[... continued ...]
[return to first part of Section IV]
Grand County School District Violations of Lee v. Weisman
Principle:
"It is a tenant of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practices." Lee v. Weisman, 505 U.S. 595, 598, 112 S.Ct. 2649, 2660 (1992).
Violation of Principle:
Grand County students were required to attend public school by law and were entitled to the benefit of a functioning school system. However, the regular classroom environment was shut down to assemble entire schools and faculties for Tantric Buddhist devotional ceremonies wherein monks performed sacred music and sacred dance before an altar and picture of the Dalai Lama. Students whose parents objected to their participation remained behind in "supervised activities" which were unrelated to regular core instruction. Objecting students were thus required to sacrifice their education at the price of resisting conformance to state-sponsored religious practices.
Principle:
"The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith or tends to do so." Lee at 587. "But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. ... The Court has repeatedly recognized that the Establishment Clause is not predicated on coercion. ... The Establishment Clause proscribes public schools from "conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred ..., even if the schools do not actually 'impos[e] pressure upon a student to participate in a religious activity." Justice Blackmun concurring in Lee at 604-605.
Violation of Principle
Whether or not students elected to attend the Sacred Music Sacred Dance performance, their regular learning activities were shut down for the performance. The clear message was that authorities favored religion if associated with an indigenous native culture. The message was that, although no Catholic priest would ever be allowed to erect an altar and conduct a mass in a public school, Tantric Buddhist monks may construct an altar and engage in holy chants and dances.
Principle
"As we have observed before, there are heightened concerns with protecting freedom of conscious for subtle coercive pressure in the elementary and secondary public schools. ... What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context, may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. ... This pressure, though subtle and indirect, can be as real as any overt compulsion." Lee at 592.
Violation of Principle
The district conveyed the message to students that it desired that they attend Tantric Buddhist rituals. Students choosing to not participate in the Sacred Music Sacred Dance ritual were categorized and de facto ostracized as a result of the schools' conduct.
Principle
"Just as in Engel v. Vitale ... where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at graduation ceremonies is voluntary in a legal sense does not save the religious exercise." Lee at 596.
Violation of Principle
That students were voluntarily excused from attending the Sacred Music Sacred Dance program does not save the program from being an unlawful religious exercise in the schools. Here the school district should have recognized that it was about to engage in an impermissible activity and had no right to require objecting students to opt out through waivers of participation.
-Similar Violations of Lee Arising from Mandala Devotional
Class visits to the mandala construction and ceremonies at MARC, unrelated to any balanced curricula, were no less objectionable. As previously discussed, the creation of the mandala was clearly an act of religious devotion. Therefore, the district violated the Establishment Clause and subsections (3) and (4) of Section 53A-13-101.1, Utah Code Annotated. Further, the school district should have recognized that it was engaging in an impermissible activity and had no right to require objecting students to opt out through waivers of participation.
Salt Lake City School District Violations of Bauchman v. West High School
Principle
"Applying Lemon [v. Kurtzman], government action does not violate the Establishment Clause so long as it (1) has a secular purpose [Cf. Section 53A-13-101.1(1) and (2) Utah Code Annotated], (2) does not have the principal or primary effect of advancing or inhibiting religion {Cf. Section 53A-13-101.1(2), Utah Code Annotated], and (3) does not foster an excessive entanglement [Cf. Section 53A-13-101.1(3) and (4), Utah Code Annotated]." Bauchman at 551.
Violation of Principle
If the Salt Lake City School District failed to meet any one of the three Lemon tests in hosting the monks, it violated the Establishment Clause. Further investigation is appropriate before concluding whether the district's actions were purposeful. However, as discussed below, the district's actions clearly had the effect of conveying the message that Tantric Buddhism religion is favored and clearly fostered an excessive entanglement of religion.
Principle
"Applying Justice O'Connor's refined analysis, the government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that 'religion or a particular religion' is favored or preferred." Bauchman at 552
Violation of Principle
The district suggests that its actions were permissible and neutral because they involved only the rental of space to the monks. However, the district may not turn a blind eye to the purpose of a space rental if such rental will result in a violation of the Establishment Clause or state law. The monks were allowed to use the room during hours when students were compelled to attend West High School. The room was open to the public and signs at entrances to the school advised students that the public was invited to visit the room. Within the room and open to the public were the ongoing devotional ceremony of creating the mandala with religious artifacts, music and literature for sale. Also on display in the room were advertisements for a Buddhist religious lecture at the Unitarian Church and the Sacred Music Sacred Dance program to occur at West High School on Wednesday evening.
Section 53A-13-101.1, Utah Code Annotated, provides, "Public Schools may not sponsor prayers or religious devotions. Section 53A-13-101.1(4) states, "School officials and employees may not use their positions to endorse, promote, or disparage a particular religious, denominational, sectarian, agnostic, or atheistic belief or viewpoint. Both of these statutes and the constitutional provisions behind them were violated. Further, Section 53A-13-413(2) provides, "Use of school property for civic purposes may not interfere with any school function or purpose." Section 53A-2-414 states, "[The local school board] may refuse the use of a civic center, for other than school purposes, if it determines the use inadvisable." The district's policy section 4.07 provides, "All reservations are subject to change to fit school needs." Section 4.11 provides, "All use must comply with all federal, state, local and district laws, policies and regulations. ..." Therefore, the district was free, and indeed obligated, to refuse to rent school building space during school hours for devotional ceremonies which were open to the public. Renting the space under these circumstances had the unlawful effect of conveying a message that Tantric Buddhism is favored or preferred.
Section 53A-3-419, Utah Code Annotated, and 20 USC 4071, were both cited by the district as requiring that it accommodate the monks. However, these statutes apply to student organizations, not to outside organizations as was involved here. Further, the federal law expressly states that it may not be used as a basis "to abridge the constitutional rights of any person." (20 USC 4071(d)(7)) Whether or not this mis-application of law indicates purposeful conduct on the part of the district is not considered at this time.
Principle
"To state a claim under [the effect] component of the endorsement test, Ms. Bauchman must allege facts indicating the Choir curriculum or Choir activities have a principle or primary effect of advancing or endorsing religion. ... This is an objective inquiry, not an inquiry into whether particular individuals might be offended by the content or location of the Choir's performance, or consider such performances to endorse religion. ... We believe a reasonable observer aware of the purpose, context and history of public education in Salt Lake City ... and the traditional and ubiquitous presence of religious themes in vocal music, would perceive the following ...: the Choir is comprised of a diverse group of students; many of the Choir's songs have religious content--content predominantly representative of Judeo-Christian beliefs; ... in contrast to a church choir, this Choir performs a variety of secular songs ... [These viewed in context do not indicate] the advancement or endorsement of religion." Bachman at 555.
Violation of Principle
In Bauchman West High School's challenged conduct was a choir class which included the singing of a balance of religious and secular songs in various religious and secular venues according to established community tradition. In contrast, here a public exclusively Tantric Buddhist religious ceremony was conducted over a four day period in a public school attended by students. The Buddhists' presence was unrelated to curricula and violated Sections 53A-13-101.1(3) and (4), 53A-3-413(2) and 53A-3-414(5). The district's conduct, therefore, had the principle or primary effect of advancing Tantric Buddhism.
Principle
"The entanglement analysis typically is applied to circumstances in which the state is involving itself with a recognized religious activity or institution" and fails to engage in "religiously neutral educational choices." Bachman at 554.
Violation of Principle
By sponsoring a four-day, public exclusively Tantric Buddhist, devotional ceremony the district failed to limit itself to "religiously neutral educational choices" thereby entangling itself with a religious activity or institution in violation of the Establishment Clause. Further the action violated both Section 53A-13-101.1(3), Utah Code Annotated, "Public schools may not sponsor prayer or religious devotionals;" and Section 53A-13-101.1(4) School officials and employees may not use their positions to endorse, promote, or disparage a particular religious, denominational, sectarian, agnostic, or atheistic belief or viewpoint."
Salt Lake City School District Violations of Lee v. Weisman
Principle:
"It is a tenant of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practices." Lee v. Weisman, 505 U.S. 595, 598, 112 S.Ct. 2649, 2660 (1992).
Violation of Principle:
Salt Lake City school students are entitled to a public education free of sponsored prayer and religious devotionals. Placing an open-to-the-public Tantric Buddhist devotional ceremony in their school during school hours deprived the students of this right.
Principle:
"The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith or tends to do so." Lee at 587. "But it is not enough that the government restrain from compelling religious practices: It must not engage in them either. ... The Court has repeatedly recognized that the Establishment Clause is not predicated on coercion. ... The Establishment Clause proscribes public schools from "conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred ..., even if the schools do not actually 'impos[e] pressure upon a student to participate in a religious activity." Justice Blackmun concurring in Lee at 604-605.
Violation of Principle
Placing a four-day devotional ceremony in the middle of a public school where students are compelled to attend by law coerces students to be part of the ceremony and conveys the message that such religion is favored. The clear message was that authorities favored religion if associated with an indigenous native culture. The message was that, although no Catholic priest would ever be allowed to erect an altar and conduct a mass in a public school, Tantric Buddhist monks may engage in sacred chants before an altar and construct a mandala in honor of the "female deity." A further message was given that students were encouraged by school officials to attend the Wednesday night Sacred Music Sacred Dance performance.
Eastwood Elementary Possible Violations of Lee v. Weisman and of Free Exercise Rights
Principle:
"It is a tenant of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practices." Lee v. Weisman, 505 U.S. 595, 598, 112 S.Ct. 2649, 2660 (1992).
Violation of Principle:
This appears to be the flip-side of the Grand County situation. Although it appears that participation in the opening mandala ceremony may have been related to the sixth grader's world history and culture course, parents apparently were not advised of the devotional nature of the activity in order to make a decision whether or not their children's participation would deny a religious conviction or right of conscience under Section 53A-13-101.2, Utah Code Annotated. Unless the general permission form signed by the parents at the beginning of the school year clearly advised parents that their children would be attending devotional ceremonies of various religions and advised that their student had the right to be excused from participation, rights of religious freedom may have been unlawfully forfeited. Eastwood Elementary officer personnel stated that they did not believe that the permission forms signed at the beginning of the year advised parents that religious events would be included in the curriculum.
Principle
"As we have observed before, there are heightened concerns with protecting freedom of conscious for subtle coercive pressure in the elementary and secondary public schools. ... What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context, may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. ... This pressure, though subtle and indirect, can be as real as any overt compulsion." Lee at 592.
Violation of Principle
It is doubtful that the sixth grade world history-culture curriculum included any other devotional ceremonies. If so, including the mandala ceremony may have not been part of a balanced curriculum. An imbalanced curriculum would convey the message of the state enforcing Tantric Buddhism as a religious orthodoxy.
Moab City Park, Moab Arts Center Violations of Society of Separationists v. Whitehead
Principle
"First, the money or property must be provided on a nondiscriminatory basis. Some examples may be of assistance. If a city permits groups to use city-owned facilities, that use must be permitted without regard to the belief system of the user. Lutherans or Latter-Day Saints who wish to use the facilities must have access on exactly the same terms as the Loyal Order of Moose, the American Atheist Society, or the Libertarian Party." Society of Separationists v. Whitehead, 870 P.2d 916, 938 (Utah 1993).
Violation of Principle
City Manager Donna Metzler's statement to the Salt Lake Tribune that "[t]his particular (park use) waiver had everything to do with Transcendence being a non-profit group, and nothing to do with religion," indicates that Moab City may have a discriminatory policy regarding waivers of fees to use city facilities. The statement appears to mean that a supposedly non-religious non-profit group may be allowed to use facilities free of charge but that such may not be the case for religious non-profit groups. Her statement, "We don't get many fee waivers at the park. But when its a non-profit group the council will consider it," clearly states that not all non-profit groups are granted fee waivers, but only those who appear before the city council and are granted specific approved by the city council. This lack of a consistent non-discriminatory policy violates Whitehead.
Principle
"Second, the public money or property must be equally accessible to all. ... In other words, the government must implement a system that awards the benefit so that each group, religious or secular, has a realistically equal opportunity for the use of the public resource. For if government allows all groups to apply for the benefit but then discriminates in the selection process, it would be preferring one group over another in violation of the constitutional principle of neutrality." Whitehead at 938.
Violation of Principle
Moab City's apparent practice of having the city council rule on requests for a waivers/refunds results in unequal accessibility of fee waivers to all organizations in violation of Whitehead. These actions in turn indicate that the monks and their sponsors were provided favorable treatment not afforded other groups in violation of the Establishment Clause.