Unveiling Freedom

Bans on Religious Garb in the United States

By Nathan C. Walker

Nate is currently a Resident Fellow at Harvard Divinity School where he studies legal restrictions on religious expression in the United States. He is also a doctoral candidate at Teachers College Columbia University in an interdisciplinary program of Law, Education & Religion. His dissertation, excerpted below, asks the question, should public school teachers leave their religious garb at the schoolhouse gate?

Abstract

          Before stepping onto the grounds of U.S. public schools, should teachers who identify as Christians bury their cross necklaces inside their shirts? Should educators who practice Islam, Judaism, Hinduism, and Sikhism leave their head coverings at the schoolhouse gate? Different worldviews will result in different responses; however, most can agree that the issue of public school teachers’ religious expression derives from the inexorable tension between the free exercise and establishment clauses of the First Amendment. History reveals that this tension is not easily alleviated.

          In 1894, the Pennsylvania Supreme Court upheld the rights of a Catholic nun to wear a habit in the public classroom. Specifically, the Court held that the garb-wearing Catholic nuns teaching in public schools did not constitute sectarian teaching unless the nuns explicitly conveyed religious instruction during school hours. In response to this unpopular ruling, the Pennsylvania General Assembly enacted a religious garb statute prohibiting public school teachers from wearing “any dress, mark, emblem or insignia indicating… that such teacher is a member or adherent of any religious order, sect or denomination” and providing criminal penalties for any public school administrator who fails to suspend or terminate the offending teacher after notice of a violation. Fifteen years later, the garb statute was challenged but this time the Pennsylvania Supreme Court upheld the ban. The anti-garb statute was then reenacted in 1949, updated in 1982, and remains in effect today.

          By the end of World War II, Pennsylvania was one of thirty-six states to legally ban teachers’ religious clothing. From 1906 to 1965, in states where no garb statutes existed at the time, the courts in Connecticut, Indiana, Iowa, Kentucky, North Dakota, and Ohio all permitted Catholic teachers to wear habits, whereas the courts in Nebraska, New Mexico, and New York did not. More recent rulings on teachers’ religious garb are equally inconsistent in their application of constitutional law. For instance, in 1986, the Third Circuit and in 1992, the Oregon State Supreme Court upheld the dismissal of Muslim and Sikh teachers for wearing head coverings. However, in 2003, a District Court for Western Pennsylvania overturned the decision to dismiss a teacher’s aid for wearing a cross necklace because the aid did not meet the statutory definition of a full-time teacher, therefore, the ban remained in effect. In 2010, the Oregon Legislative Assembly repealed its 87-year-old ban on teachers’ religious garb, whereas Arkansas and Tennessee recently enacted statutes that explicitly permit, and some read as encourage, teachers to wear religious garb in the public classroom.

          To date, Pennsylvania and Nebraska are the last remaining states with legal bans on religious garb. This paper explores whether these bans are consistent with federal and state laws that protect one’s free exercise of religion.

Table 1. States prohibiting public school teachers from wearing religious garb.

• Nebraska: The Nebraska Statute § 79-1274 (1987) states, “Any teacher wearing religious dress or garb in any Nebraska public school shall be guilty of a misdemeanor and fined up to $100 and/or jailed for up to 30 days.”

• Pennsylvania: The Pennsylvania Statute 24, § 11-1112 (1982) reads: “(a) That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect, or denomination. (b) Any teacher... who violates the provisions of this section shall be suspended from employment in such school for the term of one year, and in case of a second offense by the same teacher he shall be permanently disqualified from teaching in said school. Any public school director who after notice of any such violation fails to comply with the provisions of this section shall be guilty of a misdemeanor, and upon conviction of the first offense, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), and on conviction of a second offense, the offending school director shall be sentenced to pay a fine not exceeding one hundred dollars and shall be deprived of his office as a public school director.”