Religious Discrimination Question Turns Mock Trial Into True Legal Issue

R. Robin McDonald

Daily Report

The refusal of the National High School Mock Trial Championship to accommodate Sabbath observances by Massachusetts' winning team at its national championship in Atlanta this week has attracted the attention of the Department of Justice, which has formally notified Georgia authorities that they risk a federal investigation if the team is unable to compete.

The Justice letter notified David L. Ratley, director of the Administrative Office of the Courts of Georgia, that a formal complaint alleging potential religious discrimination had been filed in connection with the national championship, which will be held Friday and Saturday at the Fulton County Courthouse.

Moreover, the dispute has caused what a former national board member of the mock trial group described as a "minor earthquake" among members of the State Bar of Georgia, which is hosting the national event, as to whether the Jewish team from the Maimonides School in Brookline, Mass., is being subjected to religious discrimination if it is forced to forfeit matches scheduled Saturday on the Jewish Sabbath.

At the epicenter are a growing number of state and Bar officials who have weighed in on the debate, among them Georgia Attorney General Thurbert E. Baker, who represents the state court authorities put on notice by Justice but has taken the side of the Jewish students; State Bar President Jeffrey O. Bramlett, a partner at Atlanta's Bondurant, Mixson & Elmore, who has said the State Bar is powerless to counter the national board's decision not to reschedule any trials to accommodate religious needs; and Georgia Supreme Court Justice George H. Carley, a member of the national mock trial board who sided with the board majority in rejecting any request to reschedule mock trial matches in order to accommodate student participants' religious beliefs.

Both Carley and Stacy Rieke, Georgia's mock trial coordinator and a State Bar staff member, were on the national mock trial board in 2005 when a similar controversy erupted in North Carolina after the North Carolina trial lawyers association, which hosted the event, rescheduled two mock trial matches over national board objections to accommodate Jewish students who couldn't compete on Saturday. But the action by the North Carolina hosts prompted the national mock trial board to decide that in future years it would deny all requests to accommodate participating students' religious practices in scheduling tournament trials.

According to a partial transcript, obtained by the Fulton County Daily Report, of a board meeting in which the issue was discussed, Carley and Rieke spoke against accommodating students whose religious practices coincided with the mock trial schedule.

"[W]hat would happen when that Islamic team in Georgia won our state championship and they can't participate at all on Friday?" Carley asked fellow board members. "What would we do then? I just think we leave it where it is. It's the way it's always been. It's for a reason. And I'm for all inclusion, as much inclusion as we can, but ... you make choices and you live with them."

Rieke echoed Carley's comments. "In Georgia, we've got teams from private schools, home school groups and public school groups," she said. "We've got a Muslim team. They haven't made it to State yet, but they're going to make it there one of these days. And if they make it and they become our state champion and they say, "Stacy, we can't compete because our day of rest is on Friday, I'm going to say, 'You know, you're going to have to make a decision. And we may have to name our second-place team to come in your place. So it is, it is a decision that everybody is going to have to make. But Georgia is in support of leaving the schedule as it is."

Carley and Rieke have declined to comment on the issue, referring all questions to John Wheeler, the national board's chairman in Iowa.

Wheeler said that the national board decided this year that the request by the Massachusetts team was not reasonable.

"It substantially affects the competition itself and calls into question the outcomes," Wheeler said. For 26 years, the national championships have been scheduled over a Friday and Saturday, he said. "We're not discriminating on the basis of religion. I would say our position is religious neutral. ... We've tried to balance all the interests and the [state mock trial] coordinators have sided with us."

Richard Nagel, a retired Seattle high school teacher who for years coached mock trial championship teams, resigned from the board over the North Carolina dispute in 2005. He put the focus on Carley as a leader in the Georgia Bar.

"If Justice Carley got up and reconsidered, ... that board would turn around so quickly there would be heat generated to light."

Jeff Kosowsky, the father of the co-captain of the Maimonides mock trial team, told the Fulton County Daily Report on Tuesday that Maimonides team members and their parents were shocked when they were informed by a national mock trial representative that they would have to forfeit any scheduled Saturday trials, Kosowsky said.

When the national board would not bend on the issue and the State Bar said it was powerless to institute the requested changes in the mock trial schedule, Kosowsky and other parents sought legal counsel from Washington, D.C., law firm Lewin & Lewin.

On April 22, attorney Nathan Lewin, who from 1968 to 1969 was deputy assistant attorney general for the DOJ's civil rights division, filed a complaint with the special counsel for religious discrimination in the civil rights division of the Justice Department.

"The effect of refusing to reschedule the Maimonides School's trials is effectively to deny the Sabbath-observing students any chance to win the competition solely on account of their religious observance," Lewin's complaint letter stated. "In our view, our clients are being denied rights protected by the Constitution and by United States law."

Six days later, on April 30, the chief of the civil rights division's coordination and review section, Merrily A. Friedlander, delivered a letter to David L. Ratley, director of the Administrative Office of the Courts of Georgia, and David E. Nahmias, U.S. Attorney for Georgia's Northern District, notifying state court administrators of the Maimonides complaint.

The letter urged the judiciary "to review its actions to ensure that it is in full compliance" with federal laws barring religious discrimination by recipients of federal funding. If the Massachusetts students remain barred from full participation in the competition as a result of their religious convictions, the letter continued, the Office of Civil Rights would review the matter to determine whether a formal discrimination investigation might be warranted.

On Tuesday, Russ Willard, a spokesman for Georgia Attorney General Baker, said that state court administrators have consulted the attorney general as to how to respond.

"Given the relatively minor scheduling changes that would be entailed as well as the fact that North Carolina accommodated a similar scheduling change when they hosted the competition in 2005, the association should work to make a scheduling accommodation," said Willard.

In an interview with the Fulton County Daily Report on Tuesday, Wheeler, chairman of the board of directors of the national mock trial championships, said that he has reviewed the Justice Department letter.

"My reading of the letter indicates that they are simply urging the judicial branch [of Georgia] to be sure they are in full compliance," he said. "I'm not reading it as any type of threat."

And, Wheeler added, "There is a question about whether the Department of Justice would have jurisdiction."

But Neil J. Kinkopf, a professor of constitutional law at the Georgia State University and a former special assistant attorney general in Justice's office of legal counsel, on Tuesday disagreed with Wheeler's assessments.

"It's outright, rank religious bigotry. And it is outrageous," Kinkopf said of the national board's actions. And, he warned, the Justice letter "is one that ought to give any Georgia judges real pause before they go forward and participate in this because, clearly, the Justice Department is watching and doesn't regard this complaint as frivolous. The Justice Department doesn't just issue these letters any time someone in the public asks for one."

But State Bar President Bramlett has responded to the controversy by saying that the Bar is contractually bound to abide by the national mock trial board's rules.

In a letter to the Fulton County Daily Report, Bramlett said that the Bar, while hosting the national championship, has no authority to arrange the mock trial schedule to accommodate the Jewish team. The contract between the Bar and the National High School Mock Trial Championship, or NHSMTC, "imposes clear obligations on the State Bar of Georgia to perform our host responsibilities strictly in conformance with the schedule established by the NHSMTC," Bramlett wrote. "There is no wiggle room. We have no legal basis to compel NHSMTC to make any scheduling change. And we face onerous financial penalties for withdrawing our support of the event at the 11th hour."

According to its contract, the Bar would forfeit $50,000 if it failed to host the event except for "acts of God, war, disaster, strikes, civil disturbance, or other emergency making it illegal or impossible for the host to host the event."

Bramlett also suggested in an interview Tuesday with the Fulton County Daily Report that the State Bar's membership is divided on the question of how the Bar should respond to the controversy. "I can't tell you how many communications I've received from various of my 40,000 members, all of whom have strong opinions," he said. "Not all the opinions line up."

Bramlett said that until the national mock trial board rejected the Massachusetts team's request to accommodate their observance of the Sabbath he had been unaware that the same issue had arisen in 2005 in North Carolina.

That year, the Torah Academy of Bergen County -- an Orthodox Jewish private school -- won the New Jersey championship, said New York attorney Daniel D. Edelman, a Maimonides alumnus whose wife teaches at the Torah Academy. When the New Jersey team asked that the mock trial schedule would allow for the team to observe the Sabbath on Saturday, the national office initially refused, Edelman explained.

That refusal followed six years of contacts with the mock trial board by New Jersey's bar association, which had foreseen that one of the state's religious schools might soon win the state championship and would require an adjustment to the national championship's established Friday-Saturday trial schedule, Edelman said. The national mock trial board had rejected those overtures, he added.

But the North Carolina trial lawyers association disagreed with the mock trial national board, Edelman explained, and over the national board's objections, reconfigured the mock trial schedule so that Torah Academy could compete in one round Thursday night and three rounds Friday as opposed to the previously scheduled two rounds on Friday and two rounds on Saturday. Only two trials were affected by the change in schedule, he said. The New Jersey team subsequently placed 38th in the national competition.

Board Chairman Wheeler explained that his board "was not pleased with the change in the competitive schedule" which he said the North Carolina hosts "presented to us as an accomplished fact" informing the board that "this was the schedule or there would be no competition. The board grudgingly went along with that."

But following the 2005 competition, Wheeler said the board moved to "tighten up the host agreement to try to remove that kind of wiggle room that allowed the [North Carolina] host to do that" and to summarily reject any future religious accommodation requests.

"It was not just a matter of moving two trials," Wheeler continued. "It was a ripple effect and how it impacts the playing field for the entire competition. We operate on a system that tries to insure a fair and equal playing field for all 44 teams involved. Any movement away from that schedule causes a ripple effect as to who you face and when you face them."

The national championship has never been held on a Sunday because teams need that day to travel in order to be back in school the following Monday, he said. It is not held during the week because "we have to minimize time away from school."

As a result of the national board's decision, the North Carolina and New Jersey bar associations have withdrawn from the national mock trial championships and have established their own mock trial competition, Edelman said.