The 10th Circuit Court of Appeals has agreed West High School officials did not violate a court order when they did not prevent a graduation audience from singing a song the school choir had been ordered not to perform.
The order stemmed from a suit brought by Jewish student Rachel Bauchman, who contended choir director Richard Torgerson used his position to push his LDS beliefs.Bauchman, who was a member of the choir last year, sought to have the songs "Friends" and "The Lord Bless You and Keep You" removed from the graduation program. She claimed the songs' references to deity violated her religious beliefs.
U.S. District Judge J. Thomas Greene denied the injunction against performing the songs, but the Denver-based appeals court granted the injunction.
The choir practiced and performed other selections, but a graduating senior led the audience and students at the June 7 commencement ceremony in singing "Friends." Some students had passed out copies of the lyrics before the ceremony and Bauchman contended the administration should have been able to prevent the singing.
Greene ruled, "The situation was out of control in the sense that the audience could not have been stopped by reasonable actions of defendants from singing the song."
The appeals court has upheld Greene's Nov. 27 dismissal of Bauchman's contempt of court petition.
Her suit contending her civil rights were violated by religious undertones in the choir class remains pending in Greene's court. The suit says Torgerson encouraged students to pray and to visualize Jesus Christ and that the choir performed at churches. Torgerson denied proselyting and said he had been unfairly portrayed as being against diversity.
"We are extremely perplexed by this decision," Lisa Thurau, director of the National Committee for Public Education and Religious Liberty, attorneys for Bauchman, said Tuesday. "To us, the facts before the court were quite clear. The teachers and administrators were aware but chose to make no effort to stop the choir teacher's and students' explicit plans to violate the court order."
Utah Assistant Attorney General Dan Larsen said, "My understanding is this means that the litigation on the contempt issue is over. They don't have any further remedies to seek to hold the defendants in contempt."
In a related matter, the 5th Circuit Court of Appeals ruled in December that religious songs may be sung for their "artistic and historic qualities if presented objectively as part of secular program of education."
The circuit court reversed a district court decision that enjoined choirs in the Duncanville (Texas) Independent School District from singing songs with religious content as their theme songs.
The Texas suit focused on the song "The Lord Bless You and Keep You" as did the Bauchman suit.