Law.com - Religious Accommodation Dispute Over Mock TrialScheduleResolved

Sun May 10 19:54:58 PDT 2009

Marci asks what was the result of the dispute that I described in my earlier post. As far as I know it is still going on. The dispute arose in 2000. Adventists students and parents challenged the Athletic Association's policy. After protracted administrative review, the policy was upheld. 

A suit was brought in state court with the assistance of the Oregon ACLU. It went up to the Court of Appeals twice. The focus of the litigation at this point was on the meaning of Oregon state civil rights statutes (and I no longer had any involvement in the litigation). The Athletic Association argued that the Oregon civil rights statute did not require any accommodation for religious minorities burdened by a facially non-discriminatory policy unless the accommodation could be provided at de minimis costs. The Association argued that requiring any greater accommodations would violate the Establishment Clause. The Court of Appeals rejected their arguments and remanded twice, each time telling the Association to apply a more rigorous standard in determining whether it was required to accommodate religious minorities who were burdened by its policy. 

The Association took the case to the Oregon Supreme Court. In Nakishima v. Oregon School Activities Association, 185 P. 3d 429 (2008), the Oregon Supreme Court also held that the state civil rights statute required a more rigorous standard than the one the Association had applied in refusing to accommodate the Adventist players and that giving the statute this more rigorous meaning would not violate the Establishment Clause. The Court remanded again to allow the Association to apply the statute correctly. I do not know what has happened since then.

Marci also asks whether the Mock Trial folks will be lobbied on this issue in the future. I'm sure they will be. What I don't know is how they will respond to that lobbying. Sometimes petty bureaucrats and local governments will fight tooth and nail against anyone who dares to challenge their discretionary authority, seemingly without regard to the merits of the issue. On other occasions they may act more reasonably either because they are persuaded by argument or they are influenced by political action. And sometimes, they get sued -- but only if state law is available to justify litigation since the federal constitution can no longer be used to protect religious minorities in these kinds of situations..

Alan Brownstein

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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com [hamilton02 at aol.com]
Sent: Saturday, May 09, 2009 8:42 PM
To: Law & Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock        TrialScheduleResolved

Alan. What was the result of the dispute on which you consulted?  That year and future years.
Also-is there any doubt that the Mock Trial folks will be heavily lobbied to change their policy in future?
Marci
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: "Brownstein, Alan" <aebrownstein at ucdavis.edu>

Date: Sat, 9 May 2009 20:34:19
To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
Subject: RE: Law.com - Religious Accommodation Dispute Over Mock Trial
        ScheduleResolved

Still, the Mock Trial Competition isn't  the worst offender in this area. I consulted on a dispute a few years ago involving a basketball tournament in Oregon. A Seventh-day Adventist school's team asked the Athletic Association managing the tournament to accommodate their religious obligations by trying not to schedule their games on Friday night or Saturday. The Adventist team indicated that if an accommodation was really impractical they would be willing to forfeit a game scheduled on their Sabbath. The Athletic Association responded that in order for the Adventist school's team to play any games in the tournament, they would have to promise to play all of the games on their schedule. That is, they would have to be willing to commit to playing on the Sabbath, if a game was scheduled on Saturday, in order to be allowed to play games scheduled for the other days of the week.

Under Smith, it would be hard to challenge this rule as well since a requirement that all teams play all scheduled games is a neutral law of general applicability.

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Anthony Decinque [anthony.decinque at gmail.com]
Sent: Saturday, May 09, 2009 8:20 AM
To: Law & Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock Trial  ScheduleResolved

But as someone who has participated in many mock trial tournaments, including the National (College) Tournament, the board's decision seems like the best thing.  Teams travel from around the country to attend the tournament.  The fund-raising that is required to attend is a massive undertaking - as captain of my team, I remember spending hours pleading with the University and with donors.  We put on "exhibition" trials and tried anything else we could think of to raise money.  High school and college students also miss school to attend.

To go through that trouble and then find out that, because of the religious beliefs of another team, your team has to either (1) come back another weekend, or (2) change hotels/flights and stay an extra day, is unreasonable.

No one can claim that they were surprised that the the tournament extends to the sabbath.  That has been the schedule for decades.

I feel sorry for the students that had to forfeit.  I remember facing a team who told us that they would have to forfeit if they beat us because they couldn't compete on the sabbath.  (We solved that problem by beating them.)

But I don't think that this has much to do with Smith because I think the decision is correct under a pre-Smith regime as well.  If anything, it supports Smith because now we know that a judge is not going to second-guess the decision of the people who have managed this tournament for decades.  I'm afraid that your a-b-c formula below is just a fact of life.  We should avoid the situation when we can--the board should change the date if it's feasible, for example--but the situation can't be avoided without giving every religious belief veto power.

Anthony

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