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ALTMAN v. BEDFORD CENT. SCHOOL DIST.

May 21, 1999

ROBERT M. ALTMAN AND VICTORIA L. ALTMAN, HIS WIFE, INDIVIDUALLY AND AS PARENTS OF MINOR CHILDREN, RUSSELL ALTMAN AND ROSS ALTMAN, MARY ANN DIBARI, INDIVIDUALLY AND AS LAWFUL GUARDIAN OF MINOR CHILDREN KRYSTAL M. DIBARI AND TIANA N. DIBARI, JOSEPH M. DINOZZI AND CECILE D. DINOZZI, HIS WIFE, INDIVIDUALLY AND AS PARENTS OF MINOR CHILDREN, JON M. DINOZZI, DANIEL J. DINOZZI, STEVEN M. DINOZZI, AND JOSEPH A. DINOZZI, PLAINTIFFS,
v.
BEDFORD CENTRAL SCHOOL DISTRICT, DR. BRUCE DENNIS, IN HIS CAPACITY AS SUPERINTENDENT OF SCHOOLS OF THE BEDFORD CENTRAL SCHOOL DISTRICT AND AGENT/ADMINISTRATOR OF ITS BOARD OF EDUCATION; JANE DOE (NAME UNKNOWN, POST CURRENTLY VACANT), IN HIS OR HER CAPACITY AS ASSISTANT SUPERINTENDENT IN CHARGE OF CURRICULUM AND INSTRUCTION FOR THE BEDFORD CENTRAL SCHOOL DISTRICT AND AGENT/ADMINISTRATOR OF ITS BOARD OF EDUCATION, DEBORAH TIMBERLAKE, IN HER CAPACITY AS PRESIDENT OF THE BOARD OF EDUCATION OF BEDFORD CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION OF THE BEDFORD CENTRAL SCHOOL DISTRICT, JAMES YOUNG, IN HIS CAPACITY AS PRINCIPAL OF THE POUND RIDGE ELEMENTARY SCHOOL, JAMES ALLOY, IN HIS CAPACITY AS PRINCIPAL OF FOX LANE MIDDLE SCHOOL, AND RICHARD KRAEMER, IN HIS CAPACITY AS PRINCIPAL OF FOX LANE HIGH SCHOOL, DEFENDANTS.



The opinion of the court was delivered by: Brieant, District Judge.

    FINDINGS, CONCLUSIONS, and ORDER

This action filed October 15, 1996 for declaratory and injunctive relief under the First and Fourteenth Amendments of the United States Constitution and Article I, § 3 of the New York State Constitution, and for redress of the Plaintiffs' rights under 42 U.S.C. § 1983 and 2000bb(b)(1); 20 U.S.C. § 1232(f); 34 C.F.R. § 98.1; 20 U.S.C. § 1232(h)(b); and 34 C.F.R. § 98.4. was tried before this Court without a jury on February 22, 1999, continuing on February 24, 1999, March 1, 2 and 4, 1999, concluding on March 4, 1999. Post verdict submissions were received on March 29, 1999. Subject matter jurisdiction is established pursuant to 28 U.S.C. § 1331 and 1343(3). The Court now makes its Findings of Fact and Conclusions of Law after Trial.

The Parties

Plaintiffs Robert M. Altman and Victoria L. Altman are parents of minor children. They are residents and taxpayers in that portion of the Town of Pound Ridge which is within the area served by the Defendant Bedford Central School District. Their child, Russell Altman, age 14 at the time of trial, had attended Pound Ridge Elementary School until the fifth grade, but was removed by his parents by reason of the controversy set forth in the Complaint, and will attend St. Patrick's parochial school until the case is resolved. Ross Altman, a younger child of the Altman Plaintiffs, attended third grade at the Bedford Central School District, and is now also at St. Patrick's.

Plaintiff Mary Ann DiBari is also a resident and taxpayer, and legal guardian of her two granddaughters. Her granddaughter Krystal, age 15 at trial, attends Fox Lane High School. Formerly, she attended Fox Lane Middle School. Her granddaughter Tiana (Niki), age 14 at trial, attends Fox Lane Middle School. She attended Pound Ridge Elementary School in fourth and fifth grade.

Plaintiffs Joseph M. DiNozzi and Cecile D. DiNozzi, are the parents of Jon, Daniel, Steven and Joseph. The DiNozzi's are also resident taxpayers. Their child, Jon, age 17 at trial, was attending Fox Lane High School, and had attended Pound Ridge Elementary School. Daniel, age 15 at trial, was withdrawn by his parents from the Fox Lane Middle School in the Fall of 1995 and now attends parochial school, "where he will remain until the matters in controversy are resolved." (Complaint at 6(b)). Steven DiNozzi, age 13 at trial, attended the Pound Ridge Elementary School but was removed in September 1995 for the same reasons. Joseph DiNozzi, age 13 at trial, also attended the Pound Ridge Elementary School and was likewise removed by his parents, to attend St. Patricks.

Defendants are the officials administering the Bedford Central School District, including the Superintendent of Schools, Assistant Superintendent in charge of curriculum and instruction, the President and Members of the Board of Education, and the Principals of the Elementary School, the Middle School and the High School. They are responsible for the curriculum, instructional materials and teaching practices attacked by this lawsuit.

The Dispute

Plaintiffs all allege that they are adherents of Roman Catholicism, "whose sincerely held religious beliefs have been violated" by the acts alleged in the Complaint, with further violations imminently threatened. Plaintiffs allege that they became aware of exposure of their children by the Defendants to, "objectionable activities on school premises, either without parental consent or under circumstances which render parental consent ineffective to protect Plaintiffs' children." (Complaint at 7). The Complaint pleads five separate claims or so-called "causes of action." Pleading facts common to all of the claims, Plaintiffs allege that a totality of "methodologies, exercises, materials and presentations" have been used, implemented and promoted by the School District, which violate the Free Exercise Clause of the First Amendment, or alternatively violate The Establishment Clause thereof. Particularly, Defendants are accused of having developed the so-called "Bedford Program" which allegedly involves, "the promotion of Satanism and occultism, pagan religions and a New Age Spirituality."

Detailed allegations in the Complaint which comprise 74 paragraphs, beginning at ¶ 20, concern the implementation of the Bedford Program, and teaching practices which are claimed to violate Plaintiffs' rights and disparage their own religious faith. Little purpose will be served by detailing all the religious and quasi-religious events which Plaintiffs claim their children were compelled to join, nor by a complete reiteration of the Complaint. Some of the conduct complained of does not seem to have religious overtones, but much of it does. Other facts alleged are intrusive but apparently without religious connotations. The underlying facts are pleaded separately as violations of the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution (First Claim); a violation of the Religious Freedom Restoration Act (Second Claim)*fn1; and violations of Fourteenth Amendment parental and privacy rights (Third Claim). The Fourth Claim pleaded alleges a violation of Article I, Section 3 of the New York State Constitution, which essentially tracks the First Amendment to the United States Constitution. Separate discussion of this claim is unnecessary. The Fifth Claim pleaded alleges that to the extent federally funded programs are involved, 20 U.S.C. § 1232(h)(b), and 34 C.F.R. § 98.4 et seq., commonly referred to as the Pupil Protection Rights Amendment, are also violated. The Sixth Claim alleges that psychological testing, examination and counseling and treatment of students is a health service for which prior parental consent is required under § 2504 of the New York State Public Health Law.

Overview of the Case

This is agenda driven litigation, from both sides. Plaintiffs' agenda is to obtain judicial adoption of a single standard for the treatment of religion in the school system:

  It has been the Plaintiffs' position all along that
  what this case is really about is applying the same
  draconian limitations imposed by the federal courts
  on

  Judeo-Christian religious practice in the public
  schools to Eastern religions and religious-type
  practices.

(Plaintiffs' submission filed March 29, 1999, Doc. 68 at p. 8). Also, "without consistency in the application of the law, there is no law at all. This case is a plea to end a double standard of religious influence in the public schools and bring consistency." Id. p. 19.

Defendants' agenda is to defend and extend their premise:

  A school district has a statutory obligation to
  prepare students to assume the responsibilities of
  citizenship. A cramped or stilted curriculum
  distorted to meet the heightened sensibilities of
  individuals such as Plaintiffs herein, necessarily
  deprives the students of the broader information base
  and experiences which they require in order to
  participate fully in today's society.

(Pretrial brief filed February 16, 1999 [Doc. 65 at 30].)

Litigation is a blunt, Procrustean and generally ineffective means to satisfy either of these goals. The proof at trial shows that there is no such thing as the "Bedford Program." At most, the proof shows that numerous activities, many of them random acts initiated by individual school teachers luxuriating in their academic freedom, may have offended the Establishment Clause or the Free Exercise Clause, or both. This Court lacks the power to reconstitute or to approve or disapprove an entire school curriculum, and could not as a practical matter administer any injunctive decree which would seek to enforce any such determination.

Furthermore, it is not the function of this Court to determine whether any particular school practice is "offensive to Catholic parents." This criterion was employed throughout the trial by the Plaintiffs' expert witness, Father Mitchell Chester Pacwa, a Roman Catholic priest belonging to the Society of Jesus. Since 1996, Father Pacwa has served as Assistant Professor of Sacred Scripture at the University of Dallas, Texas, Institute of Religious and Pastoral Studies.*fn2 With due respect to the witness, the issue in the case is not one of offensiveness to Catholic parents, but rather whether the conduct violates the Constitution. That there may have been some disparagement of the beliefs of Roman Catholics, Jews and Christians of other denominations seems apparent. The Court views with understanding and deep concern the idea that a public school system should be engaging in practices which are "offensive to Catholic parents," or for that matter offensive to any other members of the community served.

Public education generally is not among the responsibilities entrusted to the federal courts, nor is it a subject upon which we can claim any special expertise. This case concerns curriculum content. There is an understandable tension between majoritarian government and the desires of individuals to live and raise their children uncontaminated by government sponsored teachings which appear to them to be worthless or hostile to their religious beliefs. These forces clash readily in the area of education, where our nation has enjoyed a long history of encouraging families to take responsibility for the instruction of their own children, while at the same time, making school attendance compulsory and granting control of the curriculum to state and local officials.

The goal of local home rule is to allow communities to develop rules and regulations for the management — or mismanagement — of their own affairs, through forms of majority rule existing by the very nature of a republican form of government. An individual may disagree with a particular policy or rule implemented by duly elected local representatives within the scope of the responsibility entrusted to them. Ordinarily, that person must abide by the general law while attempting to persuade others in the community to revise the policy or rule, or to elect new local representatives who will do so.

The Supreme Court has recognized the benefits of local responsibility for public education:

  [O]ne of the peculiar strengths of our form of
  government [is] each State's freedom to `serve as a
  laboratory; and try novel social and economic
  experiments.' No area of social concern stands to
  profit more from a multiplicity of viewpoints and
  from a diversity of approaches than does public
  education.

San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973) (Powell, J.) (quoting in part from the dissent of Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932)). It is "long recognized that local school boards have broad discretion in the management of school affairs." Board of Education Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) (Brennan, J.).

New York, by § 1804(1) of the Education Law, makes applicable to a Central School District all powers granted to a Union Free School District except as otherwise provided, and by § 1709(3) of that law, the Defendant School Board controls the curriculum. See New York State Education Law § 1709(3) ("The said board of education of every union free school district shall have power, and it shall be its duty . . . [t]o prescribe the course of study by which the pupils of the schools shall be graded and classified.").*fn3

Accordingly, this Court must reject any consideration of whether any or all of the practices complained of are "offensive" to Roman Catholics or anybody else and approaches instead the more narrow issue of whether the First Amendment as construed by the Supreme Court of the United States and the Court of Appeals of this Circuit has been violated. We must leave the offensiveness for redress, if any there may be, to be taken at the polls at the next annual school election.

The relevant provisions of the First Amendment, the first of the Bill of Rights, read:

  Congress shall make no law respecting an
  establishment of religion or prohibiting the free
  exercise thereof . . .

U.S. CONST. amend. I

It is clear that this amendment is made applicable to the states by the Fourteenth Amendment, and that any action by a school board, public school teacher or administrator is a state action within that Amendment, and actionable in this Court under 42 U.S.C. § 1983.

We know from history that this Amendment was passed in light of concern by Congress and the states that their new national government might at some future time follow the practices of European states in which the ruler for the time being presumed to dictate the religious affiliations of his subjects and interfere with the free exercise of their own conscience. We may not forget that "the men and women who left Scrooby for Leyden and eventually came to Plymouth in order to worship God where they wished and in their own way must have thought they had terminated the interference of public authorities with free and unhandicapped exercise of religion."*fn4

Application of the First Amendment

Plaintiffs assert that various activities of the so-called "Bedford Program" violate both the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, quoted, supra. Despite deriving from the same organic constitutional provision, the Supreme Court has emphasized a critical difference "between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Ed. of Westside Community Schools (Dist.66) v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 2372, 110 L.Ed.2d 191 (1990).

Early precedent on the Establishment Clause invoked the comment of Thomas Jefferson, that the clause was intended to erect "a wall of separation between Church and State." Reynolds v. United States, 98 U.S. 145, 162, 25 L.Ed. 244 (1878). This "wall" and the clause itself are the product of the "vivid mental picture of conditions and practices which [the original Colonists] fervently wished to stamp out in order to preserve liberty for themselves and for their posterity." Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Although analysis of government conduct under the Establishment Clause has been embellished considerably, for better or worse, since its inception over 200 years ago, some principles are clear:

  Neither a state nor the Federal Government can set up
  a church. Neither can pass laws which aid one
  religion, aid all religions, or prefer one religion
  over another. Neither can force nor influence a
  person to go to or to remain away from church against
  his will or force him to profess a belief or
  disbelief in any religion. No person can be punished
  for entertaining or professing religious beliefs or
  disbeliefs, for church attendance or non-attendance.
  No tax in any amount, large or small, can be levied
  to support any religious activities or institutions,
  whatever they may be called, or whatever form they
  may adopt to teach or practice religion. Neither a
  state nor the Federal Government can openly or
  secretly, participate in the affairs of any religious
  organizations or groups and vice versa.

Everson, 330 U.S. at 15-16, 67 S.Ct. 504.

Over time, the basic thrust of the clause has remained one of government neutrality towards religion. See Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 839, 115 S.Ct. 2510, 2521, 132 L.Ed.2d 700 (1995) ("[A] significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion."); Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687, 696, 114 S.Ct. 2481, 2487, 129 L.Ed.2d 546 (1994) ("A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of `neutrality' toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents.") (internal quotations and citation omitted).

Analysis of cases presented under the Establishment Clause has experienced rapid evolution over the past quarter century of our nation's history. The three-pronged test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), endures as a starting point of Establishment Clause analysis despite premature reports of its demise. See e.g. Hsu By and Through Hsu v. Roslyn Union Free School Dist. No. 3, 85 F.3d 839, 864 n. 26 (2d Cir.), cert. denied, 519 U.S. 1040, 117 S.Ct. 608, 136 L.Ed.2d 534 (1996). Lemon requires a challenged government practice (1) to have a secular purpose,*fn5 (2) to have a primary effect that neither advances nor inhibits religion, and (3) not to foster excessive state entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105.

The Endorsement Test

In Lynch v. Donnelly, 465 U.S. 668, 688-693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring), Justice O'Connor suggested that the Court refine the Lemon test by interpreting the second prong of the Lemon test into an "endorsement test." Under this analysis, the challenged conduct impermissibly endorses religion if it has either the purpose or effect of communicating a message of government endorsement or disapproval of religion. 465 U.S. at 691-92, 104 S.Ct. 1355. In considering the conduct's effect, the question of endorsement is evaluated from the perspective of a "reasonable observer." See Wallace v. Jaffree, 472 U.S. 38, 76, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring).

In County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), a creche case, the particular display was held to violate the Establishment Clause, but the Court held that display of a Menorah next to Christmas tree did not have the unconstitutional effect of endorsing Christian or Jewish faiths. The Supreme Court recognized the endorsement test, which "precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Id. at 593, 109 S.Ct. 3086 (internal quotations marks and alterations omitted). In Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Supreme Court took its closest step towards overruling the Lemon test in favor of the endorsement test. In holding that it was constitutional for public school teachers in New York State to provide remedial education to disadvantaged children attending parochial schools, the Court entrusted the district courts with evaluating on a case by case basis whether the challenged government activity had the effect of advancing religion. 521 U.S. at 234, 117 S.Ct. 1997.

Our Court of Appeals, in Marchi v. Board of Cooperative Educational Services of Albany, 173 F.3d 469 (2d Cir. 1999), held recently that it would adhere to Lemon but would add the Agostini analysis to its Establishment Clause framework. See also Hsu By and Through Hsu v. Roslyn Union Free School Dist. No. 3, 85 F.3d 839, 864-67 and n. 26 (2d Cir.), cert. denied, 519 U.S. 1040, 117 S.Ct. 608, 136 L.Ed.2d 534 (1996) (applying the Lemon test in a school-related Establishment Clause case, but "not[ing] that the critical factor" was the endorsement test).

The Coercion Test

In Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), a case involving the recital of a prayer by a member of the clergy at a high school graduation ceremony, the Supreme Court declined an invitation to reconsider Lemon. The Court, instead, held that under the First Amendment, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to . . . participate in religion or its exercise. . . ." Id. at 587, 112 S.Ct. 2649. Even a "subtle coercive pressure" by a government official to engage in religious activity may violate the First Amendment. See id. at 591, 112 S.Ct. 2649. It is of special significance to our consideration of the instant case that the Court in Lee placed great weight on protecting impressionable students:

  As we have observed before, there are heightened
  concerns with protecting freedom of conscience from
  subtle coercive pressure in the elementary and
  secondary public schools. See, e.g., School Dist. of
  Abington v. Schempp, 374 U.S. 203, 307, 83 S.Ct.
  1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J.,
  concurring); Edwards v. Aguillard, 482 U.S. 578,
  584, 107 S.Ct. 2573, 2578, 96 L.Ed.2d 510 (1987);
  Board of Ed. of Westside Community

  Schools (Dist.66) v. Mergens, 496 U.S. 226, 261-262,
  110 S.Ct. 2356, 2377-2378, 110 L.Ed.2d 191 (1990)
  (Kennedy, J., concurring). Our decisions in Engel v.
  Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
  (1962), and School Dist. of Abington, supra,
  recognize, among other things, that prayer exercises
  in public schools carry a particular risk of indirect
  coercion. The concern may not be limited to the
  context of schools, but it is most pronounced there.
  See County of Allegheny v. American Civil Liberties
  Union, Greater Pittsburgh Chapter, 492 U.S. at 661,
  109 S.Ct. at 3137 (Kennedy, J., concurring in
  judgment in part and dissenting in part). 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.

505 U.S. at 592, 112 S.Ct. 2649

The Supreme Court first considered impressionable students in connection with Establishment Clause analysis in Edwards v. Aguillard, when the Court declared unconstitutional Louisiana's "Creationism Act" which forbid the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Court considered the effect on the impressionable young students of factors such as mandatory attendance, the students' emulation of teachers as role models and the children's susceptibility to peer pressure. 482 U.S. at 584, 107 S.Ct. 2573.

This concern over impressionable youth has often been relied on by the Supreme Court to invalidate statutes which appear to advance religion in public elementary and secondary schools. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29, (Alabama statute authorizing moment of silence for school prayer); Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (posting copy of Ten Commandments on public classroom wall); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (statute forbidding teaching of evolution); School Dist. of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (daily reading of Bible); Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962) (recitation of "denominationally neutral" prayer).

Because this case affects elementary and secondary public school children of young and impressionable age, our analysis of the questioned practices of the school district should proceed under the "coercion test." The Court in Edwards observed that although "states and local school boards are generally afforded considerable discretion in operating public schools . . . the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment." 482 U.S. at 583, 107 S.Ct. 2573 (internal citations omitted). Justice Brennan's opinion in Edwards expresses the problem facing this Court: "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. . . . `[T]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . .'" 482 U.S. at 584, 107 S.Ct. 2573 (citing Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 231, 68 S.Ct. 461, 475, 92 L.Ed. 649 (1948) (opinion of Frankfurter, J.)).

Any First Amendment analysis invokes the threshold question: what is religion? Plaintiffs' complaint challenges both school district activity concerning recognized religions such as Hinduism, as well as Earth worship, the new age religions, superstition,*fn6 and the occult.*fn7 The Supreme Court has observed correctly, that "religion is not defined in the constitution," Reynolds v. United States, 98 U.S. 145, 162, 25 L.Ed. 244 (1878). While engaged in refining continually its own standards for First Amendment analysis, the Supreme Court has declined or failed to provide the district courts with a working definition of "religion." See James M. Donovan, God is as God Does: Law, Anthropology, and the Definition of "Religion", 6 Seton Hall. Const. L.J. 23 (1995). This Court remains mindful of the words of Justice Potter Stewart who when faced with the challenge of defining obscenity in the context of a different First Amendment right, could say no more than "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring.).

Since neither the Supreme Court nor the Second Circuit have defined religion in the constitutional sense, this Court will apply the approach adopted by the Third Circuit, Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (Adams, J., concurring), adopted by Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1031 (3d Cir. 1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982), and also applied by the Ninth Circuit. See Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996). The test devised by Judge Adams of the Third Circuit is as follows:

  First, a religion addresses fundamental and ultimate
  questions having to do with deep and imponderable
  matters. Second, a religion is comprehensive in
  nature; it consists of a belief-system as opposed to
  an isolated teaching. Third, a religion often can be
  recognized by the presence of certain formal and
  external signs.

Africa, 662 F.2d at 1032 (citing Malnak, 592 F.2d at 207-210). The "formal and external signs" listed by the court include: "formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observance of holidays and other similar manifestations associated with the traditional religions." Malnak, 592 F.2d at 209.

Free Exercise Clause

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 88 L.Ed. 1148 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69, 73 S.Ct. 526, 97 L.Ed. 828 (1953); cf. Larson v. Valente, 456 U.S. 228, 245, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445, 452, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119, 73 S.Ct. 143, 97 L.Ed. 120 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).

In School District of Abington v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963), the Supreme Court described the Free Exercise Clause as follows:

  Its purpose is to secure religious liberty in the
  individual by prohibiting any invasions thereof by
  civil authority. Hence it is necessary in a free
  exercise case for one to show the coercive effect of
  the enactment as it operates against him in the
  practice of his religion.

Our Court of Appeals has applied this "coercion" test when analyzing whether a challenged practice within the field of public education infringes on a plaintiff's free exercise rights. See Smith v. Board of Education, North Babylon Union Free School District, 844 F.2d 90, 92 (2d Cir. 1988). The coercion can be either direct or indirect, see Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987), and must infringe 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 his or her religion. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 717-18, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) ("[W]here the State conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."). In Smith, the only recent Second Circuit case adjudicating a free exercise clause challenge against the actions of a public school, our Court of Appeals did not reach the ultimate issue of whether the school's interest was overriding or compelling. In Smith, an Orthodox Jewish high school senior sought to enjoin the Defendant Board of Education from scheduling his high school graduation on Saturday, when he would be unable to attend due to his strict observance of the Jewish Sabbath. 844 F.2d at 91. The Court of Appeals held that since Smith did not have to attend graduation in order to receive his diploma, the school was not denying him an important benefit protected by the Free Exercise Clause. Id. at 94.

At issue in this litigation is both the students' right to exercise their own religious beliefs free from state coercion, as well as the right of the parents to control the religious upbringing and training of their minor children. See Wisconsin v. Yoder, 406 U.S. 205, 230-231, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In analyzing the coercive effect the challenged conduct has on the Plaintiffs, it is improper for the Court to evaluate the sincerity of an individual's religious beliefs, see United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944), however, the Court is required to inquire into the relative importance of a particular religious ritual and degree to which exercise of that practice is infringed by government action. "The state may, however, justify any such limitation on religious liberty by showing that its action is essential to accomplish an overriding or compelling governmental interest." Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 868-69 (2d Cir. 1988), cert. denied, 489 U.S. 1077, 109 S.Ct. 1527, 103 L.Ed.2d 833 (1989).

Specific Claims of Plaintiffs

As noted earlier, the proof at trial fails to confirm the existence of any "Bedford Program." There may be a "Bedford Attitude" which is negative towards the desires of Plaintiffs to permit their children to opt out of specific programs or school practices they deem hostile or offensive. At most, Plaintiffs' evidence shows a large number of separate claims of Constitutional violations, some of them trifling, which this Court must resolve on the facts and the law as separate controversies. As to some of them, the proof fails to support the allegations. Others present random acts initiated by individual teachers or others, which were not ...


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