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Christmas 2004 has long since passed, but there’s no end in sight for Texas’ Plano Independent School District’s legal battle about the distribution of candy cane pens bearing religious messages. On April 20, the non-profit Liberty Legal Institute announced at a press conference that it would reject the PISD board’s offer to settle Liberty Legal’s clients’ claim that the school district violated a third-grade pupil’s constitutional rights when it barred him from passing out candy cane pens bearing religious messages at his class party. Nearly two weeks earlier, the school district had offered to amend its policy to allow free exchange of materials that are not pre-approved by PISD at specific district-set times during the school day. In addition, PISD offered to give each plaintiff in the related litigation — Jonathan Morgan, et al. v. The Plano Independent School District — $100 for damages arising from any alleged violation of civil rights of religious expression; the school district denies it ever violated those rights. But at a press conference on April 20, Liberty Legal’s chief counsel, Kelly Shackelford, said that wasn’t enough. He proposed on behalf of the plaintiffs a counteroffer, calling for the Plano school board to admit wrongdoing, agree under court order to never do it again, and agree to conduct training seminars regarding free-speech rights in public schools to protect students from future violations. The PISD school board’s lawyer, Richard Abernathy, a partner in McKinney, Texas’ Abernathy, Roeder, Boyd & Joplin, says that he had not received, as of Texas Lawyer presstime on April 21, a written counteroffer from Liberty Legal. The proposal that a Liberty Legal lawyer described to him before the media event differed from the one described in the nonprofit’s press release, Abernathy says. But in general, Abernathy was not optimistic about an agreement being reached anytime soon. “The district was seeking to find common ground. But the offer that was communicated to me orally, but that I have not seen in writing, asks for capitulation, not compromise,” Abernathy says. If Plano-based Liberty Legal seems prepared for an extenuated fight with its hometown school district, the nonprofit’s endurance could be tied to its success in generating the U.S. Department of Justice Civil Rights Division’s interest in its causes. In the past 2 1/2 years, the DOJ has initiated civil rights investigations in Texas six times based on complaints Liberty Legal’s clients filed against, among others, PISD, city governments in Terrell and Balch Springs, Texas, and a hotel company with facilities in Houston. Indeed, Liberty Legal’s clients’ complaints in Texas have triggered more than one-fourth of the religious freedom investigations nationwide by DOJ’s Civil Rights Division in the past three years. In Plano, the DOJ announced on Dec. 16, 2004 — one day after Liberty Legal filed Morgan in the U.S. District Court for the Eastern District of Texas — that it was launching an investigation into the school district’s policy about students’ distributing materials. The amount of attention that DOJ has paid to the nonprofit organization’s clients seems unprecedented, a veteran civil rights lawyer says. “I don’t know that we have had [the Department of] Justice cooperate in any sense ever with what we’ve been doing in Dallas,” says Ed Cloutman III, a solo practitioner in Dallas who prevailed in a landmark race discrimination case, Eddie Mitchell Tasby, et al. v. Dr. Mike Moses, General Superintendent, Dallas Independent School District, et al., filed in 1970. Not surprisingly, Shackelford, who says he works with a $1 million annual budget generated largely from individual family donations, welcomes the DOJ’s attention to Liberty Legal’s clients’ cases. “We’ve figured out a system,” to get the DOJ’s attention, Shackelford says, noting that freedom of religious expression is “kind of a hot issue right now that has popped up a lot of places.” DOJ PAYING ATTENTION Eric Treene, who serves as special counsel for religious discrimination at DOJ’s Civil Rights Division, acknowledges that Liberty Legal has learned how to get attention from Washington, D.C. Treene offers no apologies for the DOJ’s interest in Liberty Legal’s clients’ cases, saying, “We rely heavily on nonprofit groups to get out the message and bring these cases to our attention.” In June 2003, when Treene first began at the DOJ, he was a pioneer. The federal agency had never before had a lawyer at such a high level focusing exclusively on religious freedom cases. Treene is one of 10 lawyers reporting directly to Alex Acosta, the current Civil Rights Division assistant attorney general. Treene says the department has reviewed 50 cases involving religious freedom, initiated 22 formal investigations and filed two suits since he assumed his post. The DOJ filed complaints in federal court nationwide, including cases against the Los Angeles Metropolitan Transportation Authority, alleging the agency wouldn’t make reasonable accommodations for employees’ observance of the Sabbath, and against the New York Metropolitan Transportation Authority and the New York City Transit Authority, alleging that the agencies discriminated against Muslims, Sikhs and others who wear religious head-coverings. The transportation agencies in those cases have denied any wrongdoing. In Plano, Treene says, the DOJ has opened a civil rights investigation related to the allegations in Morgan and sent PISD a request for information. He declines to comment further, because the investigation is pending. However, Treene is willing to talk about the settlements that Liberty Legal has achieved for its clients with other Texas entities after the DOJ announced civil rights investigations. In October 2004, the DOJ announced that it had ended its investigation into allegations that the city of Terrell had discriminated against church members by barring them from subleasing a city-owned building. That DOJ investigation followed the March 2004 suit, Feltis, et al. v. City of Terrell, et al., Liberty Legal filed in the U.S. District Court for the Northern District of Texas in Dallas for the organization’s clients asserting similar allegations. As part of the Feltis settlement, the city paid the church’s attorneys’ fees and damages, and agreed to allow the congregation to sublease a room. Treene says that, with the Terrell investigation, the DOJ sought a “straightforward application of [U.S.] Supreme Court rulings regarding public assembly,” noting most recently a 2001 high court decision in Good News Club, et al. v. Milford Central School. In January 2004, Liberty Legal announced it had reached a settlement with the Balch Springs City Council. Again, that followed Liberty Legal filing suit, Barton, et al. v. City of Balch Springs, et al., on behalf of its clients in September 2003 in the U.S. District Court in Dallas and the DOJ’s November 2003 initiation of a civil rights investigation into the Barton plaintiffs’ allegations. The Barton plaintiffs, a group of senior citizens, alleged their civil rights were violated when Balch Springs officials allegedly told the seniors they could not pray, sing gospel music or have inspirational messages from the Bible at a senior center located in a public building. In August 2004, the DOJ and Liberty Legal had a second settlement with the Balch Springs City Council to announce. Some three months earlier, Liberty Legal had filed in the U.S. District Court in Dallas a complaint on behalf of its clients, Templo La Fe Worship Center Inc., et al. v. City of Balch Springs, et al. And the DOJ had initiated a civil rights investigation after the Balch Springs City Council had barred a 100-member, largely Hispanic congregation from building a church on a six-acre plot of land in a residential district, which the group had purchased in 1997 and had spent about $33,000 on to make infrastructure improvements. In its press release about the settlement, the DOJ alleged that the city council had violated the federal Religious Land Use and Institutionalized Persons Act of 2000. “One by one, cities in Texas are learning the hard lesson that they cannot discriminate against churches, or they will face serious consequences. The Liberty Legal Institute will continue to defend every church’s right to exist, free from burdensome zoning regulations,” Hiram Sasser, director of litigation at Liberty Legal, wrote in a press release at the time Balch Springs announced settlement. Paul Pearce Jr., a partner in Dallas’ Matthews, Stein, Shiels, Knott, Eden & Davis, who represented Terrell and Balch Springs, declined to comment about the cases. Terrell and Balch Springs denied any wrongdoing when Liberty Legal’s clients’ filed the suits. Liberty Legal does not always focus on Christians alleging civil rights violations. In February 2005, after Liberty Legal filed a complaint with the DOJ, the department started a civil rights investigation, because members of an Eastern religious group, Falun Gong, leveled allegations against Homestead Studio Suites. The Falun Gong members, represented by Richard Ellison, a solo practitioner in Kerrville, Texas, in September 2003 had filed McCoy, et al. v. Homestead Studio Suites, et al., in the U.S. District Court for the Southern District of Texas in Houston after the hotel allegedly denied 72 of their members accommodations. Homestead Studio Suites’ parent company’s spokeswoman, Jennifer Kearney, wrote in an e-mail, “Homestead will not comment on the substantive aspects of ongoing litigation or any government review. We are cooperating fully with the DOJ in its ongoing assessment of a meritless complaint lodged on behalf of a group claiming it was denied accommodations due to its religious or spiritual affiliation at one of our hotels two years ago. We trust, that upon a review of all the facts underlying this matter, the government will agree with Homestead’s position that it did not, and does not discriminate. Homestead has, and will continue to have, no tolerance for discrimination of any nature. Our business is, and has always been, committed to offering and providing the best hospitality to all guests.” She also confirmed that Anthony J. Sadberry, a partner in Houston’s Epstein Becker Green Wickliff & Hall, who referred calls to his office to her, was representing the hotel company. Two Texas lawyers who have opposed Legal Liberty in religious freedom cases and want to remain anonymous say they believe that the nonprofit uses its relationship with the DOJ as a threat. “Hiram [Sasser] creates the impression that he has the Justice Department wrapped around his finger. It’s a not-so-subtle threat that he throws out all the time,” one lawyer says. “And you tend to believe him based on the record.” Sasser says he notifies defendants of his plans to file a complaint with the DOJ as a courtesy, not as a threat. “We can’t control what the Justice Department does. What I try to convey to people is that we think the [allegations] are serious enough that we will pursue our [plaintiffs'] rights and file a complaint with the Justice Department,” Sasser says. He acknowledges that Liberty Legal “has for some reason had a run of groundbreaking cases with great facts” that have attracted the federal government’s attention. But he says the defense lawyers would not consider his comments a threat “if their clients weren’t so egregiously violating the [U.S.] Constitution.” The same anonymous lawyer says he has never seen the DOJ pay so much attention so quickly in a civil rights related case as they have in the Liberty Legal’s clients’ cases. At the DOJ, special counsel Treene says, certain criteria exists for choosing which cases the department will devote its resources to investigating. He says the department looks for cases that show a pattern or a practice, or ones that could set legal precedent. “We want to get the biggest bang for our buck,” Treene says. Sometimes, a complaint is filed about a case in which someone’s civil rights to religious expression very well might be violated, Treene says, but the DOJ does not pursue it because of a shortage of resources. “We leave some [legal battles] to private litigants,” he says. PISD outside counsel Abernathy says, “I don’t think it’s coincidental that we received a Justice Department letter almost immediately after receiving a lawsuit from Liberty Legal.”

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