vague. See generally