0 L Nos. 89-1694, 89-1740 f` IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant/Cross-Appellee V. BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF PHILADELPHIA, Defendant-Appellee/Cross-Appellant and COMMONWEALTH OF PENNSYLVANIA, Defendant-Appellee APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA R it BRIEF FOR THE UNITED STATES AS APPELLANT MICHAEL BAYLSON JAMES P. TURNER United States Attorney Acting Assistant Attorney General JESSICA DUNSAY SILVER LINDA F. THOME Attorneys Civil Rights Division Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 633-4706 I 0 TABLE OF CONTENTS PAGE STATEMENTOF JURISDICTION .......................... 1 STATEMENTOF ISSSUES •...•.•.•...................... 2 STATEMENTOF THE CASE .. .. .. ...... .. 2 STATEMENTOF FACTS ................................. 6 A. Section 11-1112 ........................... 6 B. The Boards Observance and Enforcement of Section 11-1112 ............ 7 1. Alima Reardon ....................... 7 2. Other Enforcement of Section 11-1112 by the Board ................ 9 C. The Commonwealths Observance and Enforcement of Section 11-1112 ............ 11 D. The Effect of Religious Garb and Symbols in the Classroom .................. 14 STATEMENT OF RELATED CASES AND PROCEEDINGS ......... 16 STATEMENT OF THE STANDARD OF REVIEW ................ 16 ARGUMENT: I. THE COMMONWEALTH WAS SUBJECT TO LIABILITY BECAUSE OF THE APPLICATION OF THE GARB STATUTE TO REARDON AND OTHER EMPLOYEES OF LOCAL SCHOOL DISTRICTSAND PRRIs ...................... 17 II. THE BOARD AND THE COMMONWEALTH ENGAGED IN A PATTERN OR PRACTICE OFDISCRIMINATION ........................ 22 III. THE COMMONWEALTH SHOULD BE ENJOINED FROM ENFORCING SECTION 11-1112 OF THE PUBLIC SCHOOL CODE AND REQUIRED TO GIVE NOTICE THAT IT IS CONTRARY TO TITLE VII AND UNENFORCEABLE .............. 27 CONCLUSION......................................... 29 ADDENDUM: Memorandum of Decision Order of 5/17/89 -i- TABLE OF AUTHORITIES CASES: PAGE Chartiers Valley 3t. Schools V. County Bd. of School Directors. Allegheny County., 211 A.2d 487, 418 Pa. 520 (1965) ................................. 11 Curran v. Portland Superintendin g School Committee , 435 F. Supp. 1063 (D. Me. 1977) ......... 20 Darks v. City of Cincinnati, 745 F.2d 1040 (6th Cir. 1984) •................................... 21 pQj v. St. Josephs Hospital, tal, 788 F.2d 411 ( 7th dr. 1986) . 20 Dothard V. Rawlinson, 433 U.S. 321 (1977) .......... 24 George v. New Jersey Bd. of Veterinary Medical Examiners, 635 F. Supp. 953 (D. N.J. 1985) ..................................... 20 Gomez V. Alexian Bros. Hoso. of San Jose, 698 F.2d 1019 (9th Cir. 1983) ...................... 20 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) .............. 22, 23, 24 Rivas V. State Bd. for Community Colleges, 517 F. Supp. 467 (D. Colo. 1981) ................... 19 Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) ................................... 20 Spirt v. Teachers Ins. and Annuity Assoc., 691 F.2d 1054 (2d Cir. 1982) ....................... 18, 19 United States v. Alexander and Cloutier Realty Co. 1 EOHC para.13,570 p. 13, 780...................... 24, 25 United States v. Gregory, 871 F.2d 1239 (4th Cir. 1989) .................................... 23 United States v. Hughes Memorial Home, 396 F. Supp. 544(W.D. Va. 1975) ................................. 23 -ii- 0 CASES: (aontId) United States v. Ironworkers Local 86, 443 F. 2d 544 (9th Cir. 1971) .................................... 23 United States v. Real Estate Development Coro., 347 F. Supp. 776 (N.D. Miss. 1972) ................. 23 United States V. City of Yonkers, 592 F. Supp. 570 (S.D. N.Y. 1984) ................................... 18, 19 United States V. Youritan Construction Co., 370 F. Supp. 643 (N.D. Cal. 1973) .................. 23, 24 Vanguard Justice Society Inc. v. Huc hes, 471 F. Supp. 670 (D. Md. 1979) ..................... 18, 19 19 CONSTITUTIONS AND STATUTES: United States Constitution: First Amendment, Establishment Clause ............ 5 Pennsylvania Constitution: Article III, Sec. 14 ............................. 11 Civil Rights Act of 1964, as amended, Title VII, 42 U.S.C. 2000e gt seg. passim Fair Housing Act, 42 U.S.C. 3613 ................... 22 28 U.S.C. 2201 ..................................... 1 28 U.S.C. 2202 ..................................... 1 28 U.S.C. 1345 ..................................... 1 28 U.S.C. 1291 ..................................... 1 Pennsylvania. Public School Code of 1949, Pa. Stat. Ann. tit. 24, arts. I-XXV (Purdon 1962)............ passim Pa. Stat. Ann. tit. 24, Sec. 11-1112 (Purdon 1962) ................................... passim Pa. Stat. Ann. tit. 16, Sec. 1402 (Purdon 1962) ...................................... 28 MISCELLANEOUS: Fed. R. Civ. P. 30(b)(6) ........................... 10 Philadelphia Home Rule Charter ..................... 11 -iii- IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 89-1694, 89-1740 UNITED STATES OF AMERICA, Plaintiff-Appellant/Cross-Appellee V. BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF PHILADELPHIA, Defendant-Appellee/Cross-Appellant and COMMONWEALTH OF PENNSYLVANIA, Defendant-Appellee APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS APPELLANT 0 STATEMENT OF JURISDICTION This is an appeal from a final decision of the United States District Court for the Eastern District of Pennsylvania in an action brought by the United States to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e lt z The district court had subject matter jurisdiction over this action pursuant to Sections 706(f)(3) and 707(b) of Title VII, 42 U.S.C. 2000e-5(f)(3) and 2000e-6(b), and 28 U.S.C. 1345, 2201 and 2202. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291. 0 - 2 - 1. Whether the district court erred in ruling that the Commonwealth of Pennsylvania is not an employer and therefore not subject to liability under Title VII of the Civil Rights Act of 1964, as amended, 42 U.B.C. 2000e g, , where a Commonwealth statute requires local education agencies to discriminate against their employees and applicants for employment. 2. Whether the district court erred in ruling that the enforcement of a discriminatory statute by the Philadelphia Board of Education and the Commonwealth of Pennsylvania did not constitute a pattern or practice of discrimination in violation of Title VII, because the statute was not uniformly enforced. 3. Whether the district court should have ordered injunctive relief against the Commonwealth. STATEMENT OF THE CASE The United States initiated this action with the filing of its complaint on May 1, 1987 (A. 618-625).31 The complaint alleged that the Board of Education for the School District of Philadelphia (Board) and the Commonwealth of Pennsylvania (Commonwealth) were pursuing policies and practices that discriminated in employment on the basis of religion in violation 2.1 References to the Joint Appendix are cited &A. _.N -3- of Title VII (A. 619) .21 The United States alleged both discrimination against an individual, Alima Reardon (A. 621-622), and a pattern or practice of discrimination (A. 622-623), stemming from the defendants observance and enforcement of Section 11-1112 of the Pennsylvania Public School Code (also known as the "Garb Statute"), which prohibits public school teachers from wearing any religious "dress, mark, emblem or insignia" while engaged in their official duties (A. 619-621) .L a3 Section 703(a)(1) of Title VII, 42 U.S.C. 2000e-2(a)(1), provides that it shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. ri Section 701(j), 42 U.S.C. 2000e(j), defines the term religion to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employees or prospective employees religious observance or practice without undue hardship on the conduct of the employers business." J Section 11-1112 provides (Pa. Stat. Ann. tit. 24, § 11-1112 (Purdon 1962)): (a) That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination. (b) Any teacher employed in any of the public schools of this Commonwealth, who violates the provisions of this section, shall be suspended from employment in such school for the term of one year, and in case (continued...) -4- Specifically, the complaint alleged that the Board was violating Title VII by refusing to employ as public school teachers individuals, including Reardon, who wore religious garb or dress as an aspect of their religious observance and practice, and by failing to reasonably accommodate the religious practices of such individuals (A. 620). The complaint alleged.at the Commonwealth was violating Title VII by continuing to give force and effect to Section 11-1112 and by failing to give notice to state district attorneys, school officials,