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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ISAAC MIRWIS, ETAN MIRWIS,
ISAAC BUCHINE, MARK BUCHINE,
ISAAC JACOBSON, and MYRA
WEISFELD,

Plaintiffs,

v.

MANSFIELD INDEPENDENT SCHOOL
DISTRICT and TEXAS ASSOCIATION
OF PRIVATE AND PAROCHIAL
SCHOOLS,

Defendants.


























Civil Action No. ____________


PLAINTIFFS ORIGINAL COMPLAINT, APPLICATION
FOR TEMPORARY RESTRAINING ORDER, AND
APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION
Plaintiffs Isaac Mirwis, Isaac Buchine, and Isaac Jacobson (Student Plaintiffs), Etan
Mirwis, Mark Buchine, and Myra Weisfeld (Parent Plaintiffs), make this their Original
Complaint, Application for Temporary Restraining Order, and Application for Temporary and
Permanent Injunction, complaining of Mansfield Independent School District (MISD) and
Texas Association of Private and Parochial Schools (TAPPS). Plaintiffs Application is
supported by the declarations of Isaac Mirwis and Richard Rohan, attached hereto, and
Plaintiffs Brief in Support of its Application for Temporary Restraining Order and Preliminary
Injunction, which is also being filed contemporaneously herewith.
I. PARTIES
1. Plaintiffs Isaac Mirwis, Isaac Buchine, and Isaac Jacobson are individuals
residing in Houston, Texas, and are members of the Beren boys basketball team. Mirwis is a
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captain of the team. Collectively, these Plaintiffs are sometimes referred to herein as the Student
Plaintiffs.
2. Plaintiffs Etan Mirwis, Mark Buchine, and Myra Weisfeld are individuals residing
in Houston, Texas, and are the parents of the Student Plaintiffs described in paragraphs 2 and 3
above. Collectively, these Plaintiffs are sometimes referred to herein as the Parent Plaintiffs.
3. MISD is a school district and political subdivision of the State of Texas that
operates, oversees and administers public schools in the City of Mansfield, Texas. MISD is a
government agency within the meaning of the Texas Religious Freedom Restoration Act
(TRFRA), Texas Civil Practice & Remedies Code 110.001 et seq., as it is an agency of the
State or of a municipality or other political subdivision of the State of Texas. Pursuant to Texas
Civil Practice & Remedies Code 17.024(c), MISD may be served with process by serving its
Superintendent, Dr. Bob Morrison, at Mansfield ISD, 605 East Broad Street, Mansfield, TX
76063.
4. TAPPS is a not-for-profit corporation organized under the laws of the State of
Texas, and with its principal place of business at 601 N. Main, P.O. Box 1039, Salado, Texas
76571. TAPPS may be served by service upon its President, Mr. Edd Burleson, at 601 N. Main,
Salado, Texas 76571.
II. JURISDICTION AND VENUE
5. This court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and
1343, as the Plaintiffs claims arise under the Constitution and laws of the United States and
concern, under 42 U.S.C. 1983, the deprivation of rights secured by the Constitution of the
United States. This Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367 over
Plaintiffs claims under the TRFRA and for breach of contract.
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6. Venue is appropriate in the Northern District of Texas pursuant to
28 U.S.C. 1391, because Defendant TAPPS resides in this judicial district within the meaning
of 28 U.S.C. 1391(d).
III. FACTUAL BACKGROUND
7. Robert M. Beren Hebrew Academy (Beren) is a not-for-profit corporation that
operates a school in Houston, Texas, providing religious and secular education for grades pre-K
through 12th grade in accordance with the tenets of Orthodox Judaism.
8. Plaintiffs are current members, and parents of current members, of Berens boys
high school basketball team who are being denied, solely on account of their religious
observance, a once-in-a-lifetime opportunity to compete in their athletic conferences state
basketball championship tournament scheduled to take place on Friday and Saturday, March 2
and 3, 2012.
9. Defendant TAPPS is the association that organizes and administers the athletic
conference in which Beren competes and which organizes the State championship basketball
tournament. TAPPS is a membership association consisting of private and parochial schools
throughout the State of Texas. TAPPS organizes competitions for its member schools in
athletics and in the fine arts. Schools apply and pay a fee to become members of TAPPS.
10. Defendant MISD is the public governmental agency that is providing the facilities
where the TAPPS championship basketball tournament will be taking place on March 2-3, 2012.
11. The concerted actions of TAPPS and MISD (a) burden and interfere with the
sincere religious beliefs and observances of Beren and its students and the sincere religious
beliefs and observances of current and future students of the Burton Adventist Academy, (b)
prefer Sunday-observing religions and religious beliefs over Saturday-observing religions, and
(c) violate TAPPSs own rules and regulations. Plaintiffs seek a Temporary Restraining Order,
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Temporary Injunction, and Permanent Injunctive Relief enjoining MISD from permitting its
public facilities to be used by TAPPS to discriminate in violation of the Constitution and laws of
the United States and in violation of the TRFRA against Jewish and Christian students who
observe Saturday as their religiously-mandated day of rest.
12. Prior to the 2010-2011 academic year, Beren registered as a member of TAPPS,
paid the required fee, and was accepted as a member of TAPPS. Beren applied to compete in
boys basketball, and, based on its size, was assigned to compete in TAPPSs 2-A Division
against schools with comparably-sized student enrollments.
13. Although, at the time Beren applied for membership into TAPPS, it was made
aware of the potential that Berens Sabbath observance may conflict with scheduled
competitions, the TAPPS rules expressly provide that game schedules, and specifically playoff
game days and times, may be set by mutual agreement of the two competing teams.
Consequently, any advanced warning that Beren received regarding potential playoff
scheduling conflicts was also tempered by TAPPSs own rules that allow for the scheduling of
such contests by mutual agreement. In this case, as set forth elsewhere, Beren and its scheduled
semifinal opponent, Covenant, did in fact agree to make an accommodation to the schedule.
Nevertheless, TAPPS, in violation of its own rules, denied Berens request to reschedule the
game.
14. The 2011-2012 school year is the second year of Berens membership in TAPPS.
Beren has had a successful boys basketball season, and it accordingly qualified to compete in
the TAPPS post-season playoffs.
15. Following the Orthodox Jewish beliefs and observances that it teaches to its
students, Beren does not desecrate the Sabbath, observed by Jewish Law on Saturdays, by
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participating on that holy day in athletic competitions. By Orthodox Jewish Law and
observance, the Jewish Sabbath begins at sundown on Friday evening and concludes 25 hours
later, at nightfall on Saturday. (Mirwis Decl., attached hereto as Exhibit A, at 4)
16. During the initial rounds of the TAPPS 2-A boys basketball competition, some
playoff games were originally scheduled for times between sundown on Friday and nightfall on
Saturday. On each occasion, in accordance with TAPPSs own Bylaws and rules, Beren
successfully arranged with its scheduled opponent to play the game at a time other than during
the Jewish Sabbath. For example, Kerrville Our Lady of the Hills (Kerrville), agreed to play a
game that had originally been scheduled to begin on Friday night, February 24, 2012, at noon on
Friday, February 24. That game therefore concluded before the Jewish Sabbath began. The
members of the Beren team, including the Student Plaintiffs, defeated Kerrville by the score of
69-42, thereby earning the right to advance to the TAPPS 2-A State semifinals against Dallas
Covenant Christian School (Covenant).
17. On Friday, February 24, Beren requested that TAPPS adjust certain game times
on Friday, March 2, 2012 and Saturday, March 3 in order to accommodate Berens observance of
the Jewish Sabbath. (Rohan Decl., attached hereto as Exhibit B, at 5 and Exhibit 4 thereto)
Berens semifinal game against Covenant was scheduled to take place at 9:00 p.m. on Friday
night, March 2, 2012 in Mansfield, Texas, at Mansfield High School, a public high school that is
a member of the MISD. (Id. at 3; Mirwis Decl. at 3)
18. Beren and the Student Plaintiffs cannot participate in a basketball game during the
hours of the Jewish Sabbath because of their religious beliefs, tenets, and observances. (Mirwis
Decl. at 4-5) Consequently, a representative of Beren asked the coach of its prospective
opponent Covenant whether Covenant would agree to begin the semifinal game earlier on
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Friday, March 2. Covenants head of school has publicly stated that Covenant agreed to such an
accommodation, but was subsequently made aware that TAPPS refused Berens request to
reschedule the game. (Rohan Decl. at 2 and Exhibit 1 thereto)
19. Upon information and belief, the two other schools in the State semifinals (other
than Beren and Kerrville), Abilene Christian and Sugar Land Logos, have stated that they agreed
to an accommodation under which the final game would begin after nightfall on Saturday, March
3 in case Beren should advance to the final game.
20. Beren requested from Edd Burleson, and TAPPS that TAPPS agree to permit the
semifinal and final games to be scheduled to different times on Friday, March 2 and Saturday,
March 3 to avoid the potential conflict with observance of the Jewish Sabbath. (Rohan Decl. at
5 and Exhibit 4 thereto)
21. On February 27, 2012, Mr. Burleson advised Chris Cole, the Beren boys
basketball coach, by e-mail that the TAPPS executive board had voted to deny Berens request
that the games be rescheduled. (Id.) Mr. Burleson also advised that the start time of the earliest
scheduled TAPPS playoff game was being moved from 3:30 p.m. on Friday to one hour later,
and that all Friday games were being rescheduled to one hour later than originally scheduled.
(Id.) TAPPS has reiterated its denial of Berens request on its website on Wednesday, February
29, 2012. (Rohan Decl. at 5)
22. The current Beren team has a number of seniors on its squad. This years
championship tournament represents the last opportunity these students will have to participate
in a high school final-four championship tournament.
23. Under compulsion resulting from this denial, Beren communicated to TAPPS that
it had no choice and was unable to compete in the semifinal round. Competing at the times
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inflexibly set by TAPPS and MISD would necessitate violating the Jewish Sabbath. TAPPS then
announced that Kerrville Our Lady oI the Hills Schoolthe team which Beren deIeated by 27
points the preceding weekwould replace Beren in the semiIinal game against Covenant.
24. If Beren and its team are denied the relief requested in this action, Berens players
will be forever deprived of the opportunity to compete in the 2011-2012 TAPPS 2-A State
Basketball Championship Tournament. That is an irreplaceable opportunity and its deprivation
constitutes irreparable harm attributable to disqualification of Beren and its team because of their
Jewish religious beliefs and observances. (Mirwis Decl. at 6)
25. The Parent Plaintiffs have had their rights to the free exercise of their religious
beliefs burdened by the foregoing actions of Defendants by virtue of the fact that their children,
the Student Plaintiffs, are being put to the choice of violating their own religious beliefs and the
beliefs imparted by the Parent Plaintiffs to their children, or forfeiting the opportunity to
participate in the State basketball championship tournament. As such, the Parent Plaintiffs have
had their free exercise rights burdened by Defendants actions as described above.
26. Section 141 of TAPPSs Bylaws provides that playoff game days may be changed
by mutual agreement of the opposing teams. (Rohan Decl. at 4) That Section also provides
that game times may be set by mutual agreement. (Id.) This procedure is similarly reflected on
TAPPSs tournament bracket which may be found as a link on the TAPPS website. (Id. at 3)
The concerted decision of TAPPS and MISD deprives Plaintiffs of the opportunity, authorized
by the TAPPS Bylaws, to schedule Berens playoff contests by agreement with opposing teams.
27. Upon information and belief, TAPPS never schedules athletic contests on
Sundays. That policy was acknowledged by Mr. Burleson in a published interview with
Mr. Brett Haber of the Washingtonian magazine. When asked during the interview why TAPPS
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does not accommodate the Sabbath observances of Jewish schools, Mr. Burleson replied, Why
should we allow 1 or 2 or 3 schools to dictate what 120 other schools do? In response to Mr.
Habers statement, Some would call that being inclusive, Mr. Burleson replied, I dont recall
inclusive being in our constitution. (Rohan Decl. at 6) Further, upon information and belief,
in a recent conversation between Mr. Burleson, the Head of School of Beren and Berens head
coach, Mr. Burleson stated to Berens head coach and head of school, Your beliefs and our
rules dont mesh.
28. Plaintiffs are prepared to post a bond or security in support of their application for
a Temporary Restraining Order.
FIRST CLAIMUNCONSTITUTIONAL
RELIGIOUS DISCRIMINATION
29. Plaintiffs incorporate paragraphs 1 through 28 herein by reference.
30. The Defendants policy and practice of scheduling no basketball games on
Sundays deliberately prefers the religious beliefs and observances of Christian religious schools
that observe Sunday as the Sabbath because Christian observers attend church and treat Sunday
as a holy day. The Defendants refusal to accommodate the religious observances of those
schools and students who observe Saturday as their religious day of rest discriminates in favor of
most Christian denominations and against Jewish schools and students, as well as against
Christian denominations that observe the Seventh Day (i.e., Saturday) as the holy day of the
week.
31. Upon information and belief, a Seventh-Day Adventist school in Arlington,
Texas, Burton Adventist, experienced similar denials of its free exercise rights when on at least
three previous occasions, Burton Adventist was required to forfeit games during TAPPS playoff
basketball competitions. Like the Beren students here, Burton students observe their Sabbath on
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Friday night and Saturday, and therefore were unable to compete in TAPPS playoff contests that
were scheduled during their Sabbath.
32. Preferring Sunday-observing Christianity over Judaism and over Saturday-
observing Christianity is discrimination among religions that is prohibited by the Establishment
Clause of the First Amendment to the United States Constitution, as made applicable to the
States and local governments by the Fourteenth Amendment. Larson v. Valente, 456 U.S. 228
(1982). The Supreme Court has condemned such preference as the clearest command of the
Establishment Clause. 456 U.S. at 244.
33. On the above grounds, the Defendants must be directed by this Court to provide
equal treatment to Saturday observance as to Sunday observance and to permit Saturday-
observing basketball teams and players to compete in the basketball competition at a time that
does not conflict with their religious observance.
SECOND CLAIMVIOLATION OF TEXAS
RELIGIOUS FREEDOM RESTORATION ACT
34. Plaintiffs incorporate paragraphs 1 through 33 herein by reference.
35. The Plaintiffs refusal to play basketball on Friday after sundown and on Saturday
before nightfall is an act or refusal to act that is substantially motivated by sincere religious
belief within the meaning of 110.001(a)(1) of the Texas Civil Practice & Remedies Code
(2005).
36. MISD is a government agency within the meaning of 110.001(a)(2) of the
Texas Civil Practice & Remedies Code (2005).
37. MISDs authorization to TAPPS for TAPPS to conduct the basketball semifinals
on its premises is an act of a government agency within the meaning of 110.002(b) of the
Texas Civil Practice & Remedies Code.
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38. The concerted conduct of Defendants TAPPS and MISD in refusing to reschedule
the TAPPS basketball semifinals for schools and students who cannot, because of their religious
beliefs and observances, participate in basketball games between sundown on Fridays and
nightfall on Saturdays substantially burdens the free exercise of religion of the Student Plaintiffs
and Parent Plaintiffs.
39. Defendants TAPPS and MISD have no compelling governmental interest in
refusing to reschedule basketball games to times that will not substantially burden the Plaintiffs
free exercise of religion. The absence of such a compelling governmental interest is not limited
to, but is augmented, whenever the school that the Plaintiffs play against consents to
rescheduling of the game to a time that does not substantially burden the Plaintiffs free exercise
of religion.
40. Defendants TAPPS and MISD have not sought or applied the least restrictive
alternative to further any governmental interest.
41. For the above reasons, the Defendants TAPPS and MISD have, by their concerted
action, violated the Texas Religious Freedom Restoration Act (Sections 110.001-.012 of TEX.
CIV. PRAC. & REM. CODE (2005)).
42. Plaintiffs are entitled to declaratory relief, injunctive relief, compensatory
damages, and reasonable attorneys fees under the Texas Religious Freedom Restoration Act.
THIRD CLAIMBREACH OF CONTRACT
43. Plaintiffs reincorporate paragraphs 1 through 42 herein by reference.
44. Pursuant to TAPPSs own rules, playoff game days and times are allowed to be
adjusted by mutual agreement of the opposing teams.
45. Beren and Covenant, the teams that were originally scheduled to compete in the
tournament semifinal game, agreed to make a schedule accommodation so that the Plaintiffs
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would not be required to participate on the Jewish Sabbath. However, TAPPS advised Beren
that the TAPPS board voted to deny any requested modification of the schedule.
46. As a consequence, TAPPS has breached the contract between it and Beren,
thereby injuring the Beren students and team who are third-party beneficiaries. Because
monetary damages are inadequate to compensate plaintiffs for the loss of their opportunity to
participate in the semifinal contest, plaintiffs seek specific performance of the TAPPS rules
under which Beren could reschedule games with the consent of the opposing team. Plaintiffs are
third-party beneficiaries of the TAPPS Bylaws, rules, and regulations which govern the
relationship between TAPPS and Beren, as the Student Plaintiffs are the individuals directly
affected by those Bylaws, rules, and regulations, and TAPPS and Beren were aware of and
contemplated that the student athletes of TAPPS member schools would be directly impacted by
the matters contained in those Bylaws, rules, and regulations. Many of the TAPPS rules purport
to direct the conduct of students at TAPPS member schools.
FOURTH CLAIMDECLARATORY RELIEF

47. Plaintiffs reincorporate paragraphs 1 through 46 herein by reference.
48. As a result of the foregoing, an actual controversy has arisen and now exists
between Plaintiffs and Defendants concerning whether Defendants have a constitutional,
statutory, or contractual obligation to accommodate Plaintiffs religious observance of the
Sabbath in scheduling, managing, or operating the TAPPS Division 2A state basketball
tournament.
49. In order to conclusively settle this dispute, Plaintiffs request, pursuant to 28
U.S.C. 2201, that this Court declare that Defendants refusal to accommodate Plaintiffs
observance of the Sabbath in the scheduling, management, and/or operation of the TAPPS
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Division 2A state basketball tournament violates the Constitution and laws of the United States
and the Texas Religious Freedom Restoration Act.
IV. PRAYER FOR RELIEF
WHEREFORE Plaintiffs respectfully request the following relief: (1) A declaratory
judgment pursuant to 28 U.S.C. 2201 and 2202 declaring that the actions of TAPPS and
MISD in refusing to accommodate the Sabbath observance of the Plaintiffs violate the
Constitution and laws of the United States and the Texas Religious Freedom Restoration Act;
(2) a temporary restraining order and a preliminary and permanent injunction prohibiting TAPPS
and MISD and its officials, employees, agents and assigns and all those acting in concert with
them from conducting any semifinal basketball games on March 2 and 3, 2012, without
rescheduling games that, if played as scheduled, would burden the free exercise of religion of
any of the plaintiffs, and compelling TAPPS and MISD to honor the rights of Beren and its
opponents to schedule game times by mutual agreement in accordance with TAPPSs Bylaws
and rules; (3) an order awarding to the plaintiffs costs and attorneys fees pursuant to 42 U.S.C.
1988 and section 110.005(a)(4) of TEX. CIV. PRAC. & REM. CODE (2005), and (4) such other
and further relief as this Court deems appropriate.
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Respectfully submitted,

/s/ Richard A. Rohan
Tim Gavin
State Bar No. 07769800
tgavin@ccsb.com
Richard A. Rohan
State Bar No. 17203800
rrohan@ccsb.com
Alexander More
State Bar No. 24065789
amore@ccsb.com
Sara Apel
State Bar No. 24067488
sapel@ccsb.com
CARRINGTON, COLEMAN, SLOMAN &
BLUMENTHAL, L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
Telephone: (214) 855-3000
Facsimile: (214) 855-1333
Of Counsel:
Nathan Lewin
Alyza D. Lewin
Lewin & Lewin, LLP
1775 Eye Street, N.W., Suite 850
Washington, D.C. 20006
Telephone: 202-828-1000
Facsimile: 202-828-0909
Attorneys for Plaintiffs
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CERTIFICATE OF CONFERENCE
Due to the emergency nature of the relief sought in the form of a temporary restraining
order, the undersigned counsel was not required by the Local Rules to confer with Defendants
regarding the relief requested herein. To the extent that the joining of the application for a
preliminary injunction with the application for a temporary restraining order does call for a
certificate of conference, the undersigned will conduct a conference with Defendants upon
serving them with notice and copies of the instant filings, and promptly notify the Court if
Defendants do not oppose the requested preliminary injunction.
/s/ Richard A. Rohan



CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing instrument was served upon the
Defendants in this action via facsimile in accordance with Rule 5, Federal Rules of Civil
Procedure, on this 1st day of March, 2012. In an effort to provide Defendants with immediate
notice, the undersigned is also notifying the Defendants by telephone of the instant filings and
providing Defendants with copies via email.


/s/ Richard A. Rohan
i_4418684v.1

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