Commentary
Inside the First Amendment
By Charles C. Haynes
First Amendment Center senior scholar
Oregon Gov. Ted Kulongoski breathed new life into an old debate when he signed a law on July 16 protecting religious freedom for all workers — except for teachers in public schools.
Sikhs, Muslims, Jews, Seventh-day Adventists and adherents of other faiths are celebrating the Oregon Workplace Religious Freedom Act because it requires employers to make reasonable accommodations for workers who wear religious clothing or need to take holy days off.
But many of the same groups are bemoaning the failure of the law to include public school teachers, reaffirming a nearly century-old Oregon statute prohibiting teachers from wearing “sectarian clothing” in the classroom. Muslims, Sikhs and others who wear religious attire as an obligation of faith are effectively banned from teaching in Oregon’s public schools.
The Oregon law barring religious garb in schools dates to the anti-Catholic hysteria prevalent in 19th and early 20th century America. In 1922, the Ku Klux Klan and other nativist groups persuaded the Legislature to pass two laws aimed at Catholic schools and teachers — one requiring all Oregon students to attend public schools and the other banning sectarian garb (i.e., clothing worn by priests and nuns) in the classroom. The first was struck down by the U.S. Supreme Court in 1925, but the second has survived court challenges to this day.
Despite this unsavory history, defenders of the ban argue that the state’s compelling interest in maintaining religious neutrality in public schools trumps the religious-freedom claims of teachers. So far lower courts have agreed, ruling that prohibiting teachers from wearing religious dress is permissible under the First Amendment, but not required – thus leaving it up to the states to decide.
As a result, we have a crazy quilt of laws and policies across the country, with some states joining Oregon to prohibit religious attire by statute (Pennsylvania and Nebraska) and others with laws expressly allowing teachers to wear religious clothing (Tennessee and Arkansas). Elsewhere the policy depends on state constitutions, court decisions or local polices, with many school districts having no policy at all.
It’s worth noting that even in states that bar teachers from wearing religious garb, courts have ruled that such bans may not extend to modest religious jewelry, such as a small cross or Star of David. And even in states that allow religious dress, teachers may not wear clothes with proselytizing messages – a “Jesus Saves” T-shirt, for example.
Does a teacher wearing religious clothing convey to students school endorsement of religion? Where state law is silent on this question, most courts have said “no,” viewing the religious dress as merely an announcement that the wearer holds a particular religious belief. As one Kentucky court put it in the 1950s: “The garb does not teach. It is the woman who teaches.”
If and when state laws banning religious garb are challenged in the U.S. Supreme Court, it is doubtful whether they will survive given the Court’s retreat in recent years from strict separation of church and state under the First Amendment. At the same time, however, the high court may allow states to impose such laws under the very strong separation clauses in many state constitutions.
My own view is that laws and regulations barring teachers from wearing religious garb are unnecessary and outdated limitations on religious freedom. Do we really want to exclude millions of Americans from teaching in public schools solely because their faith requires them to wear a headscarf, yarmulke or turban?
Instead, why not let students in on the discussion. Explain that teachers are hired to be fair, objective educators — and what their faith may require them to wear in no way signals that the school is taking sides in religion.
Students, like the rest of us, see America’s exploding religious diversity everywhere they look these days. Surely they won’t be surprised — or assume state promotion of religion — if some of that diversity shows up in the classroom. If fact, they should be shocked and dismayed if it doesn’t.
Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected]
