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U.S. v. BD. OF EDUC. OF SCHOOL D. OF PHILADELPHIA

Nos. 89-1694, 89-1740.

911 F.2d 882 (1990)

UNITED STATES of America, Appellant in No. 89-1694, v. BOARD OF EDUCATION FOR the SCHOOL DISTRICT OF PHILADELPHIA; and Commonwealth of Pennsylvania. UNITED STATES of America v. BOARD OF EDUCATION FOR the SCHOOL DISTRICT OF PHILADELPHIA; and Commonwealth of Pennsylvania. Appeal of BOARD OF EDUCATION FOR the SCHOOL DISTRICT OF PHILADELPHIA.

United States Court of Appeals, Third Circuit.

Decided August 9, 1990.

Rehearing and Rehearing Denied September 12, 1990.

Attorney(s) appearing for the Case

Michael Baylson, U.S. Atty., James P. Turner, Acting Asst. Atty. Gen., Jessica Dunsay Silver (argued), Linda F. Thome, Attys., Civil Rights Div., Dept. of Justice, Washington, D.C., for U.S.

Ernest D. Preate, Jr., Atty. Gen., Susan J. Forney, Calvin R. Koons, Sr. Deputy Attys. Gen., John G. Knorr, III (argued), Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for the Com. of Pa.

Sally Akan, Robert T. Lear (argued), School Dist. of Philadelphia, Office of General Counsel, Philadelphia, Pa., for Bd. of Educ. for the School Dist. of Philadelphia.

Amy Adelson, Marc D. Stern, Lois C. Waldman, Jeremy S. Garber, American Jewish Congress, New York City, for American Jewish Congress as amicus curiae.

Robert W. Nixon, Walter E. Carson, Silver Spring, Md., Rolland Truman, Long Beach, Cal., Harold Lance, Ontario, Cal., Lee Boothby, Boothby, Ziprick & Yingst, Berrien Springs, Mich., for Council on Religious Freedom and Americans United for Separation of Church and State as amici curiae.

Before STAPLETON and MANSMANN, Circuit Judges, and ACKERMAN, District Judge.

Rehearing and Rehearing In Banc Denied September 12, 1990.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this case the United States uses Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to advance what would more commonly be a free exercise clause challenge (1) the refusal of the defendant Board of Education for the School District of Philadelphia ("Board") to allow a public school teacher to wear religious attire...

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