Appeal of ELIZABETH and DAVID PASSER, on behalf of their children RACHEL and SAMUEL, from action of the Board of Education of the Mexico Central School District regarding the playing of the song “Where Were You When the World Stopped Turning?”

Decision No. 15,159

(January 6, 2005)

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the action of the Board of Education of the Mexico Central School District (“respondent”) permitting school personnel of the Mexico Middle School to play the song “Where Were You When the World Stopped Turning?” over the school’s public address system. The appeal must be dismissed.

Petitioners’ son Samuel and daughter Rachel attended the sixth and eighth grades at the Mexico Middle School during the 2002-2003 school year. On September 11, 2002, the school held a series of commemorative events including moments of silence coinciding with the times that the planes hit the World Trade Center and the times the towers collapsed. After each moment of silence, a song was played over the school’s public address system including “Where Were You When the World Stopped Turning?”, “Proud to Be an American” and the National Anthem. Petitioners assert that the school’s administration requested that students sing along. Respondent’s staff memo, however, indicates that students would receive a copy of the lyrics and “may follow along.” At noon, the Pledge of Allegiance was recited and students presented representatives of the local fire departments with a banner thanking them for their work.

By letter dated September 16, 2002, petitioners complained to respondent that the school’s use of the song “Where Were You When the World Stopped Turning?” violated the Establishment Clause of the United States Constitution. By letter dated September 24, 2002, respondent advised petitioners that their complaint would be discussed at the next board meeting. Respondent, however, did not discuss the complaint until its October 22, 2002 meeting. Respondent had not yet provided a response to the complaint when petitioners commenced this appeal on November 20, 2002. Petitioners’ request for interim relief was denied.

Petitioners assert that respondent’s use of the song “Where Were You When the World Stopped Turning?” advances Christianity and fosters an excessive government entanglement with religion in violation of the Establishment Clause of the United States Constitution. Petitioners further contend that various prior actions by respondent occurring from December 1997 through October 2001 also violated their constitutional rights.

Petitioners ask for the termination of the middle school principal, the removal of several board members, a public apology, a district multicultural sensitivity training program, and a requirement that 25 percent of the district faculty and administration be minorities. Petitioners also seek a prohibition against school events reciting prayerful verses or other entreaties to God and an assurance that there will be no further violation of the United States Constitution or the New York State Education Law. Petitioners further request that the New York State Education Department approve any future district plans to commemorate American tragedies, such as September 11, 2001, and that all holiday displays be culturally equal.

Respondent asserts that the appeal should be dismissed because the petition is unverified and untimely. It also contends that petitioners failed to join necessary parties and meet the requisite standard for the removal of board members. Respondent further contends that an appeal to the Commissioner is an inappropriate forum for novel questions of constitutional law. Finally, respondent asserts that the challenged song is not a “prayerful verse.”

Respondent asserts that the petition is not verified as required by §275.5 of the Commissioner’s regulations. However, the petition submitted to my Office of Counsel contained the requisite verification. Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioners are not represented by counsel and my Office of Counsel received a verified petition (Appeal of McSween, 42 Ed Dept Rep 59, Decision No. 14,775; Appeals of Campbell and Coleman, et al., 41 id. 207, Decision No. 14,665).

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Recore, 42 Ed Dept Rep 283, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471). The petition includes allegations regarding acts occurring from December 1997 through October 2001. Since petitioners offer no excuse or reason for their delay in challenging those acts, the allegations are dismissed as untimely.

Petitioners’ appeal, however, concerning the September 11, 2002 events is timely. Petitioners promptly sought respondent’s review of their complaints, but respondent did not reply. In fact, respondent asserts that the superintendent was still drafting a response to petitioners’ complaint when the petition was served.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Lawson, 42 Ed Dept Rep 210, Decision No. 14,826; Appeal of Olsen, 42 id. 20, Decision No. 14,761; Appeal of Reed, et al., 33 id. 216, Decision No. 13,029). Petitioners seek to remove the middle school principal and several board members. Clearly, a determination in petitioners’ favor would adversely affect these individuals. Accordingly, petitioners’ failure to join them as parties requires dismissal of petitioners’ claims for removal.

Although an appeal to the Commissioner is not the proper forum for litigating novel issues of constitutional law, this case does not present a novel issue. Applying established principles, I previously determined that a school assembly held on September 14, 2001 in which students were encouraged to sing “God Bless America,” did not violate the United States Constitution (Appeal of Cayot, 42 Ed Dept Rep 97, Decision No. 14,786; judgment granted dismissing petition to review, Sup. Ct., Albany Co., Lamont J., February 19, 2004, n.o.r.).

The Establishment Clause of the First Amendment which provides that “Congress shall make no law respecting an establishment of religion” applies to the states and school districts through the Fourteenth Amendment. At a minimum, the Establishment Clause guarantees that government may not coerce anyone to support or participate in a religious exercise (see, Lee v. Weisman, 505 U.S. 577). However, the song “Where Were You When the World Stopped Turning?” is neither an invocation nor a benediction, and petitioners have not established here that the song’s inclusion in a commemorative event constitutes a religious exercise.

In Lemon v. Kurtzman, 403 U.S. 602, the United States Supreme Court set out a three-pronged test to determine whether a governmental practice is consistent with the Establishment Clause: (1) does it have a secular purpose; (2) does it have a principal or primary effect that neither advances nor inhibits religion; and (3) does it foster an excessive government entanglement with religion.

With regard to the first prong, the record in this case indicates that the Governor requested that all schools in New York State observe moments of silence on the anniversary of the tragic events of September 11, 2001. Respondent’s middle school administration decided that playing songs on the public address system following the moments of silence would further this secular purpose by aiding students’ reflection. On the record before me, petitioners have not demonstrated that respondent’s actual purpose was to endorse or disapprove of religion or to advance religious views (see, Edwards v. Aguillard, 482 U.S. 578, 585).

In regard to the second prong of the test, petitioners have not established objectively that a reasonable observer would find that playing of the song “Where Were You When the World Stopped Turning?” had the effect of endorsing religion (see, County of Allegheny v. ACLU, 492 U.S. 573). As the title suggests, the song questions the individual experience of its audience on September 11, 2001. While the songwriter, Alan Jackson, may seem to profess his own religious belief, the lyrics do not suggest that such belief was or should be a universal response:

 

Where Were You When the World Stopped Turning?

 

Where were you when the world stop turning that September day
Were you in the yard with your wife and children
Or working on some stage in L.A.
Did you stand there in shock at the sight of that black smoke
Rising against that blue sky
Did you shout out in anger, in fear for your neighbor
Or did you just sit down and cry
Did you weep for the children who lost their dear loved ones
And pray for the ones who don't know
Did you rejoice for the people who walked from the rubble
And sob for the ones left below
Did you burst out in pride for the red, white and blue
And the heroes who died just doin' what they do
Did you look up to heaven for some kind of answer
And look at yourself and what really matters?
I'm just a singer of simple songs
I'm not a real political man. I watch CNN but I'm not sure I could

Tell you the difference in Iraq and Iran
But I know Jesus and I talk to God
And I remember this from when I was young
Faith, hope and love are some good things He gave us
And the greatest is love

Where were you when the world stopped turning on that September day
Teaching a class full of innocent children
Or driving down some cold interstate
Did you feel guilty 'cause you're a survivor
In a crowded room did you feel alone
Did you call up your mother and tell her you loved her
Did you dust off that Bible at home
Did you open your eyes, hope it never happened
And you close your eyes and not go to sleep
Did you notice the sunset the first time in ages
Or speak to some stranger on the street
Did you lay down at night and think of tomorrow
Go out and buy you a gun
Did you turn off that violent old movie you're watchin'
And turn on "I Love Lucy" reruns
Did you go to a church and hold hands with some strangers
Stand in line and give your own blood
Did you just stay home and cling tight to your family
Thank God you had somebody to love

©2001 EMI Music / Tri-Angels Music (ASCAP)[1]

 

These lyrics present a diverse list of possible responses to the events of that day rather than supporting any particular one. For example, the song’s reference to buying a gun does not endorse gun-buying, merely because such a reference appears. Instead, the songwriter invites the listener to recall his or her individual response. I find that an objective observer would view this song as an expression of the wide range of emotions experienced on September 11, 2001 rather than having a “principal or primary” effect of advancing religion.

Concerning the third prong of the test, petitioners make only the conclusory allegation that the song fosters an entanglement with religion. However, there is no evidence that the middle school administration had any contact with church authorities concerning the commemorative event, and there is no assertion of any other type of entanglement.

In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear right to the relief requested (8 NYCRR §275.10) and the burden of establishing the facts upon which he seeks relief (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588). Although the challenged song may reasonably be interpreted to reference the lyricist’s own religious belief, the song was used for a secular purpose and is not a prayer or a religious exercise. On the record before me, I find that petitioners have failed to meet their burden of proof.

In light of this disposition, I need not reach the parties’ remaining contentions.

 

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] The lyrics are printed here as they appeared on the songsheet distributed to students and vary in minor and insignificant ways from the copyrighted version.