In the United States District Court for the Eastern District of Oklahoma
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA EYVINE HEARN and NASHALA ) HEARN, a minor, suing through her ) next friend, EYVINE HEARN, ) ) Plaintiffs, ) ) UNITED STATES OF AMERICA, ) ) Plaintiff-Intervenor, ) C.A. No.: CIV 03-598-S ) v. ) ) MUSKOGEE PUBLIC SCHOOL ) DISTRICT 020; et al., ) ) Defendants. ) ____________________________________) UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT At issue in this case is whether a school district can bar a Muslim student from wearing a religious headscarf, known as a hijab, under the district’s dress code. As a matter of equal protection, free exercise of religion, and free speech, the school district cannot do so because the undisputed facts show: (1) the dress code is not a generally applicable policy, and the district has reserved for itself the right to make exceptions to the dress code on a case-by-case basis, and in fact has permitted other students to wear head coverings for various non-religious reasons; (2) Nashala has worn her hijab throughout the 2003-2004 school year without any material disruption; (3) the district permitted Nashala to wear her hijab until September 11, 2003; and (4) the district permits non-Muslim students to wear religious clothing and accessories. Thus, the United States moves for summary judgment on its Fourteenth Amendment claim, and opposes Defendants’ motion for summary judgment. STATEMENT OF UNDISPUTED FACTS1 The Parties 1. Defendant Muskogee Public School District, Independent School District No. I-20 of Muskogee County, Oklahoma (“district”), is a public school district created and existing under the laws of the State of Oklahoma. (Defs.’ Mot. for Summ. J. ¶ 1 [hereinafter Defs. Br.]; Defs.’ Answer ¶ 2.3 (Nov. 24, 2003); Pls.’ 1st Am. Compl. ¶ 2.3.) 2. Individual defendants are administrators employed by the district and are sued in their official capacities. (Pls.’ 1st Am. Compl. ¶¶ 2.4-2.6; Defs.’ Answer ¶¶ 2.4-2.5.) 3. Plaintiff Nashala Hearn is a sixth grade student at Benjamin Franklin Science Academy (“Franklin”) in the district. (Pls.’ 1st Am. Compl. ¶ 2.2.) 4. Plaintiff Eyvine Hearn is Nashala’s father. (Id.) 5. The United States is a plaintiff-intervenor. (Minute Order (Apr. 12, 2004).) Defendants’ Dress Code Policy 6. The district has adopted a dress code policy for Franklin and other elementary schools which states, in relevant part, “[s]tudents shall not wear . hats, caps, bandannas, plastic caps, or hoods on jackets inside the building . .” (Defs. Br., Ex. A at 4.) 7. The dress code does not state that hijabs are prohibited. (Id.) 8. The dress code does not provide for exceptions for religious garb. (Id.) 9. The purposes of the dress code are to preserve safety and discipline at the school and to maintain the school as a “religion-free zone.” (Defs. Br. at Ex. A ¶ 6, Ex. B ¶¶ 8-9, Ex. C ¶ 12; Gleichman Dep. 67:22-70:21, 76:16-77:25 (Ex. 2); Pls.’ Response to Defs.’ Mot. for Summ. J., 1 The United States’ Response to Defendants’ Statement of Undisputed Material Facts is attached as Exhibit 1. 2 Cross Mot. for Summ. J., and Br. in Supp. at Ex. A ¶ 12 [hereinafter E. Hearn Aff.], Ex. B ¶ 6 [hereinafter N. Hearn Aff.].) 10. The district’s dress code gives principals discretion to interpret particular provisions and to make exceptions for students on a case-by-case basis. (Hallum Dep. 53:8-54:8 (Ex. 3).) 11. The district has in the past granted, and would grant in the future, exceptions to the dress code for head coverings for students with medical problems resulting in hair loss, in recognition that such students may want to do so to deflect attention away from themselves. (Letter from Hayes to Kassabian of 12/9/03, at 2 [hereinafter Hayes Ltr.]2 (Ex. 4); Gleichman Dep. 60:20- 61:13; (Defs. Br. at 19).) 12. The district reserves the right to make exceptions to the policy in order to respond to exigencies that arise from time to time. (Defs. Br. at 19.) 13. The district has granted exceptions to the dress code for costumes worn during school plays held in school buildings. (Gleichman Dep. 59:15-60:19; Hallum Dep. 31:18-32:2.) 14. The district has granted exceptions to the dress code to permit students to wear “Cat in the Hat” hats in school buildings on Dr. Seuss’s birthday during Read Across America Week. (Hallum Dep. 32:3-32:11; Gleichman Dep. 59:18-60:19.) 15. The district has permitted students to wear hats in school buildings during “hat days” in support of programs such as the “Put a Cap on Drugs” Program. (Hayes Ltr. ¶ 3.) 16. The district has permitted students to wear head coverings on Halloween. (Gleichman Dep. 61:14-61:22.) Nashala’s Religious Practice 2 The Hayes Letter also is attached as Exhibit A to Defendants’ Response to the United States’ Motion to Intervene and Memorandum of Law in Support of that Motion to Intervene. 3 17. Nashala is an adherent of the Islamic faith. (N. Hearn Aff. ¶¶ 1, 3; E. Hearn Aff. ¶ 3.) She converted to Islam during the summer of 2002. (E. Hearn Aff. ¶ 3.) 18. Adherents of the Islamic faith, known as Muslims, share a belief in Allah as the sole deity and in Muhammad as his prophet. (E. Hearn Aff. ¶ 3; Merriam-Webster’s Collegiate Dictionary 620-21 (10th ed. 1993).) 19. As a demonstration of modesty and respect for Allah, Muslim girls and women wear head coverings called “hijabs,” particularly when in public. (N. Hearn Aff. ¶¶ 1, 2; E. Hearn Aff. ¶¶ 3, 4; The Institute of Islamic Information and Education, The Question of Hijab: Suppression or Liberation?, at www.iiie.net/Brochures/Brochure-23.html [hereinafter “III&E website”]3 (Ex. 5).) 20. Muslim women wear hijabs in a variety of styles and colors. (N. Hearn Aff. ¶¶ 9, 12; E. Hearn Aff. ¶ 9; The Seattle Times, Interpreting Veils, (2001), at http://seattletimes.nwsource.com/news/nation-world/crisis/theregion/veils.html (Ex. 6).) 21. In June 2003, Nashala began wearing a hijab as part of her Muslim faith. (E. Hearn Aff. ¶ 3.) 3 “[A] district court may utilize the doctrines underlying judicial notice in hearing a motion for summary judgment substantially as they would be utilized at trial. Thus, a court may consider stipulations, concessions of counsel, transcripts, exhibits and other papers . .” St. Louis Baptist Temple v. FDIC, 605 F.2d 1169, 1171-72 (10th Cir. 1979) (citations omitted). The Court may also take judicial notice of information in the public record. See, e.g., Laborers’ Pension Fund v. Blackmore Sewer Constr., 298 F.3d 600, 607-08 (7th Cir. 2002) (taking judicial notice of website); Ieradi v. Mylan Labs., 230 F.3d 594, 598 n.2 (3d Cir. 2000) (taking judicial notice of newspaper article). 4 22. Nashala has worn a hijab every day that she has been permitted to attend Franklin. (N. Hearn Aff. ¶ 7.) 23. At all times while attending Franklin, Nashala has worn a hijab that leaves her face visible. (N. Hearn Aff. ¶ 6; E. Hearn Aff. ¶ 4.) The District’s Reaction to Nashala’s Hijab 24. In August 2003, Eyvine Hearn advised Diane Walker, Nashala’s home room teacher, that Nashala was a Muslim and would wear a hijab in school. (Defs. Br. at Ex. E ¶ 2.) 25. Walker informed Mr. Hearn that Nashala would be permitted to wear a hijab during school. (Id.) 26. Principal Hallum, although aware that Nashala was wearing a hijab to school, did not ask Nashala to remove it or advise her that she was violating the district’s dress code. (Hallum Dep. 8:5-8:18, 38:1-38:22; Hayes Ltr. at 015.) 27. From August 18, 2003 to September 10, 2003, Nashala wore a hijab to Franklin, without incident and with full knowledge of her teacher and principal. (E. Hearn Aff. ¶ 7; Hayes Ltr. at 015 (“The first two headdresses [Nashala] wore did not [create a disruption].”).) 28. On September 11, 2003, the second anniversary of the 2001 terrorist attacks, Walker and another teacher were discussing the attacks and spotted Nashala wearing her hijab. (Hayes Ltr. at 014.) 29. Walker approached Nashala and told her that she should not be wearing a hijab and sent her to Hallum’s office. (N. Hearn Aff. ¶ 10.) 30. During that meeting, Hallum informed Nashala for the first time that her hijab was prohibited by the school dress code. (Defs. Br. at 4; N. Hearn Aff. ¶ 11.) 5 31. On September 29, 2003, Superintendent Gleichman informed the Hearns that, pursuant to the district’s dress code, Nashala would no longer be permitted to wear a hijab at school. (Defs. Br. at 5.) 32. Nashala declined to remove her hijab, and as a result, on or about October 1, 2003, the district suspended Nashala for three days. (Defs. Br. at 5; N. Hearn Aff. ¶ 14; E. Hearn Aff. ¶ 13.) 33. When Nashala returned to Franklin, she again wore her hijab. As a result, on or about October 7, 2003, the district suspended Nashala for five days. (Defs. Br. at 5; N. Hearn Aff. ¶ 15; E. Hearn Aff. ¶ 15.) 34. Prior to each of these suspensions, Nashala’s father informed Hallum that Nashala’s wearing of the hijab was a requirement of her religious beliefs. (Pls.’ 1st Am. Compl. ¶ 3.11.) 35. On October 15, 2003, the district and the Hearns reached an interim agreement, which allowed Nashala to return to school wearing her hijab until a determination could be made as to the constitutionality of the district’s dress code.