UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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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, 96 Civ. 7791 (CLB)

-against-

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.

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Brieant, J.

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, sec. 3 of the New York

State Constitution, and for redress of the Plaintiffs’ rights under 42 U.S.C. secs. 1983 and

2000bb(b)(1); 20 U.S.C. sec. 1232(f); 34 C.F.R. sec. 98.1; 20 U.S.C. sec. 1232(h)(b); and 34 C.F.R. sec.

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. secs.

1331 and 1343(3). The Court now makes its Findings of Fact and Conclusions of Law after

Trial.

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.

Page 3

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, ate 13 at trial, also attended the Pound Ridge elementary School and was

likewise removed by his parents, to attend St. Patrick’s.

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

Page 4

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 re 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)1 ; and violations of Fourteenth Amendment parental

507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) decided on June 25, 1997 by our Supreme Court after this action was filed.

________________________

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 First

Claim pleaded alleges that to the extent federally funded programs are involved, 20 U.S.C. sec.

1232(h)(b), and 34 C.F.R. sec. 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 sec. 2504 of the New York State Public Health Law.

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

__________Page6______________

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,

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 196, Father Pacwa has served as Assistant Professor Sacred Scripture at the University of Dallas, Texas, Institute of Religious and Pastoral Studies.2

With due respect to the witness, the issue in the case is not of offensiveness to Catholic

parents, but rather whether the conduct violates the Constitution. That there may have been

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.

Page 8

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 sec. 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 sec. 1709(3) of that law, the Defendant School Board controls the curriculum. See New York

State Education Law sec. 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.").3

3

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. sec. 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."4

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.

4

Chief Judge Albert Conway writing for he New York Court of Appeals in Matter of

Some principles a re 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 what4eer 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, 303 U.S. at 15-15.

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,5 (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.

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 of

effect of communicating a message of government endorsement or disapproval of religion. 465

U.S. at 691-92. 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 j(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 believe

Is favored or preferred." Id. at 593 (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.

Our Court of Appeals, in Marchi v. Board of Cooperative Educational Services of

Albany, ___ F,3d ___, 1999 WL 223432 (2d Cir. April 2, 1999), held recently that it would

Adhere to Lemon but would add the Agostini analysis to its Establishment Clause framework.

See also Hus 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).

In Lee v. Weisman, 505 U.S. 577 91992), 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. Even a "subtle cercive

Pressure" by a government official to engage in religious activity may violate the First

Amendment. See Id. at 591. 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

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

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.

This concern over impressionable youth has often been relief 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, (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 91968) (statute forbidding teaching of

Evolution); School Dist. Of Abington v. Schempp, 374 U.S. 203 (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 (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 (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 analy6sis invokes the threshold question: what is religion?

Plaintiffs’ complaint challenges both school district activity concerning recognized religions

6

Such as Hinduism, as well as Earth worship, the new age religions, superstition, and the

7

Occult. 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, 376 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 (3r Cir. 1981), cert. denied, 456 U.S.

908, 102 Ss.Ct. 1756, 72 1.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

Page18

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.

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 191961), punish the expression of

religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86-88 (1944),

impose special disabilities on the basis of religious views or religious status, see McDaniel v.

Paty, 435 u.S. 618 91978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v.

Valente, 456 U.S. 228, 245 (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 91969); Kedroff v. St. Nicholas

Cathedral, 344 U.S. 94, 95-119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696, 708-725 (1976).

Page 19

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:

Ins 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 (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

Page 20

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 215 (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 91944), 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 (1988).

As noted earlier, the proof at trial fails to confirm the existence of any "Bedford

Program." Here 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 directed or authorized in advance by school district policy, but are now defended as of

Extreme significance to aj broadened education. We consider them separately below.

Magic – The Gathering

"Magic: The Gathering" (Defendants’ Exhibit 7) is a strategic, adventure-style, math-

oriented, card game that was played by students at the Pound Ridge elementary School and the

Fox Lane Middle School as part of extracurricular clubs. Students were permitted to play the

Game on school premises only as part of clubs that met before school started at the elementary

School, and after school at the middle school. Participation was allowed only with prior written

Parental consent, and the school made a reasonable effort to provide adequate information to

Permit parents to make an informed decision (Defendants’ Exhibit 27). The clubs were

Supervised by a parent at the elementary school and by a teacher at the middle school. These

Supervisors were in attendance strictly for safety reasons, and did not take part in the activities

of the clubs. Following plaintiffs’ initial complaints about the game, the school district placed

ja thirty day moratorium on the activity until the district could make a more informed decision

about the nature and content of the game. After receiving the opinions of several mental health

professionals, the school district lifted the moratorium.

However, the game is not played currently at either school. Dr. Dennis testified that the

Clubs would be reinstated only if the students expressed interest in resuming the activity. (Tr.

345). Only acting upon such a request, would the school district then attempt to obtain adult

supervision. The middle school teacher who supervised the club has since retired and the

parent who volunteered has found employment and is no longer available. Id. The school

district asserts the right to reinstate this extracurricular activity at any time if it decides to do

so, and asserts that playing the game improves math and other skills.

Dr. Dennis testified on direct examination (Tr. 341-42):

(By the Court) What do you understand the purpose of the game to be?

The game is a game that’s based on mathematical principles and contains

Images on cards which ostensibly have some power that gives the student or the

Child who is manipulating the cards the ability to gain his opponent’s trading

Cards in return.

(By the Court) Is there some written direction about how you play the game?

Yes, there is extensive direction, and there are books. This is a game that’s been

Played on college campuses. Mensa had selected it as one of its top ten games

During the year that it came out, and it’s a game that typically attracted the most

academically talented kids. They seemed to be drawn to the game. But I have

no particular fondness for the game itself.

(Direct examination) Isn’t it true that your own son tried to teach you the game?

My own son played the game. It was beyond me. But yes, he did try to teach

Me.

You don’t really know how to play the game, do you?

I’ve watched the game played. I’ve watched students in the school

When I placed a moratorium on the game because the plaintiffs had contended

That the game was harmful, I sent for materials from the publishers so we could

Provide them to the mental health professionals who reviewed the game. I

Reviewed the game.

I had six middle school boys come to my office to let me observe them while

They played the game. I have been to a tournament that was held in a church in

Bedford where the game was played. So I have a rudimentary understanding of

The game, and I’ve certainly seen all the images on the cards in the entire series.

The Court, like Dr. Dennis, finds the game of "Magic: The Gathering" somewhat

Arcane to say the least. It was first published nationally in 1993 by Wizards of the Coast, Inc.,

located, naturally, in California, and is now in its 6th Edition. Defendants’ Exhibit 1 is a game

set for two players, which includes two sets of playing cards. One player is designated the

Wizard Zakk, and the other Wizard Kazz. A player starts with the life total of 20, and wins the

Game when he or she has reduced the other player’s life to 0. There are other versions for

Multiple players, including 16 expansion sets and 6 versions of the base game.

Drawing certain cards allows a player to cast different types of "spells" including the

other cards which are entirely free from references to the supernatural. No reasonable person

could regard sponsoring this game as a teaching of religion.

Although it has been stipulated that "Magic: The Gathering" contains cards that are

Offensive to people of the Catholic faith, this Court declines on the totality of the evidence to

Page 24

Find that the school district’s conduct was in violation of the First Amendment. The game is

Played with a large number of cards containing unrealistic fantasy representations, which are

Obviously fictitious and imaginary, but it is neither overtly nor implicitly religious. As 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. See e.g. Lambs Chapel v. Center Moriches

Union Free School District, 508 U.S. 384, 395 (1993).

Mrs. Reizes, during her fourth grade class in 1992-93, read her students the story, "How

Ganesha got his Elephant Head," (Plaintiffs’ Exhibit 31), then had her students construct Likenesses

in paper, (Plaintiffs’ Exhibit 12) of Ganesha.8 Plaintiff Krystal DiBari was in Mrs. ,

Reizes’ fourth grade class in 1992-93.

The fourth grade lessons were part of a school-wide international enrichment theme

Week in which the teacher of each class selected a country for students to study and then share

Their experiences with students in the other classes. Mrs. Reizes chose to teach about India

Because the goal of the enrichment week was to supplement the curriculum with music, art,

Dance, and cooking and she believed India provided an interesting culture that would lend itself

Easily to such goals with the use of craft projects, background music, and the like. Mrs. Reizes

Established an elaborate lesson plan and classroom environment to foster the learning of the

Indian culture, not the Hindu religion. The classroom was decorated with several travel posters

Of India and textiles and fabric of Indian design. Lessons on geography and culture were

Complimented with activities such as: instructions on how to make batiks (regional hand-

Printed textiles) out of wax and dye; cooking Indian food based on recipes in a Time-Life

Cooking of India cookbook; making paisley designs (as paisley originated in Kashmir, India);

Constructing mosaics out of beans (Defendants’ Exhibit 13); and replicating an Indian board

Game (Defendants’ Exhibit 14). One afternoon (Tr. 666) was spent reading the story "How

_________________________

Ganesha got his Elephant Head." (Plaintiffs’ Exhibit 31). This reading was followed by a

Companion art & craft project of constructing a paper image of Ganesha.

In 1993-94, Mrs. Reizes conducted a social studies unit on India as part of her third

Grade class. Plaintiffs Joseph DiNozzi and Tiana DiBari were a part of this class. The New

York State Education Department Third Grade Social Studies curriculum, "Communities

Around the World," (Defendants’ Exhibit 20), provides specifically for a unit on Bombay, India

(now Mumbai) (Defendants’ Exhibit 20 at p. 225). This prototype unit discusses the Ganesha

festival as a "tradition[] that Bombay’s people are intent on preserving." Id. A suggested

curriculum reading is "The Story of Rama and Sita", which is an excerpt from one of India’s

greatest writings, the epic poem called The Ramayana. Id. at 226, 299.

One of the suggested follow-up exercises to the reading of this story is the making of

Monkey stick-puppets, based on the Monkey King who is a hero in "The Story of Rama and

Sita." Id. at 233. Mrs. Reizes herself decided to substitute the story, "How Ganesha got hiselephant Head", (Plaintiffs’ Exhibit 31) for the "The Story of Rama and Sita", and modified the

Follow-up exercise from the monkey project to a project of constructing an image of Ganesha 9

9Out of clay. The evidence at trial confirms that this project was never started, as the school

Day ended before the class could begin construction; the project was disregarded the next day.

(Tr. At 97, 105-107, 144-145) The Court finds no credible evidence to support Plaintiffs’ claims

________________________

That Mrs. Reizes instructed the students to bring food or other gifts to Ganesha.

Mrs. Reizes also displayed in her classroom handwritten signs and pictures of Ganesha,

One of which reads as follows:

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.10

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.

(Plaintiffs’ Exhibit 31).

Contrary to Mrs. Reizes testimony, her substitution of the story, ‘How Ganesha got his

Elephant Head", (Plaintiffs’ Exhibit 31) for the "Story of Rama and Sita", plainly is not

Suggested by the New York State curriculum (Tr. 642-653). These lesson plans were not part

of the official New York State curriculum, but rather, like so many of the other challenged

"Bedford Program" activities, are the product of one teacher’s unilateral and idiosyncratic

decision to do something, without prior consultation with or direction by the Superintendent

the Principal, or the School Board.

The evidence supports, and the Court finds, that 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. Hinduism has religious, social, economic, literary and artistic

Aspects that combined form an intricate part of the Indian culture, knowledge of which is

Beneficial to the students and consistent with a diverse education experience. 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. See Abington v. Schempp, 374 U.S. at 225

(study of religion as part of secular program of education is consistent with the First

Amendment). 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. Father Pacwa testified, without

Contradiction, and reported in Plaintiffs’ Exhibit 73, that it is a violation of the First

Commandment and Catholic teaching, for Catholics to fashion images of false gods." 11 Thus,

This practice is a violation of the First Amendment and plaintiffs are entitled to appropriate

Relief on this point.

It should be simple to draw and conform to a line between the two challenged activities

Concerning Lord Ganesha. Permitting a school teacher to read a religious based story to

Students as part of a secular program is far removed from directing the same students to create

A likeness or graven image of a god. The apparent benign appearance of the paper Ganesha

Image that was constructed in Mrs. Reizes’ class (Plaintiffs’ Ex. 12) is of no relevance. Of

Course a teacher, without violating the Constitution, could instruct her class to make a paper

Image of an elephant after the class read the story of Babar or Dumbo. At issue here is not a

"silly",12 third grade level image of an elephant with a crown (Plaintiffs’ Ex. 12) but rather a

________________________

Teacher instructing or encouraging a student to construct an image of a religious deity

Worshiped today by many. In contrast, the Monkey King featured in the exercise initially

Suggested by the New York State curriculum and rejected by Mrs. Reizes does not appear to

Have any religious significance.

The Court concludes that appropriate relief is warranted based on the fact that the

School district fails to recognize the severity of this violation. Dr. Dennis, the Superintendent,

Testified that he believes that it is unreasonable for parents to object to having their children

Instructed to make images of a religious figure in class. (Tr. At 351). Likewise, James Young,

The principal of the Pound Ridge Elementary School during the relevant time frame of the

Challenge activity, testified that he had no problem with third and fourth graders making

Images of a Hindu god in class. (Tr. At 304, 317). The Constitution provides otherwise.

School sponsorship of the Worry Dolls

There are five Worry Dolls in evidence as Defendants’ Exhibit 1. These were sold at a

School store. The Worry Dolls are about 1-1/4" high and appear to be made out of toothpicks,

Thread and wire, painted in bright colors, and put together with glue, with a painted face. In

Addition, Worry Dolls were made and painted by the students under school sponsorship as

Projects in the Discovery Center at Pound Ridge elementary School. When joseph DiNozzi

Was in the 4th grade, he made Worry Dolls and personnel in the school store told him and other

Students that if they put the dolls under their pillow at night, "[i]t would chase away your bad

Dreams." (Tr. 91)

Ross Altman testified that in addition to the operator of the school store, a teacher Mrs.

Reizes, told the students in class that they could put the Worry Dolls under their pillows, "and

Take all our worries away and, dream." (Tr. 284, 287) We note that Mrs. Reizes denied that she

Herself had anything to do with the Worry Dolls, but there is sufficient evidence that someone

Acting for the school district allowed the Worry Dolls to be made in class, and that they were

Available at the school store, and the students were informed as to their intended use. The

Business with the Worry Dolls is 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,

And reported in Plaintiffs’ Exhibit 73 that the use of charms is forbidden by scripture and is an

Offense against the First Commandment. As Father Pacwa testified, "[the recent Catholic

Catechism . . . [prohibits] all forms of divination, magic and sorcery." (Tr. 600).

The sponsorship by the school of the Worry Dolls by selling them in the school store,

Or encouraging students to make them in class or in the discovery center, and use them for

Relief from worry, is a violation of the First Amendment. It prefers superstition over religion.

Plaintiffs are entitled to appropriate relief on this point.

Although yoga practices are widely accepted in the western world, simply for their

4exercise benefits, Plaintiffs take the position that yoga originates as a practice of the Hindu

religion and is a form of idolatry.

Page 32

Yoga exercises were conducted at the school by the witness Agia Akal Singh Khalsa,

Who is Sikh, and testified at trial (Tr. 431, et. seq.) Sikh Khalsa has a trademark name of "the

Yoga Guy." Sikh Khalsa also has a web site and practices numerology, an occult practice with

Religious overtones, having to do with purported analysis of the cycles and transit patterns of a

Persons’s life. Sikh Khalsa went only to the high school, not the elementary school. He was

Retained by Ken Edwards, the Athletic Director, and apparently came into the program as the

Result of another random act initiated by an individual teacher, without any prior consultation

On the part of the Principal, the Superintendent, or any action or approval by the School Board.

Sikh Khalsa testified, and I find that in hiring him Mr. Edwards made clear that he

"wasn’t there to teach anything more than a stress reduction exercise." The evidence at trial

fails to show that the Yoga Guy made any effort to teach religion or foster any religious

concept or idea connected with Yoga. It was simply a breathing and relaxation exercise

presented by the witness, who arrived at school dressed in a turban and the customary garb of a

Sikh minister. There is evidence that Plaintiffs’ children, on request, were allowed to opt out of the yoga exercise.

The Court finds as a matter fact that on the totality of the evidence, 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. There was no Constitutional

Violation, and as noted, in any event, Plaintiffs and others were permitted to opt out. Plaintiffs

Are entitled to no relief in connection with their claims concerning the yoga exercise.

Plaintiffs claims that during a demonstration at school, elementary school children were

Told that crystals (rocks) had supernatural powers and could affect their mental state and heart

Rate. This practice is said to constitute a fostering by the school district of practices of

Superstition and idolatry in violation of Plaintiffs’ rights under the Establishment Clause.

This claim arises out of a visit to the school by the witness Harvey Brickman, who

Describes himself as "the Rock Hound." He attended the Pound Ridge elementary School on

February 2, 1995, at Mr. Nolan’s class, and at Ms. Hovey’s class on the following day. He

Spoke to four different classes of fourth grade students. Here again, the presence of the Rock

Hound is the result of a random act initiated by an individual teacher which seemed to have no

Basis in any policy determination by the school district, or any decision by the Principal or the

Superintendent. A teacher, Carol Hovey, attended one of Mr. Brickman’s lectures on rocks and

Minerals, and asked him if he would give the same lecture at the school.

Mr. Brickman, a retired financial analyst with General Electric, is a rock collector and a

Member of clubs consisting of others interested in rock collection. He wears a fancy vest,

Which identifies him as a member of the Stamford Mineralogical Society, and his clothing is

Festooned with pins, rocks and other indicia of his avocation which he has collected over the

Years. The purpose of the Stamford Mineral Society is the collection of intelligence about

Rocks, minerals and fossils. His includes the collection of crystals, which he describes as pure

Rocks having varying characteristics. He has given between fifty and one hundred similar

Presentations at schools and in doing so has followed substantially the same script.

Mr. Brickman testified, and I find, that he gave a traditional presentation of information

Concerning various minerals, their relative hardness, and some other characteristics and also

Made available sample of rocks which he had collected to be examined by the students.

Some of the students brought their own rock collections to class, and he helped identify

Rock samples. Students were allowed to touch the rocks, and to wear jewelry containing certain

Of the rocks. The exhibition included amethyst crystals, tourmaline crystals, garnet, and beryl

Crystals, and he wore a necktie with pyrite. He denied that he himself believes that crystals

Have supernatural powers, and expressly denied under oath the accusation that he had told the

Students that putting a crystal next to their heart would make their heart beat faster (Tr. 729).

Mr. Brickman testified in response to the question, "Did you tell the children some people

Believe that crystals have power?" by answering as follows, "I may have been asked if I

Thought that crystals had powers, and I may have told them some people believe it, but I

Thought it was ludicrous." (Tr. 731) This was not a part of the planned presentation, but the

Witness testified that if asked he would have so responded. He concedes that he has given out

Samples of crystals to the children.

Father Pacwa’s testimony to the effect that roman Catholics are forbidden to engage in

The practice of using crystals as if they had mystical power over the body is undisputed. Also

Undisputed in his opinion that "such superstition is a form of idolatry, which is a grave sin."

There is, however, a failure of proof that the scope of the lecture went beyond telling the

Students that "some people believe." To describe the religious beliefs of some persons without

Endorsing those beliefs does not violate the First Amendment. The Court notes that throughout

The case Plaintiffs have relief upon the recollection of young students of impressionable age as

To single events in their lives which occurred several years earlier and were the subject of

Concerned discussion with parents, grandparents, guardians and lawyers over a lengthy period.

Russell Altman testified that Mr. Brickman had said that if you put a crystal on your heart or

On your forehead "you can wish and want more and your dreams will come true." (Tr. 276).

He was also quoted by the student as saying that the crystal around his neck was very sacred to

Him. The Court accepts Mr. Brickman’s version as more worthy of belief. Indeed, the

Credibility of all students who testified on both sides of the case is suspect. Not because of

Their tender years, or because this Court believes they had a desire to lie, but because they are

All interested in the outcome of the case, affiliated in some way with one side or the other of the

Case, and more importantly they are being asked to recall events in the past which obviously

Have been the source of considerable discussion and controversy both at home and in their

dealings with the lawyers.

Under our legal analysis set forth earlier, the Court agrees that it would have been a

Violation of the First Amendment if the visiting lecturer, Brickman, had taught the students that

The crystals have occult or supernatural power. He did not. Plaintiffs are entitled to no relief in

Connection with their claims concerning the Rock Hound.

There was evidence that one teacher read to the students an account of the life of

Buddha. The argument by Plaintiffs is that "[I]f public school children cannot be shown a

Video of the life of Christ they cannot be read the life of Buddha by their own teacher."

(OPCAL, Doc. No. 66, filed February 22, 1999.)

In the first place, it is not clear that public school children could not be told of the life

Of Christ. Certainly it could be done lawfully without sponsorship, merely as an exercise in

History or for the study of comparative religion. There is a failure of proof that reading the life

Of Buddha was conducted in such a fashion as to sponsor belief in Buddha or to violate the

First Amendment rights of Plaintiffs. Absent a promotion of religion by the school, it is

Permissible to read the life of Buddha to the students. Plaintiffs are entitled to no relief in

Connection with their claims concerning Buddha.

Fourth grade students were read a story about Quetzalcoatl that was part of a historical

Presentation concerning Mexico. There is no evidence that the teacher, mrs. Pappace, who

Testified at trial, promoted believe in Quetzalcoatl as a religion. One of the students made a

Quetzal Bird out of cardboard, paper and pipe cleaners, and a diorama was made showing

Human sacrifice by the Aztecs.

On the balance of the evidence, the Court concludes that no student was compelled to

Make a physical representation of Quetzalcoatl, that the teachings were consistent with the New

York State curriculum and represented a comparative presentation of ancient religious customs

Consistent with the purpose of the instruction. Unlike Lord Ganesha, Quetzalcoatl is not

Currently worshiped in the world and hanging the Quetzal Bird in class should not be regarded

As the adoption of a religious symbol.

The students were told that some persons believe Zuetzalcoatl will return to the world

In the year 2012, but telling students "some persons believe" is not the same as sponsoring that

Idea in the minds of the children. There is a failure of proof of a First Amendment violation in

Connection with the teaching of historic Mexican culture. Plaintiffs note that the teacher, Mrs.

Pappace, gave no attention "to the study of the Catholic religion, which the people of Mexico

Have practiced for the past 500 years." The Court has no jurisdictional basis to require that the

School district, having taught the children of the historical existence of the Aztecs, their legends

And their religion, must also teach the children concerning the later adopted religion of Mexico.

Plaintiffs are entitled to no relief on the issue of Quetzalcoatl.

Fourth graders in Mrs. Hovey’s class were allowed to write original poems of their own

Choice, and the product was published in booklet form (Plaintiffs’ Exhibit 56, "Poetry by 4-

H"). Mrs. Hovey did not assign topics for the poem, and the poems represented the individual

And original work of the students. Selections of the work to be included in the booklet were

Made by the students themselves. The first student poem reads as follows:

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.

By Gary Palmer, Jr.13

Another poem in the same publication, with the name of the student obliterated, but

Apparently not written by Gary Palmer, Jr., is entitled "Mess Up." It reads:

"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, PT

Guess what, He messed up on frogs, too."

The 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 (Plaintiffs’

Exhibit 77), also 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. Nor does the Court agree, as Defendants claim that an effort by the

teacher to leave the poems out of the booklet "would itself have raised Constitutional

concerns." (Defendants’ post trial brief at 14). No First Amendment violation is found in

connection with this very poor poetry.

The Cemetery Visit

With advance written parental consent, the fourth grade students participated in an

Overnight field trip to the Madden Outdoor Education Center, a facility located in Putnam

15

County operated by BOCES. Plaintiffs’ Exhibit 33 is entitled "A Guide to Overnights at

Madden." Students and counselors were allowed to camp out overnight and to cook outdoors

In a permitted area. The Madden program sponsored by BOCES is an educational program

Availed of by various school districts in Westchester and Putnam Counties. Its purpose is to

Allow children and adults to "see one another in new and surprising ways away from the

Classroom environment" and it seeks to develop group identity and improved communication

Skills and helps students grow in their ability to take initiative and offer pinions, etc. The

Program is planned and run by the Madden staff, and includes orientation, instruction in

Compass use, cemetery/local history experience, evening program on Hudson River lore, and

Campfire. This program is consistent with the New York State Social Studies curriculum and

Science curriculum. The trip to Madden was presented to the parents for approval as

Representing "plenty of opportunities to take risks: in a safe environment." Parents were

Invited to go along as monitors.

Exhibit 33 refers to cemetery study as follows:

Cemetery Study: (2hour/1 class) This program invites students to travel back to

The early 1800’s to learn what life was like for the settlers of the Madden

Property. After a brief discussion, students hike to the cemetery to collect data

From the gravestones. This data is then used as a basis for a discussion which

Covers nutrition, food preservation, lifestyle, human physiology, family trees,

Disease, and family responsibilities. The discussion includes math, science and

Social studies skills. Following a discussion, each student does a gravestone

Rubbing. If your group does not have enough time for a full cemetery program,

Choose the gravestone rubbings program described below.

The Madden program contains a number of highly worthwhile opportunities for young

Children which lack any religious significance. The policy and operation of the Madden Center

Was not determined by these Defendants, but was under the control of BOCES, a different

Organization.

Plaintiffs claim that during the overnight trip an employee of BOCES wandered around

The campground "waving a stick to magically ward off the danger of animal attack." (TR.152).

Some of the students believed that there were wolves or bears, and that the stick waving would

Ward them off. Assuming for purposes of this case that the practice constituted a teaching of a

Superstitious belief that waving a stick would ward off wild animals, this effort was not an

Activity for which these Defendants can be held responsible.

As an additional claim arising out of the visit to Madden, the Plaintiffs showed that Ms.

Dorna Schroeter, an employee of BOCES, asked one of the students, not a plaintiff in this

Lawsuit, to lie down on a grave in the Knapp family cemetery. Bedford teachers were present

and did not express disapproval or interfere when this other child laid down momentarily on

the grave. Other children were permitted to take rubbings from the inscriptions of old

tombstones by use of paper and a crayon.

Defendants assert that the activity in the cemetery, especially lying down on the grave,

Which to this Court seems terminally dumb, was an appropriate teaching practice for social

Studies because lying down on the grave would show that a full grown person in Colonial times

Was of much shorter stature. Plaintiffs assert that lying down on the grave involves a

Desecration, and apparently oppose taking rubbings from tombstones, although this practice is

Commonly encouraged in the great cathedrals of Europe.

While the educational experience of lying down on a grave seems of doubtful value to

The Court, we do not perceive a First Amendment violation by the Defendants of the rights of

Any of the Plaintiffs by reason of any of the activities which occurred at Madden. Ms.

Schroeter was not claimed to be a school district representative. Mere silence on the part of the

Observing teachers would not constitute a ratification by them or by the school district, and

Participation in the overnight visit was by parental permission only, and therefore Plaintiffs

Could opt out. We note that Plaintiffs’ Exhibit 33 does warn parents of the intention to have

Children take rubbings from the tombstones. For the foregoing reasons, Plaintiffs are entitled

To no relief with respect to this claim.

Plaintiffs attack the DARE program as a violation of the First Amendment, the Pupil

Protection Rights Amendment – 20 U.S.C. sec. 1232h, and new York Public Health Law sec. 2504.

Plaintiff Jon DiNozzi participated in the DARE Program in fifth grade at Pound Ridge

Elementary School. The program was sponsored by a police officer, trained for the purpose.

Jon DiNozzi testified:

Tell the Court what the program consisted of.

Well, [Officer Roffi] went through the different kinds of drugs, what they were,

The good consequences and the bad consequences. There never was a ‘say no to

Drugs.’ It’s your choice, we hope you make the right choice.

(Tr. 28).

The student testified that he was not told by the police officer or anybody else as part of

The DARE Program that drugs were wrong. Steven DiNozzi testified that he participated in the

DARE Program in fifth grade before he was opted out of the program by his parents. Steven

Testified that there was role playing in a drug transaction, and one of the students played the

Part of the drug seller. The police officer had a "DARE box" where if a student had comments

Or questions he or she did not want to ask in front of the class the question could be placed in

The box.16

Officer roffi, a member of the Mt. Kisco Police Department, testified as part of the

Defendants’ case. Officer Roffi has been a DARE instructor since 1991, and has served in a

Number of different schools in Westchester County. She is a certified instructor of the Division

Of Criminal Justice Services Bureau for Municipal Police of the State of New York, and has

Completed 80 hours of classroom work. DARE instruction is given in accordance with a

Copyrighted published curriculum. The DARE Student Workbook for grades 5-6 is in evidence

As Defendants’ Exhibit 23.

Obviously, reasonable persons could disagree as to the effectiveness of the program and

It seems there is no tangible evidence as to whether or not it works. The program is criticized

Because it does not involve telling the children that drugs are morally wrong. The DARE

Program appears to present, as testified to by Officer Roffi, a strong drug and strong anti-

Violence message (Tr. 786), but apparently is designed to require the students to receive the

Message by inference rather than by direct statement of the teacher. The purpose of the role

Playing is said to assist students to learn how to say no, when being pressured by their peers to

Try tobacco, alcohol and drugs, and the role playing is done so as to give the students the

Opportunity to say no to an offer by a member of the peer group, thus practicing to say no in a

Safe environment. (Tr. 789). Contrary to the testimony of the students, Officer Roffi testified

________________________

16

It is apparent that the 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. The witness

Roffi testified without contradiction that usually the students conclude and verbalize the fact

That "under the not using side all of the consequences are positive, under the using side they are

All negative." (Tr. 796). She says that students do not find positive responses to the use of the

Substances. Stressors are discussed and include the possibility of family pressure.

In addition to their First Amendment based challenge, Plaintiffs challenge the DARE

Program as a violation of the Pupil Protection Rights Amendment (PPRA), 20 U.S.C. sec. 1232h.

This Court agrees with Defendants’ initial response to this claim, that neither the plain meaning

Of the PPRA nor the Congressional intent behind the statute provide an implied private right of

Action. See McClellan v. Cablevision of Connecticut, Inc., 149 F.3d 161 (2d Cir. 1998);

Herbert v. Reinstein, 976 F.Supp.331, 339 (E.D.Pa. 1997) (finding no implied private right of

Action under 20 U.S.C. sec. 1232h).

Notwithstanding this conclusion, however, a private right of action exists by reason of

42 U.S.C. sec. 1983 for the violation of a federal civil rights statute even where the statute does

not provide an express or implied private right of action. See Maine v. Thiboutot, 448 U.S. 1,

100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). The Supreme Court has provided a three prong test to

determine whether a federal statute gives rise to a federal right enforceable under sec. 1983:

First, Congress must have intended that the provision in question benefit

The plaintiff. Second, the plaintiff must demonstrate that the right assertedly

Protected by the statute is not so "vague and amorphous" that its enforcement

Would strain judicial competence. Third, the statute must unambiguously

Impose a binding obligation on the States. In other words, the provision giving

Rise to the asserted right must be couched in mandatory rather than precatory

Terms.

King v. Town of Hempstead, 161 F.3d 112, 114 (2d Cir. 1998) quoting Blessing v. Freestone,

520 U.S. 329, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 91997)); see also Wilder v. Virginia

Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510,110 L.Ed.2d 455 (1990).

In determining whether plaintiffs are intended beneficiaries of the provisions of 20

U.S.C. sec. 1232h, the first prong of this test, the Court looks to the plain text of the statute, which

Provides, in relevant part, that "[n]o student shall be required, as part of any applicable

Program, to submit to a survey, analysis or evaluation that reveal information concerning . . .

.(2) mental and psychological problems[,] . . . without the prior consent of the student . . . or . .

. parent." 20 U.S.C. sec. 1232h (b) (emphasis added). Section 1221 of the General Education

provisions Act, which includes the PPRA, defines the term "applicable program" as "any

program for which the Secretary [of Education] or the Department [of Education] has

administrative responsibility as provided by law or by delegation of authority pursuant to law"

and "includes each program for which the Secretary or Department has administrative

responsibility under the Department of Education Organization Act [20 U.S.C.A. sec. 3401 et

seq.] or under Federal law effective after May 4, 1980." 20 U.S.C. sec. 1221(c)(1). The

Department of Education explicitly interprets the PPRA to apply only to schools that receive

And use federal funds, from the Department, in connection with the use or administration of

Surveys, analysis or evaluations concerning one or more of the areas listed in the PPRA. See

60 Fed. Reg. 44,696 et seq. (1995) (to be codified at 34 C.F.R. pt. 98).

As the evidence is undisputed (Plaintiffs’ Exhibit 74) that no federal funds were used in

The DARE Program, the Court holds that Plaintiffs are entitled to no relief under any of their

Claims asserted pursuant to the PPRA.

Plaintiffs contend that the DARE program is a health service under New York Public

Health Law sec. 2504, which requires the district to obtain parental consent as a prerequisite for

Student participation. Plaintiffs’ expert witness Dr. Coulson testified that participating in the

DARE Program constitutes non-directive psychotherapy. He criticizes the program as,"[t]he

Idea is to provoke children who are not aware of having a problem with respect to drugs,

Children for example, who may have been reared under an absolute morality where they are

Taught ‘don’t even think about doing drugs’ to provoke them into thinking about doing drugs

And give them what purports to be a method for deciding for themselves whether or not to deal

with drugs." (Tr. 485). This Court is not required to resolve the validity or the desirability of

the DARE Program. We note that the program has been in common use throughout the

country for some period of time without having been found unlawful by any court. It may well

be that there are better ways to teach abstinence from illegal drugs, but the evidence does not

support a conclusion that the DARE Program is a "health service" within sec. 2504 of the New

York Public Health Law.

No First Amendment or other violation appears to have resulted from the DARE

Program. Plaintiffs are entitled to no relief as to this issue.

Reverend Nancy Weber_ Rev. Nancy Weber is a self-proclaimed psychic, although her psychic powers did not

Extend to predicting the date on which the trial testimony would be concluded. She is a

Minister in the Life Spirit Congregational Church. She conducted an activity at the elementary

Schools intended to improve creativity, learning and memory. This involved exercises intended

To improve the function of the right hemisphere of the brain, which Rev. Weber believes can be

Stimulated and improved. She led the children in exercises of concentration with eyes closed.

Here again, Rev. Weber’s appearance at the school was as a result of a random act, and

Not a part of any designed curriculum and did not involve any decision making by the

Superintendent, principal, or the Board of Education. She met the school nurse at a social

Function in new York or Connecticut at somebody’s house. As a result of a chance social

Conversation with the school nurse "about health and learning and research supports that there

Is an integration between a health body and the ability to learn and be less stressed while you Are learning", she was invited to attend as a guest lecturer and conduct exercises. 17 The subject

_________________________

Instructional program, she was paid a modest stipend from school district funds for her time and travel, as were the Yoga Guy and the Rock Hound.

Of her teaching was that "the right hemisphere of the brain is the part that takes all the complex

Patterns and makes associations allowing us to grasp concepts which I believe helps us learn

Anything." (Tr. 300). The exercise included having the children draw with the non-dominant

Hand with their eyes closed.

Plaintiffs have produced no 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. The argument is that "the attempt to perform right brain stimulation

Constitutes an invasion of privacy of the minor Plaintiffs and their parents." In Father Pacwa’s

Expert report (Exhibit 73) he observes that "the notion that one’s right brain must be stimulated

So as to overcome ‘linear thinking’ with the left brain is quackery."

The entire Nancy Weber lecture may well have been nothing but humbug. However,

The Court does not believe that this visiting lecturer required the students to engage in a "bogus

Mystical experience" as charged, and concludes that on the totality of the evidence it did not

Rise to the level of a First Amendment violation. Plaintiffs are entitled to no relief as to this

Issue.

The school arranged for peer facilitators, students already attending the high school, to

______________________

Conduct orientation for students about to move from the middle school to the high school.

Apparently these peer facilitations did not enjoy complete faculty supervision at all times, and

Students in the middle school met with more sophisticated students from the high school where

They engaged in unsupervised discussion of such topics as sex, drugs, rock and roll music,

Parties and Monica Lewinsky. A role playing story about ‘Mark and Lisa" involving pressure

To engage in sex was introduced into the discussion without faculty supervision.

This is claimed to be psychotherapeutic technique in violation of the new York

Statute forbidding medical treatment without parental consent. The evidence reveals, and this

Court finds, that the student-led discussions that occurred during the Peer Facilitator Program

Did not rise to the level of "medical" or "health services" within the plain meaning of the text

Of new York Public Health Law sec. 2504. Thus, the Court refuses to order the district to obtain

Parental consent form students who participate in the Peer Facilitator Program. It is also

Alleged that the Peer Facilitator Program violates the PPRA, 20 U.S.C. sec. 1232(h). However,

There is no evidence that federal funds were expended in connection with the program, so for

The reasons stated earlier with regard to the DARE program, that claim must be rejected. No

First Amendment violation is or could be claimed as to this activity. Plaintiffs are entitled to

No relief with respect to the Peer Facilitator Program.

Plaintiffs object to other non-yoga meditation programs. The evidence showed that

Lights were turned off and students were asked to imagine themselves in a strange place, or that

Their bodies were filling with blue liquid, and were told to empty their minds. Plaintiffs

Contend that taped music was played and deep breathing was incorporated into the meditation

Period.

Plaintiffs contend first that this meditation constitutes a form of psychotherapy barred

By the state and federal statutes discussed supra, unless consented to by the parents. Father

Pacwa testified (Tr. 598) that this was a form of hypnosis. He objected first because persons

Without training in psychology were practicing hypnosis and was concerned on a religious

Issue because "letting people get involved in that kind of hypnotic exercise would introduce

Them to something either by suggestion psychologically or by actual spirit contact, and that

Would be evil."

The credible evidence in the case does not support a finding of actual spirit contact.

The actual exercises may be useless, but do not rise to the level of a First Amendment violation

And Plaintiffs have failed to show with respect thereto that they are entitled to any relief under

The state or federal statutes discussed earlier.

This issue started out innocently enough. The New York State Legislature by statutory

Provisions going back as far as 1888 as amended from time to time has authorized the

Commemoration of "Conservation Day" on the last Friday in April of each year. Subparagraph

2 of sec. 810 of the Education Law now reads as follows:

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.

The statute, in subparagraph 3, allows the Commissioner of Education to prescribe a

Course of exercises and instruction. Through the years, Conservation Day has come to be

Known as Earth Day. The worship of the Earth is a recognized religion (Gaia), which has been

And is now current throughout the world. The liturgy of Earth Day at Fox Lane High School

truly bizarre. Plaintiffs’ Exhibit 28 is the April 1997 issue of the high school paper, The

Forum. In reporting on the prior year’s Earth Day ceremony, The Forum states, "[a]lso, as in

Every year, symbolic gifts were presented to the earth by the representatives of each class in the

Form of a speech." The ceremony included the erection of "symbolic structures", equal to an

Altar, and a chorus of drums playing throughout the presentations. The Earth was deified and

Students were urged to "do something that would make Mother Earth smile." The students

Assembled outdoors in a circle under the leadership of an art teacher, Dale Saltzman, who

Designed the program. A large (5 feet in diameter) globe was held up by three bamboo sticks

In a green circle in front of the high school as a focal point of the worship service. In addition

To a musical performance, several faculty members gave speeches.

As part of Exhibit 28, Plaintiffs presented a document issued March 5, 1996, by Mr.

Saltzman. This memorandum pointed out with respect to Earth Day that, "[s]ome years the

Event has been small and quiet, and other years we have had great pomp and pageantry. At the

Core of each gathering has been and will continue to be an honoring of the earth as a home for

All of us." The memorandum continues:

The concepts enjoined and reinforced each year in the structure of the

Assembly itself are the Honoring of the Elders. Metaphorical gifts from the

Class officers to the earth and planting for the future. The program is always

Filled out with speakers, skits, demonstrations, dancers, drummers, poets or the

Like, with an ecological theme, but the core idea of respect for the earth is the

Concept to be driven home.

On at least one of the Earth Day celebrations, Mr. Saltzman told the assembled students

And senior citizens who had become part of the ceremony that,"[w]e came from the earth, we

Are part of the earth, and we are all involved in this cycle. One day we will become [dead] and

Then we’ll go back to the earth." (Tr. 25) This is clearly religious teaching. ("pulvis es et in

Pulverem reverteris" (Genesis 3:19)). Tombstones were used one year at the ceremony,

Inscribed with the names of extinct birds and animals. One Earth Day occasion, Mr.

Saltzman told the assembled group that there were too many people on this earth and we need

To do something about it. The validity of this observation is far from clear, the Malthusians Having failed to confirm their theory over two centuries. 18 It is directly contrary to the teaching Of Genesis I.19

________________________

To state this unproven fact as an absolute violated the school district’s rule on academic

Freedom,20 and 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." (Tr. 593).

At times other than Earth Day liturgy, the school sponsored prayers and the recital

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

Children of the 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 and the man." This creed originates with the Taos Indians, and is a

Clear example of a religious teaching within Judge Adams’ definition quoted supra. This

Activity was a direct presentation to the children of an Earth-centered religious belief. Further

Religious motifs are found in the book (Exhibit 62). While Mrs. Funari denied she made the

Book itself available to the students (Tr. 709), she conceded that the prayers in the book are on

The tape played for the class (Tr. 711). At page 25 a poem entitled, "The Birds of the Air"

Contains the statement, "For this green earth is our Mother, hidden in the sky is the Spirit

Above." Clearly, this is also a religious teaching. Similarly, on page 65, children were advised,

"When you need to cut down a tree or remove a plant from your garden, reflect on this prayer:

‘We know that we all are children of the same Mother Earth, of our Father Sun. But, we also

know that one life must sometime give way to another, so that the one great life of all may

continue unbroken. So we ask your permission, we obtain your consent for this killing.’" This

prayer is said to have originated also with the American Indians and is tendered to the children

as "promoting understanding that our human desires should be tempered with willingness to

defer to the needs of other living things." (Exhibit 62 at p. 65).

The children were also given a Winnebago Indiana prayer: "Holy Earth Mother, the trees

And all nature are witnesses of your thoughts and deeds." On the same page students were

Advised, "You can use the following prayer similarly: ‘I feel Thy presence in this landscape

Which draws my heart so close to Thee.’" On page 68, children were confronted with the

Following: "The first peace, which is the most important, is that which comes within the souls

Of people when they realize their relationship, their oneness, with the universe and all its

Powers, and when they realize that at the center of the universe dwells the great Spirit, and that

This center is really everywhere, it is within each of us." Again, on page 71: "Trees, standing

Firm, hold the secret of inner power. Give us, when tested, strength to endure. Mountains,

Remote and still, hint at higher worlds unseen. So may our lives be, soaring and serene. Rivers

Seek passage, unhindered by rock or tree. So may our lives flow steadfast toward the sea!

Mother, we thank you, your joy shines in everything! Open these channels, so the world once

More may sing." Again, on page 72 the children were told: "Like the sage in the story, we can

Learn valuable lessons from nature. Nature is an expression of God; or, if you prefer, of the

Creative force and intelligence in the universe. Since we are created by the same power as

Nature, we can use nature as a mirror in which to reflect on truths about ourselves."

Answer: Yes.

An Earth Day ceremony?

Plaintiffs allege that defendants have conducted various activities which although

Lacking religious overtones, violate the plaintiff-parents’ Fourteenth Amendment privacy right

To exempt their children from educational activities which interfere with their right to direct the

Upbringing of their children. In Immediato v. Rye Neck School Dist., 73 F.3d 454, 462 j(2d

Cir. 1996), cert. denied,519 U.S. 813, 117 S.Ct. 60, 136 L.Ed.2d 22 (1996), our Court of

Appeals recognized the claimed right of a parent to direct the upbringing of his or her children,

But held that any challenged activity be analy6zed 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 the furtherance of that

Objective. Id.

Plaintiffs challenge the following activities: Giving children the homework

Assignment of observing and reporting on the activities of family members administering the

Myers-Briggs personality test; telling the students to keep a journal which could include their

Most intimate thoughts on private matters; implementing the Yale Decision Making Program;

And administering counseling to students. Plaintiffs do not seek to stop these activities

Outright, but rather, seek advance parental notification of these activities with the ability to

"opt-out" their children as they see fit.

In Immediato, our Court of Appeals held that as the Supreme Court has recognized,

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. 73 F.3r at 461. The homework assignment and the journal

Activity were writing exercises that were clearly educational in nature. Plaintiffs concede that

Students were told they had the right to staple-close any personal and private portions of their

Journals before they were read by the teachers. OPCALS at 18-19. These writing assignments,

Although intrusive in nature, do further the state’s compelling objective of education, and thus

Do not violate Plaintiffs’ Fourteenth Amendment rights.

The evidence also reveals that contrary to Plaintiffs allegations, the Myers-Briggs

Personality Test was, and is, conducted at the district schools only after advance parental notice

Is mailed to parents, with a right to opt-out their student from testing.21 (Tr. At 338). Regardless

Of the opt-out opportunity, student testing is well within the realm of legitimate educational

________________________

21

Goals and thus plaintiffs’ claim on this issue does not rise to the level of a constitutional or

Statutory violation.

The Yale Decision Making Program (Plaintiffs’ Exhibit 18) is a program implemented

As part of the sixth grade curriculum, conducted over several weeks in twelve sessions of 40-

minute periods. (Tr. At 363). This program, which was developed by the Department of

Psychiatry at Yale University, was created to attempt to help children make good choices and

Good decisions, to weigh the nature of the decisions they make, to access different types of

Data, and to make judgments that are productive and proper choices. (Tr. At 362). The program

Contains lessons on stress and stress management and also includes a relaxation exercise. The

Court finds that the Yale Decision Making Program rationally furthers the district’s objective of

Educating students to make informed decisions and to be self-reliant and self-sufficient

Participants in society.

Plaintiffs also appear to argue for a blanket opt-out right to all objectionable activities

Within the district. The Court fails to find any constitutional basis for such a right. Assuming,

arguendo, that the Immediato case grants such a right, this Court finds the testimony of Dr.

Dennis on the district’s reasons for refusing to offer a parental opt-out program, credible and

Persuasive in a context not involving First Amendment rights:

The notion of parental opt out requires that parents know in somewhat

Exhaustive detail prior to any kind of teaching episode what is going to be

Occurring, what materials will be used. And I assume a presumption of that is

That they would then have the right to have their [children] participate, after

Which - - so after being given, for example, notice of a particular activity or

lesson, the teacher would need to do so in enough time to give the parents an

opportunity to respond; the parent might then choose not to have his child

participate; the teacher would have to then construct an alternate assignment

which presumably would need to have the parent approve as well. This could

go on and on and literally tie the hands of education to proceed. So I couldn’t

support that kind of general opt out.

(Tr. At 455). Based on this evidence, this Court finds that the district’s refusal to offer this

general opt-out right is rationally related to the furtherance of the district’s educational

objectives and therefore lawful as to the non-First Amendment issues in the case.

This finding, however, does not limit defendant’s otherwise legal obligation to obtain

health or medical services. Thus, to the extent the district engages in any student counseling,

it is required by that statute to obtain parental consent if such counseling is medical or health

related. Plaintiffs have failed to prove in the context of this case that such counseling was

imposed without consent on their children. New York Public Health Law sec. 2504 applies to the

issue. This issue of student counseling having been decided under New York State statutory

law, this Court need not address whether the challenged activity violates plaintiffs Fourteenth

Amendment parental right to privacy. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct.

466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("[I]f a case can be decided on either of

two grounds, one involving a constitutional question, the other a question of statutory

construction or general law, the Court will decide only the latter").

Plaintiffs are entitled to the entry of a final injunction which would:

(1) prevent school Sponsorship of worship of the Earth or continued presentation of a liturgy addressed to the

Earth as if it were the Creator, or divine, including prayers of any kind to the Earth, whether or

Not derived from the culture of the American Indians, or as set forth in Plaintiffs’ Exhibit 62;

(2) remove the Worry Dolls from the school system and refrain from sponsoring charms or suggesting that tangibles have supernatural powers;

(3) prohibit any direction to a student to make a likeness or a graven image of a god or religious symbol; and

(4) direct the adoption of a published policy which will contain clear instructions to teachers and others to implement within the school system the Supreme Court standards set forth in the cases quoted earlier in this decision, in order that the school district shall remain neutral towards all religions, neither sponsoring nor disparaging any religious belief, and shall not coerce any student to participate in religion or its exercise or to violate any religious precept held by a child or his or her parents. The policy shall provide that persons teaching students, who are not regular members

of the faculty, such as psychics, yogis and rockhounds, shall be informed of these limitations before being invited.

In all other respects, all relief shall be denied.

Counsel are directed to meet and discuss the form of a final judgment and may agree on

The form without conceding the correctness of this decision or waiving any appellate rights.

The Court will not approve any injunction which requires the Court to retain any generalized

Continuing jurisdiction over the Bedford School District beyond enforcing its specific terms.

Plaintiffs are prevailing parties, at least in part, and are entitled to recover their legal

Fees and costs to the extent attributable to that portion of the claims as to which they prevailed.

Counsel if so advised may submit an application setting forth the total lodestar and the portion

Attributable to those services as to which Plaintiffs prevailed, which application shall be served

By June 18, 1999, at which time the fee application will be regarded as fully submitted for

Decision.

A proposed final judgment shall be settled on notice or submitted pursuant to waiver of

Notice to the Court on June 18, 1999, or earlier.

SO ORDERED.

Dated: White Plains, New York

May 21, 1999

_____________________________

Charles L. Brieant, U.S.D.J.