Legal Commentary

Oregon Legislature About to Repeal Statute Barring Wearing of Religious Dress by Public School Teachers

By Eugene Volokh

[UPDATE: I originally erroneously reported that the Legislature had repealed the statute; it turns out that the repeal seems about to happen: Prof. Howard Friedman (Religion Clause) reports that, ?According to the Oregonian, yesterday by a vote of 21?9 Oregon?s state Senate approved House Bill 3686 repealing an 87-year old ban on teachers wearing religious dress in the classroom.... The state House of Representatives has already passed the bill, but it now goes back to the House because of two changes in wording made by the Senate.?]

The statute, the former Ore. Rev. Stat. § 342.650, provided

No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.

Though it facially discriminates against religious practices, it was nonetheless upheld against a Free Exercise Clause challenge, in Cooper v. Eugene School Dist. No. 4J (1986). I think it should have been struck down, and I?m glad it has been repealed. [UPDATE: Because some comments seem to miss this, I thought I?d stress it again: The law is presumptively unconstitutional because it discriminates against religious practices on the basis of their religiosity. If the law were religion-neutral, such as a uniform dress code for all teachers without regard to religion, then it would be judged under Title VII?s ?reasonable accommodation? standard, which gives employers ? private or governmental ? considerable though not unlimited flexibility to impose such restrictions, including on religious objectors.]

The common argument in favor of such a law is that it is necessary to prevent students from assuming that the school endorses religion (which might even give rise to an Establishment Clause, under modern Establishment Clause caselaw). But the law is not necessary to prevent such perceived endorsement, and should thus fail the strict scrutiny that should be applied to deliberate discrimination against religious practice.

The law is only necessary to prevent endorsement to the extent that the wearing of religious garb by a teacher will be seen by reasonable students as an endorsement of religion by the government. But a child who is old enough to realize that, say, a nun?s habit means that she?s a Catholic ? or a teacher?s turban means that he?s a Sikh ? will generally be old enough to recognize that people of many different religions may work at the same institution, and that the school?s willingness to hire a Catholic or a Sikh doesn?t mean that the school endorses Catholicism or Sikhism.

This would be especially true if the child sees other teachers who don?t wear such garments, which would just reinforce the fact that the garment is the teacher?s own choice, not the school?s. As a general matter, garments are not interpreted by viewers, even young viewers, as attempts to persuade people of the truth of one?s faith.

Moreover, even if the court concludes that some very young students may interpret a teacher?s religious garb as the school?s endorsement of religion, or may be subtly coerced by seeing this garb on an authority figure, the case for this becomes much weaker for older students, and especially for high school students. Surely by the time one becomes a teenager, one realizes that the school may employ overtly Catholic teachers, overtly Jewish teachers, and overtly Muslim teachers without endorsing one or another religion. So the law is certainly overinclusive at least to teachers of older students.

And even if younger students may falsely assume that the teacher?s religion is endorsed by the school, the school may fulfill its interest in avoiding endorsement by dispelling this misconception, either directly or through the parents. In America, the school can say, teachers and students belong to all sorts of religions, but their religions are their personal choices, not the school?s choice. The school neither endorses nor condemns any teacher?s religious belief, which is why some teachers wear some kinds of clothes and others wear other kinds. Even for young students, this is not a complicated lesson, and it?s likely a lesson that?s worth teaching. And teaching this lesson can be done without discriminating against religious practices, and without effectively excluding teachers who feel an obligation to wear religious garb.

I regret to say that the ACLU of Oregon opposed the repeal, arguing that ?[A]ny 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. Some repeal proponents recognize how complicated this issue is and that repealing the current prohibition, alone, would risk injecting additional controversy related to religion in our public schools. ACLU believes that without this law, existing constitutional protections and other statutes may not be adequate to protect the religious neutrality of public schools.?

But I don?t think that argument is correct, partly for the reasons given above, and partly because repealing the law would simply put Oregon on the same footing with nearly all the other states, which don?t ban schoolteachers? wearing of religious garb. Yet to my knowledge, the controversies in those states about supposedly ?inappropriate expansion of religious activity in our public schools? have not stemmed from those schools? toleration of teachers? religious garb ? precisely because we generally assume that schoolteachers wear clothing of their own choosing, which expresses their own cultural and religious views (without being aimed at converting others to those views), and which does not represent the views of the government. Even young children, I suspect, grasp that (again, especially because in most schools they see different teachers wearing different kinds of clothing). And if they don?t, they can be easily taught this, and can learn a valuable lesson in the process.

Thanks to Prof. Steve Green for the pointer.

Full post as published by The Volokh Conspiracy on February 23, 2010 (boomark / email).