Menora v. Illinois High School Association

Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982), is a case heard by the United States Court of Appeals for the Seventh Circuit centered on two Jewish schools seeking to play in an interscholastic basketball tournament run by the Illinois High School Association (IHSA). The IHSA would not let the schools compete unless their students removed their religious head-coverings, called kippot (sg. kippah). According to the IHSA, the kippot violated a rule against players wearing headgear on the court, but the students refused to play without them. They, along with their parents and schools, sued the IHSA in 1981, arguing that their First Amendment right of freedom of religion had been violated. The IHSA responded that the safety concern was reasonable because a kippah could fall off during play, causing injury. The Seventh Circuit held that no conflict would exist between the two parties if the schools designed a head-covering that was not a safety risk; the case was settled on remand to the district court in June 1983.

The Supreme Court's ruling in Sherbert v. Verner (1963) sets out a two-part test of government restrictions on religious freedom, known as the Sherbert test. Under the test, the restriction has to be justified by a compelling interest that outweighs the loss of religious freedom, and it has to preserve religious freedom as much as possible. The District Court for the Northern District of Illinois issued an injunction, allowing the students to play with kippot on while the case was ongoing. Months later, the district court issued its judgment in favor of the schools, citing the Sherbert test. Judge Milton Shadur found that the IHSA did not have a compelling interest because the IHSA could not provide any evidence that kippot had ever caused an injury.

The Seventh Circuit vacated the district court's ruling, forgoing the Sherbert test in favor of the false conflict doctrine – under this approach, the court rigorously defines the interests of the two parties, and in doing so, may find that little to no conflict actually exists between them. The court reasoned that if the schools could design a head-covering that met the IHSA's safety concerns, which the court felt were reasonable, the conflict would be resolved. The dissent argued that the district court had correctly interpreted Sherbert and that the ruling should not have put the burden of resolving the conflict on the schools. A settlement was reached in June 1983, allowing kippot to be worn when secured with contour clips.

Legal scholars criticized the Seventh Circuit's false conflict approach as unsupported by precedent, writing that if the Sherbert test were properly applied, the court would have put the burden on the IHSA to uphold safety without infringing on religious freedom, not the schools. American Jewish communities largely took it as a victory that the students were allowed to play with kippot on. The Supreme Court's later ruling in Employment Division v. Smith (1990) limited the reach of the Sherbert test, possibly making it inapplicable to cases like Menora.