Menora v. Illinois High School Ass'n

• Decision Date: 17 November 1981
• Docket Number: No. 81 C 960.,81 C 960.
• Citation: 527 F. Supp. 637
• Court: U.S. District Court — Northern District of Illinois
• Parties: Moshe MENORA, et al., Plaintiffs, v. ILLINOIS HIGH SCHOOL ASSOCIATION, et al., Defendants.

527 F. Supp. 637

Moshe MENORA, et al., Plaintiffs, v. ILLINOIS HIGH SCHOOL ASSOCIATION, et al., Defendants.

No. 81 C 960.

United States District Court, N. D. Illinois, E. D.

November 17, 1981.

Sylvia M. Neil, American Jewish Congress, David A. Grossberg, Chicago, Ill., for plaintiffs.

John G. Poust, Stephen E. Sward, Wayne F. Plaza, Margaret S. Garvey, Rooks, Pitts, Fullager & Poust, Chicago, Ill., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SHADUR, District Judge.

This action was initially set for hearing November 3, 1981 on plaintiffs' application for preliminary injunction. By agreement of the parties immediately prior to the hearing, the Court ordered the trial of the action on the merits to be advanced and consolidated with the hearing of the preliminary injunction application pursuant to Fed.R.Civ.P. ("Rule") 65(a)(2). This entire action has therefore been tried upon the facts without a jury. After considering all the evidence and arguments of counsel, in accordance with Rule 52(a) the Court finds the facts and states its conclusions of law as follows:

Findings of Fact

1. Plaintiff Hebrew Theological College, Inc. includes a preparatory division ("Yeshivah") that is a private religious secondary school. Plaintiff Ida Crown Academy ("Academy") is a private religious secondary school operating under the auspices of Associated Talmud Torahs, Inc. Both Yeshivah and Academy teach and adhere to the religious principles of Orthodox Judaism. Each of the minor plaintiffs Sholom Menora, Ronald Alswang, Ronald Bruckenstein, Michael Weiner and Mitchell Sered is (a) a full-time student attending high school at Yeshivah or Academy, (b) a member of the varsity basketball team of his high school and (c) a member of the Orthodox Jewish faith. Each of plaintiffs Moshe Menora, Gilda Alswang, Rabbi Abraham Bruckenstein, Burton Weiner and Dr. Bernard Sered is a parent of one of the minor plaintiffs.

2. Both the individual minor plaintiffs and other male members of the Orthodox Jewish faith are required in accordance with the tenets and principles of Orthodox Judaism to cover their heads at all times except when they are (a) unconscious, (b) immersed in water or (c) in imminent danger of loss of life. Their religious belief requires such head covering as a sign of respect to God, in whose presence they believe themselves to be at all times. Those beliefs stem from the ancient Talmud, described in Webster's Third International as "the authoritative body of Jewish law and tradition developed on the basis of the scriptural law...." None of the stated exceptions applies to students playing basketball. Both Yeshivah and Academy require all male students to cover their heads at all the foregoing times, also in accordance with the same religious beliefs. ^*

3. It is the sincere religious belief of each of the individual minor plaintiffs that he must cover his head at all times specified in Finding 2 as a sign of respect to God. It is the sincere religious belief of each of the individual plaintiff parents that his or her son should cover his head at all times specified in Finding 2 for the same reason.

* 4. Each of the individual minor plaintiffs is a member of a class that comprises all present and future students who attend or will attend Yeshivah or Academy, who are members of the Orthodox Jewish faith whose sincere religious beliefs require them to wear head coverings as stated in Finding 2, but who are prohibited from playing basketball by a rule adopted by defendant Illinois High School Association ("IHSA") unless such class members remove their head coverings and thereby violate the principles of their faith. That class is so numerous that joinder of all its members is impracticable. There are questions both of law and of fact common to the class. Individual plaintiffs' claims are typical of the claims of the class. Plaintiffs as representatives of the class have fairly and adequately protected all the interests of the class both in the earlier hearing and in the current hearing in this action.

5. Prosecution of separate actions by individual members of the class referred to in Finding 4 would create a risk of inconsistent or varying adjudications with respect to such individual members that would establish incompatible standards of conduct for IHSA. Moreover, prosecution of such separate actions would create a risk of adjudications as to individual class members that could as a practical matter be dispositive of the interests of the other members not parties to such adjudications or substantially impair or impede their ability to protect their interests. Finally, IHSA has acted on grounds generally applicable to the class, thereby making appropriate injunctive and declaratory relief with respect to the class as a whole.

6. IHSA is a not-for-profit voluntary association of public and private (both parochial and non-parochial) high schools throughout the State of Illinois. Defendant Lavere L. Astroth ("Astroth") is IHSA's Executive Director.¹ IHSA comprises 835 member schools, 703 of which are public and 132 of which are private. Its funding is derived from an annual membership fee of $25 from each member school plus income derived as a result of sponsoring statewide tournaments, including the Illinois State High School Basketball Championships. All or virtually all Illinois public high schools are dues-paying members of IHSA. With very limited exceptions all private secondary schools in Illinois are also IHSA members. To the knowledge of IHSA's Assistant Executive Secretary Donald Robinson ("Robinson"), who testified during the trial (Astroth did not), only one high school in the entire Chicago area (Lake Forest Academy, a private school that was a member through last year and just recently dropped its membership) is a non-member, though Robinson believes there is a possibility that one or two other private schools might not be members.

7. Although it is not itself a formal agency of state government created by the Illinois General Assembly, IHSA regulates and supervises virtually all interscholastic sports in the State of Illinois including basketball. Under IHSA rules no school can play an IHSA member school unless it is also an IHSA member. By reason of the nearly universal Illinois high school membership in IHSA, any school that is not an IHSA member is effectively excluded from interscholastic competition in the State of Illinois. IHSA's Robinson was aware of no interscholastic activities of Illinois public high schools whatever except under the auspices of and through IHSA.

8. Most IHSA games are played at state-supported schools (primarily on the premises of its public high school members). IHSA organizes and operates the annual state basketball tournament involving all its member schools that is universally known as the "state high school championship." IHSA's annual competition leading to the championship is one of the most prominent sporting events of the year, with the final rounds being played on the University of Illinois varsity basketball court at Champaign-Urbana and televised throughout the state.

9. Yeshivah has been an IHSA member for three years and Academy for eight years, during which periods their respective teams have played in IHSA interscholastic basketball competition. At all times during such interscholastic competition all members of their teams, including plaintiff minors, have worn skullcaps ("yarmulkes") secured by bobby pins, except for two occasions on which such usage by the Academy basketball team was challenged by individual referees who could not be dissuaded from enforcing a rule against such use. On those two occasions no religious leader connected with Academy was present, and the decision to allow team members to play without yarmulkes was made solely by the Academy basketball coach (who had no responsibility for enforcing Academy's rule requiring head covering as referred to in Finding 2). All other interscholastic games, during which Yeshivah and Academy team members wore yarmulkes without objection or complaint by opposing teams or referees, were officiated by referees certified by IHSA.

10. IHSA interscholastic basketball is the sole interscholastic athletic activity of both Yeshivah and Academy. Interscholastic basketball competition is an important educational experience that contributes to the physical and emotional health and development of students, and elimination of such competition would have a detrimental impact on Yeshivah, Academy and members of plaintiff class. Any prohibition on Yeshivah's and Academy's ability to participate in IHSA interscholastic basketball would have a material negative impact on the schools and upon their students generally, both apart from and in addition to the negative impact on members of plaintiff class. Playing of interscholastic basketball by Yeshivah and Academy represents to the community at large that those schools are real schools that participate in the mainstream of American life. Such interscholastic play gives the schools and their student body a sense of normality, self-worth and achievement and provides a special outlet for the students' physical and mental needs. IHSA's Robinson confirmed that loss of the opportunity to participate in interscholastic activity would represent a great loss to the students.

11. IHSA is a member of the National Federation of State High School Associations ("Federation"), a voluntary association of organizations in the various states that correspond to IHSA. As part of its activities Federation drafts a set of model basketball rules and related materials, adoption of which is elective on the part of its member associations. State associations are free to choose which Federation rules they wish to adopt. IHSA has elected of its own volition, though it is not bound, to follow Federation's suggested basketball rules at all times relevant to this litigation.

12. Before...