Posted by Eugene Volokh:
ACLU Found To Have Standing to Challenge Islamic (?) Charter School:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248270872
The opinion is [1]ACLU of Minnesota v. Tarek ibn Ziyad Academy, filed
yesterday. Most of it deals with whether the ACLU's members have
"taxpayer standing" to challenge the allegedly
Establishment-Clause-violating program; the court said that it does,
and also rejected some other procedural objections to the lawsuit. The
court also concluded that the charter school is, under Minnesota law,
a part of the state public education system, albeit a part that has
considerable autonomy; the First Amendment thus applies to its
actions. And the court concluded that the organization that runs the
school is also to be treated as a state actor as to the school's
operation, because of its close involvement with the school.
This leaves the substantive question: Does the charter school indeed
unconstitutionally promote Islam, or does it simply offer an
environment that's appealing to, and suitably accommodating to, its
overwhelmingly Muslim students (chiefly the children of Somali
immigrants)? To give one example, the lawsuit challenges the "school
calendar" and the "school menu," but I take it that there wouldn't be
any problem with public schools that have many Jewish students
offering [2]kosher options on the cafeteria menu and [3]Jewish
religious holidays off (given that so many students would be absent in
any event). Whether the school's actions are seen as endorsing a
religion or merely accommodating Muslim students' religious beliefs --
the question that, rightly or wrongly, must be answered under the
current Establishment Clause test -- thus turns on the factual
details.
And the court concluded that, because of this, the case can't be
resolved without further factual discovery, presumably followed by
hearings to resolve the contested factual questions:
The issues raised in both TIZA�s and Islamic Relief�s Rule 12(b)(6)
motions [for failure to state a claim upon which relief can be
granted] are factual in nature and are not appropriately resolved
at this stage in the litigation. For example, TIZA argues that
Plaintiff conflates the uniform-dress code with religious
entanglement and that Plaintiff has failed to explain how a
conservative dress code has the effect of promulgating religion.
However, whether or not TIZA�s dress code involves religious
entanglement requires a factual inquiry into the particulars and
reasons for the dress code. In addition, TIZA asserts that it has
honored certain requests for religious accommodation and that in
honoring such requests, it is not endorsing religion. However, this
inquiry also involves fact issues not appropriately resolved at
this stage of the litigation.
Similarly, Islamic Relief argues, for example, that the Charter
School Contract demonstrates that Islamic Relief was not endorsing
a religious point of view because TIZA made representations in that
contract that the charter school would be nonsectarian. In
addition, Islamic Relief asserts that Plaintiff�s Complaint must be
dismissed because Islamic Relief, as a sponsor, had no role in
setting school policies that could be construed as endorsing
religion. Again, whether or not Islamic Relief played a role in the
allegedly sectarian operations of TIZA is a factual inquiry, and
the role and importance of the Charter School Contract will be just
one part of that inquiry.
The Court also notes that, at least with respect to TIZA�s motion,
there are several alleged sectarian practices, such as TIZA�s
busing schedule, that TIZA does not address. That not all allegedly
sectarian practices and policies are addressed underscores the
premature nature of TIZA�s motion. It is inappropriate, at this
early stage of the litigation, to dismiss Plaintiff�s Establishment
Clause claim, particularly because it requires an analysis of all
the allegedly impermissible religious practices together.
Thanks to [4]Religion Clause for the pointer.
References
1. http://www.aclu-mn.org/downloads/OrderonMotiontoDismiss.pdf
2.
http://www.montgomeryschoolsmd.org/info/calendars/printable/SchoolCalendar0910.pdf
3.
http://www.montgomeryschoolsmd.org/info/calendars/printable/SchoolCalendar0910.pdf
4. http://religionclause.blogspot.com/
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