Shall We Sing? Shall We Sing Religious Music in Public Schools?

• Publication year: 2003

38 Creighton L. Rev. 815. SHALL WE SING? SHALL WE SING RELIGIOUS MUSIC IN PUBLIC SCHOOLS?

Creighton Law Review

Vol. 38

RICHARD COLLIN MANGRUM(fn*)

I. INTRODUCTION: BAUCHMAN V. WEST HIGH SCHOOL

The tension-filled atmosphere surrounding the West High graduation ceremony held on June 7, 1995, dominated the traditional euphoria accompanying the normal rites of passage associated with high school graduations. After all, how many graduation ceremonies receive the attention of a nationally publicized injunction issued the day before by a United States Circuit Court of Appeals? Rachel Bauchman, a Jewish sophomore student and a member of the West High A'Cappella Choir, at 3:30 p.m. on June 6, 1995, had obtained an order from a panel of the Tenth Circuit United States Court of Appeals temporarily enjoining on establishment grounds the choir from singing the two traditional songs they had prepared for graduation: "Friends"(fn1) and "The Lord Bless You and Keep You."(fn2) The media received notice of the injunction almost immediately and within hours the injunction received publicity through radio, television and newspaper reports. The Salt Lake City School Board met hastily and determined that it would be unlikely that any review of the panel decision could be heard before the graduation ceremony scheduled for the next day. The District Superintendent, Darline Robles, notified the school's principal, William Boston, who in turn notified the choir director, Richard Torgerson, of the temporary injunction. In the spirit of the injunction, Torgerson not only substituted nonreligious songs for the two songs that were the subject of the injunction, but also substituted a secular song for a religious song that was not included in the injunction, but the West High Chorale, a subgroup of the a'cappella choir of which Ms. Bauchman was not a member, had planned on singing.(fn3)

In response to the publicity the injunction received, rumors began to circulate that students and others might stand in protest to sing the song "Friends," either at the ceremony, or before or after the exercises. In anticipation of a possible disruption, both Superintendent Robles and Principal Boston talked to Choir Director Torgerson to ensure that only secular substitute songs would be sung. Concerned with the rumors of possible violations, Principal Boston hired an additional security officer to add to the two security officers already scheduled for the ceremony. Additionally, Principal Boston notified the symphony hall's separate security staff of the possible disruptions. Principal Boston also talked to the graduating seniors about the importance and necessity of complying with the injunction and the rule of law.

As a final response, Boston spoke to the choir at the final choir rehearsal held on the afternoon of June 7, insisting that the choir members comply with the injunction. He also threatened possible penalties and sanctions, including non-graduation, if violations occurred. Following the final rehearsal, a confrontation occurred between Rachel's mother and the student choir president, Bonnie Catenazaro. When Ms. Catenazaro suggested to Mrs. Bauchman that the choir might still sing the offending songs, Mrs. Bauchman "'called [Ms. Catenazaro] a b-i-t-c-h'" and challenged her in the presence of other students by threatening: "'Please - Make my day!'"(fn4)

As the symphony hall filled with people that night, Principal Boston talked to students and others in the hallways encouraging full compliance with the injunction. Shortly before the ceremonies were to begin, Boston received a copy of the sheet music for "Friends," which a student was handing out at the door to the symphony hall. Apparently, a parent "trained in the law" advised students at the symphony hall before the ceremonies of "their rights of free expression, including student led spontaneous singing."(fn5) In addition, a radio commentator, in a live interview conducted outside the symphony hall just before the ceremonies, expressed anger regarding the Tenth Circuit's repression of student speech. Many students expressed anger and frustration over losing a "one-time opportunity to show camaraderie and love for the 360 seniors who were graduating as 'Friends.'"(fn6)

During the ceremonies, Jonathan Brinton, the student valedictorian, departed from his prepared and preapproved text, to draw a comparison between the suppression of human rights in China's Tieneman Square and the suppression of free speech flowing from the Tenth Circuit order barring the singing of the two traditional songs simply because they referenced the "Lord." He closed his speech with the comment: "'May God bless each and everyone of us,'" which re-ceived a loud approving response for the sentiments expressed from the audience.(fn7)

In response to the rumors that the choir might try to sing "Friends," Choir Director Torgerson passed out a personal note to the members of the choir indicating that he would not direct any songs other than those on the program. He also asked the cooperation of his choir members in complying with the temporary injunction. After the choir had finished singing the "nonreligious" songs, Torgerson gave a command to the choir to sit. Torgerson then left the podium. Before he had exited from the auditorium, Will Badger, a nonchoir member, came to the podium to encourage the audience to sing the song "'Friends' - he said that everyone should sing, not as 'Jews, Christians or Moslems' but as 'Friends.'"(fn8) Badger informed the audience that it was a tradition at West High to sing "Friends" at graduation; that while - by court order - the school choir could not sing "Friends," he would like to invite "everyone" in the audience who knew the song to "join us in singing it."(fn9)

Meanwhile, Principal Boston muffled the microphone and attempted to secure it from Badger. Another school official, Gene Bonella, who had attempted to disconnect the microphone as soon as the student took it over, put his arm around Badger and escorted him off the stage and into the custody of a security guard. Principal Boston took the microphone, advised the audience about the injunction and asked them not to sing. However, his speech about compliance was drowned out by most of the audience of 2,000 who joined in the singing of "Friends." The chairperson of the graduating committee, Ms. Hargraves, confronted Jenny Naylor, a student choir member who was on the piano playing the accompaniment to "Friends," pushing her off the piano, putting her arm around Jenny's waist and removing her from the stage. The singing continued despite the absence of either a conductor or a piano accompanist. Boston remained in front of the audience expressing his frustration and obvious disapproval over the audience's refusal to heed his insistence that they discontinue singing. School officials videotaped the entire graduation episode to prepare a record for possible sanctions against participating students. Ms. Bauchman left the auditorium angry, disgusted, and depressed.

Ms. Bauchman filed a separate civil contempt action against West High School, the Salt Lake School District, William Boston, Richard Torgerson, Darline Robles, Gene Bonella, William Badger, and sundry school and district officials and employees for their complicity in per-mitting the audience to sing "Friends" in violation of the temporary injunction.(fn10) She also pursued her original complaint, seeking to eliminate all religious music from the choir's repertoire. Specifically, Ms. Bauchman challenged on establishment grounds: (1) the choir's singing of songs with religious content during the graduation ceremony; (2) the choir's inclusion of religious music as part of the regular choral repertoire; and (3) the choir's performance at religious sites. Ms. Bauchman also challenged the choral practices on free speech grounds, suggesting that the choir's singing of religious songs she found offensive violated her free speech rights as well, despite an offer from the choral director that she be excused from singing any songs she found offensive or participating in any program that would make her uncomfortable.

Without addressing the merits of the establishment challenge to singing religious songs during the graduation ceremonies, the district court dismissed the contempt proceeding against all parties. The court found that "the audience and students involved were acting in a good faith belief and interpretation of the court injunction that it did not apply to them and that they had a right to sing as an exercise of their right of free expression under the Constitution."(fn11) The court also found that "[t]he audience was uncontrollable at that point and virtually nothing could be done beyond what Mr. Boston did."(fn12) Affirming the issue of the violation of the injunction, the Tenth Circuit on appeal agreed that the singing of "Friends" was undertaken by a majority of the audience and the students without the consent or approval of the school, the choir director, or any of the officials of the school district.

Two weeks after dismissing the contempt charges, District Judge J. Thomas Greene granted defendants' motion to dismiss Ms. Bauchman's complaint wherein she had alleged that the choir director's inclusion of religious songs in the choir's general repertoire and the performance of those songs at religious sites, violated...