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Case 3:12-cv-00630-N Document 1-4

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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. ____________

TEMPORARY RESTRAINING ORDER Before the Court is Plaintiffs Original Complaint, Application for Temporary Restraining Order, and Application for Temporary and Permanent Injunction (the Application). Having considered the Application, the record, and the applicable law, the Court finds that a temporary restraining order is warranted. I. Factual Background

This case involves a constitutional and statutory challenge to the scheduling of playoff games in the Texas Association of Private and Parochial Schools (TAPPS) Class 2A high school state basketball championship tournament. Plaintiffs, who are students at the Robert M. Beren Hebrew Academy (Beren) and current members of the Beren boys basketball team, as well as their respective parents, seek the entry of a temporary restraining order prohibiting TAPPS and the Mansfield Independent School District (MISD) from conducting the Class 2A semifinal basketball games as currently scheduled on March 2 and 3, 2012. Plaintiffs assert that 1

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TAPPSs refusal to reschedule the semifinal and final playoff games to accommodate students who cannot, because of their religious beliefs and observances, participate in basketball games between sundown on Fridays and nightfall on Saturdays, violates the First Amendment to the United States Constitution and unconstitutionally burdens Plaintiffs free exercise of religion in violation of the Texas Religious Freedom Restoration Act (TRFRA). Defendant TAPPS is a member organization consisting of private and parochial schools throughout the State of Texas. On behalf of its member schools, TAPPS organizes and administers competitions in athletics and the fine arts, including the Class 2A state championship basketball tournament. Prior to the 201011 academic year, Beren registered as a member of TAPPS, paid the fee required of TAPPS members, and was accepted as a member. Beren subsequently applied to compete in boys basketball and was assigned to compete in TAPPS 2A Division. During the 201112 academic year, Berens boys basketball team experienced unprecedented success and, indeed, qualified to compete in the TAPPS post-season 2A Division basketball playoffs. As an Orthodox Jewish day school, Beren and its Plaintiff members observe the Jewish Sabbath, which under Orthodox Jewish Law and observance, begins at sundown on Friday evening and concludes twenty-five hours later at nightfall on Saturday. In observance of the Sabbath, Plaintiffs may not participate in athletic competitions on that holy day. TAPPSs bylaws contain rules governing the scheduling and administration of its tournaments and athletic competitions, including one particular rule that provides playoff game days and times may be changed by mutual agreement of the opposing teams. Plaintiffs presented evidence that, during the initial rounds of the TAPPS 2A boys basketball competition, some of Berens playoff games were originally scheduled for times

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between sundown on Friday and nightfall on Saturday. Plaintiffs presented evidence that, on each occasion and consistent 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. It is undisputed that Beren prevailed in each of its playoff games and, accordingly, has earned the right to advance to the TAPPS 2A state semifinals. Upon advancing to the state semifinals, TAPPS representatives notified Beren that it is scheduled to compete against Dallas Covenant Christian School (Covenant) in the semifinal playoff game at 9:00 p.m. on Friday night, March 2, 2012, at Mansfield High School, a public high school that is a member of MISD. Plaintiffs religious beliefs, tenants, and observances prevent its student members from participating in the semifinal basketball game as it is currently scheduled during the hours of the Jewish Sabbath. Plaintiffs presented evidence that, upon learning of its semifinal opponent, a representative of Beren contacted the coach of Covenant to inquire whether Covenant would agree to begin the semifinal game earlier on Friday, March 2, to avoid a conflict with the Jewish Sabbath. Covenants coach replied that Covenant agreed to such an accommodation. Upon information and belief, the other two schools in the State semifinals of the 2A tournament bracket have similarly agreed to an accommodation whereby the final game could begin after nightfall on Saturday, March 3 if Beren were to compete and prevail in the semifinal game against Covenant. Beren also approached Edd Burleson, Director of TAPPS, and requested that TAPPS agree to permit the semifinal and final games to be rescheduled to different times on Friday, March 2 and Saturday, March 3 to avoid the potential conflict with observance of the Jewish Sabbath. On Monday, February 27, 2012, the TAPPS executive board denied Berens request for

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an accommodation of its religious conflict and further advised Berens coach that MISD rescheduled all Friday playoff games to begin one hour later than originally scheduled. As a result of the schedule mandated by TAPPS and MISD, Plaintiffs are faced with the choice of violating their own religious beliefs or forfeiting the opportunity to participate in the semifinal game and, potentially, the final game of the State Class 2A basketball championship tournament. Plaintiffs therefore seek a temporary restraining order prohibiting TAPPS and MISD from conducting any Class 2A semifinal basketball games on March 2 and 3, 2012, without rescheduling games that, if played, would burden Plaintiffs free exercise of religion and violate the TRFRA. II. Standard

To obtain a temporary restraining order or preliminary injunction, an applicant must show (1) a substantial likelihood of success on the merits; (2) a substantial threat that it will suffer irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest. See PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 2005); Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). Further, under Rule 65 of the Federal Rules of Civil Procedure, [e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail . . . the act or acts sought to be restrained . . . FED. R. CIV. P. 65(d). III. Analysis

Plaintiffs have presented sufficient evidence to show their entitlement to a temporary restraining order pending a hearing on their application for a preliminary injunction. Plaintiffs

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presented evidence that TAPPS and MISD refused to accommodate their religious observances of the Sabbath notwithstanding (1) TAPPSs own rules permitting the rescheduling of games by mutual agreement of the opposing parties; and (2) the existence of such an agreement between Beren, Covenant, and by the two remaining teams in the Class 2A playoff bracket to reschedule the games to avoid a conflict with Plaintiffs observance of the Jewish Sabbath. Plaintiffs presented evidence suggesting that TAPPSs and MISDs decision to proceed with the semifinal games during the Sabbath was based on a policy and practice of scheduling no basketball games on Sundays, which deliberately prefers the religious beliefs and observances of Christian religious schools that observe Sunday as their holy day of rest. This type of policy or practice constitutes religious discrimination against one religious sect in favor of another in clear violation of the Establishment Clause. See Larson v. Valente, 456 U.S. 288 (1982).

Accordingly, this Court finds that Plaintiffs have presented sufficient evidence establishing a substantial likelihood of success on the merits on their claim against TAPPS and MISD for unconstitutional religious discrimination. Further, the Court concludes that Plaintiffs have a substantial likelihood of success on the merits of their claim for violation of the TRFRA. The Court finds that Plaintiffs refusal to play basketball during the Sabbath (on Friday after sundown and/or 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 TRFRA. See TEX. CIV. PRAC. & REM. CODE ANN.

110.001(a)(1) (West 2005). The Court also finds that MISD is a government agency and its authorization to TAPPS to conduct the basketball semifinals on its premises is an act of a government agency within the meaning of the TRFRA. See id. at 110.001(a)(2). Plaintiffs have alleged facts demonstrating that the concerted conduct of Defendants TAPPS and MISD in

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refusing to reschedule the TAPPS basketball semifinals to accommodate schools and students who cannot participate in basketball games between sundown on Fridays and nightfall on Saturdays because of their religious observances and beliefs substantially burdens the Plaintiffs free exercise of religion. The Court likewise finds that, based on the allegations, evidence, and arguments presented to it, Plaintiffs have demonstrated that Defendants have no compelling governmental interest in refusing to reschedule basketball games to times that will not substantially burden the Plaintiffs free exercise of religion, particularly in light of the agreement reached between Beren and its opponents to reschedule the games to a time that accommodates Plaintiffs free exercise of religion. Based upon these findings, the Court concludes that

Plaintiffs have established a substantial likelihood of success on their claim under the TRFRA. Plaintiffs have also demonstrated a substantial threat that they will suffer irreparable harm in the absence of the requested injunctive relief. Absent court intervention, Beren will have no choice but to continue to refuse to compete in the semifinal round because its participation would necessitate violating the Jewish Sabbath. The evidence presented to the Court demonstrates that this truly is a once-in-a-lifetime opportunity for these students to compete in their athletic conferences state basketball championship tournament. If Plaintiffs are denied the relief requested in this action, Berens playersmany of whom are high school seniorswill be forever deprived of the opportunity to compete in the 201112 TAPPS 2A state basketball championship. The Court recognizes that, to these Plaintiffs, this is an

irreplaceable opportunity and its deprivation constitutes irreparable injury as a result of the disqualification of Beren and its team because of their Jewish religious beliefs and observances. Accordingly, the Court concludes that Plaintiffs have demonstrated a substantial risk of irreparable injury in the absence of injunctive relief.

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The Court also finds that the threatened injury outweighs any damage that the injunction might cause the Defendants. The evidence and arguments presented to the Court demonstrate that TAPPSs own rules contemplate and, indeed, expressly provide for the rescheduling of games where, like here, the opposing parties have reached a mutual agreement to reschedule. Further, the public interest is not disserved by granting the requested injunction, particularly where the injunctive relief is necessary to afford full protection to a partys constitutional and statutory rights. For these reasons and in order to preserve the status quo until a full evidentiary hearing on the matter may be held, the Court finds that a temporary restraining order should be issued. Accordingly, Defendants Texas Association of Private and Parochial Schools and Mansfield Independent School District, as well as their respective officers, managers, trustees, agent, servants, employees, attorneys, confederates, and all other persons acting in active concert or participation with them, are hereby restrained and immediately enjoined from conducting any semifinal basketball games on March 2 or 3, 2012, without rescheduling games to accommodate Plaintiffs observance of the Jewish Sabbath from sundown on Friday evening to nightfall on Saturday. Further, unless the parties are able to reach agreement as to the injunctive relief requested, the Court will hold an evidentiary hearing on the request for preliminary injunction on March ____, 2012, at _____. The Court finds that a security in the amount of ______ shall be posted pursuant to Federal Rule of Civil Procedure 65(c).

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ORDERED AND SIGNED __________________________________, 2012, at __:___ am/pm.

UNITED STATES DISTRICT JUDGE

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