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Religious Freedom In Focus, Volume 7

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United States Department of Justice
Civil Rights Division


October 2004
Volume 7

Religious Freedom in Focus is a monthly email update about the Civil Rights Division's religious liberty and religious discrimination cases. Assistant Attorney General R. Alexander Acosta has placed a priority on these cases. Through vigorous enforcement of:

  • Federal statutes prohibiting religion-based discrimination in education, employment, housing, public facilities, and public accommodations;
  • Federal laws against arson and vandalism of houses of worship and bias crimes against people because of their faith; and
  • The Religious Land Use and Institutionalized Persons Act (RLUIPA);

and through participation as intervenor and friend-of-the-court in cases involving the denial of equal treatment based on religion, the Civil Rights Division is working to protect the right of people of all faiths to participate fully in public life.

More information about this initiative, and back issues of this newsletter, may be found on the religious discrimination home page of the Civil Rights Division website.



Federal Appeals Court Upholds Equal Access for New Jersey Good News Club

On October 15, a federal appeals court ruled that a New Jersey school district violated the constitutional rights of a Good News Club seeking to distribute permission slips and flyers through school facilities that were made available to other community groups. The Civil Rights Division had submitted a brief in the case, Child Evangelism Fellowship of New Jersey v. Stafford Township School District, and argued the appeal before the U.S. Court of Appeals for the Third Circuit in Philadelphia.

Assistant Attorney General R. Alexander Acosta applauded the decision: "Allowing groups serving children the ability to communicate with parents without discrimination based on their religion is not only good educational policy, it is the law. We are pleased that the Court of Appeals has reinforced the principle that equal access truly means equal access."

The Stafford Township school district had a policy of opening school facilities for use "to the fullest extent possible by community groups and agencies." Accordingly, the Township permitted groups such as 4-H, the Boy Scouts, the Girl Scouts, sports leagues and other groups providing children痴 activities to send flyers and permission slips home to parents by giving them to the school for distribution in students' take-home folders. They also permitted these groups to post materials on a bulletin board and have tables at back-to-school night.

Good News Clubs are Christian youth organizations that sponsor weekly meetings to teach boys and girls character and values through Bible lessons, games, and songs. The local Good News Club chapter sought to distribute flyers and permission slips to parents through the same distribution means available to other groups serving children. The school district, however, barred them from doing so, citing concerns about the establishment of religion. It did so despite the fact that the flyers explicitly stated that the Good News Club's activities were not school-sponsored.

The Good News Club filed suit against the Township, claiming discrimination based on its religious viewpoint. The Good News Club in Stafford Township contended that the principles in the Supreme Court's Good News Club v. Milford (2001) decision requiring equal treatment for religious groups in access to space for their activities also require equal access to ways to communicate with parents about those activities. In Good News Club v. Milford, the Supreme Court ruled that once a school has opened its facilities to community groups that "promote[] the moral and character development of children," it cannot discriminate against those that do so from a religious viewpoint. The trial court agreed that this principle applied equally to the means of communication regarding the use of school space, and found the school's practice to be unconstitutional.

The School appealed, and the Civil Rights Division filed an amicus brief supporting the Good News Club's position. The United States argued that the Supreme Court's Good News Club decision was directly applicable to this situation, and that the school could not discriminate against the Stafford Good News Club because of its religious approach. The brief also stated that allowing access on equal terms would not violate the Establishment Clause:

Stafford would not violate the Establishment Clause by allowing the Good News Club to promote its after-school activities on equal terms with other organizations. To the contrary, permitting access on an equal basis would preserve the neutrality toward religion required by the Establishment Clause.

The brief also observed that the Supreme Court in Good News Club had in fact noted that students could only attend Good News Club meetings with their parents' permission as a way of ensuring that no one could mistake the Good News Club meetings as being sponsored by the school. The brief suggested that it was ironic that the school invoked the Constitution to bar the distribution of permission slips that the Supreme Court said helped avoid any Establishment Clause confusion.

The Court of Appeals agreed with the Civil Rights Division and affirmed the decision. The Court found that the Township had allowed access to numerous groups engaged in substantially similar activities to those of the Good News Club. The only difference was that the Good News Club was religious. And, the court held, allowing equal treatment would not violate the Establishment Clause. The Court ruled that the effect of equal treatment "would be to inform school families about available community activities and to foster a wide range of activities in the community. While some religious groups would benefit from equal access, so would a great many secular groups." This, the Court held, was not an Establishment Clause violation.

Civil Rights Division Defends California Good News Club's Right to Equal Access

In another important case involving continued resistance to the Supreme Court痴 ruling in Good News Club v. Milford, the Justice Department filed a brief on October 20 supporting a California Good News Club痴 efforts to obtain equal access to school facilities. In Child Evangelism Fellowship of Southern California - Pomona Valley Chapter v. Lenz, a local Good News Club chapter was charged a fee for use of school facilities after school, even though other groups such as the YMCA, the Boy Scouts, the Girl Scouts, and Camp Fire were permitted to use school facilities for free.

Assistant Attorney General R. Alexander Acosta remarked: "The Supreme Court has stated that religious youth organizations are entitled to equal access. The Constitution does not tolerate a sliding fee scale based on one's religious views."

An Upland School District policy gives free access to school facilities for youth activities drawing at least half of their participants from the local community. The policy, however, specifically provides that "religious activities" must pay a fee. The policy is based on a California law which mandates that school facilities be open to community groups, but requires religious groups to be charged an access fee.

The local Good News Club chapter sought to meet at a local elementary school on the same terms as the other youth organizations, but was told that because its activities were religious, it had to pay to use the facilities. It filed suit against the school in federal court, asking the court to rule that the school policy and the California statute on which it was based unconstitutionally discriminate based on religion.

The Civil Right's Division's friend-of-the-court brief argues that both the school district policy and the state statute on which it was based unconstitutionally discriminate against religious views. The brief points to other Supreme Court and lower court decisions holding that where funds are made available for the dissemination of certain content, discrimination in access to those funds on the basis of religious viewpoint is comparable to discrimination in access to public meeting space on the basis of religious viewpoint. The brief states that treating the Good News Club equally with other groups would not endorse religion, but rather would "ensure the State痴 neutrality toward religion, the very opposite of endorsement."

Civil Rights Division Files Religious Discrimination Suit Against New York MTA

In a case defending the rights of people of faith to work in the public sector, the Civil Rights Division on September 30 filed a religious discrimination lawsuit against the New York Metropolitan Transportation Authority (MTA) and the New York City Transit Authority (NYCTA). The suit alleges that the defendants discriminated against Muslims, Sikhs, and others who wear religious head-coverings.

The complaint alleges that the MTA and the NYCTA selectively enforced their uniform policies against employees who wear religious head-coverings and failed to reasonably accommodate these employees' religious practices and beliefs as required by Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race, sex, religion, and national origin in hiring and in the terms and conditions of employment. Title VII requires employers to make a reasonable accommodation of employees' religious beliefs and practices, unless doing so would create an undue hardship for the employer.

"Public employees should not have to sacrifice their religious beliefs to enjoy the same employment benefits as their coworkers," said R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division. "While public employers have the authority to set reasonable dress standards, they cannot selectively apply them at the cost of civil rights. We will continue to closely monitor public employers to guard against illegal religious discrimination."

According to the complaint, in early 2002 the MTA and the NYCTA began enforcing uniform policies against Muslim and Sikh employees who wear headscarves or turbans. The MTA and the NYCTA involuntarily transferred these employees to yard or depot jobs where they would not be seen by or interact with the public. These jobs are less desirable, and provide diminished seniority benefits and fewer overtime opportunities. Prior to 2002, many Muslim and Sikh employees had been wearing their religious head coverings without incident. Other employees have routinely worn non-MTA headwear, such as baseball caps, and the MTA and the NYCTA continue to permit them to do so.

The filing in this case comes on the heels of the Division's lawsuit against the Los Angeles Metropolitan Transit Authority for failing to consider schedule-accommodation requests by Sabbath-observant Jews and others who must refrain from work on certain days or times. The complaint in that case was filed on September 16.

Follow-Up: Guilty Plea in Mosque E-mail Threat Case

The Justice Department announced on September 30 that Jared Bjarnason of El Paso, Texas, had pleaded guilty to sending email threats to the Islamic Center of El Paso this past April. As previously reported in Religious Freedom in Focus, Bjarnason admitted to sending an email to the mosque on April 4, 2004 in response to the taking of hostages in Iraq, threatening to turn the Islamic Center into a "center of death and destruction" and to burn the mosque to the ground if hostages held in Iraq were not freed within three days. Bjarnason was apprehended within two days of sending the message by FBI agents, who used a provision of the USA PATRIOT Act to identify him as the sender. The charges to which he pleaded guilty to included threatening violence in order to obstruct mosque members in the free exercise of their religion and transmitting a communication containing a threat of injury.

R. Alexander Acosta, Assistant Attorney General for the Civil Rights Division, applauded the swift apprehension and plea agreement: "As President Bush has said, 'Those who feel like they can intimidate our fellow citizens to take out their anger don't represent the best of America; they represent the worst of humankind, and they should be ashamed of that kind of behavior.'"

U.S. Attorney Johnny Sutton of the Western District of Texas said, "In these difficult times we cannot lose sight of the freedoms we hold dear in the United States, including the freedom to worship as we see fit. Our office will aggressively prosecute anyone who, through criminal acts, threatens, intimidates, or harms people on account of their religious beliefs."

To apprehend Bjarnason, the FBI employed a provision of the USA PATRIOT Act that permits internet service providers to give information about electronic communications to law enforcement officials "if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information."

With the PATRIOT Act's authority, the FBI was able to trace the threatening e-mail well before the expiration of the three-day deadline contained in the threat and request information from the internet service providers through which the email had traveled. Absent this provision, the FBI would have had to obtain a separate search warrant from each service provider, a process which could have taken over 30 days.

Bjarnason faces up to twenty years in prison and a $250,000 fine. Sentencing is scheduled for December 21, 2004.

This was one of two incidents of violence against the Islamic Center this year. A complaint recently filed in federal court alleges that on September 17, 2004, Antonio Nunez-Flores threw two "Molotov Cocktails" at the Islamic Center building. The charges against Nunez-Flores carry a maximum possible sentence of ten years in prison and a $250,000 fine. All suspects are considered innocent until proven guilty in a court of law. The fact that complaint has been filed is not evidence of guilt.

The Civil Rights Division, United States Attorneys' Offices, and the FBI have investigated more than 600 incidents of alleged bias-motivated crimes against individuals perceived to be of Middle Eastern origin since September 11, 2001. The Justice Department has brought 19 federal prosecutions against 24 defendants to date. In addition, with the substantial assistance of the Justice Department in many cases, there have been nearly 150 state and local prosecutions. More information about these cases and other efforts by the Civil Rights Division to counter backlash against Muslims, Sikhs, Arabs and South Asians may be found at the Initiative to Combat Post-9/11 Discriminatory Backlash home page.

United States Department of Justice
Civil Rights Division

Updated June 8, 2023