religious gerrymander and individualized exemption case

[A.E. Brownstein]

I received a request from assistance from an attorney working on a
religious liberty case involving a private religious school seeking
accommodations from a government operated sports tournament.  The religion
of the school observes Saturday as the Sabbath and the school does not want
their team to play on that day. The facts are as follows:

        In 1996, the school asked that it be placed in a tournament bracket that
allowed it to play its first game Friday morning, and that if it lost a
game and was shifted to the consolation bracket, that it be permitted to
play after sundown on Saturday at an alternate site. The school would pay
any expenses resulting from the accommodation. The tournament granted the
first request, but not the second. The school's team won the tournament and
so the failure to accommodate the second request became moot.

        The next year, in response to complaints from other schools, the
tournament refused to make the same accommodation as the previous year
unless the school agreed to play on the Sabbath if it was scheduled to do
so. The school offered a variety of other  accommodation arrangements. All
were refused (including the accommodation that the school be allowed to
discuss with the teams they were scheduled to play whether a mutually
convenient alternative time could be worked out.) The tournament has
rescheduled tournament games, on occasion, for secular reasons. It has
never required another team to pledge in advance that it would never
forfeit a game.

        The tournament previously had an official policy not to play games on
Sunday. That policy has been withdrawn, but it remains the tournament's
practice not to schedule games on Sunday.

        I think there are clear issues here regarding religious gerrymandering (no
other school has had to promise not to forfeit) under Hialeah and
individualized exemptions under Sherbert and the Smith exception. Is there
a hybrid rights argument as well (parental control and free exercise
combining to protect the religious individuals and institutions from the
burden of being denied a benefit -- the opportunity to play in the
tournament)? Is there any point in arguing Larsen v. Valante and religious
discrimination?

        The tournament is apparently going to argue that any accommodation would
violate the Establishment Clause? I see no validity to that argument at
all. Am I missing something?

        Any suggestions, relevant authority or other help would be welcome. Has
anyone been involved in similar litigation?

                                                                        Alan Brownstein
                                                                        UC Davis