The Volokh Conspiracy - ACLU Found To Have Standing to Challenge Islamic (?) Charter School:

The opinion is ACLU of Minnesota v. Tarek ibn Ziyad Academy, filed yesterday. Most of it deals with whether the ACLU's members have "taxpayer standing" to challenge the allegedly Establishment-Clause-violating program; the court said that it does, and also rejected some other procedural objections to the lawsuit. The court also concluded that the charter school is, under Minnesota law, a part of the state public education system, albeit a part that has considerable autonomy; the First Amendment thus applies to its actions. And the court concluded that the organization that runs the school is also to be treated as a state actor as to the school's operation, because of its close involvement with the school.

This leaves the substantive question: Does the charter school indeed unconstitutionally promote Islam, or does it simply offer an environment that's appealing to, and suitably accommodating to, its overwhelmingly Muslim students (chiefly the children of Somali immigrants)? To give one example, the lawsuit challenges the "school calendar" and the "school menu," but I take it that there wouldn't be any problem with public schools that have many Jewish students offering kosher options on the cafeteria menu and Jewish religious holidays off (given that so many students would be absent in any event). Whether the school's actions are seen as endorsing a religion or merely accommodating Muslim students' religious beliefs — the question that, rightly or wrongly, must be answered under the current Establishment Clause test — thus turns on the factual details.

And the court concluded that, because of this, the case can't be resolved without further factual discovery, presumably followed by hearings to resolve the contested factual questions:

The issues raised in both TIZA's and Islamic Relief's Rule 12(b)(6) motions [for failure to state a claim upon which relief can be granted] are factual in nature and are not appropriately resolved at this stage in the litigation. For example, TIZA argues that Plaintiff conflates the uniform-dress code with religious entanglement and that Plaintiff has failed to explain how a conservative dress code has the effect of promulgating religion. However, whether or not TIZA's dress code involves religious entanglement requires a factual inquiry into the particulars and reasons for the dress code. In addition, TIZA asserts that it has honored certain requests for religious accommodation and that in honoring such requests, it is not endorsing religion. However, this inquiry also involves fact issues not appropriately resolved at this stage of the litigation.

Similarly, Islamic Relief argues, for example, that the Charter School Contract demonstrates that Islamic Relief was not endorsing a religious point of view because TIZA made representations in that contract that the charter school would be nonsectarian. In addition, Islamic Relief asserts that Plaintiff's Complaint must be dismissed because Islamic Relief, as a sponsor, had no role in setting school policies that could be construed as endorsing religion. Again, whether or not Islamic Relief played a role in the allegedly sectarian operations of TIZA is a factual inquiry, and the role and importance of the Charter School Contract will be just one part of that inquiry.

The Court also notes that, at least with respect to TIZA's motion, there are several alleged sectarian practices, such as TIZA's busing schedule, that TIZA does not address. That not all allegedly sectarian practices and policies are addressed underscores the premature nature of TIZA's motion. It is inappropriate, at this early stage of the litigation, to dismiss Plaintiff's Establishment Clause claim, particularly because it requires an analysis of all the allegedly impermissible religious practices together.

Thanks to Religion Clause for the pointer.

	[Eugene Volokh, July 22, 2009 at 9:54am] Trackbacks ACLU Found To Have Standing to Challenge Islamic (?) Charter School: The opinion is ACLU of Minnesota v. Tarek ibn Ziyad Academy, filed yesterday. Most of it deals with whether the ACLU's members have "taxpayer standing" to challenge the allegedly Establishment-Clause-violating program; the court said that it does, and also rejected some other procedural objections to the lawsuit. The court also concluded that the charter school is, under Minnesota law, a part of the state public education system, albeit a part that has considerable autonomy; the First Amendment thus applies to its actions. And the court concluded that the organization that runs the school is also to be treated as a state actor as to the school's operation, because of its close involvement with the school. This leaves the substantive question: Does the charter school indeed unconstitutionally promote Islam, or does it simply offer an environment that's appealing to, and suitably accommodating to, its overwhelmingly Muslim students (chiefly the children of Somali immigrants)? To give one example, the lawsuit challenges the "school calendar" and the "school menu," but I take it that there wouldn't be any problem with public schools that have many Jewish students offering kosher options on the cafeteria menu and Jewish religious holidays off (given that so many students would be absent in any event). Whether the school's actions are seen as endorsing a religion or merely accommodating Muslim students' religious beliefs — the question that, rightly or wrongly, must be answered under the current Establishment Clause test — thus turns on the factual details. And the court concluded that, because of this, the case can't be resolved without further factual discovery, presumably followed by hearings to resolve the contested factual questions: The issues raised in both TIZA's and Islamic Relief's Rule 12(b)(6) motions [for failure to state a claim upon which relief can be granted] are factual in nature and are not appropriately resolved at this stage in the litigation. For example, TIZA argues that Plaintiff conflates the uniform-dress code with religious entanglement and that Plaintiff has failed to explain how a conservative dress code has the effect of promulgating religion. However, whether or not TIZA's dress code involves religious entanglement requires a factual inquiry into the particulars and reasons for the dress code. In addition, TIZA asserts that it has honored certain requests for religious accommodation and that in honoring such requests, it is not endorsing religion. However, this inquiry also involves fact issues not appropriately resolved at this stage of the litigation. Similarly, Islamic Relief argues, for example, that the Charter School Contract demonstrates that Islamic Relief was not endorsing a religious point of view because TIZA made representations in that contract that the charter school would be nonsectarian. In addition, Islamic Relief asserts that Plaintiff's Complaint must be dismissed because Islamic Relief, as a sponsor, had no role in setting school policies that could be construed as endorsing religion. Again, whether or not Islamic Relief played a role in the allegedly sectarian operations of TIZA is a factual inquiry, and the role and importance of the Charter School Contract will be just one part of that inquiry. The Court also notes that, at least with respect to TIZA's motion, there are several alleged sectarian practices, such as TIZA's busing schedule, that TIZA does not address. That not all allegedly sectarian practices and policies are addressed underscores the premature nature of TIZA's motion. It is inappropriate, at this early stage of the litigation, to dismiss Plaintiff's Establishment Clause claim, particularly because it requires an analysis of all the allegedly impermissible religious practices together. Thanks to Religion Clause for the pointer.