Let’s review: In February of this year, officials at Friends Central School in Philadelphia abruptly canceled a speaking engagement by a Palestinian Quaker peace studies professor, then suspended and later fired the two teachers who had planned the visit. Much public controversy ensued.

In May, the two former teachers filed a federal civil rights lawsuit, alleging discrimination and retaliation by Friends Central.

Earlier posts on the Friends Central School controversy are:

 here,  here,  here , here & here.

Early last month, Friends Central’s attorneys filed a motion to dismiss the lawsuit, on the grounds that the two teachers had “failed to state a valid claim,” and that allowing the lawsuit to proceed would see the court  become “entangled” in a religious dispute, which is prohibited by the First Amendment to the Constitution.

On July 31, the teachers’ attorney, Mark Schwartz, filed his response. Prosaically titled, “PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS COMPLAINT,” it asserted that to the contrary, the teachers’ complaint did state valid claims, further that pursuing it would not require any impermissible meddling in religious doctrines, and that the motion to dismiss should be denied and the case be moved to its next phase, which is discovery of documents and other background, in preparation for a trial.

I’m advised that the court could take months to act on the motion to dismiss; so those who are following the case should not hold their breath.

Nevertheless, to update our coverage, here are some key excerpts from the plaintiffs’ July 31 memo.

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’  MOTION TO DISMISS COMPLAINT
Filed: July 31, 2018 [Note: Full text here.]

“At first blush, this matter deals simply with a motion to dismiss a civil rights case with pendent claims as Defendants claim protection under the Establishment Clause of the First Amendment to the U.S Constitution. However, the attack amounts to something much more, something dangerously precedent-setting were it to be approved, namely that a private school and those affiliated with it are exempt from the reach of Federal and State Civil Rights Acts. This is all despite Friends Central’s professed adherence to notions of responsibility, equality and diversity. When the rubber meets the road, these Defendants are insisting that they are untouchable and above it all.

However, Defendants fail any applicable test.  In no way do Plaintiffs’ claims require inquiry into religious tenets of Quakerism. Plaintiffs do not make any claims or counts based therein. Rather, Plaintiffs Complaint references guidelines and policies set forth by the school so as to depict the environment in which Plaintiffs worked and to justify their adherence to those guidelines and policies. . . .

Should this Court accept Defendants’ arguments, then there is nothing to keep any purportedly religious school from claiming immunity from the Civil Rights laws, or any other laws for that matter, taking us back to the dark ages in American jurisprudence. . . .

Defendants cherry pick portions of the Complaint, then editorialize and mischaracterize it. Defendants impermissibly argue facts. For example, despite the Complaint’s clear words, Defendants claim that Plaintiffs ‘refused to heed their supervisors.’ The Complaint, is devoid of such assertions or admissions. . . .

Defendants’ claims are simply astounding; i.e., that ‘Plaintiffs set forth no facts reflecting a hostile work environment, merely repeating that they were disciplined for their failure to comply with their supervisors’ directives regarding reactions to and measures for discussion of the proposed outside speaker.’ This merely reflects their alternate statement of facts and their deliberately ignoring what Plaintiffs have clearly set forth as a “hostile” environment. . . .

Defendants make the extraordinary argument that they are immune from suit, claiming that this Court lacks jurisdiction over them. . . . “

Schwartz agrees that

“. . . the Complaint . . . refers to basic Quaker tenets as espoused by a purportedly Quaker-related institution.” But, he insists, “Doing so does not require the Court to interpret questions of Quaker scripture, doctrine, or canon. There is no mystery here. There are no Quaker hierarchy issues or sect competitions characteristic of Establishment Clause cases. Rather the Complaint sought simply to depict the nature of the environment espoused and Plaintiffs’ adherence to those simple tenets.

[FCS] Defendants do not point to a single Quaker tenet that would have to be researched and adjudicated by the Court. Instead they simply re-reference the background described by Plaintiffs. Defendants fail to point out any specific problems that would require this Court to divest itself of its clear jurisdiction. They simply make a naked assertion which would exempt Defendants from the reach of civil rights statutes and a host of other statutes, all of which are neutral on their face and application.’

Schwartz notes that the Defendants’ memo copiously cites other cases and decisions, state and federal, to back up their call for dismissal. But he insists that many of these, when closely examined, backfire:

“Defendants cite cases for broad propositions without regard to the actual facts thereof or the procedural context. One must question whether the cases were even read. Many of the cases cited actually support Plaintiffs position. Defendants’ overwhelming reliance upon cases at the summary judgment stage or later, amounts to an admission that discovery should proceed in this case and indeed it should as there is no basis for any of Plaintiffs’ counts to be dismissed. . . . “

Two  examples will suffice here:

In one, Schwartz points to a PA Supreme Court decision in a church-related case, cited by the school but which he insists supports the teachers’ complaint: “’All disputes among members of a  congregation, however, are not doctrinal disputes,” wrote the court. “Some are simply disputes as to meaning of agreements on wills, trusts, contracts, and property ownership. These disputes are questions of civil law and are not predicated on any religious doctrine.’”

The school also cited a case in Massachusetts, but Schwartz finds support for his case there too: “The [Massachusetts] court stated that ‘Both this court and the United States Supreme Court have recognized that the concept of the free exercise of religion involves both belief and activity, and, while the freedom to believe particular religious principles is absolute and may not lawfully be infringed, the freedom to act in response to religious beliefs does not enjoy the same immunity.’”

Schwartz tracks methodically through page after page of additional case citations, finding most irrelevant (or “inapposite”), and more than a few in fact supportive of his clients rather than the school. We won’t follow him through all these, as many involve legal points well beyond my pay grade.

Schwartz skewers the Friends Central leadership in his close, quoting from the school’s website:

“‘…Our pedagogy is grounded in continuing revelation, reflection, integrity, and a willingness to accept responsibility.’

Under the heading ‘A Quaker History of Inclusivity and Diversity’ FCS states the following:

‘When Friends’ Central School was founded in 1845, it was a time of great division among Quakers. Our school was founded to include and serve all Quakers and was, by design, co-educational and open to non-Friends’ from the day it opened. This interest in inclusivity continues today as Friends’ Central strives for racial, religious and socio­- economic diversity in its student body and among its faculty.

We are committed to building and maintaining an inclusive and diverse community. All constituencies-faculty, staff, students, administrators, parents, trustees, and alumni/ae- are responsible for an awareness of and ongoing dialogue around equity issues of race and ethnicity, gender, sexual orientation, privilege, religion, physical ability, and family structure, as well as for enhancing the Philosophy  of Inclusivity and Awareness articulated in our Diversity Statement.'”

Schwartz continues:

“It is sadly ironic that Defendants profess to accept responsibility, but by their motion hypocritically claim immunity from responsibility under the law. Quite clearly, Plaintiffs ‘ reference to these and other statements do not lead us into a morass of entanglement with religion. Rather, Plaintiffs references provide the Court with insight into the environment in which Plaintiffs worked and how they were led to believe they should act. No consideration of their lawsuit occasions delving into religious doctrine. Rather this lawsuit and its claims prompt a jury to ultimately deciding whether statutory and common law were breached.”

It  may be months before we learn whether Schwartz and the teachers will fend off a dismissal and get the chance to pursue their case further. Stay tuned.