Nate is an advanced doctoral student at 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?

Introduction

            Before stepping onto school grounds, should public teachers who identify as Christians bury their cross necklaces in their shirts? Should educators who practice Islam, Judaism, Hinduism, and Sikhism leave their head coverings at the schoolhouse gate? To some the answer is unabashedly, “Yes – it is a compelling state interest to avoid religious endorsement in public schools by regulating teachers’ dress so that students do not perceive the state as endorsing religion and that students are protected from possible religious coercion.” Others respond with an impassioned, “No – although limited, teachers do not entirely give up their constitutional rights to free speech and free exercise of religion when becoming employees of the state. It is unlawful to discriminate based on religious practice and unpatriotic to teach students that the United States is hostile to religion.”

            I designed this dissertation to explore whether regulating the religious expression of public school teachers is in fact “hostile” or whether it is a reasonable way for policymakers to prevent the perception of a sectarian public school. 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.

I. a. Historical Debates

          The historical debates about teachers’ religious garb remain unresolved today.[1] In 1894 the Pennsylvania Supreme Court upheld the First Amendment rights of a Catholic nun to wear a habit in the public classroom.[2] 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. [3]

          Fifteen years later the garb statute was challenged;[4] however, the Pennsylvania Supreme Court held that the statute did not violate the Due Process Clause of the United States Constitution or the titles and freedom of conscience provisions of the state constitution. 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.[5] Today, it remains one of three states with anti-garb laws, along with Nebraska and North Dakota (Table 1).

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.”

• North Dakota: The North Dakota Cent Code §§ 15-47-29 to -30 (1981) states, “No teacher in North Dakota public schools shall wear any dress or garb indicating that such teacher is a member of any religious order; any teacher who does so shall have his or her certificate suspended for one year upon the first violation and permanently revoked upon second violation.”

• 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.”

            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,[6] whereas the courts in Nebraska, New Mexico and New York did not.[7] My intention is to use the full dissertation to explore the historical rationales used by these courts in the context of the current discourse.

I. b. Contemporary Debates

            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 courts upheld the dismissal of Sikh[8] and Muslim[9] teachers for wearing head coverings.[10] On the contrary, in 2003 a District Court for Western Pennsylvania overturned the decision to dismiss a teacher’s aid for wearing a cross necklace.[11] Interestingly, last year the Oregon Legislative Assembly repealed their 87-year-old ban on religious garb in public classrooms (Table 2), whereas Arkansas and Tennessee recently enacted statutes that permit public school teachers to wear religious garb[12] (Table 3). 

Table 2. Oregon first enacted then repealed a religious garb law.

• Oregon: The Oregon rev. statute enacted in 1923 and revised in 1965 and 1989 §§ 342.650, .655, stated, “Any teacher who wears religious dress while teaching in an Oregon public school shall be suspended from employment. Any teacher violating the[se] provisions shall be suspended from employment by the district school board. The board shall report its action to the Superintendent of Public Instruction who shall revoke the teacher’s teaching certificate.” In 2010, House Bill 3686 “repeal[ed] provisions prohibiting teacher in public school from wearing religious dress while engaged in duties as teacher and sanctioning teacher for doing so” (ORS 659A.033). 

Table 3. States permitting public school teachers to wear religious garb.

• Arkansas: Arkansas’ law states, “No person shall be prohibited from teaching in state institutions of higher learning for the reason that the person wears the clothing of any established and recognized religion while teaching.” (Authority for teachers to wear religious clothing, Arkansas Code Title 6, Education Subtitle 5, Postsecondary And Higher Education Generally Chapter 63, Employees of State Institutions Subchapter 1, General Provisions § 6-63-101.) Acts 1973, No. 196, § 1; A.S.A. 1947, § 80-1261.

• Tennessee: The Tennessee School Employee Religious Liberty Act of 1999 allows school employees to voluntarily “wear religious garb or jewelry that does not disrupt the school environment.” It also states, in section 49-6-9002(a)(4) “Neutrality to religion does not require hostility to religion. The establishment clause does not prohibit reasonable accommodation of religion, nor does the clause bar appropriate teaching about religion…” It goes on to permit school employees to voluntarily “read a religious book during non-instructional time; quietly say grace before a meal; and meet with other school employees for prayer or scriptural study before or after school or during the employee’s lunch” (49-6-8004.b.1, 2, 4).

          To this day, the state laws vary and the case law remains contradictory – a ripe problem for the U.S. Supreme Court to address some day. Until then, public officials are required to juggle four compelling, yet competing, state interests for public school teachers: free exercise of religion, non-establishment of religion, free speech,[13] and non-discrimination.

          The First Amendment of the U.S. Constitution reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the [right to] freedom of speech…” Proponents of anti-garb statutes intend to prevent the perception that public schools endorse or seek to establish a state religion. Critics argue that religious garb is a form of symbolic speech, which is dually protected by the free exercise and free speech clauses. Moreover, critics of anti-garb laws point to Title VII of the Civil Rights Act of 1964, [14] which prevents publicly-funded employers from discriminating based on an employee’s religious observance or practice.

Notes