Turtle Talk

If anyone is intersted in working on or joining a brief focusing on the American Indian community’s interest in this case, please contact Fleming Terrell at FTerrell@aclutx.org<mailto:FTerrell@aclutx.org> or (512) 478-7300 ext. 128.

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The American Civil Liberties Union (ACLU) of Texas and the national ACLU Program on Freedom of Religion and Belief are seeking amicus support in defending against an Fifth Circuit appeal that threatens the fundamental freedoms of religious practice and expression for Texas schoolchildren, particularly those of American Indian descent.  The case is Needville Indep. Sch. Dist. v. Arocha, No. 09-20091 (5th Cir.), on appeal from A.A. et al. v. Needville Indep. Sch. Dist., No. H-08-2934 (S.D.Tx. Jan. 20, 2008).

We represent a five-year-old American Indian boy who was severely punished for practicing and expressing his family’s religious beliefs and heritage by attending kindergarten with his hair in two long braids.  The boy has been raised according to his father’s belief that one’s hair should only be cut for life-changing occasions, such as the death of a loved one, and that their long hair is a sacred symbol of their own lives.  (Though not members at the time the litigation was initiated, the boy and his father are both now members of the Lipan Apache tribe.)  When his family prepared to move into the Needville Independent School District (NISD), they sought a religious exemption from the NISD dress code requiring boys to have short hair.  After months of procedural delay, NISD purported to grant the boy a religious “exemption” from cutting his hair, instead requiring him to wear his hair in a single, tightly-woven braid stuffed down the back of his shirt at all times on school property and school trips.  When the boy declined to follow this degrading and uncomfortable requirement, he was placed in In-School Suspension, the harshest punishment available for a child of his age.

The ACLU filed suit in the Southern District of Texas, arguing that NISD’s punitive policy violated the boy’s rights to freely exercise his religion and to free expression under the First and Fourteenth Amendments and Texas’ Religious Freedom Restoration Act, Tex. Civ. Prac. & Rem. Code § 110.001 et seq., and his parents’ right to direct his education and religious upbringing under the First and Fourteenth Amendment.  U.S. District Judge Keith Ellison granted a TRO returning the boy to his ordinary class on October 3, 2008.   After two preliminary injunction hearings, the case was submitted for final decision on the merits and on January 20, 2008, Judge Ellison issued an order granting in part Plaintiffs’ requested injunctive relief.  The decision upheld all of Plaintiffs’ challenges to NISD’s requirement that the boy keep his hair in a single braid stuffed down his shirt at all times, and permanently enjoined NISD from applying that portion of its policy to him in the future.  Judge Ellison found that Plaintiffs had established their sincerely held religious belief, and agreed that NISD’s punitive policy served no legitimate school purpose sufficient to justify the substantial burden it placed on the boy’s religious exercise, the restriction it placed on the boy’s free expression, nor the burden it place don his parents’ right to direct his religious upbringing.

NISD filed a notice of appeal to the Fifth Circuit on February 10, 2009, and its opening brief on April 27th, challenging all grounds for Judge Ellison’s decision.  Currently, the ACLU’s brief should be due by approximately May 27th, and amicus briefs in support by June 5th.

Fleming Terrell
Staff Attorney
ACLU Foundation of Texas
611 Congress Ave., Suite 320
Austin, TX 78704
Tel. 512-478-7300 x 128
Fax. 512-478-7303
http://www.aclutx.org&lt;http://www.aclutx.org/&gt;