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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ISAAC MIRWIS, ETAN MIRWIS, ISAAC BUCHINE, MARK BUCHINE, ISAAC JACOBSON, and MYRA WEISFELD, Plaintiffs, v. MANSFIELD INDEPENDENT SCHOOL DISTRICT and TEXAS ASSOCIATION OF PRIVATE AND PAROCHIAL SCHOOLS, Defendants.

Civil Action No. ____________

PLAINTIFFS ORIGINAL COMPLAINT, APPLICATION FOR TEMPORARY RESTRAINING ORDER, AND APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION Plaintiffs Isaac Mirwis, Isaac Buchine, and Isaac Jacobson (Student Plaintiffs), Etan Mirwis, Mark Buchine, and Myra Weisfeld (Parent Plaintiffs), make this their Original Complaint, Application for Temporary Restraining Order, and Application for Temporary and Permanent Injunction, complaining of Mansfield Independent School District (MISD) and Texas Association of Private and Parochial Schools (TAPPS). Plaintiffs Application is

supported by the declarations of Isaac Mirwis and Richard Rohan, attached hereto, and Plaintiffs Brief in Support of its Application for Temporary Restraining Order and Preliminary Injunction, which is also being filed contemporaneously herewith. I. PARTIES 1. Plaintiffs Isaac Mirwis, Isaac Buchine, and Isaac Jacobson are individuals

residing in Houston, Texas, and are members of the Beren boys basketball team. Mirwis is a

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captain of the team. Collectively, these Plaintiffs are sometimes referred to herein as the Student Plaintiffs. 2. Plaintiffs Etan Mirwis, Mark Buchine, and Myra Weisfeld are individuals residing

in Houston, Texas, and are the parents of the Student Plaintiffs described in paragraphs 2 and 3 above. Collectively, these Plaintiffs are sometimes referred to herein as the Parent Plaintiffs. 3. MISD is a school district and political subdivision of the State of Texas that

operates, oversees and administers public schools in the City of Mansfield, Texas. MISD is a government agency within the meaning of the Texas Religious Freedom Restoration Act (TRFRA), Texas Civil Practice & Remedies Code 110.001 et seq., as it is an agency of the State or of a municipality or other political subdivision of the State of Texas. Pursuant to Texas Civil Practice & Remedies Code 17.024(c), MISD may be served with process by serving its Superintendent, Dr. Bob Morrison, at Mansfield ISD, 605 East Broad Street, Mansfield, TX 76063. 4. TAPPS is a not-for-profit corporation organized under the laws of the State of

Texas, and with its principal place of business at 601 N. Main, P.O. Box 1039, Salado, Texas 76571. TAPPS may be served by service upon its President, Mr. Edd Burleson, at 601 N. Main, Salado, Texas 76571. II. JURISDICTION AND VENUE 5. This court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and

1343, as the Plaintiffs claims arise under the Constitution and laws of the United States and concern, under 42 U.S.C. 1983, the deprivation of rights secured by the Constitution of the United States. This Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367 over Plaintiffs claims under the TRFRA and for breach of contract.

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6.

Venue is appropriate in the Northern District of Texas pursuant to

28 U.S.C. 1391, because Defendant TAPPS resides in this judicial district within the meaning of 28 U.S.C. 1391(d). III. FACTUAL BACKGROUND 7. Robert M. Beren Hebrew Academy (Beren) is a not-for-profit corporation that

operates a school in Houston, Texas, providing religious and secular education for grades pre-K through 12th grade in accordance with the tenets of Orthodox Judaism. 8. Plaintiffs are current members, and parents of current members, of Berens boys

high school basketball team who are being denied, solely on account of their religious observance, a once-in-a-lifetime opportunity to compete in their athletic conferences state basketball championship tournament scheduled to take place on Friday and Saturday, March 2 and 3, 2012. 9. Defendant TAPPS is the association that organizes and administers the athletic

conference in which Beren competes and which organizes the State championship basketball tournament. TAPPS is a membership association consisting of private and parochial schools throughout the State of Texas. TAPPS organizes competitions for its member schools in

athletics and in the fine arts. Schools apply and pay a fee to become members of TAPPS. 10. Defendant MISD is the public governmental agency that is providing the facilities

where the TAPPS championship basketball tournament will be taking place on March 2-3, 2012. 11. The concerted actions of TAPPS and MISD (a) burden and interfere with the

sincere religious beliefs and observances of Beren and its students and the sincere religious beliefs and observances of current and future students of the Burton Adventist Academy, (b) prefer Sunday-observing religions and religious beliefs over Saturday-observing religions, and (c) violate TAPPSs own rules and regulations. Plaintiffs seek a Temporary Restraining Order, 3

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Temporary Injunction, and Permanent Injunctive Relief enjoining MISD from permitting its public facilities to be used by TAPPS to discriminate in violation of the Constitution and laws of the United States and in violation of the TRFRA against Jewish and Christian students who observe Saturday as their religiously-mandated day of rest. 12. Prior to the 2010-2011 academic year, Beren registered as a member of TAPPS,

paid the required fee, and was accepted as a member of TAPPS. Beren applied to compete in boys basketball, and, based on its size, was assigned to compete in TAPPSs 2-A Division against schools with comparably-sized student enrollments. 13. Although, at the time Beren applied for membership into TAPPS, it was made

aware of the potential that Berens Sabbath observance may conflict with scheduled competitions, the TAPPS rules expressly provide that game schedules, and specifically playoff game days and times, may be set by mutual agreement of the two competing teams. Consequently, any advanced warning that Beren received regarding potential playoff scheduling conflicts was also tempered by TAPPSs own rules that allow for the scheduling of such contests by mutual agreement. In this case, as set forth elsewhere, Beren and its scheduled semifinal opponent, Covenant, did in fact agree to make an accommodation to the schedule. Nevertheless, TAPPS, in violation of its own rules, denied Berens request to reschedule the game. 14. The 2011-2012 school year is the second year of Berens membership in TAPPS.

Beren has had a successful boys basketball season, and it accordingly qualified to compete in the TAPPS post-season playoffs. 15. Following the Orthodox Jewish beliefs and observances that it teaches to its

students, Beren does not desecrate the Sabbath, observed by Jewish Law on Saturdays, by

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participating on that holy day in athletic competitions.

By Orthodox Jewish Law and

observance, the Jewish Sabbath begins at sundown on Friday evening and concludes 25 hours later, at nightfall on Saturday. (Mirwis Decl., attached hereto as Exhibit A, at 4) 16. During the initial rounds of the TAPPS 2-A boys basketball competition, some

playoff games were originally scheduled for times between sundown on Friday and nightfall on Saturday. On each occasion, in accordance with TAPPSs own Bylaws and rules, Beren

successfully arranged with its scheduled opponent to play the game at a time other than during the Jewish Sabbath. For example, Kerrville Our Lady of the Hills (Kerrville), agreed to play a game that had originally been scheduled to begin on Friday night, February 24, 2012, at noon on Friday, February 24. That game therefore concluded before the Jewish Sabbath began. The members of the Beren team, including the Student Plaintiffs, defeated Kerrville by the score of 69-42, thereby earning the right to advance to the TAPPS 2-A State semifinals against Dallas Covenant Christian School (Covenant). 17. On Friday, February 24, Beren requested that TAPPS adjust certain game times

on Friday, March 2, 2012 and Saturday, March 3 in order to accommodate Berens observance of the Jewish Sabbath. (Rohan Decl., attached hereto as Exhibit B, at 5 and Exhibit 4 thereto) Berens semifinal game against Covenant was scheduled to take place at 9:00 p.m. on Friday night, March 2, 2012 in Mansfield, Texas, at Mansfield High School, a public high school that is a member of the MISD. (Id. at 3; Mirwis Decl. at 3) 18. Beren and the Student Plaintiffs cannot participate in a basketball game during the

hours of the Jewish Sabbath because of their religious beliefs, tenets, and observances. (Mirwis Decl. at 4-5) Consequently, a representative of Beren asked the coach of its prospective opponent Covenant whether Covenant would agree to begin the semifinal game earlier on

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Friday, March 2. Covenants head of school has publicly stated that Covenant agreed to such an accommodation, but was subsequently made aware that TAPPS refused Berens request to reschedule the game. (Rohan Decl. at 2 and Exhibit 1 thereto) 19. Upon information and belief, the two other schools in the State semifinals (other

than Beren and Kerrville), Abilene Christian and Sugar Land Logos, have stated that they agreed to an accommodation under which the final game would begin after nightfall on Saturday, March 3 in case Beren should advance to the final game. 20. Beren requested from Edd Burleson, and TAPPS that TAPPS agree to permit the

semifinal and final games to be scheduled to different times on Friday, March 2 and Saturday, March 3 to avoid the potential conflict with observance of the Jewish Sabbath. (Rohan Decl. at 5 and Exhibit 4 thereto) 21. On February 27, 2012, Mr. Burleson advised Chris Cole, the Beren boys

basketball coach, by e-mail that the TAPPS executive board had voted to deny Berens request that the games be rescheduled. (Id.) Mr. Burleson also advised that the start time of the earliest scheduled TAPPS playoff game was being moved from 3:30 p.m. on Friday to one hour later, and that all Friday games were being rescheduled to one hour later than originally scheduled. (Id.) TAPPS has reiterated its denial of Berens request on its website on Wednesday, February 29, 2012. (Rohan Decl. at 5) 22. The current Beren team has a number of seniors on its squad. This years

championship tournament represents the last opportunity these students will have to participate in a high school final-four championship tournament. 23. Under compulsion resulting from this denial, Beren communicated to TAPPS that

it had no choice and was unable to compete in the semifinal round. Competing at the times

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inflexibly set by TAPPS and MISD would necessitate violating the Jewish Sabbath. TAPPS then announced that Kerrville Our Lady of the Hills Schoolthe team which Beren defeated by 27 points the preceding weekwould replace Beren in the semifinal game against Covenant. 24. If Beren and its team are denied the relief requested in this action, Berens players

will be forever deprived of the opportunity to compete in the 2011-2012 TAPPS 2-A State Basketball Championship Tournament. That is an irreplaceable opportunity and its deprivation constitutes irreparable harm attributable to disqualification of Beren and its team because of their Jewish religious beliefs and observances. (Mirwis Decl. at 6) 25. The Parent Plaintiffs have had their rights to the free exercise of their religious

beliefs burdened by the foregoing actions of Defendants by virtue of the fact that their children, the Student Plaintiffs, are being put to the choice of violating their own religious beliefs and the beliefs imparted by the Parent Plaintiffs to their children, or forfeiting the opportunity to participate in the State basketball championship tournament. As such, the Parent Plaintiffs have had their free exercise rights burdened by Defendants actions as described above. 26. Section 141 of TAPPSs Bylaws provides that playoff game days may be changed

by mutual agreement of the opposing teams. (Rohan Decl. at 4) That Section also provides that game times may be set by mutual agreement. (Id.) This procedure is similarly reflected on TAPPSs tournament bracket which may be found as a link on the TAPPS website. (Id. at 3) The concerted decision of TAPPS and MISD deprives Plaintiffs of the opportunity, authorized by the TAPPS Bylaws, to schedule Berens playoff contests by agreement with opposing teams. 27. Sundays. Upon information and belief, TAPPS never schedules athletic contests on That policy was acknowledged by Mr. Burleson in a published interview with

Mr. Brett Haber of the Washingtonian magazine. When asked during the interview why TAPPS

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does not accommodate the Sabbath observances of Jewish schools, Mr. Burleson replied, Why should we allow 1 or 2 or 3 schools to dictate what 120 other schools do? In response to Mr. Habers statement, Some would call that being inclusive, Mr. Burleson replied, I dont recall inclusive being in our constitution. (Rohan Decl. at 6) Further, upon information and belief, in a recent conversation between Mr. Burleson, the Head of School of Beren and Berens head coach, Mr. Burleson stated to Berens head coach and head of school, Your beliefs and our rules dont mesh. 28. Plaintiffs are prepared to post a bond or security in support of their application for

a Temporary Restraining Order. FIRST CLAIMUNCONSTITUTIONAL RELIGIOUS DISCRIMINATION 29. 30. Plaintiffs incorporate paragraphs 1 through 28 herein by reference. The Defendants policy and practice of scheduling no basketball games on

Sundays deliberately prefers the religious beliefs and observances of Christian religious schools that observe Sunday as the Sabbath because Christian observers attend church and treat Sunday as a holy day. The Defendants refusal to accommodate the religious observances of those schools and students who observe Saturday as their religious day of rest discriminates in favor of most Christian denominations and against Jewish schools and students, as well as against Christian denominations that observe the Seventh Day (i.e., Saturday) as the holy day of the week. 31. Upon information and belief, a Seventh-Day Adventist school in Arlington,

Texas, Burton Adventist, experienced similar denials of its free exercise rights when on at least three previous occasions, Burton Adventist was required to forfeit games during TAPPS playoff basketball competitions. Like the Beren students here, Burton students observe their Sabbath on

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Friday night and Saturday, and therefore were unable to compete in TAPPS playoff contests that were scheduled during their Sabbath. 32. Preferring Sunday-observing Christianity over Judaism and over Saturday-

observing Christianity is discrimination among religions that is prohibited by the Establishment Clause of the First Amendment to the United States Constitution, as made applicable to the States and local governments by the Fourteenth Amendment. Larson v. Valente, 456 U.S. 228 (1982). The Supreme Court has condemned such preference as the clearest command of the Establishment Clause. 456 U.S. at 244. 33. On the above grounds, the Defendants must be directed by this Court to provide

equal treatment to Saturday observance as to Sunday observance and to permit Saturdayobserving basketball teams and players to compete in the basketball competition at a time that does not conflict with their religious observance. SECOND CLAIMVIOLATION OF TEXAS RELIGIOUS FREEDOM RESTORATION ACT 34. 35. Plaintiffs incorporate paragraphs 1 through 33 herein by reference. The Plaintiffs refusal to play basketball on Friday after sundown and on Saturday

before nightfall is an act or refusal to act that is substantially motivated by sincere religious belief within the meaning of 110.001(a)(1) of the Texas Civil Practice & Remedies Code (2005). 36. MISD is a government agency within the meaning of 110.001(a)(2) of the

Texas Civil Practice & Remedies Code (2005). 37. MISDs authorization to TAPPS for TAPPS to conduct the basketball semifinals

on its premises is an act of a government agency within the meaning of 110.002(b) of the Texas Civil Practice & Remedies Code.

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38.

The concerted conduct of Defendants TAPPS and MISD in refusing to reschedule

the TAPPS basketball semifinals for schools and students who cannot, because of their religious beliefs and observances, participate in basketball games between sundown on Fridays and nightfall on Saturdays substantially burdens the free exercise of religion of the Student Plaintiffs and Parent Plaintiffs. 39. Defendants TAPPS and MISD have no compelling governmental interest in

refusing to reschedule basketball games to times that will not substantially burden the Plaintiffs free exercise of religion. The absence of such a compelling governmental interest is not limited to, but is augmented, whenever the school that the Plaintiffs play against consents to rescheduling of the game to a time that does not substantially burden the Plaintiffs free exercise of religion. 40. Defendants TAPPS and MISD have not sought or applied the least restrictive

alternative to further any governmental interest. 41. For the above reasons, the Defendants TAPPS and MISD have, by their concerted

action, violated the Texas Religious Freedom Restoration Act (Sections 110.001-.012 of TEX. CIV. PRAC. & REM. CODE (2005)). 42. Plaintiffs are entitled to declaratory relief, injunctive relief, compensatory

damages, and reasonable attorneys fees under the Texas Religious Freedom Restoration Act. THIRD CLAIMBREACH OF CONTRACT 43. 44. Plaintiffs reincorporate paragraphs 1 through 42 herein by reference. Pursuant to TAPPSs own rules, playoff game days and times are allowed to be

adjusted by mutual agreement of the opposing teams. 45. Beren and Covenant, the teams that were originally scheduled to compete in the

tournament semifinal game, agreed to make a schedule accommodation so that the Plaintiffs 10

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would not be required to participate on the Jewish Sabbath. However, TAPPS advised Beren that the TAPPS board voted to deny any requested modification of the schedule. 46. As a consequence, TAPPS has breached the contract between it and Beren, Because

thereby injuring the Beren students and team who are third-party beneficiaries.

monetary damages are inadequate to compensate plaintiffs for the loss of their opportunity to participate in the semifinal contest, plaintiffs seek specific performance of the TAPPS rules under which Beren could reschedule games with the consent of the opposing team. Plaintiffs are third-party beneficiaries of the TAPPS Bylaws, rules, and regulations which govern the relationship between TAPPS and Beren, as the Student Plaintiffs are the individuals directly affected by those Bylaws, rules, and regulations, and TAPPS and Beren were aware of and contemplated that the student athletes of TAPPS member schools would be directly impacted by the matters contained in those Bylaws, rules, and regulations. Many of the TAPPS rules purport to direct the conduct of students at TAPPS member schools. FOURTH CLAIMDECLARATORY RELIEF 47. 48. Plaintiffs reincorporate paragraphs 1 through 46 herein by reference. As a result of the foregoing, an actual controversy has arisen and now exists

between Plaintiffs and Defendants concerning whether Defendants have a constitutional, statutory, or contractual obligation to accommodate Plaintiffs religious observance of the Sabbath in scheduling, managing, or operating the TAPPS Division 2A state basketball tournament. 49. In order to conclusively settle this dispute, Plaintiffs request, pursuant to 28

U.S.C. 2201, that this Court declare that Defendants refusal to accommodate Plaintiffs observance of the Sabbath in the scheduling, management, and/or operation of the TAPPS

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Division 2A state basketball tournament violates the Constitution and laws of the United States and the Texas Religious Freedom Restoration Act. IV. PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request the following relief: (1) A declaratory judgment pursuant to 28 U.S.C. 2201 and 2202 declaring that the actions of TAPPS and MISD in refusing to accommodate the Sabbath observance of the Plaintiffs violate the Constitution and laws of the United States and the Texas Religious Freedom Restoration Act; (2) a temporary restraining order and a preliminary and permanent injunction prohibiting TAPPS and MISD and its officials, employees, agents and assigns and all those acting in concert with them from conducting any semifinal basketball games on March 2 and 3, 2012, without rescheduling games that, if played as scheduled, would burden the free exercise of religion of any of the plaintiffs, and compelling TAPPS and MISD to honor the rights of Beren and its opponents to schedule game times by mutual agreement in accordance with TAPPSs Bylaws and rules; (3) an order awarding to the plaintiffs costs and attorneys fees pursuant to 42 U.S.C. 1988 and section 110.005(a)(4) of TEX. CIV. PRAC. & REM. CODE (2005), and (4) such other and further relief as this Court deems appropriate.

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Respectfully submitted, /s/ Richard A. Rohan Tim Gavin State Bar No. 07769800 tgavin@ccsb.com Richard A. Rohan State Bar No. 17203800 rrohan@ccsb.com Alexander More State Bar No. 24065789 amore@ccsb.com Sara Apel State Bar No. 24067488 sapel@ccsb.com CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 901 Main Street, Suite 5500 Dallas, Texas 75202 Telephone: (214) 855-3000 Facsimile: (214) 855-1333 Of Counsel: Nathan Lewin Alyza D. Lewin Lewin & Lewin, LLP 1775 Eye Street, N.W., Suite 850 Washington, D.C. 20006 Telephone: 202-828-1000 Facsimile: 202-828-0909 Attorneys for Plaintiffs

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CERTIFICATE OF CONFERENCE Due to the emergency nature of the relief sought in the form of a temporary restraining order, the undersigned counsel was not required by the Local Rules to confer with Defendants regarding the relief requested herein. To the extent that the joining of the application for a preliminary injunction with the application for a temporary restraining order does call for a certificate of conference, the undersigned will conduct a conference with Defendants upon serving them with notice and copies of the instant filings, and promptly notify the Court if Defendants do not oppose the requested preliminary injunction. /s/ Richard A. Rohan

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served upon the Defendants in this action via facsimile in accordance with Rule 5, Federal Rules of Civil Procedure, on this 1st day of March, 2012. In an effort to provide Defendants with immediate notice, the undersigned is also notifying the Defendants by telephone of the instant filings and providing Defendants with copies via email.

/s/ Richard A. Rohan

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