Delaware School District Rejects Settlement; Insurer Doesn't Want To Pay

In Wilmington, Delaware, according to today's News Journal, a federal judge has unsealed records in a pending lawsuit by Graphic Arts Mutual insurance company against the Indian River School Board. The insurance company wants an order excusing it from paying the school district's legal bills in a suit claiming the school improperly promotes Christianity. (See prior posting.) The insurance company says the District refused to go along with a proposed settlement of the case. The settlement would have imposed a new policies and guidelines applicable to classrooms and to graduation and baccalaureate ceremonies. The school board says the settlement language would even have required the elimination of references to "Christmas Break" on school calendars. Another unrelated provision that was a deal breaker would have required the school board to admit two children from the family of one of the plaintiffs to the district's arts school ahead of others on the waiting list for admission. A counterclaim filed by the school district charges that the settlement was negotiated by the insurance company without consulting school board attorneys and disregarded the school board's interests in favor of those of the insurance company.

UPDATE: A posting on Jews On First dated Aug. 24 gives additional details on the dispute between Indian River School District and its insurer, including links to all the unsealed pleadings in the litigation.

UPDATE: A report from the News Journal on Aug. 24 says that the Indian River School District has now drawn up an alternative settlement proposal.

Appeal Filed In Delaware School Board Invocation Case

Today's Delaware Online reports that an appeal has been filed with the Third Circuit in Doe v. Indian River School District. In the case, a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis, or if the board member prefers, a moment of silence. The district court applied precedent relating to prayers opening sessions of legislative bodies. (See prior posting.)

11th Circuit: Jehovah's Witness Truck Driver Was Offered Reasonable Accommodation

In Walker v. Indian River Transport Co., (11th Cir., July 27, 2018), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of Title VII claims brought by a Jehovah's Witness truck driver who resigned his job alleging a failure to accommodate his need to regularly attend Sunday church services. The milk route to which Bobby Walker, Jr. was assigned required flexibility that included Sunday availability.  The court concluded that Walker's employer, Indian River Transport, offered Walker a reasonable accommodation by offering him other local routes, even though they paid less than the milk route.  The court also rejected Walker's retaliation claim.  Land Line reports on the decision.

Court Upholds School Board Invocations Under Legislative Prayer Precedents

In Doe v. Indian River School District, (D DE, Feb. 21, 2010), a Delaware federal district court upheld against an Establishment Clause attack the policy of the Indian River School Board to open its meetings with a prayer delivered by members of the school board on a rotating basis. Alternatively the board member may call for a moment of silence. Under the policy, the prayers offered may be sectarian or non-sectarian, so long as they are not used to proselytize anyone or disparage any particular belief. The court held that the Supreme Court's Marsh v. Chambers decision relating to legislative prayer applies to invocations at school board meetings, even though school students sometimes attend the meetings. Brief sectarian references in some of the prayers offered do not make Marsh inapplicable, so long as the prayer is not used to proselytize or advance religion. Yesterday's Wilmington News Journal reported on the decision, pointing out that other parts of the lawsuit challenging promotion of religious activities in the schools and at school activities were previously settled with a payment to plaintiffs and a revision of school policies. (See prior posting.)

Indian River (DE) School District Faces New Charges-- Now By Muslim Family

The Indian River, Delaware School District which has just settled a long-running lawsuit brought by two Jewish families over religion in the schools (see prior posting) is now facing charges that a teacher made anti-Muslim statements in class. Saturday's Salsbury (MD) Daily Times reports that a Muslim family has accused a fifth-grade Lord Baltimore Elementary School teacher of telling her class that Barack Obama is a Muslim, that he does not swear on the Bible or recite the Pledge of Allegiance, and that he "believes in different things and is scary". The allegations come in a letter from two sisters, who say that they have experienced other anti-Muslim prejudice in the school system as well. School Board president Charles Bireley said that an inquiry into the matter is under way.

3rd Circuit: School Board Prayer Governed By School Prayer Tests, Not By Test For Legislative Invocations

In Doe v. Indian River School District, (3d Cir., Aug. 5, 2011), the U.S. 3rd Circuit Court of Appeals held that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events (Lee v. Weisman) , not the test for when invocations are permitted in legislative bodies  (Marsh v. Chambers). The Indian River, Delaware, school board routinely opened its meetings with a prayer offered by one of the board members, on a rotating basis. The prayers that were delivered were almost always Christian in their orientation. The court held that since students almost always attend Board meetings, either to receive awards or as part of their extracurricular activities or to comment on school policies, these meetings are analogous to graduation ceremonies which, while not technically mandatory, nevertheless result in students feeling coerced into participating in religious exercises. The court then found that the Board's prayer policy has the primary effect of advancing religion and involves excessive entanglement of government with religion. Board members are government actors composing and delivering prayers.  The Wilmington News Journal reports on the decision. (See prior related posting.)

New Supreme Court Decisions Change Free Exercise Conclusions In Indian Case

In Northern Arapaho Tribe v. Ashe, (D WY, March 12, 2015) a Wyoming federal district court held that the U.S. Supreme Court's recent decisions in Hobby Lobby and Holt v. Hobbs require the district court to depart from an earlier decision in a dispute between two Indian tribes on the taking of bald eagles for religious ceremonial purposes. In a November 2012 decision (see prior posting) the district court rejected a challenge under RFRA by the Northern Arapaho Tribe to a limitation in a Fish and Wildlife Service permit that allowed them to take two bald eagles for religious purposes in Wyoming, but not on the Wind River Reservation that they share with the Eastern Shoshone tribe. The Eastern Shoshones oppose the taking of bald eagles on the reservation because they consider the eagles sacred.

Now, in a decision on a First Amendment challenge to this limitation, the court, finding that the permit decision is not a neutral law of general applicability, applied the compelling interesst- least restrictive alternative test to invalidate the limitation on the Northern Arapaho's rights. The court said in part:

The real dispute in this case is the question of whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion....

Following the Supreme Court's recent guidance in Hobby Lobby and Holt, when determining whether Defendants' decision is justified by a compelling interest, the Court must look beyond the broadly formulated interest and ... ask whether Defendants' decision to restrict the Northern Arapaho Tribe from taking up to two bald eagles per year within the Wind River Reservation is justified by a compelling governmental interest in fostering and protecting the Eastern Shoshone Tribe's culture and religion.

The Court concludes that it is not. The asserted harm to the culture and religion of the Eastern Shoshone Tribe if the Northern Arapaho Tribe were to take up to two bald eagles per year within the Wind River Reservation is miniscule. There is no doubt that the federal government has "general interests in preserving Native American culture and religion in-and-of themselves and in fulfilling trust obligations to Native Americans."... But the argument that taking up to two bald eagles per year within the Wind River Reservation would seriously compromise the federal government's general interest in protecting and fostering the Eastern Shoshone Tribe's culture and religion is unavailing. See Holt, 135 S.Ct. at 863.....

AP reports on the decision.

Cert. Denied By Supreme Court In 2 Prayer Cases

The U.S. Supreme Court today denied certiorari in two cases raising the issue of when public bodies may open their sessions with prayer. (Order List).  The first of the cases in which it denied review is Forsyth County, North Carolina v. Joyner, (Docket No. 11-546, cert. denied 1/17/2012). In the case, the 4th Circuit, in a 2-1 decision, held that  the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face. All congregations in the community were invited to send a religious leader to lead an invocation at one of the commission meetings. As implemented, however, 80% of the prayers referenced Jesus and no non-Christian religious leader ever offered the invocation. (See prior posting.) [corrected]

The second case in which the court denied review is Indian River School District v. Doe, (Docket No. 11-569, cert. denied 1/17/2012). There the 3rd Circuit found a school board's prayer policy to be unconstitutional, holding that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events, not the test for when invocations are permitted in legislative bodies. (See prior posting.) [Thanks to Rob Luther for the lead.]

Delaware Religion In School Case Settled

Jews on First reported yesterday that a settlement has been reached in Dobrich v. Indian River School District, a long-running lawsuit by two Jewish families against a school district in southeast Delaware. (Text of the Feb. 21 order approving settlement.) The suit alleged that the schools unconstitutionally fostered Christianity and forced religion on children. The settlement requires the school district to adopt policies to prevent teachers and other employees from promoting religion. They include a set of "real-world" examples illustrating how the policies will operate. All district personnel are required to read the new policies and sign a statement indicating they have done so. An undisclosed settlement amount will be paid by the school district's insurer. The settlement permits plaintiffs to continue their litigation over the school board's policy of opening its meetings with prayer. Portions of the settlement agreement and the identity of one of the plaintiff families will remain confidential. The Jews on First report includes excerpts from an interview with the mother of that family. (See prior related postings.)

Times Tells Of Incidents Behind Delaware School District Lawsuit

Earlier this month, Religion Clause reported on the continuing controversy in the Indian River, Delaware School District over school prayer and the promotion of Christianity in the school system. (See prior posting.) Today’s New York Times carries an excellent article on the exact events that led the Dobrich family—which has now moved out of the district—to file suit in 2004. At Samantha Dobrich’s high school graduation, a minister's prayer proclaimed Jesus as the only way to truth. Samantha's mother, Mona Dobrich, then asked the school board to consider more inclusive prayers for graduation. That led to letters to the editors and school board meetings attended by hundreds carrying signs praising Jesus. A radio talk show host said that people were asking the Dobrich's to "Stop interfering with our traditions, stop interfering with our faith and leave our country the way we knew it to be." Dobrich’s son, Alex, was ridiculed for wearing a yarmulke in school. A classmate drew a picture of a pathway to heaven for everyone except "Alex the Jew". At a school board meeting, one speaker from the community said, "If you want people to stop calling [Alex] 'Jew boy', you tell him to give his heart to Jesus."

Delaware School District Remains At Center Of Prayer Debate

The Indian River School District in Delaware continues to be at the center of controversy about school prayer. An article in today's Sussex County (Delaware) Post reports that the board of education last week made minor changes in its policy on prayer at graduation ceremonies and baccalaureate services in the district. After a controversy in 2004, the board adopted a policy that provides that student-initiated, student-delivered, voluntary messages are permitted during such ceremonies. The most recent revisions deal with who is responsible for selecting student speakers and reviewing their speeches.

Lawsuits against the school district are pending challenging the Board's continuing practice of opening school board meetings with a prayer, its extensive pattern of school-sponsored prayer at graduation, and its promotion of Christianity in other contexts. (See prior postings 1, 2.) Last week, Jews on First published a long account of the charges against the school district and reported that the Jewish family that filed the 2004 lawsuit against the district felt it necessary to move to Wilmington, two hours away, out of fear of retaliation.

School Board Member Dismissed As Defendant Cannot Continue In Case

In federal district court in Delaware, Judge Joseph Farnan has said that Indian River school board member Reginald Helms may not continue to be represented in court once he has been dismissed as a defendant in a case challenging the constitutionality of explicitly Christian prayers at school functions. Only the school district remains as a defendant, and it is being represented by lawyers for its insurance company. The Wilmington News-Journal today reports on the ruling. Helms, represented by high-profile Wilmington lawyer Thomas Neuberger, had contended that a judgment against the school district would still impact his personal First Amendment rights, but Judge Farnan said that if that were the case, Helms would need to file a separate suit. Meanwhile, the school district's insurers are claiming that they should be able to stop paying for the district's defense because the school board voted down a settlement offer from plaintiffs.

Some School Prayer Claims Dismissed On Procedural Grounds

In Dobrich v. Walls, (D.Del., Aug. 2, 2005), a Delaware federal district court dismissed on procedural grounds a number of claims challenging an extensive pattern of school sponsored prayer at functions, events and School Board meetings in the Indian River School District. However some of the plaintiffs' claims were permitted to go forward. Some, but not all of the claims were dismissed on standing grounds. Defendants' statute of limitations defense was rejected. Claims against school board members in their individual capacities were dismissed on a finding that they had immunity from liability because their actions were legislative in nature.

9th Circuit: Indian Tribe's Challenge To California Geothermal Leases Can Proceed

In Pit River Tribe v. Bureau of Land Management, (9th Cir., July 20, 2015), the U.S. 9th Circuit Court of Appeals reversed the district court's dismissal of an Indian tribe's challenge to the Bureau of Land Management's extension of 26 unproven geothermal leases in northeastern California’s Medicine Lake Highlands. Several environmental groups were also plaintiffs.  The Pit River Tribe contends that development on geothermal leases will interfere with its members use of the area for spiritual and traditional cultural purposes. The Court held that plaintiffs' claims include a challenge under a provision of the Geothermal Steam Act that requires the BLM to conduct environmental, historical, and cultural review under the National Environmental Policy Act and the National Historic Preservation Act. Sacramento Bee reports on the decision.

Bald Eagle Permit Was "Catch-22"; Amended Complaint Filed

Earlier this month, the issuance by the U.S. Fish and Wildlife Service of a permit to allow the Northern Arapaho Indian tribe to kill up to two bald eagles for religious purposes was widely seen as an important vindication of Native American religious freedom. (See prior posting.) However, according to an AP report today, once the tribe's attorneys read the fine print, they concluded that the permit was a "sham." The federal permit  specifically bars the tribe from killing eagles within the Wind River Indian Reservation, and also requires adherence to state law in killing the eagles. Wyoming state law prohibits all killing of eagles and applies everywhere in the state except on the Wind River Reservation.  So the permit precludes taking of eagles at the only location where state law allows it. All of this has led the tribe on behalf of its members to file an amended complaint in Northern Arapaho Tribe v. Ashe, (D WY, filed 3/30/2012) (full text of complaint) claiming that their rights under the Free Exercise Clause and the Religious Freedom Restoration Act have been infringed, and that the government's action violates the Administrative Procedure Act. The lawsuit seeks an injunction ordering the Fish and Wildlife Service to issue a permit without improper restrictions in it.

Township In Litigation With Indian Tribe Over Use of Prayer Grounds

In Mahwah, New Jersey, where most of the attention is on a lawsuit claiming that the township is attempting to keep out Orthodox Jews (see prior posting), NJ Advance Media reports on another trial under way also involving religious rights.  The township is attempting to force the Ramapough Lenape Indian Tribe to remove teepees and other structures the tribe erected on their 13.6 acre prayer ground on the Ramapo River at the base of a high-priced housing development. the tribe says the township is trying to criminalize its religious gatherings.  The township argues that the issue is zoning compliance in a conservation zone and flood plain. It says the tribe has created a camp ground that is not permitted under zoning regulations.

Court OK's School's Ending Of Mohawk Thanksgiving Address Over PA System

In New York state, parents of Mohawk Indian children last week lost their equal protection challenge to a decision by the Salmon River School District to end the practice of reciting the Mohawk Thanksgiving Address (in the Mohawk language) over a school's public address system and at other school events. In Jock v. Ransom, (ND NY, June 28, 2007), a New York federal district court held that school officials were justified in relying on advice of their attorneys that the Address might be considered a religious prayer and its recitation might be seen as violating the Establishment Clause. The court concluded that plaintiffs had not proven purposeful discrimination by school officials, particularly since it now allowed students to voluntarily go to the gymnasium twice a week to recite the Address an permitted its recitation in the cafeteria where students lined up before graduation.

This week's New York Law Journal reports on the decision, pointing out that two-thirds of the school district's students are American Indians and that the recitation of the Address was originally an attempt to raise awareness among non-Indian students of Mohawk culture.

Recent Prisoner Free Exercise Cases

In Walker v. Cate, 2012 U.S. Dist. LEXIS 86987 (ED CA, June 21, 2012), a California federal magistrate judge recommended dismissing claims by a white Christian/Odinist inmate that his rights under the free exercise clause and RLUIPA were violated when he was classified as eligible for double celling with inmates of other races. Plaintiff claimed that his religious beliefs forbid him from sharing a cell with someone of another race.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 87620 (SD NY, June 20, 2012), a New York federal district court permitted an inmate who was a practitioner of Santeria to move forward on free exercise, RLUIPA and equal protection claims. Plaintiff alleged that he was not allowed to wear Santeria beads.

In Davis v. Armenta, 2012 U.S. Dist. LEXIS 88381 (ED CA, June 25, 2012), a California federal magistrate judge dismissed as frivolous an inmate's claim for $999 trillion in damages after the sheriff tore down a picture of a Thompson sub-machine that hung on plaintiff's bunk bed. Plaintiff claimed that the image of the sub-machine gun was his god/goddess.

In La Vell Harris v. Lake County Jail, 2012 U.S. Dist. LEXIS 89306 (ND CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's free exercise claim against a jail nurse. Plaintiff claimed his religion prevents him from taking pain medication (other than marijuana), that he cannot stand or walk without pain, and that he was denied a wheel chair. His claim of religious and racial discrimination was dismissed with prejudice.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 89813 (D CO, June 28, 2012), a Colorado federal magistrate judge, while dismissing many of plaintiff inmate's claims, permitted plaintiff to move ahead on a free exercise and RLUIPA complaint that he was required to surrender various art works, including religious art, and was terminated from the sex offender treatment program for refusing to write essays on how images of minors were high risk and how he used "religiosity" as a tactic to avoid treatment.

In Villanueva v. River, 2012 U.S. Dist. LEXIS 89399 (D SC, June 28, 2012), a South Carolina federal district court held that an inmate's free exercise claims are not cognizable in a habeas corpus proceeding. Plaintiff complained that federal prison officials refused to accommodate his "Kingism" religious beliefs by not allowing him to wear his religion's colors. He sought prison recognition of his religion.

In Quinn v. Knab, 2012 U.S. Dist. LEXIS 89479 (SD OH, June 27, 2012), an Ohio federal magistrate judge recommended that an inmate, a white separatist "Christian Identity" adherent, be allowed to proceed with his free exercise and RLUIPA challenges to prison officials' refusal to permit him to take the Nazarite vow which entails restrictions on cutting hair, foods consumed, and working on the Sabbath. The court rejected plaintiff's equal protection and retaliation claims.

In Sousa v. Wegman, 2012 U.S. Dist. LEXIS 90023 (ED CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that prison officials refused to accommodate his Mexican Indian (Aztec/Mayan/Toltec) religion and instead required him to use an existing Native American religious services program.

In Crosby v. Lee, 2012 U.S. Dist. LEXIS 90090 (WD VA, June 28. 2012), a Virginia federal district court dismissed without prejudice a Muslim inmate's suit against a jail superintendent complaining that he was deprived of the opportunity to attend Friday Jumm'ah services, he was denied his prayer rug, and he was not alerted when meals contained pork.

In Johns v. Lemmon, 2012 U.S. Dist. LEXIS 89901 (ND IN, June 26, 2012), an Indiana federal district court permitted plaintiff, who claimed to be an "observant Jewish prisoner," to proceed with his suit alleging that a fundamental tenet of his religious beliefs is that he cannot eat food cooked on Saturday, and that prison officials have stopped their previous practice of providing him his food for Saturday on Friday night.

Defendant Gets Light Sentence From Tribal Court For Bald Eagle Act Violation

As previously reported, the long-running prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance, was transferred to a tribal court. In the case, the 10th Circuit rejected Friday's challenge to the Bald and Golden Eagle Protection Act, and the Supreme Court denied cert. AP reports that yesterday Winslow Friday pleaded guilty in a Shoshone and Arapaho Tribal Court on the Wind River Indian Reservation in Wyoming. He was fined $2500 and his hunting privileges on the reservation were suspended for a year. In federal court, Friday faced a possible sentence of a year in jail and a $100,000 fine. Those charges will now be dismissed.

Sioux-- and Green Party Candidate-- Protest North Dakota Pipeline Across Sacred Land

The Washington Post this week reported on the showdown between members of the Standing Rock Sioux Tribe and the company building the Dakota Access crude-oil pipeline across North and South Dakota.  The tribe claims that the pipeline will run through sacred ancestral lands which were taken from the tribe over the years. It will cross the Missouri River just a mile north of the Standing Rock Indian Reservation.  Thousands of Native Americans have traveled to North Dakota over the past weeks to join the protest. As reported by CBS News, on Tuesday Green Party Presidential candidate Jill Stein visited the protest site and, at the urging of activists, spray painted a  message on a bulldozer blade. In response, yesterday a warrant was issued for Stein's arrest, charging her with misdemeanors-- criminal trespass and criminal mischief.  On Tuesday, a judge issued a temporary restraining order halting construction only on part of the land. A ruling on the Tribe's request for an injunction is expected Friday. (NPR News).