Filed 4/3/15

                             CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA



STEPHEN SEDLOCK et al.,                            D064888

        Plaintiffs and Appellants,

        v.                                         (Super. Ct. No.
                                                    37-2013-00035910-CU-MC-CTL)
TIMOTHY BAIRD et al.,

        Defendants and Respondents;

YES! YOGA FOR ENCINITAS
STUDENTS,

        Intervener and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County, John S.

Meyer, Judge. Affirmed.

        National Center for Law and Policy and Dean Robert Broyles for Plaintiffs and

Appellants.

        Kevin T. Snider for Pacific Justice Institute; Alan Jay Reinach for Church State

Council; James Leslie Hirsen and Deborah Jane Dewart for World Faith Foundation as

Amici Curiae on behalf of Plaintiffs and Appellants.
       Stutz Artiano Shinoff and Holtz, Daniel R. Shinoff, Paul V. Carelli IV, and Jack M.

Sleeth, Jr., for Defendants and Respondents.

       Atkison, Andelson, Loya, Ruud & Romo, Stephanie Marie White for California

School Boards Association's Education Legal Alliance; Pillsbury Winthrop Shaw Pittman,

Kevin Murray Fong and Nathaniel Robert Smith for Yoga Alliance as Amici Curiae for

Defendants and Respondents.

       Coast Law Group, David A. Peck; Snell & Wilmer and Mary-Christine Sungaila

for Intervener and Respondent.

       James & Stewart, Irene E. Stewart; and Martin S. Kaufman for Atlantic Legal

Foundation as Amicus Curiae for Intervener and Respondent.



                                               I.

                                     INTRODUCTION

       For many in this country, the practice of yoga is an entirely secular experience

undertaken for reasons such as increasing physical flexibility, decreasing pain, and

reducing stress. For others, the practice of yoga is a religious ritual, undertaken for

spiritual purposes. In this case, we are required to determine whether a school district's

institution of a yoga program as a component of its physical education curriculum

constitutes an impermissible establishment of religion in violation of the California

Constitution.



                                               2
       After a careful review of the extensive evidence presented in the trial court

concerning the nature of the particular yoga program at issue in this case, we conclude that

the program is secular in purpose, does not have the primary effect of advancing or

inhibiting religion, and does not excessively entangle the school district in religion.

Accordingly, we conclude that the trial court properly determined that the district's yoga

program does not violate our state constitution.

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Procedural background

       In February 2013, appellants Stephen and Jennifer Sedlock, and their children, J.S.

and F.S., by and through their guardian William Frederick Bentz (collectively Sedlocks),

filed this action against the Encinitas Union School District, its superintendent, Timothy

Baird, and the District's five governing board members (collectively the District).1 In a

verified petition for writ of mandate and complaint for injunctive and declaratory relief,

the Sedlocks alleged that the District's implementation of an Ashtanga yoga program as a

component of its physical education curriculum violated various religious freedom




1     The Sedlocks' initial petition/complaint did not expressly name the Encinitas
Union School District as a defendant. However, in April 2013, the Sedlocks filed an
amendment to their petition/complaint adding the Encinitas Union School District as a
named defendant.
                                            3
provisions of the California Constitution.2 The Sedlocks sought a writ of mandate and

brought claims for injunctive and declaratory relief in which they requested that the court

enjoin the District from continuing to implement its yoga program and declare the

program unconstitutional.

       An entity called Yes! Yoga for Encinitas Students3 filed a motion to intervene in

support of the District and its yoga program. The trial court granted the motion to

intervene.4 The Sedlocks and respondents subsequently filed trial briefs, together with

accompanying declarations and exhibits, and the trial court held a bench trial on the

matter. After the trial, the court entered a statement of decision in which it concluded

that the District's yoga program is constitutional. The court entered a judgment in favor

of respondents. The Sedlocks timely appeal the judgment.




2       Among these provisions is article I, section 4, which prohibits government
practices "respecting an establishment of religion." (Cal. Const., art. I, § 4.)
        Although the Sedlocks brought several other claims in their petition/complaint,
their sole claim on appeal pertains to the causes of action referenced in the text.

3      According to their verified complaint in intervention, Yes! Yoga for Encinitas
Students is an "unincorporated association comprised of over 100 elementary students
currently enrolled in the [District] and their parents."

4     We refer to the District and Yes! Yoga for Encinitas Students collectively as
"respondents."

                                             4
B.     Factual background 5

       1.     The District

       The District is a public school district consisting of nine elementary schools. It

serves approximately 5,600 students in grades Kindergarten through Sixth, who live in

Encinitas and the La Costa area of Carlsbad.

       2.     Ashtanga yoga

       Ashtanga yoga is a form of yoga developed and popularized by K. Pattabhi Jois.

According to Jois, the meaning of yoga is explained in a series of Hindu texts, including

the Bhagavad Gita, the Upanishads, and Yoga Sutras. Jois first established an institute for

the teaching of Ashtanga yoga in India in the 1940s, and introduced Ashtanga yoga in the

United States after traveling to Encinitas in 1974.

       As developed and popularized by Jois, Ashtanga yoga prescribes eight limbs. The

limbs are referred to as yamas (moral codes), niyamas (self-purification), asanas




5       We base of our statement of facts in part on the detailed factual findings contained
in the trial court's statement of decision. (See, e.g., Biron v. City of Redding (2014) 225
Cal.App.4th 1264, 1268-1269 ["The trial court filed a lengthy and detailed statement of
decision. Plaintiffs make no claim that the evidence was insufficient to support the trial
court's findings of fact. Therefore we derive most of the factual background in this
opinion from the trial court's findings of fact contained within the statement of
decision"].) As discussed in part III.A., post, while the Sedlocks make numerous factual
assertions in their brief, they do so without raising any distinct substantial evidence
challenge to the trial court's factual findings. In addition, the statement of facts contained
in the Sedlocks' opening brief does not state the facts in the light most favorable to the
judgment, as is required. (See, e.g., Myers v. Trendwest Resorts, Inc. (2009) 178
Cal.App.4th 735, 739 ["In every appeal, 'the appellant has the duty to fairly summarize
all of the facts in the light most favorable to the judgment' "].)
                                                5
(postures), pranayana (breath control), pratyahara (withdrawing the mind from the senses),

dharana (concentration), and samadhi (union with the divine).

       Ashtanga yoga prescribes approximately 100 yoga poses, including two series of

opening poses, two series of poses characterized as either primary or intermediate, and a

series of finishing poses.6

       3.     The KP Jois Foundation

       During the 2011-2012 school year, the KP Jois Foundation (the Foundation)

funded a yoga program at one of the District's schools, Capri Elementary. According to

the trial court, the Foundation7 is a foundation with a "mission to establish and teach

Ashtanga yoga in the community, at minimum, the physical postures, breathing, and

relaxation." In addition, the Foundation has an interest in promoting yoga in schools as an

alternative to traditional physical education. However, as the trial court noted, the record

contains "little direct evidence as to . . . the structure of the [Foundation]," and there is "no

evidence that it is a religious foundation, per se."




6      A poster depicting the poses is contained in the record.

7     The District and the Sedlocks state in their briefs that that the Foundation has been
renamed "Sonima Foundation."

                                                6
       4.       The 2011 yoga program at Capri Elementary

       The principal of Capri Elementary hired Jennifer Brown, who also taught at a Jois

yoga studio in Encinitas,8 to teach the yoga classes. Brown is certified to teach Ashtanga

yoga by the Pattabhi Jois Institute in Mysore, India. The yoga classes that Brown taught

at Capri Elementary were based in part on the primary series of poses in Ashtanga Yoga.

Brown also taught her students some Sanskrit words related to yoga. In addition, Brown

read selections from a book called "Myths of the Asanas," which contains numerous

references to Hindu deities. Brown omitted references to these deities. In addition, she

taught the children to say "namaste," which she interpreted to mean "respect."

       District officials were pleased with the yoga program at Capri Elementary.

Assistant superintendent David Miyashiro decided to attempt to secure additional funding

from the Foundation in order to expand the yoga program to all of the District's schools.

       5.       The 2012 grant proposal and memorandum of understanding

       In July 2012, the District presented the Foundation with a grant proposal. The

grant proposal contained an overview that stated in part:

            "The following puts into place a partnership between the . . . Foundation and
            the . . . District . . . to deliver a world class mind/body wellness program at all nine
            Encinitas elementary schools. The core foundation of this program will be built around
            providing students, staff, and families access to Ashtanga Yoga on a regular basis
            throughout the year."

       The grant proposal further specified that "comprehensive yoga instruction" would

be provided to all students, and that classes would be taught by "certified yoga


8       Brown testified that the Foundation and the Jois yoga studio are "totally separate"
entities.
                                             7
instructors, selected and hired by District staff and trained by . . . Foundation teachers."

The grant proposal also provided that the District would develop a yoga curriculum that

would be "scalable and transferable to other settings." One aspect of the curriculum was

to be instruction concerning "life skills built around key themes of yoga instruction such

as self-discipline, balance, and responsibility."

       The Foundation awarded the grant, and the Foundation and the District entered

into a memorandum of understanding. The memorandum of understanding specified that

the Foundation would award the District "$533,720 for the implementation of a district-

wide yoga program." The memorandum of understanding further stated, "as agreed upon

by both parties and detailed within the approved grant . . . proposal, [the District] will

provide the oversight for the implementation of a comprehensive yoga instruction for

[Kindergarten through Sixth] grade students and the development of curriculum

supporting yoga instruction with a focus on life skills."

       The District also entered into an agreement with Regur Development Group, Inc.

(Regur), to act as a personnel manager with respect to the grant, including formally hiring

the yoga teachers and overseeing the human resources aspects of their employment.

       6.     The development of the yoga program

       After the grant was awarded in the summer of 2012, the District and the

Foundation each compiled a list of potential candidates to teach the classes. From these

lists, 22 individuals were invited to attend several training sessions during the summer.

Miyashiro, a representative from the Foundation, and a representative from Regur

                                              8
oversaw the training sessions. During the sessions, the Foundation's representative

assisted in evaluating whether the prospective candidates could teach yoga poses to

children. From this pool of candidates, the District, through its principals, selected 10

individuals to teach yoga classes in the District's yoga program.

       The District selected a woman named Leslie Wright to serve as the lead writer of

the yoga curriculum. Throughout the 2012-2013 school year, the District held weekly

staff development meetings during which the yoga teachers, Miyashiro, Wright, and a

representative from Regur developed the curriculum. Miyashiro identified the standards

to be used for the development of the curriculum based on physical education standards

established by the State of California and Social Emotional Learning standards adopted by

the State of Illinois. The Foundation did not participate in the development of the

curriculum.

       In November 2012, the District completed an initial draft of its yoga curriculum.

The draft curriculum consisted of a series of grade specific lesson plans for the teaching

of various yoga poses, breathing exercises, and character traits. The curriculum also

contained guided meditation scripts to be used during the lessons.9



9      On such script stated as follows:

          "When we're practicing yoga, we always breathe in through the nose and out through the
          nose. We want the breath to make a soft sound like the sounds of the ocean waves as
          the[y] come and go from the shore. It's kind of like whispering 'haaa' with your mouth
          closed. Let's try this. Take a deep inhale and as you exhale, whisper 'haaa.' Inhale again,
          this time with the mouth closed, 'haaa.' Let's see if we can get the same sound on the
          inhale. Try imagining inhaling the scent of a sweet flower."

                                                       9
       7.       The implementation of the District's yoga program

       At the beginning of the 2012-2013 school year, five schools participated in the

yoga program. The yoga program was expanded to all nine schools in January 2013. As

described in detail in part III.C.3.b., post, the classes involved instruction in performing

various yoga poses, proper breathing, and relaxation. The classes also contained

instruction designed to instill various character traits, such as empathy and respect.

       As the District began implementing the program, some parents complained that the

program was religious. The trial court described the manner by which the District

responded to these complaints as follows:

            "When the program was rolled out to the parents over the Summer of 2012, there were
            complaints from parents that the program was religious. The District responded by
            remov[ing] anything considered [a] cultural component[] or that could be arguably
            deemed religious. Jennifer Brown's Ashtanga tree poster was removed almost
            immediately (and that was her personal poster).[10] All Sanskrit language was removed.
            Jenn Brown took down . . . postcards from India. The names of the poses were changed to
            kid-friendly, kid-familiar poses. The so called 'lotus' position, was renamed 'criss-cross
            applesauce.' There was something called a mudra, which is where you put your thumb
            and your forefinger together. That was eliminated, and instead what was substituted was
            something called "brain highway" where students tap alternate fingers with their thumbs.
            And there was no namaste or chanting 'om.' "

       The District continued to revise its yoga curriculum, and released a second version

in the spring of 2013. As with the initial curriculum, the revised curriculum, discussed in

detail in part III.C.3.b., post, consists of a series of grade-specific lesson plans for the



10     At trial, Brown testified that for a few days at the beginning of the 2012-2013
school year, she displayed a decorative tree made out of tissue paper and palm tree
leaves. Brown stated that "each palm tree leaf was a branch of Ashtanga yoga," and that
the limbs were labeled with the Sanskrit words for each branch. Brown testified that she
never explained to the children the meaning of the words, and that she, herself, did not
know the meaning of the word samadhi, the eighth limb, which means union with god.
                                              10
teaching of various yoga poses, proper breathing, relaxation, and character traits. Unlike

the fall 2012 curriculum, the spring 2013 curriculum did not include guided meditation

scripts. In addition, the revised curriculum omitted certain references from the initial

draft curriculum that the Sedlocks contend were "overtly religious." For example, the

Sedlocks note that the statement, "[y]oga brings [out] the inner spirit of the child," which

appeared in the 2012 curriculum was removed from the 2013 curriculum.

                                             III.

                                      DISCUSSION11

       The District's yoga program does not constitute an establishment of religion
             in violation of article I, section 4 of the California Constitution

       The Sedlocks contend that the trial court erred in concluding that the District's yoga

program does not constitute an establishment of religion in violation of article I, section 4

of the California Constitution.12

A.     Standard of review




11      We have read and considered a number of amicus curiae briefs in deciding this
appeal. An entity called Yoga Alliance filed an amicus brief in support of respondents.
The California School Boards Association's Education Legal Alliance filed an amicus
brief in support of the District. The Atlantic Legal Foundation filed an amicus brief in
support of Yes! Yoga for Encinitas Students. The World Faith Foundation filed an amicus
brief in support of the Sedlocks. The Pacific Justice Institute and the Church State
Council filed a joint amicus brief in support of the Sedlocks. Yes! Yoga for Encinitas
Students filed a consolidated answer to the amicus briefs filed in support of the Sedlocks.

12     The Sedlocks do not raise any independent claim under the federal constitution.

                                             11
       The parties disagree as to the proper standard of review. The Sedlocks contend that

this court should apply the de novo standard of review to their claim.13 Respondents

maintain that we should defer to the trial court's factual findings to the extent that those

findings are supported by substantial evidence, and apply the independent standard of

review in selecting the applicable law and applying that law to the facts of the case. We

agree with respondents.

       In Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801, the Supreme Court

outlined the appropriate standard of review to be applied in cases in which an appellant's

claim raises a mixed question of fact and law.

           " . . . 'There are three steps involved in deciding a mixed fact/law question. The first step
           is the establishment of basic, primary or historical facts. The second is the selection of the
           applicable law. The third is the application of law to the facts. All three trial court
           determinations are subject to appellate review. Questions of fact are reviewed by giving
           deference to the trial court's decision. Questions of law are reviewed under a
           nondeferential standard, affording plenary review. [Citation.] However, as to the third
           step, the application of law to fact . . . ' [i]f " ' . . . the question requires us to consider legal
           concepts in the mix of fact and law and to exercise judgment about the values that animate
           legal principles, then the concerns of judicial administration will favor the appellate court,
           and the question should be classified as one of law and reviewed de novo.' " ' [Citation.]"

       The Sedlocks' claim raises a question of mixed fact and law. Specifically, the

Sedlocks make assertions on appeal that pertain to the historical facts of this case,

including how the yoga teachers in this case were trained and certified, how the District

developed the yoga curriculum, and the nature of the relationship between the Foundation



13      The Sedlocks contend that the de novo standard of review is appropriate where
"the historical facts are admitted or established." However, as discussed in the text,
certain historical facts relevant to the Sedlocks' claim are contested. We defer to the trial
court's factual findings concerning such historical facts wherever they are supported by
substantial evidence.
                                              12
and the District. We apply the substantial evidence standard of review to the trial court's

factual findings with respect to such issues. We apply the de novo standard of review in

selecting the applicable law and in applying such law in determining whether the

District's yoga program violates the establishment clause of the state Constitution.

B.     Governing law

       1.       The establishment clause of the state Constitution

       Article I, section 4 of the California Constitution provides in relevant part:

            "The Legislature shall make no law respecting an establishment of religion."

       In East Bay Asian Local Development Corp. v. State of California (2000) 24

Cal.4th 693 (East Bay), the California Supreme Court explained that "the protection

against the establishment of religion embedded in the California Constitution" does not

"create[] broader protections than those of the First Amendment [of the United States

Constitution]." (East Bay, supra at p. 718.) The East Bay court further stated that, "the

California concept of a 'law respecting an establishment of religion' ([Cal. Const.,] art. I,

§ 4) coincides with the intent and purpose of the First Amendment establishment clause."

(East Bay, supra, at p. 718.) The East Bay Court reasoned:

            "We reach this conclusion because the establishment clause was not added to article I,
            section 4 until 1974.

            "When article I, section 4 was readopted with minor editorial changes by the electorate as
            part of the constitutional revisions made in 1974, the present establishment clause was
            included. The Legislative Analyst and the Chairman of the Constitution Revision
            Commission each explained that the intent was to add to the California Constitution a right
            that was then contained in the federal Constitution. [Citations.] Presumably, the
            electorate intended that the right being added to article I, section 4 through the new
            establishment clause would afford the same protection as the establishment clause of the
            First Amendment on which it was patterned. There is nothing in the history of the clause
            to suggest that the drafters or the electorate intended that the clause be any more protective

                                                         13
            of the doctrine of separation of church and state than the First Amendment establishment
            clause." (East Bay, supra, at pp. 718-719.)

       Thus, in determining whether a government practice violates the establishment

clause of the state Constitution, California courts are guided by First Amendment

establishment clause jurisprudence. (See, e.g., East Bay, supra, 24 Ca.4th at p. 719 ["Our

construction of the establishment clause of article I, section 4 is . . . guided by decisions

of the Supreme Court"]; Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863,

883 (Sands) (lead opn. of Kennard, J.) ["federal cases . . . supply guidance for

interpreting [the establishment clause of state Constitution]"].)

       2.       The Lemon test

       In Lemon v. Kurtzman (1971) 403 U.S. 602 (Lemon), the United States Supreme

Court adopted a three-part test to determine whether a government practice violates the

establishment clause of the First Amendment. In order for a government program to be

constitutional: (1) the government program must have "a secular legislative purpose";

(2) the program's "principal or primary effect must be one that neither advances nor

inhibits religion"; and (3) the program "must not foster 'an excessive government

entanglement with religion.' " (Lemon, supra, at pp. 612–613.)

       While the United States Supreme Court "has acknowledged that it does not apply

the Lemon test in every establishment clause case" (California Statewide Communities

Development Authority v. All Persons Interested etc. (2007) 40 Cal.4th 788, 808), and the

test is "much maligned by scholars and various Justices, Lemon has never been

overruled." (Alvarado v. City of San Jose (9th Cir. 1996) 94 F.3d 1223, 1231 (Alvarado).)
                                                       14
Accordingly, we apply the Lemon test as a structure for our analysis, and, where

applicable, address other pertinent authority. (See, e.g., Paulson v. Abdelnour (2006) 145

Cal.App.4th 400, 422 ["we will use the Lemon test as a structure for our analysis and

where applicable, employ the teaching of [other United States Supreme Court] and

California authority"].)14

C.     The District's yoga program passes the Lemon test

       1.     The religion at issue

       It is undisputed that Hinduism is a religion. We assume, without deciding, that

Ashtanga yoga, insofar as it prescribes the practice of an eight-limbed form of yoga in

which the eighth and final limb is "union with the universal or the divine," is a religion for

purposes of the establishment clause of the California Constitution. (Cf. Brown v.

Woodland Joint Unified School Dist. (9th Cir. 1994) 27 F.3d 1373, 1378 (Brown)

[assuming, without deciding, that Wicca is a religion and applying the Lemon test in order

to determine whether school district's curriculum violated establishment clauses of the

California and federal Constitutions].) Accordingly, we apply the Lemon test to determine

whether the District's yoga program advances Hinduism or Ashtanga Yoga.15



14     All parties to this appeal apply the Lemon test in their briefing, and cite additional
establishment clause case law, as well.

15     Respondents argue that we need not apply the Lemon test because the District's
yoga program does not manifest any of the indicia of a religion. In our view, the proper
inquiry under Lemon is not whether the government program is itself a religion, but
whether the program has a secular purpose, whether the program has a primary effect that
                                           15
       2.     The District's yoga program has a secular purpose

       The Sedlocks do not contest that the District's yoga program has a secular purpose.

Further, the record contains overwhelming evidence demonstrating that the District

instituted the yoga program for a secular purpose, namely, to implement a physical fitness

program that promotes physical and mental health. Accordingly, we conclude that the

District's yoga program easily satisfies the secular purpose prong of the Lemon test.

       3.     The primary effect of the District's yoga program is one that neither
              advances nor inhibits religion16

              a.     Additional relevant law

       "Under the 'primary effect' test of Lemon, supra, 403 U.S. 602, the inquiry is

whether, irrespective of the government's actual objective, the practice in question

conveys a message of endorsement or disapproval." (Sands, supra, 53 Cal.3d at pp. 872 -

873 (lead opn. of Kennard, J.).) "By 'endorsement,' we are not concerned with all forms

of government approval of religion—many of which are anodyne—but rather those acts

that send the stigmatic message to nonadherents ' "that they are outsiders, not full

members of the political community, and an accompanying message to adherents that

advances religion, and whether the program entangles government with a religion. (See
Lemon, supra, 403 U.S. at pp. 612-613.) However, whether a governmental program has
religious attributes is clearly highly relevant in applying the Lemon test.

16     The Sedlocks argue, "[A] reasonable observing student in [the District], who is
familiar with [the District's] yoga program would conclude that the yoga program both
advances/endorses Hinduism and inhibits/disapproves of other religions, including
Christianity." In so arguing, the Sedlocks focus on the manner by which the District's
yoga program purportedly advances Hinduism and contend that by advancing Hinduism,
the District necessarily inhibits all other religions (including Christianity).
                                                16
they are insiders, favored members . . . ." ' " (Trunk v. City of San Diego (9th Cir. 2011)

629 F.3d 1099, 1109.) In ascertaining whether the government practice endorses

religion, "we conduct our inquiry from the perspective of an 'informed and reasonable'

observer who is 'familiar with the history of the government practice at issue.' " (Id. at p.

1110.)

         In the elementary school context, "Courts . . . have considered the more vulnerable

nature of school-age children when analyzing the primary effect of state actions . . . ."

(Brown, supra, 27 F.3d at pp. 1378-1379.) However, courts do not consider the effect

that the challenged government practice has had "on a particular public school student,"

but rather, employ an "objective standard." (Id. at p. 1379.) A subjective standard is not

used because, "[i]f an Establishment Clause violation arose each time a student believed

that a school practice either advanced or disapproved of a religion, school curricula

would be reduced to the lowest common denominator, permitting each student to become

a 'curriculum review committee' unto himself or herself." (Ibid.)

         Finally, in determining whether the challenged practice has a primary effect that

advances or inhibits religion, we evaluate the challenged government practice " 'as a

whole' " (Nurre v. Whitehead (9th Cir. 2009) 580 F.3d 1087, 1097 (Nurre)), rather than

segmenting portions of the practice and "view[ing] them in isolation." (Ibid.)




                                              17
              b.     The primary effect of the District's yoga program does not advance
                     Hinduism or Ashtanga Yoga

       In assessing whether a reasonable observer would view the District's yoga

program as advancing or inhibiting religion, we begin by reviewing the trial court's

factual findings concerning the District's yoga program as it existed in 2013. The trial

court noted that the 2013 written curriculum contains half-hour lesson plans that

prescribe "yoga poses performed in a definite sequence," labeled with kid-friendly names.

The court noted that the curriculum also "involve[s] controlled breathing and some

introspection and thinking." The court analogized the poses "to isometric . . . stretching

exercises." For example, the court explained that one pose in the curriculum is called

"boat." To perform the boat, the child "[lies] on his or her back, [and] extend[s] his legs,

arms up." The court noted that while the curriculum prescribes an opening and closing

sequence of poses that are identical to a series of poses performed in Ashtanga yoga, the

curriculum does not contain all of the 100-or-so yoga poses performed in Ashtanga

Yoga.17




17     The trial court noted that "[t]he opening and closing sequences of [the District's]
poses are identical to the Ashtanga yoga poses in Opening Sequences A and B . . . and the
Closing lotus sequence . . . depicted on Exhibit 9, which is the Shri Pattahbi Yogi
Ashtanga Yoga Institute poster." Exhibit 9 is a poster that states that the top, "Shri K.
Pattabhi Jois Ashtanga Yoga Institute," and depicts approximately 100 yoga poses,
labeled in Sanskrit.
                                             18
       The court summarized a typical lesson plan as follows:

          "There is a physical component . . . and there is a character component. And there is a
          famous person and quote that is to be focused on. The quotes are not religious. As
          examples, one of the famous persons is Babe Ruth and his quote was, 'Every strike brings
          me closer to my next home run,' and that's for the subject of 'Perseverance.' Another quote
          is: 'The time is always right to do what is right,' by Martin Luther King., Jr. For the
          subject of "Collaboration," Phil Jackson is quoted as saying, 'The strength of the team is
          each individual member. The strength of each member is the team.' The Reverend Jessie
          Jackson is quoted on the subject of 'Empathy': 'Never look down on anybody unless
          you're helping them up.'

          "Then the curriculum indicates a breathing exercise. The teacher can choose a couple.
          Dragon breath, belly breathing, floating arms, connect breath with movement, kite, cat,
          cow. And then the posture is 20 minutes. The opening is Opening Sequence A, the
          kangaroo and the warrior. And then the standing pose is big toe, volcano, elephant, and
          mouse pose, seated fold, butterfly, half butterfly, back-bending, boat, mouse pose, optional
          is the windmill, and there's a candle pose. And then five minutes of relaxation. The
          curriculum suggests to the teacher, 'Before the closing sequence, take a moment to check
          in with your students.' That's the direction to the teacher. 'How are you feeling? How are
          you breathing? How did you show respect in class today?' And then the closing
          sequence: Telephone, pretzel, butterfly, flower, turtle, criss-cross applesauce, and rest."

       The trial court also reviewed the declarations of the yoga teachers and a school

principal who had attended yoga classes at her school, and noted there had been a

"uniform denial of anything spiritual, religious, or anything like that being taught in the

classes." In addition, the court viewed videos of excerpts of the yoga classes and read

declarations of parents who were opposed to the yoga program.18 After reviewing this



18     The Sedlocks note that the videos show some children with their hands making a
wisdom gesture (in which the thumb and forefinger are touching, forming a circle).
Citing the testimony of their religious studies expert, Dr. Candy Brown, the Sedlocks
contend, "Forming a circle with each thumb and index finger symbolizes subordination of
the individual spirit (Atman, represented by the index finger) by the Universal Spirit
(Brahman, represented by the thumb) and brings about unification of the individual with
Universal Consciousness." While the videos show some children making this gesture
during some of the classes, the trial court found that the District had eliminated teaching
this gesture, and there was no evidence presented that the District had taught the gesture
                                              19
evidence, the trial court determined that, contrary to the Sedlocks' assertions, the

District's yoga program is not Ashtanga yoga, and that it is "devoid of any religious,

mystical, or spiritual trappings."

       We have carefully reviewed the evidence upon which the trial court made this

determination, and agree that a reasonable observer would view the content of the

District's yoga program as being entirely secular. As the trial court described in its

statement of decision, the District's yoga classes consist of instruction in performing yoga

poses, breathing, and relaxation, combined with lessons on building positive personal

character traits, such as respect and empathy. We see nothing in the content of the

District's yoga program that would cause a reasonable observer to conclude that the

program had the primary effect of either advancing or inhibiting religion.

       We acknowledge that a reasonable observer would be aware that the grant funding

the District's yoga program specified that the "core foundation" of the program would be

providing access to "Ashtanga yoga." (Italics added.) However, a reasonable observer

would also be aware that, as implemented, the District's yoga program is clearly not

Ashtanga eight-limbed yoga. To be sure, if the District's program instructed children that

through yoga they would become one with God and that yoga could help end the karmic


for a religious purpose or that it had even conveyed the purported religious significance
of the gesture.
        Similarly, the Sedlocks contend that the religious nature of the District's yoga
program is demonstrated by the fact that some children chanted "Om" during some of the
classes. Even assuming that a child's chanting of "Om" reflects a genuine religious
expression rather than mere mimicry of a stereotypical yogi, the District does not teach
chanting as a component of its yoga program.
                                              20
cycle of reincarnation—both of which are aspects of Ashtanga yoga practice according to

the Sedlocks' expert, Dr. Brown—we have little doubt that the program would violate the

establishment clause. However, nowhere in the District's curriculum is there mention of

any of the eight limbs of Ashtanga, and there is certainly no mention of the final limb

(union with the divine).19 Indeed, as described above, there is no evidence of any

religious indoctrination in any of the written curriculum or in the evidence related to the

teaching methods employed in actual District yoga classes.

       The Sedlocks' arguments in support of their claim that a reasonable observer

would view the District's yoga program as having a primary effect that advances or

inhibits religion are unpersuasive and/or not supported by the trial court's factual

findings.20 To begin with, the Sedlocks claim that a reasonable observer would conclude

that the District's yoga program advances religion because the Foundation has a


19      The Sedlocks claim that the District's curriculum "still includes at least seven of
the eight Ashtanga limbs," but in so stating, the Sedlocks mean only that the District
teaches practices that can be said to in some way coincide with Ashtanga yoga's "eight
limbs." For example, the Sedlocks maintain that because the District's yoga curriculum
contains "character connections" built around quotations from famous people, the
curriculum contains instruction on "yamas" (moral restraints) and "niyamas" (ethical
observances). We think it clear that a reasonable observer would not view lessons built
around the quotations mentioned in the text from famous persons such as the Reverend
Jessie Jackson and Babe Ruth as instilling Ashtanga/Hindu teachings.
20      We have addressed all of the arguments that the Sedlocks raise in the legal
argument portion of their opening brief arguing that the District's yoga program has the
primary effect of advancing or inhibiting religion. In addition, we have attempted to
address all of the contentions that the Sedlocks raise in other portions of their brief
(including in their statement of facts) that could be understood as relevant to their
primary effect argument.

                                             21
"mission" to disseminate the religious teachings of Pattahbi Jois and the practice of

Ashtanga yoga throughout the United States. This argument is unpersuasive given that

there is little evidence concerning the Foundation's goals in providing the grant to the

District and there is no evidence that any assumed religious goals of the Foundation have,

in any manner, affected the implementation of the District's yoga program.21

       In a related vein, the Sedlocks argue that a reasonable observer would be aware

that the Distict's "yoga instructors must be certified and trained by the [Foundation], and

the [District's] curriculum is developed by [the] Foundation." The trial court found that

the Foundation's involvement in certifying and training the teachers is strictly limited to

ensuring that the teachers are proficient in teaching yoga poses to the students. The court

also found that the Foundation "was not part of the curriculum development." All of

these findings are supported by substantial evidence. In addition, there is no evidence

that the Foundation demanded that religious principles be taught in yoga classes or

insisted that the teachers selected to teach the classes be versed in religious ideology.

Thus, a reasonable observer would not view the Foundation's involvement in funding the

District's yoga program as demonstrating that the program has the primary effect of

advancing or inhibiting religion.

21      Dr. Baird testified that he did not know "what [the Foundation's] purpose is," but
stated that Foundation representatives told him that "one of their goals was to improve
health and wellness in students," and that "they were concerned about student obesity
[and] diabetes." The Sedlocks' counsel also asked Dr. Baird if he was aware that
Foundation representatives had "publicly stated that their goal is to . . . spread the
teaching of Shri K. Pattabhi Jois." Dr. Baird responded, "I'm not aware of that. That's
never been expressed to me, that they were doing that."
                                               22
       We are similarly not persuaded by the Sedlocks' contention that the fact that

students in the District's yoga program perform poses that some individuals perform for

religious purposes demonstrates that the District's yoga program is religious.22 This

argument is contrary to well-established First Amendment jurisprudence. "[A] practice's

mere consistency with or coincidental resemblance to a religious practice does not have

the primary effect of advancing religion." (Brown, supra, 27 F.3d at p. 1380.)

       In Johnson v. Poway Unified School Dist. (9th Cir. 2011) 658 F.3d 954, 974

(Johnson), for example, the Ninth Circuit rejected a First Amendment establishment

clause challenge based on a teacher's display of Tibetan prayer flags. The teacher

testified that the flags were used as part of a discussion of fossils found on and near

Mount Everest.23 The Johnson court concluded that the teacher's display of the flags did

not violate the establishment clause of the First Amendment because they were not used

to advance a religious purpose, notwithstanding that the flags might have religious

significance in some contexts. In reaching this conclusion, the court reasoned:

22     For example, the Sedlocks argue "when [the District's] students are being led
through Ashtanga's Surya Namskara A & B (Sun Salutations) [as part of the District's
Opening Sequence A and B], they are engaging in ritualized liturgical obeisance to Surya,
the Hindu solar deity."

23     The Johnson court summarized the teacher's use of the flags as follows:

          "She explained that she uses the flags as part of her discussion of fossils found on and near
          Mount Everest because the flags are authentic—bought in Nepal near Mount Everest—and
          are typically purchased by climbers to put 'at the top of Mount Everest when they reach the
          peak.' She described how she typically shows a video of scientists taking cores samples on
          Everest and uses the flags to further stimulate the interest of her students. She said that the
          flags 'represent climbing a mountain' and accomplishing 'an amazing goal.' " (Johnson,
          supra, 658 F.3d at pp. 973-974.)
                                                       23
          "Though the flags may very well represent the Buddhist faith, their use by Poway has
          nothing to do with their religious connotation. Instead, the evidence in this case
          demonstrates that the district uses the flags to stimulate interest in science and scientific
          discovery without any mention of religion. Thus, while the flags might themselves
          contain 'religious content' [citation], the primary effect of the school's use was entirely
          secular . . . ." (Johnson, supra, 658 F.3d at p. 974.)

       The same is true in this case. While for some, certain yoga poses have a religious

significance, the evidence in this case demonstrates that the District directed its students

to perform these poses for purely secular reasons, and did not instruct the students

regarding the religious significance of the poses. A reasonable observer would not

conclude that the District is engaged in religious activity merely because teachers

directed the children to perform poses that some individuals consider to have religious

significance.

       The Sedlocks' contention that the District's program is unconstitutional because

"[r]eligious intentions may develop through performance of religious rituals," such as the

yoga poses at issue in this case, is equally unpersuasive. In support of this contention, the

Sedlocks include quotations from Pattabhi Jois and his son, espousing similar claims, and

note that Dr. Brown contended that there is "[s]ociological research" that substantiates

this effect. Even assuming that the Sedlocks are correct that the District's yoga program

renders its students more susceptible to Hindu religious teachings at some unspecified

time in the future, the establishment clause is concerned with whether a government has a

" 'direct and immediate effect' " of advancing religion. (Brown, supra, 27 F.3d at p.

1382.) Accordingly, in Brown, the Ninth Circuit rejected a nearly identical argument:

          "[T]he Browns characterize their proffered expert testimony as demonstrating that the
          Challenged Selections, through the use of neuro-linguistic programming, gradually and

                                                        24
          subconsciously will 'foster and promote' a magical world view that renders children
          susceptible to future control by occult groups and more likely to become involved in
          occult practices later in their lives. Such testimony is irrelevant to the primary effect test,
          which determines whether a government action will have the primary or 'direct and
          immediate' effect of advancing religion. The claimed long-term propensity for
          involvement in the occult through neuro-linguistic programming clearly is not such a
          primary or 'direct and immediate' effect." (Ibid.)

We therefore reject the Sedlocks' contention that the District's yoga program violates the

establishment clause because the practice of yoga poses, alone, "even without discussion

of Hindu religious beliefs or the other seven limbs of Ashtanga," has the primary effect of

advancing Hinduism and/or Ashtanga yoga. (Cf. McCreary County, Ky. v. ACLU (2005)

545 U.S. 844, 863 ["If someone in the government hides religious motive so well that the

' "objective observer, acquainted with the text, legislative history, and implementation of

the statute" ' [citation], cannot see it, then without something more the government does

not make a divisive announcement that in itself amounts to taking religious sides"].)

       The Sedlocks' contention that "even if one assumes . . . that Ashtanga is not being

taught, the student [as a reasonable observer] would still understand that yoga is

religious" (italics added), is also less than convincing. If, by this argument, the Sedlocks

mean merely that yoga has religious roots, such a historical connection clearly would not

lead a reasonable observer to conclude that the District's yoga program is religious.24



24     The Sedlocks note that in the trial court's statement of decision, the court made the
statement, "yoga is religious." Based on this statement, the Sedlocks argue that the trial
court "found" that yoga is religious, and suggest that this determination is inconsistent
with the court's conclusion that the District's yoga program is not religious.
       We interpret the trial court's statement that "yoga is religious" in the following
quotation from its statement of decision as meaning merely that yoga has religious roots
and that, for some individuals, yoga is practiced for religious reasons:
                                              25
(See, e.g., McGowan v.Maryland (1961) 366 U.S. 420, 431(McGowan) [rejecting

establishment clause challenge to Sunday closing laws even though there was "no dispute

that the original laws which dealt with Sunday labor were motivated by religious

forces"]; Granzeier v. Middleton (6th Cir. 1999) 173 F.3d 568, 575 (lead opn. of Boggs,

J.) [noting that the names of the days of the week have their origins in the names of

various deities but that "no one has seriously, and certainly not successfully, contended

that the Establishment Clause is offended by the use of those names"].) "Cultural history

establishes not a few practices and prohibitions religious in origin which are retained as

secular institutions and ways long after their religious sanctions and justifications are

gone." (McGowan, supra, at p. 503 (conc. opn. of Frankfurter, J.).) Thus, while Dr.

Brown stated that she considers chiropractic, acupuncture, karate, and Taekwondo all to

be "religious practice[s]," a reasonable observer would not conclude that an activity has

the primary effect of advancing religion merely because of its historical association with

religion.25




          "The scholars agree that the roots of yoga are religious, as practiced in the traditions of
          some Eastern religions such as Hinduism and Buddhism. To some in the world, yoga has
          been, and still is, a physical, mental, and spiritual practice, the object of which is to attain
          self-purification and ultimately union with the universal spirit or the divine.

          "Accordingly, the Court determines that yoga is religious. That brings the Court to the key
          issue in this case. Since yoga and Ashtanga yoga have religious roots in Hindu, Buddhist,
          and other metaphysical religious practice, can [the District's] yoga be taught in the public
          school district?"

25   In an amicus curiae brief, the Atlantic Legal Foundation catalogues a list of
commonly performed high school sports having religious roots, including track and field,
gymnastics, lacrosse, martial arts and basketball.
                                            26
       If, on the other hand, the Sedlocks mean that all yoga as currently practiced in the

United States, is inherently religious, we emphatically disagree. A yoga program such as

the District's that merely combines physical poses with breathing and quiet contemplation

does not comport with any definition of religious activity of which we are aware,

including that offered by the Sedlocks. Citing Judge Adams's seminal concurring opinion

in Malnak v. Yogi (3d Cir. 1979) 592 F.2d 197 (conc. opn. of Adams J.),26 the Sedlocks

contend that there are "three main indicia that determine whether a belief system is a

'religion' or whether aspects of it are 'religious' for First Amendment purposes." The

belief system must address "ultimate concerns," it must be "comprehensive," and it may

be associated with "formal, external, or surface signs," such as ceremonial functions and

clergy. (Id. at pp. 208-210.) The District's yoga program is not a belief system of any

kind, much less one that addresses "ultimate concerns" such as the "meaning of life and

death," and "man's role in the Universe." (Id. at p. 208.) Nor is the District's yoga

program comprehensive in the sense of being a "systematic series of answers" to all

questions in life. (Id. at p. 209) Finally, the District's yoga program does not prescribe

ceremonial functions or have a clergy. (Id. at p. 210.)

       Our conclusion that yoga is not inherently religious is consistent with the only

case of which we are aware that has addressed whether a school district's teaching of




26      The definition of religion outlined in Judge Adams's concurrence in Malnak has
been applied by many courts, including the Ninth Circuit. (See Alvarado, supra, 94 F.3d
at p. 1229.)
                                              27
yoga violated the establishment clause of the First Amendment, Altman v. Bedford Cent.

School Dist. (2d Cir. 2001) 245 F.3d 49 (Altman). In Altman, the court described the

yoga instruction that students received as follows:

           "In 1998, Fox Lane High's athletic director invited Agia Akal Singh Khalsa, a Sikh
           minister, to conduct yoga exercises for students in gym class. Khalsa, who wore a Sikh
           turban, a traditional Sikh robe, and the beard of a Sikh minister, has a trademark name of
           'the Yoga Guy.' He led the class in breathing and stretching exercises designed to achieve
           relaxation, followed by 'positive affirmations' such as 'I am happy, I am good.' He
           received a small stipend from School District funds for his time and travel." (Id. at p. 60.)

       The plaintiffs in Altman contended that the use of a Sikh priest to conduct the yoga

exercises constituted an endorsement of Eastern religions, in violation of the

establishment clause of the First Amendment. (Altman, supra, 245 F.3d at pp. 56, 60.)

The district court concluded that the yoga instruction did not violate the First Amendment

because " '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.' " (Id. at p. 65.) The Second Circuit affirmed the district court's conclusion, stating

only that it was doing so "substantially for the reasons stated . . . in the district court's

opinion." (Id. at p. 80.) Altman supports the conclusion that a yoga program that does

not advance religious concepts or ideas does not violate the establishment clause of the

First Amendment.

       In addition, the record in this case contains abundant evidence that contemporary

yoga is commonly practiced in the United States for reasons that are entirely distinct from

religious ideology. Yes! Yoga for Encinitas Students submitted the declaration of Dr.

Mark Singleton. Dr. Singleton has a Ph.D. in divinity from Cambridge University and

                                                        28
has studied yoga extensively. Dr. Singleton stated, "[Y]oga as it has developed in the

United States in the past 150 years is a distinctly American cultural phenomenon. . . .

Many of the elements which contributed to its current form are in no way inherently

religious." Yes! Yoga for Encinitas Students also submitted a declaration from Brandon

Hartsell, the chair of the board of directors of Yoga Alliance, a nonprofit trade

association that supports yoga as a profession. Hartsell stated that the "modern practice

of yoga is typically comprised of a physical system of exercises, coupled with breathwork

and mindfulness practices, that [are] unconnected to a religious denomination." Attached

to Hartsell's declaration is a 2012 study of yoga in the United States based on a

representative sample of the adult United States population. The study contains a graph

entitled "Top Motivations That Keep Them Practicing Yoga," which reflects that the

most common motivations that people gave for practicing yoga included increased

flexibility (67.9 percent), stress relief (61.8 percent), and improvement in physical health

(60.5 percent). The record also contains numerous newspaper and other media articles

describing various types of yoga classes that appear to lack even a hint of religious

content.

       This evidence is consistent with this court's assessment that contemporary yoga in

the United States is ubiquitous in secular culture. (See Altman v. Bedford Cent. School

Dist. (S.D.N.Y. 1999) 45 F.Supp.2d 368, 385, affd. in part and vacated and revd. in part

on other grounds (2d Cir. 2001) 245 F.3d 49 ["yoga practices are widely accepted in the

western world, simply for their exercise benefits"].) Thus, while the Sedlocks compare

                                             29
the District's yoga classes to a Roman Catholic mass in arguing that that it would surely

violate the establishment clause for a school district to require its students to participate

in such a mass, the analogy is inapt because yoga is commonly practiced for secular

purposes and, as such, is clearly distinguishable from overtly sectarian activities such as a

Catholic mass. (See Brown, supra, 27 F.3d at p. 1382 [distinguishing fantasy activities

based on witchcraft in school curriculum from "Baptism, communion, and the rosary,

[which] are 'overt religious exercises,' performed for sectarian purposes" (italics

omitted)].)

       The purported inherent religious nature of yoga is the fundamental premise that

underlies much of the Sedlocks' appeal. For example, the Sedlocks assert that "yoga is

without question a Hindu religious exercise or practice that is simultaneously physical

and religious." However, for the reasons discussed above, it is clear that while yoga may

be practiced for religious reasons, it cannot be said to be inherently religious or overtly

sectarian. It is for this reason that cases cited by the Sedlocks in which the Supreme

Court has considered whether a governmental practice was impermissibly religiously

coercive are largely inapposite. While we are certainly aware that there "are heightened

concerns with protecting freedom of conscience from subtle coercive pressures in the

elementary and secondary public schools" (Lee v. Weisman (1992) 505 U.S. 577, 592), in

the absence of evidence that the District's program advances religion, no religious




                                              30
coercion is present.27 ( See Newdow v. Rio Linda Union School Dist. (9th Cir. 2010) 597

F.3d 1007, 1019 (Newdow) [" 'The indirect coercion analysis discussed in Lee . . . simply

is not relevant in cases, like this one, challenging non-religious activities,' " quoting Myers

v. Loudoun County Public Schools (4th Cir. 1995) 418 F.3d 395, 408].)

       In sum, in light of the lack of any evidence that the District's yoga program

advances any religious concepts or ideas, we conclude that a reasonable observer would

not view the program as either advancing or inhibiting religion.

       4.       The District's yoga program does not foster an excessive entanglement with
                religion

       In Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131

Cal.App.4th 417, 434, the court provided the following overview of the concept of

excessive entanglement:

            " 'Although it is difficult to attach a precise meaning to the word "entanglement," courts
            have found an unconstitutional entanglement with religion in situations where a
            "protracted legal process pit[s] church and state as adversaries" [citation], and where the
            Government is placed in a position of choosing among "competing religious visions."
            [Citation.]' [Citation.] 'Not all entanglements, of course, have the effect of advancing or
            inhibiting religion. Interaction between church and state is inevitable [citation], and we
            have always tolerated some level of involvement between the two. Entanglement must be
            "excessive" before it runs afoul of the Establishment Clause.' [Citation.]"




27     We emphasize that the fact that the District permitted objecting parents such as the
Sedlocks to have their children opt out of the yoga program is not a factor that we
consider as increasing the program's constitutionality. (See Wallace v. Jaffree (1985) 472
U.S. 38, 61, fn. 51 [concluding statute permitting voluntary school prayer violated
establishment clause and noting " 'The Establishment Clause, unlike the Free Exercise
Clause, does not depend upon any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official religion whether those laws
operate directly to coerce nonobserving individuals or not' "].)
                                             31
       " 'Entanglement is a question of kind and degree' [citation], and this 'prong seeks

to minimize the interference of religious authorities with secular affairs and secular

authorities in religious affairs.' " (Nurre, supra, 580 F.3d at p. 1097.)

       The Sedlocks' excessive entanglement claim is based on two principal arguments.

First, the Sedlocks claim that the manner by which the District exercised control over its

yoga teachers and yoga curriculum resulted in excessive entanglement. Second, the

Sedlocks claim that the District engaged in a "joint religious venture" with the

Foundation. We consider each argument in turn.

       The gist of the Sedlocks' first argument is that the District became entangled with

religion when it modified its yoga program in response to parental complaints about the

purportedly religious elements of that program, and that the need to supervise the

implementation of the yoga program in the future will result in continued entanglement.

The flaw in this argument is twofold. To begin with, many, if not all, of the changes that

the District made to the yoga program throughout 2012 in an attempt to alleviate parental

concerns about the purported religious nature of the program changed practices that did

not even arguably raise an establishment clause violation. For example, the District

eliminated the teaching of Sanskrit names for various yoga poses, yet we see no possible

establishment clause violation arising out of the fact that yoga teachers had previously

been teaching children the Sanskrit names for yoga poses. While the Sedlocks contend

that many Hindus consider Sanskrit a sacred language with each word "encoded with

consciousness," there is no evidence that the District's teachers taught children Sanskrit

                                              32
words in an attempt to secretly brainwash their students into adopting a particular religious

viewpoint. Thus, the District's acts in removing elements such as teaching the Sanskrit

names of yoga poses in order to appease concerned parents did not amount to an

entanglement with religion.

       Second, even as to those elements that arguably could have raised establishment

clause concerns, such as the display of a tree labeled in Sanskrit that described the eight

limbs of Ashtanga yoga, the District's prompt action in removing these elements did not

cause the District to become entangled in the type of sustained and ongoing interaction

that would give rise to an excessive entanglement between the District and religion.28

(See Vernon v. City of Los Angeles (9th Cir. 1994) 27 F.3d 1385, 1399 ["entanglement

typically involves comprehensive, discriminating, and continuing state surveillance of

religion"]; accord Brown, supra, 27 F.3d at p. 1384 ["one-time review [of school

curriculum], which was conducted in response to the complaints of, among others, the

Browns, clearly does not cause the School District to become entangled with religion"].)

       The Sedlocks' contention that the District will be required to "closely monitor[]"

the teaching of yoga in its schools in order to ensure that religious elements are not

introduced into the program in the future and that such "surveillance" creates the type of

"entanglements that the United States Supreme Court condemned in Lemon," is not

persuasive. In Lemon, the Supreme Court considered the constitutionality of a statute


28     It is undisputed that the tree display remained on the wall for at most three days at
the beginning of the 2012 school year.
                                               33
under which a state paid salary supplements to teachers who were employed by a

religious organization and were teaching in parochial schools, as long as those teachers

taught only courses offered in public schools and used only texts and materials used in

public schools. (Lemon, supra, 403 U.S. at pp. 607, 615, 619.) The Lemon court

concluded that an excessive entanglement with religion arose from the statutory scheme

because "[a] comprehensive, discriminating, and continuing state surveillance will

inevitably be required to ensure that these restrictions are obeyed and the First

Amendment otherwise respected." (Id. at p. 619.)

          Unlike in Lemon, in this case, the yoga teachers are not employed by a religious

organization and the classes are taught in public schools. Any monitoring of the yoga

teachers to ensure that they do not teach religious concepts would be no greater than the

monitoring than would be required to ensure that an ordinary classroom teacher is not

inculcating religion in his or her students. (Cf. Agostini v. Felton (1997) 521 U.S. 203

[rejecting establishment clause challenge to remedial education program in which public

school teachers taught disadvantaged students in parochial schools (id. at pp. 208-209)

and stating "there is no reason to presume that, simply because she enters a parochial

school classroom, a full-time public employee such as a Title I teacher will depart from

her assigned duties and instructions and embark on religious indoctrination" (id. at p.

226)].)

          The Sedlocks' second entanglement argument is that District's relationship with

the Foundation resulted in excessive entanglement. "A relationship results in an

                                              34
excessive entanglement with religion if it requires 'sustained and detailed' interaction

between church and State 'for enforcement of statutory or administrative standards."

(Williams v. California (9th. Cir. 2014) 764 F.3d 1002, 1015-1016.)

       As discussed in part III.C.3.b., ante, the trial court made detailed findings

supported by substantial evidence that the District, alone, was responsible for the

curriculum and that the Foundation's involvement in training and certifying the teachers

was limited to assisting the District in ensuring that yoga teachers would be proficient in

teaching yoga poses to the students. Further, there was no evidence that the Foundation

attempted to monitor or influence the yoga program in order to ensure that any purported

religious goals were met. While there was evidence that one yoga teacher, Jennifer

Brown, may have also worked part time for the Foundation, there was no evidence

concerning the nature of her employment with the Foundation or how that employment

might serve to entangle the District with religion. In short, the evidence of the interaction

between the Foundation and District was strictly that of a passive funder and grant

recipient, and in no way reflected an "interference of religious authorities with secular

affairs . . . ."29 (Nurre, supra, 580 F.3d at p. 1097.)




29     Miyashiro testified, "Once a grant becomes public funds, it's ours. We're in
complete control of that." The Sedlocks have not cited any law or authority to the
contrary.

                                              35
D.     Conclusion

       "When it comes to testing whether words and actions are violative of the

Establishment Clause, context is determinative." (Newdow, supra, 597 F.3d at p. 1019.)

While the practice of yoga may be religious in some contexts, yoga classes as taught in the

District are, as the trial court determined, "devoid of any religious, mystical, or spiritual

trappings." Accordingly, we conclude that the trial court properly determined that the

District's yoga program does not constitute an establishment of religion in violation of

article I, section 4 of the California Constitution.30




30      The Sedlocks also contend that the District's yoga program violates two additional
provisions of the California Constitution, namely, the free exercise and no preference
provision of article I, section 4 ("[f]ree exercise and enjoyment of religion without
discrimination or preference are guaranteed"), and the no aid to religion provision of
article XVI, section 5 (no "school district . . . shall ever make an appropriation, or pay
from any public fund whatever, or grant anything to or in aid of any religious sect,
church, creed, or sectarian purpose, or help to support or sustain any school, college,
university, hospital, or other institution controlled by any religious creed, church, or
sectarian denomination whatever"). However, the Sedlocks provide no independent
arguments in support of these claims. Accordingly, for the reasons stated in the text with
respect to their establishment clause claim, we reject the Sedlocks' claims under these
additional provisions of the California Constitution.
                                               36
                                    IV.

                                DISPOSITION

    The judgment is affirmed.



                                              AARON, J.

WE CONCUR:



          McCONNELL, P. J.



                HUFFMAN, J.




                                    37
