Academic

My criticism the ACLU of Oregon's stance on religious freedom for teachers

By Tung Yin

The Oregonian is running my op-ed, which criticizes the ACLU of Oregon's stance on religious freedom for public schoolteachers.  Here's the full text:

Should public schoolteachers be allowed to wear religious garbs such as head scarves and turbans while teaching? Right now, Oregon law says no, but the Legislature is considering House Bill 3686, which would repeal that prohibition. 

Those who would benefit from the passage of this bill include Muslim women and Orthodox Jewish men, among others. Letting such persons satisfy the dictates of their religions is consistent with the spirit of the First Amendment, which states in part that the government "shall make no law . . . prohibiting the free exercise" of religion. 

Yet, the American Civil Liberties Union of Oregon is on record as opposing House Bill 3686, which has passed the House and is pending in the Senate. According to the ACLU, "[p]ublic schools have a special obligation to ensure an atmosphere that is welcoming to all students and their families regardless of their religious beliefs." Few reasonable people would disagree with that statement. The more challenging task is to demonstrate how a rule that lets female Muslim teachers wear headscarves while teaching would create an unwelcoming atmosphere for non-Muslim students and their families. 

The ACLU has thus argued that "any change or repeal of the Oregon religious dress law may have unintended consequences that could result in an inappropriate expansion of religious activity in our public schools." I'm not exactly sure what the ACLU means by "inappropriate expansion of religious activity"; if the point is that public school teachers should not be allowed to proselytize to their students, then the ACLU would be on strong ground, for that is the point of the First Amendment's Establishment Clause.

But House Bill 3686 does not permit teachers to do anything of the sort. It merely lets them wear religious garb when teaching. So the ACLU's opposition appears rooted in the speculative notion that if schoolchildren see their teachers wearing headscarves or turbans, they will somehow perceive that the teachers are proselytizing to them, even if the teachers say nothing about religion in class. 

I suppose that's possible, although it would be instructive to look at the 47 other states that do not have this ban on the wearing of religious garb by teachers to see if those states have experienced this kind of indirect proselytization. The point is that whether this hypothesized harm will actually befall children is speculative and diffuse; even if it did happen, parents would likely mobilize and protest. On the other hand, the harm of the current ban is direct and individual, and it is concentrated on a small number of persons who are forbidden from complying with their religions during their working hours. 

What is especially strange about the ACLU's position is that traditionally, the ACLU has often defended the civil rights of the minority against the majority, the disfavored and powerless against society. Whatever the original reasons for the ban on religious garb for teachers, the law today impacts such minority religious adherents as Muslims (approximately 0.5% of Oregon's population). 

One need not agree with all of the ACLU's cases or positions to admire its underlying principles ? but in this instance, its position seems to contradict those underlying principles. 

Tung Yin is Professor of Law at Lewis & Clark Law School. 

Full post as published by The Yin Blog on February 22, 2010 (boomark / email).