Parochial pupil can play in Burrell band, at least for now

Wednesday, August 26, 2009 By Kaitlynn Riely, Pittsburgh Post-Gazette

Alexander Trefelner plays the saxophone Aug. 14 at the conclusion of the Burrell High band camp on Aug. 14.

Alexander Trefelner will continue participating in band practice at Burrell High School today following the granting of a temporary restraining order allowing him to remain in the band though he will be a freshman at St. Joseph Catholic High School in Natrona Heights.

Alexander, who is 14, said he's "pretty excited" to keep playing the saxophone.

Alexander, along with his mother Shirley Trefelner-Cordes and father Joseph Trefelner, filed a lawsuit against the Burrell School District on Aug. 4, claiming that he was being denied the chance to be in the band because he was going to a parochial high school.

According to the complaint, Alexander was chosen last year to participate in the high school marching band while still only in eighth grade in the district. He participated in band camp at the beginning of August.

Sandra Becker, the music teacher and band director at Burrell High School, testified yesterday, calling Alexander a "good student, an asset to the music program."

Alexander plans to attend St. Joseph, rather than Burrell, in the fall, but the Catholic high school does not have a marching or jazz band. Mrs. Trefelner-Cordes wrote to Burrell School District in April, asking that her son be allowed to remain in the marching band program.

High School Principal John C. Boylan denied her request, the lawsuit said, saying that students must be enrolled in the district to join extracurricular activities.

The Trefelners wrote to Superintendent Shannon Wagner, noting that state school code requires a school district of residence to permit students who are either home-schooled or who attend charter schools to participate in extracurricular activities there.

Ms. Wagner agreed in an e-mail that there are exceptions to the policy but said there is currently no law that covers parochial school students.

A bill is pending in the state Legislature that would permit students attending a private or nonpublic school to participate in extracurricular activities provided they live within the district and the program is not offered by their current school.

For now, the state school code specifically allows individual districts to set their own policies with regard to that issue.

Samuel J. Cordes, the lawyer for Alexander, argued that the decision violated the student's First Amendment right to free exercise of religion and 14th Amendment right to equal protection.

Ms. Wagner testified that the policy that students must be enrolled full time in the district in order to participate in extracurriculars is only superseded by the statutes set by the state -- that the students must be cyber-schooled, home-schooled or at charter schools.

The statutes do not list private schools, including religious schools. Religion had no bearing on the decision, she said.

After more than two hours, U.S. District Court Judge Joy Flowers Conti said it was undisputed that the Burrell School District does not apply its policy of requiring full enrollment to charter, cyber- or home-schooled students, but that it does apply its policy to students from private schools, including religious ones.

"That appears to this court to be a burden on the free exercise of religion," she said.

Anthony Sanchez, the attorney for the school district, argued that the effect of allowing a private school student to participate in the public school marching band could lead to other private school students attempting to join other extracurricular activities, possibly overwhelming the school or unfairly taking away positions from public school students.

But Judge Conti said the exception for home-schooled, cyber and charter students undermines the purpose behind the district's policy, and she said she foresaw no increased cost or administrative burden for the school at the time.

The state would have to present a compelling interest to omit private school students from the exemptions, she said.

A date for the hearing on the preliminary injunction has not yet been set.

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