0 L
Nos. 89-1694, 89-1740 f`
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant/Cross-Appellee
V.
BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF PHILADELPHIA,
Defendant-Appellee/Cross-Appellant and COMMONWEALTH OF PENNSYLVANIA,
Defendant-Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA R
it BRIEF FOR THE UNITED STATES AS APPELLANT
MICHAEL BAYLSON JAMES P. TURNER United States Attorney Acting Assistant Attorney General
JESSICA DUNSAY SILVER LINDA F. THOME Attorneys Civil Rights Division Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 633-4706
I
0 TABLE OF CONTENTS
PAGE
STATEMENTOF JURISDICTION ...... 1 STATEMENTOF ISSSUES •...•.•.•...... 2 STATEMENTOF THE CASE ...... 2 STATEMENTOF FACTS ...... 6
A. Section 11-1112 ...... 6
B. The Board s Observance and Enforcement of Section 11-1112 ...... 7 1. Alima Reardon ...... 7
2. Other Enforcement of Section 11-1112 by the Board ...... 9
C. The Commonwealth s Observance and Enforcement of Section 11-1112 ...... 11 D. The Effect of Religious Garb and Symbols in the Classroom ...... 14
STATEMENT OF RELATED CASES AND PROCEEDINGS ...... 16 STATEMENT OF THE STANDARD OF REVIEW ...... 16 ARGUMENT:
I. THE COMMONWEALTH WAS SUBJECT TO LIABILITY BECAUSE OF THE APPLICATION OF THE GARB STATUTE TO REARDON AND OTHER EMPLOYEES OF LOCAL SCHOOL DISTRICTSAND PRRIs ...... 17 II. THE BOARD AND THE COMMONWEALTH ENGAGED IN A PATTERN OR PRACTICE OFDISCRIMINATION ...... 22 III. THE COMMONWEALTH SHOULD BE ENJOINED FROM ENFORCING SECTION 11-1112 OF THE PUBLIC SCHOOL CODE AND REQUIRED TO GIVE NOTICE THAT IT IS CONTRARY TO TITLE VII AND UNENFORCEABLE ...... 27 CONCLUSION...... 29 ADDENDUM: Memorandum of Decision Order of 5/17/89
-i- TABLE OF AUTHORITIES
CASES: PAGE
Chartiers Valley 3t. Schools V. County Bd. of School Directors. Allegheny County., 211 A.2d 487, 418 Pa. 520 (1965) ...... 11
Curran v. Portland Superintendin g School Committee , 435 F. Supp. 1063 (D. Me. 1977) ...... 20
Darks v. City of Cincinnati, 745 F.2d 1040 (6th Cir. 1984) •...... 21
pQj v. St. Joseph s Hospital, tal, 788 F.2d 411 ( 7th dr. 1986) ...... 20 Dothard V. Rawlinson, 433 U.S. 321 (1977) ...... 24 George v. New Jersey Bd. of Veterinary Medical Examiners, 635 F. Supp. 953 (D. N.J. 1985) ...... 20 Gomez V. Alexian Bros. Hoso. of San Jose, 698 F.2d 1019 (9th Cir. 1983) ...... 20 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ...... 22, 23, 24 Rivas V. State Bd. for Community Colleges, 517 F. Supp. 467 (D. Colo. 1981) ...... 19 Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) ...... 20 Spirt v. Teachers Ins. and Annuity Assoc., 691 F.2d 1054 (2d Cir. 1982) ...... 18, 19 United States v. Alexander and Cloutier Realty Co. 1 EOHC para.13,570 p. 13, 780...... 24, 25 United States v. Gregory, 871 F.2d 1239 (4th Cir. 1989) ...... 23 United States v. Hughes Memorial Home, 396 F. Supp. 544(W.D. Va. 1975) ...... 23
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0
CASES: (aontId)
United States v. Ironworkers Local 86, 443 F. 2d 544 (9th Cir. 1971) ...... 23
United States v. Real Estate Development Coro., 347 F. Supp. 776 (N.D. Miss. 1972) ...... 23
United States V. City of Yonkers, 592 F. Supp. 570 (S.D. N.Y. 1984) ...... 18, 19
United States V. Youritan Construction Co., 370 F. Supp. 643 (N.D. Cal. 1973) ...... 23, 24
Vanguard Justice Society Inc. v. Huc hes, 471 F. Supp. 670 (D. Md. 1979) ...... 18, 19 19 CONSTITUTIONS AND STATUTES: United States Constitution: First Amendment, Establishment Clause ...... 5 Pennsylvania Constitution: Article III, Sec. 14 ...... 11 Civil Rights Act of 1964, as amended, Title VII, 42 U.S.C. 2000e gt seg...... passim Fair Housing Act, 42 U.S.C. 3613 ...... 22 28 U.S.C. 2201 ...... 1 28 U.S.C. 2202 ...... 1 28 U.S.C. 1345 ...... 1 28 U.S.C. 1291 ...... 1 Pennsylvania. Public School Code of 1949, Pa. Stat. Ann. tit. 24, arts. I-XXV (Purdon 1962)...... passim Pa. Stat. Ann. tit. 24, Sec. 11-1112 (Purdon 1962) ...... passim Pa. Stat. Ann. tit. 16, Sec. 1402 (Purdon 1962) ...... 28
MISCELLANEOUS: Fed. R. Civ. P. 30(b)(6) ...... 10 Philadelphia Home Rule Charter ...... 11
-iii- IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 89-1694, 89-1740
UNITED STATES OF AMERICA,
Plaintiff-Appellant/Cross-Appellee
V.
BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF PHILADELPHIA,
Defendant-Appellee/Cross-Appellant and
COMMONWEALTH OF PENNSYLVANIA,
Defendant-Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE UNITED STATES AS APPELLANT
0 STATEMENT OF JURISDICTION This is an appeal from a final decision of the United States District Court for the Eastern District of Pennsylvania in an action brought by the United States to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e lt z The district court had subject matter jurisdiction over this action pursuant to Sections 706(f)(3) and 707(b) of Title VII, 42 U.S.C. 2000e-5(f)(3) and 2000e-6(b), and 28 U.S.C. 1345, 2201 and 2202. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291.
0 - 2 -
1. Whether the district court erred in ruling that the
Commonwealth of Pennsylvania is not an employer and therefore not subject to liability under Title VII of the Civil Rights Act of
1964, as amended, 42 U.B.C. 2000e g, , where a Commonwealth statute requires local education agencies to discriminate against their employees and applicants for employment.
2. Whether the district court erred in ruling that the enforcement of a discriminatory statute by the Philadelphia Board of Education and the Commonwealth of Pennsylvania did not constitute a pattern or practice of discrimination in violation of Title VII, because the statute was not uniformly enforced.
3. Whether the district court should have ordered injunctive relief against the Commonwealth. STATEMENT OF THE CASE The United States initiated this action with the filing of its complaint on May 1, 1987 (A. 618-625).31 The complaint alleged that the Board of Education for the School District of Philadelphia (Board) and the Commonwealth of Pennsylvania
(Commonwealth) were pursuing policies and practices that discriminated in employment on the basis of religion in violation
2.1 References to the Joint Appendix are cited A. _.N -3-
of Title VII (A. 619) .21 The United States alleged both
discrimination against an individual, Alima Reardon (A. 621-622),
and a pattern or practice of discrimination (A. 622-623),
stemming from the defendants observance and enforcement of
Section 11-1112 of the Pennsylvania Public School Code (also
known as the "Garb Statute"), which prohibits public school
teachers from wearing any religious "dress, mark, emblem or
insignia" while engaged in their official duties (A. 619-621) .L
a3 Section 703(a)(1) of Title VII, 42 U.S.C. 2000e-2(a)(1), provides that it shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. ri Section 701(j), 42 U.S.C. 2000e(j), defines the term religion to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business."
J Section 11-1112 provides (Pa. Stat. Ann. tit. 24, § 11-1112 (Purdon 1962)):
(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 employed in any of the public schools of this Commonwealth, who violates the provisions of this section, shall be suspended from employment in such school for the term of one year, and in case (continued...) -4-
Specifically, the complaint alleged that the Board was violating
Title VII by refusing to employ as public school teachers
individuals, including Reardon, who wore religious garb or dress
as an aspect of their religious observance and practice, and by
failing to reasonably accommodate the religious practices of such
individuals (A. 620). The complaint alleged.at the
Commonwealth was violating Title VII by continuing to give force
and effect to Section 11-1112 and by failing to give notice to
state district attorneys, school officials, and others that
Section 11-1112 is contrary to Title VII and unenforceable (A. 620-621). The complaint sought a declaratory judgment that Section 11-1112 was contrary to Title VII and therefore
unenforceable, an injunction against both defendants prohibiting them from enforcing or giving any further effect to Section 11- 1112, an injunction requiring the Commonwealth to give notice
.J (...continued) 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 ($100) and shall be deprived of his office as a public school director. A person thus twice convicted shall not be eligible to appointment or election as a director of any public school in this Commonwealth within a period of five (5) years from the date of his second conviction. -5- that the statute was contrary to Title VII and unenforceable, and an injunction requiring both defendants to provide make-whole relief to Reardon and other victims of the discriminatory statute
(A. 623-624).
In their answers, both the Board and the Commonwealth denied that they were violating Title VII (A. 627; A. 633). The Board admitted that it had enforced Section 11-1112 (A. 633), and the Commonwealth admitted that Section 11-1112 was "in effect" and had not been repealed, and that the Commonwealth had not given notice to prosecutors and school officials that the statute was contrary to Title VII and unenforceable (A. 628). Both defendants contended that they could not accommodate an employee s practice of wearing religious garb in the classroom without undue hardship "in that to do so would[] (a) violate the Establishment Clause of the First Amendment of the United States Constitution and (b) contravene [their] compelling interest in avoiding endorsing or the appearance of endorsing religion in [the] public schools" (A. 629; see A. 633). In addition, the Commonwealth denied that it was Reardon s employer within the
meaning of Section 701(b) of Title VII, 42 U.S.C. 2000e(b) (A. 629) .41 The parties stipulated to most of the facts (see A. 423- 483), and the court held a three-day bench trial in July 1988 (A.
A/ Both defendants also contended in their answers that the complaint failed to state a claim upon which relief could be granted (A. 630, 633), and the Commonwealth contended that Reardon had failed to comply with the administrative prerequisites to suit in a timely manner (A. 630). -6-
56-422). On May 18, 1989, the court issued its decision and
order (A. 8-54), ruling (1) that the Board had violated Title VII
by enforcing Section 11-1112 as to Reardon (A. 34-50); (2) that
the Commonwealth was not Reardon s employer and therefore was not
subject to liability (A. 35); and (3) that neither the Board nor
the Commonwealth had engaged in a pattern or practice of
discrimination (A. 50-51). In its order, the court enjoined the
Board from enforcing Section 11-1112, awarded back pay to Reardon from the Board, entered judgment for the Commonwealth, and declared Section 11-1112 to be contrary to and in conflict with Title VII (A. 53-54). On June 20, 1989, following a motion by the United States, the court amended its order to award Reardon prejudgment interest (A. 55). The United States filed a timely notice of appeal on August
1 18, 1989 (A. 4). The Board filed a timely cross-appeal on August 29 (A. 6) . STATEMENT OF FACTS A. Section 11-1112 Section 11-1112 was enacted in 1895 (A. 482-483). The district court found that "anti-Catholicism was a significant factor" in the statute s passage by the Pennsylvania legislature (A. 31). The district court based this conclusion on the testimony of the United States expert, Father Peter Stravinskas, and the documentary evidence that he examined, including the statute s legislative history, contemporaneous newspaper accounts, and other historical sources (A. 29-31; see A. 175- -7-
259) . Father Stravinskas testified that the Garb Statute was passed in order to prevent Roman Catholic nuns and priests from
teaching in the public schools at a time when Protestant clergy
were involved in all levels of public education and the reading
of the Protestant King James Bible in the classroom was common
(A. 192,217-218, 229-235; see A. 29-31). He concluded that the
statute s enactment was motivated largely by anti-Catholic animus
(A. 188, 228; see also, e.g., A. 575-576).
1. Alima Reardon
Alima Reardon was a substitute teacher in the Board s
schools from 1973 to 1985 (A. 71) ./ The court found that Reardon, a Muslim, "has a sincere and good faith belief" that her religion requires her to wear a head scarf and long loose dress
(A. 10, 79). Reardon was fully qualified to teach in the public
schools of Pennsylvania (A. 426; see A. 10). The court found that she made no attempt to proselytize or convert any of her
students to Islam (A. 12). Nonetheless, in October and November of 1984, the Board refused to permit Reardon to work as a substitute teacher solely because of her religious garb (A. 10- 12).
A/ Father Stravinskas was qualified as an expert in education and on 19th century American anti-Catholicism (A. 174 -184).
A/ Reardon also worked as a full-time teacher in the Philadelphia public schools in 1970-71 and from September to December 1985 (A. 73-74). A
-8-
On October 20, 1984, Reardon appeared at the F. Amadee Bregy
School in Philadelphia to work as a substitute teacher (A. 432).
The principal of the school, Michael N. Iannelli, informed her that her religious garb was not in compliance with Section 11-
1112, and refused to let her teach unless she first changed her clothes (A. 432, 489-490). Iannelli acted after he consulted with Patricia Donovan, an attorney for the Board (A. 490, 536,
560) .
On November 1, 1984, Reardon appeared at the Chester A.
Arthur Elementary School in Philadelphia to work as a substitute teacher (A. 434-435). The principal of the school, Murray Ginsburg, had been alerted by the Board s District 2 office) that Reardon had been assigned to his school, that she might be wearing religious garb, that such garb would violate the School Code, and that she was not to be permitted to teach if she was so dressed (A. 434, 552-554). Ginsburg told Reardon that he would not permit her to work unless she first went home to change her clothes; she refused to do so (A. 434, 493, 552-554). On November 9, 1984, Reardon appeared at the Kirkbride
Elementary School in Philadelphia to work as a substitute teacher (A. 438). Reardon had previously taught at Kirkbride, and the principal there, Joseph Gavin, had not objected to her religious garb on earlier occasions (A. 436, 541-543). However, when she appeared on November 9, he had been instructed at a District 2
2/ The School District of Philadelphia is subdivided into Districts, each of which maintains a separate list of substitute teachers (U.S. Exh. 65, p. 38). -9- staff meeting that Reardon s garb violated Section 11-1112 and that she was not to be permitted to teach wearing her religious garb (A. 436-437, 543-544). He complied with these instructions
(A. 438, 495-497).
Each of the above incidents was reported to the District 2
office and ultimately to Arnold Moss, the Board s Assistant
Director of the Office of Personnel Operations (A. 489-491, 493,
495, 497-498, 500-501). On November 13, 1984, Moss reported to
the Pennsylvania Office of Employment Security that the Board had
barred Reardon from teaching because of her failure to comply with Section 11-1112 (A. 499). On November 15, a meeting was held at District 2 with Reardon, a union representative, and Board officials; as a result of the meeting, Dr. John Frangipani, District 2 Superintendent, recommended to Moss that Reardon be suspended from employment (A. 500-501). On December 7, Moss notified Reardon that she was suspended from employment as a substitute teacher (A. 503) .L'
The Board stipulated that it "presently intends to prevent individuals who wear what the Board or its designees understand
to be religious marks, emblems, insignia or garb as described in Section 11-1112 from teaching in institutions subject to
the Code" (A. 428). Patricia Donovan, Assistant General Counsel
/ Reardon was informed that she was entitled to a hearing, but the hearing was apparently never held (A. 503-504). On November 27, Reardon filed a charge of discrimination with the Equal Employment Opportunity Commission, and the Board was notified of the charge on December 12 (A. 423-424).
- 10 -
to the Board, stated that pursuant to the Garb Statute, teachers
wearing religious garb would not be permitted to teach in the
Philadelphia public schools (A. 441-442).2J Although Arnold
Moss, the Board s Assistant Director of the Office of Personnel
Operations, did not become aware of the Garb Statute until the
Reardon incident (A. 440), other Board officials stated that they
had long been aware of it and had enforced it routinely in the
past by requiring teachers wearing Stars of David or crosses to
take them off or conceal them (A. 26-27, 433-435, 540-541, 551-
552, 560-562; see also A. 534-535). Iannelli testified that when he first began teaching some thirty years before, the School
District had made a ruling and had instructed principals that the wearing of religious garb or symbols by classroom teachers was
prohibited (A. 560-562). a The United States also presented the testimony of two other individuals whose employment had been affected by the Board s enforcement of Section 11-1112. Harvey Cooper, an Orthodox Jew
who wears a yarmulke as a religious observance (A. 267-270, 272), began teaching in the Philadelphia public schools in 1974 at the
John Marshall Elementary School in District 7 (A. 263-265). In 1983, when Cooper sought to transfer to another school, the
District seven superintendent told him that if he remained in that District he would be prohibited from continuing to wear a
yarmulke while teaching (A. 264-265; see A. 18-19). The
2/ The Board designated Donovan to testify on deposition pursuant to Rule 30(b)(6) regarding the meaning and application of Section 11-1112 (A. 441). - 11 - superintendent showed him a copy of Section 11-1112 and directed his attention to the second section, which specifies suspension and termination as penalties for noncompliance (A. 265-266). As a result, he transferred to a school in District 8 where he was permitted to wear the yarmulke (A. 266, 273). Deborah Goins, who has been employed by the Board as a noontime aide and a classroom
aide for eight years, was told by her principal that she was not
permitted to wear a Star of David in the classroom (A. 285-286,
296-297; see A. 19-20).
Art. 3, Sec. 14 of the Pennsylvania Constitution assigns
plenary responsibility for and authority over public education to the Commonwealth, requiring the General Assembly to "provide for
the maintenance and support of a thorough and efficient system of public education." In the Public School Code (Pa. Stat. Ann.
tit. 24, art. I-XXV (Purdon 1962)) and the Philadelphia Home Rule Charter (A. 457-475), the legislature has carried out this
mandate, establishing the powers and duties of school directors and of the Philadelphia Board (Pa. Stat. Ann. tit. 24, art. V; A. 463-466), and regulating matters ranging from the hiring, tenure, and compensation of teachers (Pa. Stat. Ann. tit. 24, art. XI),
to the terms and courses of study for students (Pa. Stat. Ann. tit. 24, art. XV). School districts, including the Board (see A.
458), are "creature[s] or agencies] of the Legislature and [have] only the powers that are granted by statute." Chartiers - 12 -
Co unto, 211 A.2d 487, 500, 418 Pa. 520, 544 (1965) (citations omitted). Finally, all local school districts receive substantial financial support from the Commonwealth (Pa. Stat.
Ann. tit. 24, art. XXV). The Pennsylvania Department of
Education, which has the responsibility to see that the Public
School Code (which includes Section 11 -1112) is enforced (A.
429), may enforce the Code by taking action against a school
superintendent s commission, or, if a school district fails to
comply with laws and regulations for preserving the health and
safety of public school pupils, by withholding the state subsidy
(A. 430) . The Commonwealth "by and through the State Department of
Education believes that Section 11-1112 of the Pennsylvania Public School Code of 1949 applies and is enforceable in all public schools and institutions in Pennsylvania subject to the Public School Code" (A. 429) and "should be enforced" (A. 452). While the Pennsylvania Department of Education has never itself brought an action to enforce Section 11-1112 (A. 430), the Commonwealth believes that Section 11-1112 was properly invoked
in the case of Reardon, and would advise other local school officials that the Garb Statute "is valid and enforceable" (A. 429). - 13 -
In addition to its application to public school teachers employed by local school districts,/ Section 11-1112 applies to state-employed teachers at three state-owned special schools
operated by the Pennsylvania Department of Education (A. 442-
444) , to teachers of school-age students in institutions
supervised by the Department of Education s Correctional Division
(A. 444-445), and to teachers in state-funded Private Residential
Rehabilitative Institutions (PRRIs) (A. 445-446).22J While the
Commonwealth does not contract directly with PRRIs to provide
educational services, it regulates the contracts between PRRIs and local school districts or Intermediate Unitsl through
guidelines and a model contract issued by the Pennsylvania Department of Education (A. 446-447, 505-528). The guidelines and the model contract prohibit any teacher in a PRRI from wearing religious garb or symbols during the performance of his or her duties (A. 510, 526). In 1984, when one PRRI objected to
IV The record showed that in addition to the incidents in which the Garb Statute had been applied in Philadelphia, school officials in Lancaster County had applied it to prevent a Mennonite teacher from wearing a bonnet in the classroom (A. 337- 338, 341-350).
I3 They are the Scranton School for the Deaf, the Thaddeus Stevens State School of Technology, and the Scotland School for Veteran s Children. L23 PRRIs contract with local school districts and Intermediate Units to provide educational and rehabilitative services to juveniles who are committed to the institutions' care by court order (A. 445-446). I1 An Intermediate Unit is a service unit for a school district or group of school districts. Although Intermediate Units are not direct arms of the Commonwealth, their executive directors are commissioned officers of the Commonwealth (A. 446). - 14 - these provisions, the Department of Education required that it comply (A. 448-450, 529-532).
The record shows that numerous teachers in the Philadelphia
public schools have worn religious symbols or garb during the
performance of their duties (see A. 79-81 270, 273, 291-294, 433-
435). However, there was no evidence that any such teacher had
sought to proselytize his or her students or that the wearing of
religious garb or symbols by public school teachers had led to
disruptions in the classroom or to a perception by students that the school district or state endorsed the teacher s religion. Reardon testified that children occasionally asked her why she wore a head scarf; she would respond that she did so because she preferred it or because she was a Muslim, and would end the discussion at that (A. 82-84). Although she was assaulted in the schools twice, neither incident involved her garb (A. 85-86). In a third incident, a girl pulled her head scarf off; Reardon classified this act as merely mischief (A. 87). Reardon never sought to teach her religion in the public schools or to convert
IV Iannelli and Ginsburg knew of instances in which a teacher s outlandish or undignified apparel had a disruptive effect, but there was no indication that these instances involved religious garb (A. 433-434). Iannelli believed that wearing a small cross or Star of David also could cause a discipline problem, but cited no examples in which this had occurred (A. 433). - 15 - her students to Islam (A. 12, 84-85).1/ She did not allow or
observe the formation of factions among her students based on her
race or religion (A. 87).
Cooper testified that students occasionally ask him about
his yarmulke; he responds that it is something he wears because
he is Jewish but does not discuss it further (A. 274-275).
Cooper has never taught his students about his religion or tried
to convert them to Judaism (A. 275-277). He never observed the
formation of factions among his students because of his wearing a yarmulke (A. 273-274).
Goins testified that she had never been questioned by a student about her Star of David (A. 295). She never tried to
teach students about her religion or to convert them to Judaism (A. 295-296). She never observed the formation of factions among her students due to her wearing a Star of David (A. 295). The Commonwealth s expert, Dr. Frank J. Landy,W testified
concerning the effect on students of a teacher wearing religious garb in the classroom. Dr. Landy based his conclusions on a review of literature. He did not perform any studies regarding the effect of religious garb in the classroom and acknowledged
that he knew of no such studies done by others (A. 33, 359-360,
2V Gavin believed that Reardon had some trouble maintaining order in the classroom but did not attribute this trouble to her garb. He never heard any comments -- positive or negative -- about her garb; he believed he would have heard negative comments if Reardon s garb had disrupted the classroom (A. 437-438). IV Dr. Landy was qualified as an expert in applied psychology and education (A. 358). - 16 -
378-379, 392, 400, 411-412). He testified that students would perceive the wearing of religious garb by a teacher as an endorsement of that religion by the teacher (A. 32, 364-369,
374), and that students might perceive it to be an endorsement of religion by the state or school district (A. 412). 2J He also concluded that wearing religious garb in the classroom could lead students to ask questions of the teacher and to the formation of in-groups and out-groups in the classroom (A. 32, 364, 369-373, .iiJ
Only five states, including Pennsylvania, have statutes or regulations similar to Section 11-1112 (A. 33). STATEMENT OF RELATED CASES AND PROCEEDINGS
This case has not been before this Court previously. Counsel is unaware of any related case or proceeding before this Court or any other tribunal. STATEMENT OF THE STANDARD OF REVIEW The United States contends that the district court erred as a matter of law in making the rulings from which we appeal.
12/ The court found Landy s testimony that a teacher s religious garb could lead students to perceive an endorsement of the religion by the school district or the state to be "unpersuasive" (A. 33) .
Landy acknowledged that there was nothing inherently bad about students asking their teachers questions or about the formation of groups among students (A. 387, 390). He said that in-groups and out-groups might also be formed based upon a teacher s race or sex but that he did not recommend that students and teachers be segregated by race or sex in order to avoid such a result (A. 394). - 17 -
ARGUMENT
The district court correctly decided the primary issue in
this case, holding that the Board, by barring Reardon from
teaching while she wore a head scarf, refused to accommodate her
religious practices, in violation of Title VII (A. 36-50). The
court erred, however, in ruling that the Commonwealth is not
subject to liability as to Reardon because it was not her
employer (A. 35-36), and that neither the Board nor the
Commonwealth had engaged in a pattern or practice of
discrimination because the Garb Statute had not been uniformly
enforced (A. 50-51). Accordingly, the Commonwealth should be enjoined from enforcing Section 11-1112 and required to give notice that it is contrary to Title VII and unenforceable. I THE COMMONWEALTH WAS SUBJECT TO LIABILITY BECAUSE OF THE APPLICATION OF THE GARB STATUTE TO REARDON AND OTHER EMPLOYEES OF LOCAL SCHOOL DISTRICTS AND PRRIs
The district court ruled that although the Commonwealth fits the statutory definition of employer set forth in Section 701(a)
and (b) of Title VII, 42 U.S.C. 2000e(a), (b),2 2! it was not Reardon s employer for purposes of liability under Section
703(a)(1), 42 U.S.C. 2000e-2(a)(1). The court reasoned that "[t]he control exercised by the Commonwealth over the terms of
2 2/ Section 701(b) provides, in pertinent part: "[t]he term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees •" Section 701(a) defines the term "person" to include "governments, • governmental agencies, [and] political subdivisions . N - 18 - her employment, through the force of section 11-1112, is exercised by the Commonwealth in its role as regulator and not in
its role as employer in the customary sense of the word" (A. 35).
This ruling was erroneous. In barring Reardon from employment,
the Board acted pursuant to Section 11-1112 of the Pennsylvania
Public School Code. Through that statute, the Commonwealth
exercised sufficient control over the terms and conditions of
Reardon s employment that it too is subject to liability. The
Commonwealth is similarly subject to liability for the
application of the statute to teachers employed by other local school districts or PRRIs who are prohibited by the Garb Statute from wearing distinctive garb or symbols in observance of their
religion.2/ As several courts have held, the term employer as used in Title VII includes an entity that significantly controls the terms and conditions of employment, " regardless of whether that party may technically be described as an employer of an aggrieved individual as that term has generally been defined at common law. " Spirt v. Teachers Insurance and Annuity Assoc.,
691 F.2d 1054, 1063 (2d Cir. 1982), vacated on other grounds, 463 U.S. 1223 (1983) (quoting Vanguard Justice Society Inc. v. Hughes, 471 F. Supp. 670, 696 (D. Md. 1979)); see United States v. City of Yonkers, 592 F. Supp. 570, 590 (S.D.N.Y. 1984).
2.QJ As we explain in Part II, a, the Commonwealth is also liable as an employer for its application of the Garb Statute to its own employees teaching in state-owned schools. - 19 -
This principle is particularly apt in the public employment context, where local employers, such as the Board, are creations of the state and the state exercises significant control over their employment practices. Thus in Yonkers, the State of New
York was found to be a proper defendant in a Title VII action
where state law governed the municipal civil service employment process, the State provided tests &no ptgr IeryICes for o3ployee
selection, and t e State exercised supervisory authority over the
Municipal Civil Service Commission. 592 F. Supp. at 589-592. In
Vanguard, both the City of Baltimore and the State of Maryland were held to be proper defendants in a Title VII action involving the Baltimore Police Department where the Governor appointed the Police Commissioner and the City set the budget and established
entrance and promotion qualifications. 471 F. Supp. at 689. See Spirt, 691 F.2d at 1063 (public employee pension funds proper defendants where they "significantly affect[] access" to employment benefits); Rivas v. State Board for Community
Colleges, 517 F. Supp. 467, 470 (D. Colo. 1981) (although State Board has exclusive hiring authority, College Council also a proper Title VII defendant where it confirms appointments); see - 20 -
Supp. 1063, 1072-1073 (D. Me. 1977).
The district court s reliance on this Court s decision in
George v. New Jersey Board of Veterinary Medical Examiners, 635
F. Supp. 953, 956 (D.N.J. 1985), aff d, 794 F.2d 113 (3d Cir.
1986), is misplaced. In George, the Court held that when a State merely acts as a licensing authority and does not otherwise involve itself in the employment process, it is not subject to liability as an employer under Title VII. Here, in contrast, the Commonwealth s role in public education extends well beyond that of a mere licensing authority. Unlike George, where the defendant s only responsibility was the licensing of veterinarians, the Commonwealth does not merely regulate but is responsible for providing public education in Pennsylvania. Even more fundamentally, in George there was no employment relationship involved, while this case involves a challenge to the terms and conditions of employment established by the Commonwealth. Although the Commonwealth has delegated responsibility for the actual operation of the schools to local
In a line of cases primarily involving private employers, several courts have reasoned that since Section 703(a) of Title VII prohibits an employer from discriminating against many individual," an employer may be subject to liability if it exercises some control over the employee selection processes of another employer and uses that control to discriminatorily interfere with the employment opportunities of any individual. See P.9A V. St. Joseph s Hospital, 788 F.2d 411, 421-425 (7th Cir. 1986); Gomez v. Alexian Bros. Hospital of San Jose, 698 F.2d 1019, 1021 (9th Cir. 1983); Sibley Memorial Hos pital v. Wilson, 488 F.2d 1338, 1340-1342 (D.C. Cir. 1973). Cf. Sections 703(b) and 703(c) of Title VII, 42 U.S.C. 2000e-2(b), (c). - 21 - authorities, such as the Board, it has retained authority to control broad areas, including the terms and conditions of employment for teachers (see, gig,., Pa. Stat. Ann. tit. 24, art.
XI). The Garb Statute is one aspect of this authority; in enforcing it, the Commonwealth acts not in the capacity of regulator but in its role as educator and as the ultimate employer of all public school teachers .221
By the terms of Section 11-1112 of the Public School Code, the Commonwealth expressly requires local school authorities, including the Board, to prohibit teachers from wearing religious garb or symbols in the classroom. School directors who fail to comply with this directive may be convicted of a misdemeanor and deprived of their office (see n.3, supra); superintendents who fail to comply may be decommissioned by the Department of Education for violation of the Public School Code (see p. 12, supra). The Commonwealth and the Department of Education, which has principal responsibility for enforcing the Public School Code, have unconditionally endorsed the validity of Section 11-
1112 and stated their belief that it should be enforced as to all public school teachers in Pennsylvania (see p. 12, su pra). The
Department also requires PRRIs to enforce the statute (see pp. 13-14, suflra) .
See p Ism v. City € Cincinnati, 745 F.2d 1040, 1042 (6th Cir. 1984), holding that a city acting as a licensing authority is not an amployer under Title VII, where it does not exercise significant control over the activity regulated and does not control the terms and coizditions of the plaintiff s employment. - 22 -
In these circumstances, where the Commonwealth requires local school authorities and PRRIs to administer a statute that directly addresses the terms and conditions of employment in an
area closely supervised by the Commonwealth, and that is in
violation of Title VII, the Commonwealth is subject to liability
as to the victims of such discrimination.
II
THE BOARD AND THE COMMONWEALTH ENGAGED IN A PATTERN OR PRACTICE OF DISCRIMINATION
The district court ruled that the United States had failed
to establish that discrimination was the defendants " standard operating procedure -- the regular rather than the unusual practice " (A. 50-51, quoting International Brotherhood of Teamsters V. United States, 431 U.S. 324, 336 (1977)). Thus it concluded that neither the Board nor the Commonwealth had engaged in a pattern or practice of discrimination. This conclusion was based on an erroneous view of the law and should be reversed. In order to establish a pattern or practice of discrimination, the government must "prove more than the mere occurrence of isolated or accidental or sporadic discriminatory
acts. It [must] establish by a preponderance of the evidence that discrimination was the (defendant s] standard operating procedure -- the regular rather than the unusual
21 Section 707(a) of Title VII, 42 U.S.C. 2000e-6(a), authorizes the Attorney General to bring an action for relief where there is "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured" by Title VII. - 23 - practice." Teamsters, 431 U.S. at 336. Put another way, the government must "demonstrate that unlawful discrimination has been a regular procedure or o1icy followed by an employer or group of employers." L, at 360 (emphasis added).
Few employers openly announce their discriminatory policies.
Thus, in the usual case, a pattern or practice of discrimination
is proven indirectly, through the introduction of statistical
Ind/or anecdotal evidence reflecting numerous incidents from
which the existence, of a policy of discrimination may be
inferred. See, e. g ., Teamsters, 431 U.S. at 334-340. In the unusual case such as this one, however, where the discriminatory policy is openly declared, direct proof of such a policy alone is sufficient to meet the pattern or practice requirement. See
United States V. Gregory , 871 F.2d 1239, 1243 (4th Cir. 1989) ("if the admissions [of a policy of discrimination) are credited, the Title VII violation has been proven. Reversal is warranted on that basis alone"); United States v. Hushes Memorial Home, 396 F. Supp. 544, 551 (W.D. Va. 1975) (under the Fair Housing Act, "[t]he demonstrated existence of a policy of discrimination is sufficient to constitute the pattern and practice, and it is
unnecessary for the United States to prove numerous specific occasions on which the discriminatory policy was carried out");
United States v. youritan Construction Co., 370 F. Supp. 643,
2" Section 813. of the Fair Housing Act, 42 U.S.C. 3613, which authorizes pattern or practice actions by the Attorney General, mirrors the language of Section 707(a) of Title VII, 42 U.S.C. 2000e-6(a). t
- 24 -
650-651 (N.D. Cal. 1973), modified as to relief and aff d, 509
F.2d 623 (9th Cir. 1975) (Fair Housing Act; proof of discriminatory instructions to employees satisfies pattern or practice requirement); United states v. Alexander Cloutier
Realty Co., 1 EOHC (P-H) 1 13,570, P . 13,781 (Fair Housing Act;
discriminatory incident not an isolated transaction "when by
defendant s own admission it conformed precisely to a previously
annow^oed policy). Nor is it necessary that a policy of
discrimination be uniformly applied. See United States v.
Ironworkers Local 86, 443 F.2d 544, 552 (9th Cir. 1971); United
States v. Real Estate Development Corp ., 347 F. Supp. 776, 783 (N.D. Miss. 1972); United States v. Alexander Cloutier, supra.
This interpretation of the term pattern or practice" is most consistent with the purposes of the Act. For example, the
mere existence of a policy of discrimination may deter applicants from seeking work or employees from exercising their rights. See, e.g., Teamsters, 431 U.S. at 365 (victims of discrimination not limited to those who applied despite announced policy of discrimination); cf. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977) ("otherwise qualified people might be discouraged from
applying because of a self-recognized inability to meet the very standards challenged as being discriminatory"). And where the
employer expresses an intention to enforce the policy in the future, there is no reason to believe that additional violations
will not recur. In such circumstances, it is unnecessary to show -25-
repeated examples of the policy s application to warrant
relief
Here, both the Board and the Commonwealth had a policy of
refusing to permit teachers to wear religious garb or symbols
while teaching. That policy, embodied in Section 11-1112 of the
Public School Code, is a matter of public record and was
expressly reconfirmed by both defendants during the litigation of
this case. The individual incidents in which the policy was
enforced are therefore not isolated transactions but incidents
that "conformed precisely to a previously announced policy."
Alexander Cloutier, 1 EOHC (P-H) at p. 13,781.
In the case of the Board, the record shows that Reardon was denied employment pursuant to a formal, organized effort in which the principals were advised by the District 2 Office or by the Board s counsel that she was not to be permitted to teach if she was wearing her accustomed religious garb (see pp. 7-9, supra).
Each of the incidents at the schools, as well as the action taken by District 2, was reported to the Board s central office, which ratified the actions of the principals and the District 2
superintendent. Although the Board had no written policy
regarding the enforcement of Section 11-1112, the record shows that its principals and legal counsel had a clear and
longstanding understanding of the statute s restrictions, and the
ZV Finding a pattern or practice of discrimination in these circumstances also avoids the need for duplicative litigation, challenging repeated incidents in which a single discriminatory • policy is enforced. - 26 - principals had enforced it prior to the Reardon incident. Thus even though the Garb Statute was not uniformly enforced in the
Philadelphia public schools, the incidents in which it was enforced, pursuant to an unequivocal policy, evidenced a pattern or practice of discrimination.+
Similarly, the Commonwealth s enforcement of the statute, viewed in light of its stated endorsement of the statute s validity, constitutes a pattern or practice of discrimination.
The Commonwealth stipulated that the Garb Statute is applicable
to its own employees teaching in state-owned and operated schools. Through the PRRI Guidelines and model contract with
which it requires PRRIs to comply, the Commonwealth applies
Section 11-1112 to the teachers in those institutions as well. Moreover, given the penalties set forth in the statute, and the
Department of Education s authority to sanction local school officials who do not comply with the Public School Code, the mere existence of the statute, which the Commonwealth has stated is valid and "should be enforced" is sufficient to constitute a policy and thus a pattern or practice of discrimination.
2" Indeed, the lack of standards for applying a policy such as that set forth in Section 11-1112 is especially troublesome since it could lend itself to selective enforcement. - 27 -
III
THE COMMONWEALTH SHOULD BE ENJOINED FROM ENFORCING SECTION 11-1112 OF THE PUBLIC SCHOOL CODE AND REQUIRED TO GIVE NOTICE THAT IT IS CONTRARY TO TITLE VII AND UNENFORCEABLE
The district court's order declared that Section 11-1112 was contrary to Title VII but granted judgment for and entered no injunction against the Commonwealth. Local school officials throughout Pennsylvania are thus faced on the one hand with a declarat1on by the court that Section 11-1112 is unenforceable, and on the other hand with the Commonwealth s statement that the statute is valid and should be enforced. While those officials in the Eastern District may feel protected by the court s declaratory judgment, those in the rest of the state are vulnerable to charges that they are acting contrary to the Public
School Code if they employ teachers who wear religious garb or symbols. Thus, it is important that the district court be ordered, on remand, to enjoin the Commonwealth, as we requested below, as follows:
(a) from enforcing or giving any further force or effect to Section 11-1112 of the Pennsylvania Public School Code of 1949; (b) from failing or refusing to delete any contract provisions giving force and effect or attempting to give force and effect to Section 11-1112 of the Pennsylvania Public School Code of 1949; - 28 -
(c) from failing or refusing to provide individual written notice to all State District Attorneys22l and School Directors in
Pennsylvania (including all State School Superintendents) that
Section 11-1112 of the Pennsylvania Public School Code of 1949 is
contrary to and in conflict with Title VII of the Civil Rights
Act of 1964, as amended, and is therefore unenforceable;
(d) from failing or refusing to notify in writing all
publishers of Pennsylvania statutory material that Section ii-
1112 of the Pennsylvania Public School Code of 1949 is contrary
to and in conflict with Title VII of the Civil Rights Act of 1964, as amended, and is therefore unenforceable (this notification shall direct the publishers to report that Section
11-1112 is unenforceable as described above); (e) from failing or refusing to notify in writing all Presidents and Deans of schools providing teacher education in Pennsylvania that Section 11-1112 of the Pennsylvania Public School Code of 1949 is contrary to and in conflict with Title Vii of the Civil Rights Act of 1964, as amended, and is therefore unenforceable;
(f) from failing or refusing to notify in writing all Presidents and Deans of law schools and schools providing legal education in Pennsylvania that Section 11-1112 of the
Pennsylvania Public School Code of 1949 is contrary to and in
221 District Attorneys are responsible for enforcing the criminal penalties set forth in the Garb Statute. See Pa. Stat. Ann. tit. 16, § 1402 (Purdon 1956). - 29 - conflict with Title VII of the Civil Rights Act of 1964, as amended, and is therefore unenforceable.
CONCLUSION
The district court s dismissal of the United States claims against the Commonwealth, and its ruling that the defendants did
not engage in a pattern or practice of discrimination, should be reversed, and the case should be remanded to the district court
for additional relief.
Respectfully submitted,
MICHAEL BAYLSON JAMES P. TURNER United States Attorney Acting Assi tant Attorney General Lc.. JESSICA DUNSAY SILVER LINDA F. THOME Attorneys Civil Rights Division Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 633-4706 ki
CERTIFICATE OF BAR MEMBERSHIP
Bar membership is waived for federal attorneys.
CERTIFICATE OF SERVICE
I certify that the foregoing brief for the United States as
appellant was served on counsel for the appellees by overnight
delivery at the addresses shown below, this ______day of
September, 1989.
Mr. Robert T. Lear Assistant General Counsel School District of Philadelphia 2130 Arch Street, Fifth Floor Philadelphia, Pennsylvania 19103 Ms. Susan Forney Senior Deputy Attorney General Commonwealth of Pennsylvania 15th Floor Strawberry Square Harrisburg, Pennsylvania 17120
Linda F. Thome Attorney Appellate Section Civil Rights Division U.S. Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078
0 c
FILED MAY171989 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA CIVIL ACTION . v. s I BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF PHILhDELPHIA and COMMONWEALTH OF PENNSYLVANIA : NO. 87-2842
J. M. ELLY, J. MAY 17, 1989
This case was brought under Title VII of the Civil Rights Act of 1964, , as amended, 42 U.S.C. f 2000e It an., alleging discrimination in employment on the basis of religion.
The United States alleges both a pattern or prt^tice of religious discrimination by def,ndants and individual
discrimination by defendants against Ms. Alias Dolores J.
Reardon, who filed a c:iarga with the Equal Employment Opportunity Commission (EEOC). The United States + peeks a declaratory judgment and injunctive relief including backpay.
The parties entered into extensive stipulations of fact
after which a non-jury trial was conducted on July 18, 19, and 20, 1988. The United States and the Commonwealth of Pennsylvania
(Commonwealth) submitted proposed findings of fact and conclusions of law, and all parties submitted briefs to the court. In consideration of the stipulations of the parties, the ENTERED: .
CLERK OF COURT .47d. testimony at trial, and the submissions of the parties, the court enters the following findings of fact and conclusions of law.
1. Plaintiff United States brings this action pursuant to 42 U.S.C. 1 2000e-5(f)(l) and 2000e-6.
2. The defendant, Board of Education for the School
District of Philadelphia (board), is a body appointed by the
Mayor of Philadelphia and is charged with rsspon.ibility for
providing a system of public education for the school age children of Philadelphia, Pennsylvania. 3. Defendant Commonwealth of Pennsylvania (Commonwealth) is one of the fifty states of the United States of America. The State Department of Education is an administrative department and an agency of the Commonwealth, responsible for regulating certain aspects of the operation of public schools within the Commonwealth. 4. A statute of the Commonwealth, enacted in 1895, provides as follows: (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 employed in any of the .public schools of this Commonwealth, 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 r33. 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 sisdamaanor, -and upon conviction of the first • offense, shall.ba sentenced to pay a fine not exceeding one hundred dollars ($100), and on • conviction of a. second offens , the offending school director shall be sentenced to pay a •fins not exceedingg one hundred dollars ($100) and shall be deprived of his office as a • public school director. A parson thus twice convicted shall not b. eligible to appointment or election as . a director of any • public school in this Commonwealth vithin • • period of five (5) years from the date of his second conviction. -1949, March 10, P.L.30, art. XI, 1 1112.
Pa. Stat. Ann. tit. 24, 1 11-1112 (Purdon 1982).
S. Alima Dolores Reardon has a sincere and good faith belief that her Muslim religion requires her to be attired in public in clothing of the type she wore while teaching or seeking to teach in public schools . in Philadelphia in 1984 and 1985, consisting of a head scarf which covered her head, neck, and bosom leaving her face visible and a long loose dress which covered her arms to her wrists and her legs to her ankles.
6. Except with respect to the issue of wearing garb, lbs. Reardon was fully qualified to teach in the Commonwealth of
Pennsylvania and the School District of Philadelphia.
7. Ms. Reardon was refused employment at the F. Amadee Bregy School, in the Philadelphia public school system on October
30, 1984,_ when she appeared in what the principal, Michael N.
lanelli, believed to be religious garb. i. surrey Ginsburg, principal of the Chester A. Arthur
Elementary School in the Philadelphia public school system on C31 November 1, 1984, was involved in refusing Ks. Reardon the opportunity to teach as a substitute teacher at that school on that date.
9. Mr. Ginsburg had been alerted by the District 2 office of the Philadelphia School District that Ms. Reardon was assigned to his school and that she sight be appearing in religious garb.
10. Mr. Ginsburg informed Ms. Reardon, on November 1,
1984, that she would not be allowed to teach at the school while
wearing what Mr. Ginsburg believed was religious garb.
11. Joseph M. Gavin, principal at Xirkbride Elementary School in the Philadelphia public school system, attended a staff
meeting of District 2 of the Philadelphia School District at
which he was informed that the School District viewed Ms.
Reardon s attire as religious garb and violative of section 11-
1112.
12. During the six days when Ms. Reardon worked as a substitute teacher at the Rirkbride Elementary School during the
1983-1984 school year, starting on April 12, 1984, Ms. Reardon
wore the garb of her religion on each of those days.
13. On November 9, 1984 Ms. Reardon appeared again at the Kirkbride Elementary School to work ac a substitute teacher in the garb of her religion similar to what she had previously worn while teaching there in April 1984. On November 9, 1984
Mr. Gavin informed, No. Reardon that bar dross was considered
religious and thus prohibited.
C4) 11 X
14. lbs. Reardon would have been allowed to substitute teach in the Philadelphia public school system from October through December 1964 if she had changed her clothing to what was
considered non-religious garb. .
15. Ms. Reardon was refused an opportunity to
substitute teach in the Philadelphia public school system from
October through December 1984 because she was wearing clothing of
the type that she believed her Muslin religion required her to
wear. The parties have stipulated that the backpay loss to lbs.
Reardon for the 27 school days between October 30 and December
13, 1984 was $1,734.75, and that total interest on Ms. Reardon s backpay loss through June 30, 1988 was $779.06, calculated on the
basis of interest rates applied by the I.R.S. to delinquent
taxpayers.
16. Subsequently, in 1985, Ms. Reardon was allowed to work as a full time teacher in the Philadelphia school system while wearing the attire of her religious faith, and Ms. Reardon taught in the Philadelphia school system from September to
December of that year while wearing the attire of her religious
faith. Ms. Reardon never attempted to convert any student to
Islam.
17. lbs. Reardon filed a charge of discrimination pursuant to Title VII on November 27, 1984 with the EEOC in
Philadelphia, Pennsylvania against the School District of
Philadelphia.
.s1 •:.. 12 U. lbs. Reardon filed an amended charge of discrimination pursuant to Title VII on June 24, 1985 with the
EEOC in Philadelphia,. Pennsylvania against the School District of
Philadelphia and the Commonwealth of Pennsylvania.
19. Both Mi. Reardon s charge of discrimination dated and received by the EEOC on November 27, 1984 and her amended
charge dated June 24, 1985 and received by the EEOC on June 26,
1985 alleged discrimination in employment on grounds of religion.
20. The EEOC styled the charge of discrimination filed
by Ms. Reardon Reardon v. School District of Philadelphia, 031-
85-0704. 21. On December 12, 1984, the EEOC referred Ms. Reardon s original charge of discrimination to the
Philadelphia Commission on Human Relations, Philadelphia,
Pennsylvania.
22. By undated memorandum signed by Thomas D. Hadfield, the EEOC noted to the Pennsylvania Human Relations Commission,
Harrisburg, Pennsylvania that the EEOC had transmitted the
charge which would be initially be processed pursuant to the work sharing agreement by the EEOC.
23. On December 12, 1984 the Sch3ol District of Philadelphia was notified by certified mail that Ms. Reardon s
charge of. discrimination was referred to the Philadelphia Commission on Human Relations.
24. By memorandum dated March S. 1985 and received by the EEOC on March 19, 1985, th• Philadelphia Commission on Human
(6) 13 Relations acknowledged receipt of lbs. Reardon s charge of discrimination from the EEOC and informed the EEOC that it would not proceed on the charge because it lacked jurisdiction as the practice complained of was based on State law.
25. The Equal Employment Opportunity Commission
investigated the charge of discrimination filed by Ms. Reardon.
26. On June 17, 1986 Thomas , P. Eadfield, Acting
District Director in Philadelphia, Pennsylvania lade a reasonable
cause determination concluding, Inter , that there was
reasonable cause to believe that the School District of
Philadelphia and the Commonwealth of Pennsylvania had
discriminated against Ms. Reardon in employment on the basis of
her religion. 27. The EEOC offered the opportunity to both the School District of Philadelphia and the Commonwealth of Pennsylvania to engage in conciliation of Ms. Reardon s charge of discrimination.
28. By letters dated August 1, 1986 and August 8, 1986 the Commonwealth of Pennsylvania by and through the authority of Senior Deputy Attorney General Susan Forney informed the EEOC
that it was unwilling to participate in conciliation of the
Reardon charge.
29. By telephone on August s, 1986 Equal Employment opportunity Specialist Arthur Tucker contacted Mr. Robert T. Lear
who represented the Philadelphia School District. Mr. Lear informed Mr. Tucker that the School District would not engage in
conciliation of the Reardon charge. [73 14 30. By letter dated August 11, 1986 the EEOC, through
Mr. Hadfield, informed the School District of Philadelphia that its efforts to conciliate Ms. Reardon s charge, Charge No. 031-
85-0704, had been unsuccessful.
31. By letter dated August 11, 1986 the EEOC through
Kr. Hadfield informed the Commonwealth of Pennsylvania that its efforts to conciliate Ms. Rsardon o charge, Charge No. 031-85-
0704 had been unsuccessful. 32. By letter of August 11, 1986 EEOC Cosplianc•
Manager William D. Cook notified Ms. Reardon that conciliation
had been unsuccessful and that the charge would be referred to
the Department of Justice. 33. By memorandum of August 15, 1986, received by the Department of Justice on August 19, 1986, the EEOC transmitted
Ms. Reardon s charge, Charge No. 031-85-0704, to the Department
of Justice. 34. The School District of Philadelphia is part of the system of public education of the Commonwealth of Pennsylvania.
35. The Board of Education of the School District of Philadelphia, by a majority vote of all of its members, appoints
and fixes tie compensation of the Superintendent of Schools.
36. The Superintendent of Schools is the chief administrative officer and chief instructional officer of the
Board of Education of the School District of Philadelphia.
37. The Superintendent is responsible for carrying out the actions of the Board, administering the public schools
[8;! pursuant to the Board s policies and state law, and supervising all matters relating to instruction in the schools.
38. The board of Education for the School District of
Philadelphia presently intends to prevent individuals who wear what the Board or its designees understand to be religious marks,
tmbltms, insignia or garb as described in section 11•1112 from
teaching in institutions subject to the public school code.
39. The Pennsylvania Secretary of 4ucation is
appointed by the Governor and is a member of hi. cabinet.
40. Generally, the State Department of Education is
responsible for commissioning superintendents and assistant
superintendents, certificating teachers, prescribing minimum
curriculum requirements, inspecting school buildings to insure that they are fit for use, enforcing certain aspects of the public school cods and allocating state subsidies for public schools, es required by state statute.
41. The State Department of Education does not hire
teachers, principals or superintendents for the School District of Philadelphia.
42. The State Department of Education does not directly
pay teachers, principals or superintendents employed in the
School District of Philadelphia.
43. The Commonwealth of Pennsylvania believes that section 11-1112 vas correctly invoked to prevent No. Reardon
from substitute teaching in the public schools under the
.) 16 jurisdiction of the Board of Education for the School District of
Philadelphia.
44. The Commonwealth of Pennsylvania by and through the
State Department of Education believes that section 11-1112 applies and is enforceable in all public schools and institutions in Pennsylvania subject to the public school cods.
45. If asked by a local school board or administrator
the Commonwealth of Pennsylvania State Department of Education
and the Commonwealth of Pennsylvania Office of State Attorney
General would advise that section 11-1112 is valid and
enforceable.
46. The Pennsylvania State Department of Education has responsibility to see that the public school code is enforced.
47. The State Department of Education has within its authority as a method for enforcing the public school cods the
right to take action against a school superintendent's commission in accordance with the decertification provisions of the public
school code.
48. The State Department of Education can withhold the state subsidy to a school district for failing or refusing to
comply with the laws and regulations of any department of the
Commonwealth for preserving the health and safety of pupils
unrolled in the public schools.
49. The State Department of Education has never considered whether a violation of section 11-1112 could be
503 17 considered a violation of the health or safety of public school students.
50. The State Department of Education has never brought an action to enforce section 11-1112.
51. Mr. Harvey Cooper has bean a teacher in the
Philadelphia public school system since 1974.
52. Mr. Cooper wears a yarmulke as part of his religious practice as an Orthodox Jew, and has MOr1'1 It Xhils t,echiny sysry day bjjjhnjr4 ih W^t. 53. While seeking a transfer from John Marshall Elementary School in 1983, Mr. Cooper was informed by the superintendent of District 7 that if he transferred to another school in the same district, he would be forced to comply with section 11-1112. Mr. Cooper therefor transferred to a school in another district, Lincoln High School. 54. No administrator at Lincoln High School has prohibited Mr. Cooper from teaching while wearing his yarmulke. 55. Mr. Cooper observes all Jewish holidays, and does not shave at certain times of the year for religious reasons. 56. Students have infrequently asked Mr. Cooper about his board, why he wore his yarmulke, and why he was out of school on certain days. 57. Mr. Cooper has noticed other teachers in the schools in which he has worked regularly wearing religious garb or symbols, and he has never beard or seen a disruptive effect on
1j.1J is students from the wearing of religious garb or symbols in the classroom.
58. factions have not formed among his students based
on Mr. Cooper s wearing of his yarmulke.
59. Mr. Cooper has never advocated nor attempted to
teach his religious beliefs to his students, nor has he ever been
accused of such conduct. lb o parent or student has ever
complained about Mr. Cooper s wearing of his yarmulke in the
classroom.
60. Deborah Goins has been employed by the Board as an
aide in the Philadelphia public school system since 1980.
61. Ms. Coins has worn a Star of David during her school duties as a practice of expressing her religious beliefs
as a Jew. 62. No parent or student has ever complained to Ms.
Goins about her wearing a Star of David, and.shs has never been asked a question by a student about her Star of David.
63. Ms. Goins never attempted to teach or advocate her religious beliefs to any students.
64. Ms. Coins saw other aides or teachers in the Philadelphia public schools wearing religious symbols or
insignia. 95. Ns. Goins was never asked to remove her Star of
David until she began work as a classroom aide at the Lowell
Zlemsntary School in March, 1988, at which time she was told by
[12] 19 the principal to remove the Star of David and not to return to the school wearing the symbol.
66. Ms. Coins was not offered any accommodation of her I practice of wearing the Star of David. Ms. Coins did not strictly comply with the order, however, and wore the Star of
David inside a blouse or sweater.
67. Cynthia Moore sought employment with READS, an organization in the Philadelphia School District which provided
private schools with counseling services. 68. Ms. Moore, wearing a head scarf, was interviewed for a counseling job at READS. 69. Ms. Moore was offered the alternative of working for READS without wearing a head scarf or wearing the head scarf and not getting the job. 70. Ms. Moore wore the head scarf as a practice of her Islamic faith. 71. Mr. Donald C. Rippey is Administrative Assistant to the Superintendent in the Lancaster County, Pennsylvania public school system. For more than 20 years, Mr. Rippey served exclusively as a principal in that system.
72. Kr. Rippey became aware of section 11-1112 in 1973, when the superintendent of the Lancaster County school system ordered him, pursuant to section 11-1112, to instruct a Mennonite teacher in Mr. Rippey s school to remove her Mennonite bonnet.
[133 20 73. Prior to 1973, Mr. Rippey saw teachers in the
Lancaster County public school system who were wearing Mennonite
bonnets.
74. Mr. Rippey was not aware of the contents of section
11-1112, nor was he aware of any action taken to prevent
teachers in the Lancaster school system from wearing Mennonite
bonnets, prior to 1973. Mr. Rippey heard no complaints from
students, parents, teachers or administrators prior to 1973 about
teachers wearing religious garb.
75. Mr. Rippey was not trained as to what was prohibited by section 11-1112 as religious garb, emblems, marks, or insignia, nor was he familiar with all such items worn by adherents of every religion. 76. Ms. Mary M. Rogers has been Chief Counsel for the Pennsylvania State Department of Education since 1984. 77. Ms. Rogers has never been called upon personally to answer any questions about section 11-1112. 78. As of December 23, 1987 Ms. Rogers did not recall having supervised any employee who was requested to answer any questions with respect to section 11-1112, which were coming from a school district or from any other State Department of Education employee. 79. The Pennsylvania State Department of Education has never had an occasion to ask the Office of the State Attorney General about the scope of Section 11-1112.
[143 21 $0. Private residential rehabilitative institutions
(PRRIs) are private institutions in Pennsylvania which provide educational and rehabilitative services to juveniles who are committed to the institutions care by court order.
81. PRRIs receive state funds through the Pennsylvania
State Department of Education and are subject to section 11-1112.
$2. Intermediate units and local school districts have
the power to contract with the PRRIs to provide the educational
services needed by juveniles$
83. The State Department of Education provides
guidelines for the development of contracts between intermediate
units or school districts and PRRIs.
84. Section 11-1112 is referenced in the text of the "Basic Guidelines for Contract Development Between the
Intermediate Unit or School District and the Private Residential
Rehabilitative Institution."
85. One of the assurances in the guidelines states that "no teacher in any institution shall in the performance of
his/her duty wear any dress, mark, emblem, or insignia indicating
the fact that he/she is a member or adherent of any religious
order, sect, or denomination." 66. This assurance is also contained in paragraph 27 of the model contract provided by the State Department of
Education to school districts and intermediate units.
87. In 1986, one PRRI, St. Gabriel s Hall, raised an
objection to including paragraph 27 (the requirement that the [S3 22 institution agree to be covered by the substance of section 11-
1112) in its contract.
8$. St. Gabriel s Hall is a private Catholic institution located in Montgomery County, Pennsylvania.
89. In order to participate in the PRRI program,
St. Gabriel s Mall was required to sign a contract for services with. the Montgomery Intermediate Unit that included paragraph 27
(the requirement that the private institutions agree to bt
covered by the re911111 t1 of Iictieh 1161111)1
90. All PRRIs including St. Gabriel s Hall have been
required to sign affidavits to the effect that they will abide by the requirements of Section 11-1112 pursuant to their contracts.
91. The objection to the inclusion of paragraph 27 resulted in a dispute between St. Gabriel s Hall and the
Montgomery Intermediate Unit. The issue of paragraph 17 was
initiated by St. Gabriel s Hall and not by the Montgomery Intermediate Unit, the State Department of Education or the United States Department of Education, Office of Civil Rights,
Region III. 92. Mr. William Nader was the Chief of the Correctional Education Division of the Pennsylvania State
Department of Education on December 23, 1987.
• 93. Mr. Wader s position as Chief of the Correctional Education Division involves responsibility for providing
educational opportunities for youth development centers; forestry
camps; and correction facilities. Mr. Mader is responsible for
G-63 22 1
educational systems which supervise, on an average daily basis,
700 students who are subject to the Pennsylvania public school
code and hence section 11-1112, and 4,500 adult prisoners who are
not subject to section 11-1112.
94. Prior to 1987, Mr. Mader had never heard of
section 11-1112.
95. Mr. Mader s knowledge of section 11-1112 is a
result of the instant lawsuit.
96. Mr. Mader has never received instructions from a
superior on the implementation of section 11-1112.
97. Mr. Mader has never informed his subordinates with respect to the implementation, meaning or application of section
11-1112. 98. The Pennsylvania State Department of Education requires the teachers at three state owned schools to comply with
section 11-1112.
99. Mr. William R. Logan is Deputy Commissioner of the Pennsylvania State Department of Education. He has direct responsibility for two state schools, the Scotland School for
Veterans Children and the Scranton School for the Deaf, and some
responsibility for the Thaddeus Stevens State School of
Technology. Be started working for the Pennsylvania State
Department of Education in 1968.
100. Mr. Logan has never been instructed with respect to the proper application of section 11-1112.
24 [IJ 101. Mr. Logan has never instructed any subordinate
with respect to the proper application of section 11-1112.
102. Mr. Logan was Director of the Bureau of Basic
Eduction Fiscal Administration in the Pennsylvania State
Department of Education which was, among, other things,
responsible for the PRRI program in 1984 and 1985.
103. Prior to the objection raised by St. Gabriel s
Hall in 1984, Mr. Logan had not been aware of section 11 -1112.
104. When-Mr. Logan was Director of the Bureau of Fiscal Administration with responsibility for the PRRI program, he did not do anything to implement section 11-1112. 105. Mr. Joseph Bard is the Chief of the Division of Advisory Services of the Bureau of Basic Education Support Services and is responsible for interpretation and enforcement of the Pennsylvania public school code and the regulations applicable to school districts across Pennsylvania. 106. The division works with school district superintendents by issuing advice and approval as required to superintendents or their school districts with regard to the pblic school code. 107. Mr. Bard began as chief of the division in 1984. 10$. According to Mr. Bard, there are no specific responsibilities arising from section 11-1112 for any individual in the division. 109. Mr. Bard has not advised any school district or
I school superintendent on the application of section 11-1112 nor
C J 2b has he been asked by anyone to advise any school districts or superintendents on it.
110. Mr. Bard first became aware of section 11-1112 when he became aware, of this case between late fall and early winter of 1987.
111. Mr. Bard has never received instructions from his
superiors on the proper application-, understanding,
interpretation or enforcement of section 11-1112.
112. Mr. Bard does not know what the Commonwealth s role would be in enforcing section 11-1112 in state-owned schools. 113. Mr. Bard is not aware of any other individual in the Department of Education who has responsibility more specific than his to enforce, interpret, or advise local school boards, school districts or school superintendents with respect to section 11-1112. 114. Mr. Ianelli, a principal in the Philadelphia public school system who refused employment to Ms. Reardon based on her garb, has been aware of the prohibition against teachers wearing religious garb or symbols since he began teaching. 115. While a public school principal in Philadelphia, Mr. Ianelli has asked teachers under his authority wearing a small cross or a Star of David to take them off because they are prohibited under section 11-1112. 116. Mr. Ginsburg, a public school principal in Philadelphia who refused employment to Ms. Reardon based on her 11-93 26 garb, was aware of the substance of section 11-1112 as common knowledge, but never received a copy of the provision or an explanation of how to apply it.
117. Mr. Ginsburg instructed teachers under his
authority wearing small crosses to take the symbols off or to
bid them to prevent the students from seeing the symbols. 118. Mr. Gavin, a public school principal in
Philadelphia who refused employment to Ms. Reardon based on her garb, instructed teachers under his sthoritY ^IIariA q fro 1146 or
Stars of David that the display of such symbols was not permitted. 119. On August 18, 1987, Mr. Arnold Moss was an Assistant Director of the Office of Personnel Operations of the School District of Philadelphia. 120. Mr. Moss was designated by the Board of Education for the School District of Philadelphia pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure to testify on the methods of selection used by the School District of Philadelphia to select teachers and substitute teachers. 121. The first knowledge that Mr. Moss had of section 11-1112 was gained as a result of the incident invol:rinq Ms. Dolores Reardon in 1984-1985. 122. Kr. Koss began his employment in the school District of Philadelphia as a teacher in 1959. 123. Mr. Moss started his current job in July, 1966.
27 [203 124. The "Handbook for Substitute Teachers" issued by the School District of Philadelphia from its Office of Staff
Training and Office of Curriculum and Instructional Development does not mention section 11-1112.
125. On October 7, 1987, Patricia A. Donovan, Esquire, was employed as Assistant General Counsel to the Board of
Education of the School District of Philadelphia. She has held
this position since 1980.
126. Ms. Donovan was designated by the Board of Education for the School District of Philadelphia pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure to testify on, among other matters, the meaning and application of section 11-1112. 127. Ms. Donovan s primary duty is to advise the Board and school district officers, with respect to state and federal programs and matters. 128. Ms. Donovan s understanding is that section 11- 1112 prohibits the wearing of religious garb by a teacher in a public classroom even though the intent of the wearer was not religious. 129. 1 find that neither the Board nor the Commonwealth has applied the prohibition against the wearing of religious garb or symbols by teachers in the public schools set forth in section 11-1112 regularly or consistently. 130. I find that neither the Board nor the Commonwealth has established any program or set of guidelines for the
[21J
.• 28 consistent application of section 11-1112 in public schools subject to that provision.
131. Yr. Peter Stravinskas, a priest in the Roman
Catholic church, is an administrator of Holy Trinity church and a
Professor of Education at St. Johns University in New York City.
132. Yr. Stravinskas testified as an expert on education and on 19th century American anti-Catholicism.
133. In the opinion of Yr. 8travinskas, there is a
direct linkage between anti-Catholicism and the enactment of
section 11-1112.
134. Fr. Stravinskas reviewed the legislative debate over the passage of section 11-1112.
135. The legislative debates referred to the need to overcome the result of Hysona v. School District of Gallitzin,
164 Pa. 629, 30 A. 482 (1894), which had indicated that there was no legal barrier to wearing religious garb in public school
classrooms. 136. The fact that the Pennsylvania religious garb bill, presently codified as section 11-1112, appeared in the
legislature soon after the failure in gvsongv. Gallitzin to
exclude garbed Catholic nuns and priests from teaching in public
school helped persuade Fr. Stravinskas that there was a causal
relationship between the failure in the courts to exclude garbed
nuns from the classroom and the introduction and enactment into
law of the garb bill.
[223 29 A
137. Pr. Stravinskas testified that there were references in the legislative debates to the Junior Order of
United American Mechanics and the American Protective
Association, and that there were recurrent references to keeping
"our public schools" and "our common schools" free of sectarian
influence. Pr. Stravinskas testified that the word "sectarian" was historically used as code language for Roman Catholic.
138. Yr. Stravinskas drew a variety of conclusions based on the research he reviewed and his overall expertise in
the fields of American anti-Catholicism and education. It was
his conclusion that the principal "patriotic orders" in 19th century America were the American Protective Association (AM),
the Order of United American Mechanics and the Junior Order of
United American Mechanics, and that the Pennsylvania religious
garb bill of 1895 was a part of the legislative agenda of the Junior Order of United American Mechanics and the APA.
139. Fr. Stravinskas concluded that a major tenet of anti-Catholic organizations such as the Junior Order of United
American Mechanics and the APA in the 1890 s was exclusion of
Catholic priests and nuns from direct involvement in public
education.
140. With regard to the Miry of the Junior Order of United American Mechanics, Yr. Btravinskas believes that the
claims of responsibility for the Pennsylvania religious garb bill
made by the Junior Order in the book are reliable, and that there
was a direct correlation between the failure of the plaintiffs in
233 E 30 gvsona V. Gall itzin to prevent Catholic nuns and priests from teaching in public schools and the subsequent efforts to enact the garb bill.
141. !r. Stravinskas testified that at the time of the passage of the religious garb bill, Protestant ministers were substantially involved at every level of American public
,education, and that bible reading from the Xing James version of the Bible, a non-Catholic version, was a standard practice, FY.
Stravinskas a1io tuatifiad that it was his opinion that regular reading from the King James version of the Bible in public
schools was certainly part of the agenda of the "patriotic
orders" of 19th century America.
142. The opinion of Fr. Stravinskas that there is a direct linkage between anti-Catholicism and the enactment of the
religious garb bill was also influenced by reports he read in general circulation newspapers of the period in question.
143. I find Fr. Stravinskas testimony and the evidence upon which he based his conclusions highly persuasive, and I
conclude that anti-Catholicism was a significant factor in the
passage of the Pennsylvania religious garb bill of 1895, now
codified as section 11-1112.
144. Dr. Frank J. Landy testified as an expert in 0 applied psychology regarding the effect on students of a teacher
wearing religious garb in the classroom.
145. Dr. Landy testified as to his conclusions as a result of a review conducted by Dr. Landy and a team of
E4 31 psychologists of scientific literature deemed relevant to the question of the effect of a teacher s religious garb on students.
146. Dr. Landy and his team reached their conclusions without conducting a clinical study of the effect of a teacher s
religious garb on students.
147. Dr. Tandy and his team reached their conclusions
without reviewing any specific studies of the effect of religious
garb on students.
148.. Dr. Landy concluded that students would perceive the wearing of religious garb by a teacher as an endorsement of the religion by the teacher. 149. Dr. Landy concluded that teachers are authority figures in the classroom and have the capacity, should they choose to exercise it, of influencing the religious attitudes and beliefs of students in the classroom. 150. Dr. Landy concluded that wearing religious garb in the classroom is a novel stimulus that will lead to question asking behavior. 151. Dr. Landy concluded that there is a possibility that ingroup and outgroup formation among students along religious lines could occur as a result of the wearing of religious garb by a teacher. 152. Dr. Landy and his team reviewed no studies regarding religion as a stimulus for the grouping phenomenon among students.
C5] ^^ 1k
153. Dr. Landy testified, upon viewing Gov. Ex. 86, a picture of Ms. Coins wearing a Star of David, that such a symbol is not a sufficiently novel stimulus to generate question asking behavior among students.
354. Dr. Landy testified, Upon viewing Gov. Ex. 84, a picture of Ms. Moore wearing the scarf of her Islamic faith, that such garb is not a sufficiently novel stimulus to generate
question asking behavior by students.
155. Dr, Candy testified that there is a possibility that the wearing of religious garb by a teacher could be seen by students as an endorsement of the religion by the state or the school district. 156. I find Dr. Landy s view, that the wearing of religious garb by a teacher could possibly result in a perception by students of an endorsement of the religion by the state or school district, unpersuasive on the issue of whether such a result is likely or probable. Dr. Landy did not bass his views on the review of any studies of the impact of religious garb on students nor did Dr. Landy and his team conduct any such clinical studies. 157. 1 find from the unrebutted evidence presented at trial that only five states have statutes or regulations similar to section 11-1112.
33 C263 1. This court has jurisdiction over the parties and subject aattsr pursuant to 28 U.S.C. 1 13451 42 U.S.C. I; 2000s-
5(f) (3) 1 2000e-6(b).
rrr;. w o .
2. The United States asserts that each of the aeieedeets hit ottt se j eutul uploymsnt practice by failing to accommodate Ms. Reardon s religious practice, by utilizing section 11-1112 as a basis for preventing Ms. Reardon from substitute teaching in the Philadelphia public schools in the fall of 1984. 42 U.S.C. f 2000e-2 provides in pertinent part that: (ijt shall be an unlawful employment practice for an employer--to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual s race, color, religion, sex, or national origin. 42 U.S.C. f 2000e-2(a)(1). 3. 42 U.S.C._ f 2000e(j) defines the term religion as including •all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business." g. "The intent and effect of this definition was to make it an unlawful
GJ 34 employment practice under 1703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees." Trans World Airlines. Inc. v. Iiardison, 432 U.S. 63, 74 (1977).
The result is the creation of a religious accommodation requirement as part of Title VII S statutory scheme.
4. The Board of Education for the School District of
Philadelphia is a statutory employer, pursuant to 42 V.S.C. I
2000e(a),(b), and was Ms. Reardon s employer for purposes of
section 2000s-2(a)(1) during the fall of 1984.
5. The Commonwealth of Pennsylvania fits the statutory definition of employer, pursuant to 42 U.S.C. f 2000e(a),(b).
Nevertheless, the Commonwealth is not Ms. Reardon s employer for
purposes of liability under section 2000.-2(a)(1). The control exercised by the Commonwealth over the terms of her employment,
through the force of section 11-1112, is exercised by the
Commonwealth in its role as regulator and not in its role as employer in the customary sense of the word. George v. Now ^7erse_v Board of Veterinary Medical Examiners, 635 F. Supp. 953,
956 (D.N.J. 1985), aff d, 794 F.2d 113 (3d Cir. 1986). Nothing
resembling an employer-employee relationship has been shown to
exist between the Commonwealth and Ms. Reardon. Therefor , I
conclude that the Commonwealth is not an employer within the meaning of section 2000e(b) with respect to Ks. Reardon, and is
therefore not subject as to Ms. Reardon to the prohibition of unlawful employment practices set forth in section 2000e-2(a)(1).
[28] 35 Ll
U
6. Ms. Reardon s commitment to wearing her head scarf
and other attire was a result of her sincere and good faith
belief that her religion requires her to be attired in such
clothing while in public. Ms. Reardon s commitment to wearing
her garb in public was a religious practice subject to the
protection of sections 2000a-2(a)(i) and 2000e(j).
7. The Board did not sake any offer to accommodate Ms.
Reardon's practice of wearing her religiously required garb. Ms.
Reardon was simply refused employment as a substitute teacher
while wearing her garb, by three principals of the Philadelphia
public school system. The principals who refused Ms. Reardon employment did so on the basis of what they understood to be the prohibition on religious garb embodied in saction 11-1112.
Ms. Reardon was otherwise qualified to substitute teach, and would have been allowed to do so from October to December 1984 if she had changed her clothing to what was considered non-religious
garb. The Board has stated that it intends to :ontinue this
policy of preventing teachers wearing relijious garb or symbols from teaching in the public schools. The Board failed to propose or engage in any reasonable accommodation of Ms.
Reardon s religious practice.
I. In a religious accommodation case, once a plaintiff
establishes a prima facie case, the burden shifts to the
employer to demonstrate that it cannot reasonably accommodate the worker without undue hardship. Protos V. Volkswagen n of America. Inc., 797 F.2d 129, 133-34 (3d Cir.), S=. mod, 479 C,] 3& U.S. 972 (1986). A prima facie case is established by showing:
"(1) he or she has a bona fide religious belief that conflicts with an employment requirements (2) he or she informed the employer of this belief; (3) he or she was disciplined for
failure to comply with the conflicting employment requirement."
Id. at 133 (citations omitted).
9. It is clear that the United States has demonstrated a prima facie case of. the Board's failure to acco^taodato
Ms. Reardon s religious practice. The principals who refused Ms.
Reardon the opportunity to substitute teach explicitly asserted
that her religious practice of wearing the attire of her faith
was the very reason for preventing her from teaching. Moreover, because the case was fully tried on the merits, the relevant
issue for decision is whether the defendant has demonstrated either a reasonable accommodation to Ms. Reardon s practice or that it is unable to so accommodate without undue hardship. SM Ansonia Bd. of Educ. V. Philbrook, 479 V.S. 60, 67-68 (1986).
10. 1 conclude that the Board has not engaged in nor proposed any reasonable accommodation to Ms. Reardon s religious
practice. Therefore, the Board must show that it is unable to reasonably accommodate Ks. Reardon without incurring undue
hardship. Id. at 68-69.
11. In Hardison, the Court held that to require an employer "to bear more than a di aini.aiR cost" in accommodating its employee is an undue hardship. garb, 432 U.S. at 84. The determination of the extent of undue hardship which would be
C3o]
37 incurred by the employer by reason of accommodation of the
•mployee s practice is to be made by considering the particular factual context of the case, including an evaluation of the fact as well as the magnitude of hardship. 797 T.2d at 134
(quoting Toolev V. Martin-Marietta Core., 648 8.2d 1239, 1243
(9th Cir.), gd, 454 U.S. 1098 (1981)).
12. The Board contends that it could not accommodate
Ms. Reardon s religious beliefs without violating section 11-
1112, a current provision of Pennsylvania law, and that violating
the statute would constitute undue hardship. The Board also asserts in its answer that it cannot accommodate Ms. Reardon s
practice without undue hardship because to do so would (1)
violate the establishment clause of the first amendment of the
United States Constitution; and (2) contravene the Board s compelling interest in avoiding endorsement of religion in the public schools or the appearance of such endorsement. I conclude
that the Board has not demonstrated that it is unable to
accommodate Ms. Reardon s religious practice without undue
hardship.
13. The Board would not incur undue hardship, by violating section 11-1112, in accommodating Ms. Reardon s
practice of wearing the attire of her faith. The evidence demonstrates that the Commonwealth has never brought an action to
enforce section 11-1112, nor has it ever taken any responsive
action against violators of the statute. Moreover, the Board itself has permitted teachers in the Philadelphia public schools
[31)
W A
to wear religious garb or symbols in the past without adverse
legal consequences. In fact, Ms. Reardon herself was permitted
to teach full-time in the Philadelphia public schools in 1985.
The supremacy clause of the Constitution mandates that
Title VII s religious accommodation requirement, which clearly
conflicts with the absolute prohibition on accommodation set
forth in section 11 1112, controls the issue. Moreover, the
argument asserted by the Board and the Commonwealth based on the principles of the establishment clause is a separate justification of the Board s actions which is inapplicable to the Board s state statute hardship argument. The Board would incur no cost whatsoever in violating section 11-1112 by complying with the reasonable accommodation provision of Title VII. A review of the evidence of the inconsistent and sporadic enforcement of section 11-1112 by the Board and the complete lack of enforcement of section 11-1112 by the Commonwealth compels the, conclusion that any cost to the board as a result of violating section 11-1112 in accommodating Ms. Reardon is merely hypothetical, 1 and thus does not constitute undue hardship. 14. The Board asserts that it has a compelling interest in avoiding the actual or symbolic endorsement of religion by the public schools. Nevertheless, the evidence has not shown that accommodating Ms. Reardon s practice of wearing the attire of her religious faith would contravene this interest arising from
T000lev, 648 F.2d at 1243. 1. Lu • 327 39 establishment clause principles and thus result in undue hardship to the Board. I have not found from the evidence presented at trial that permitting a public school teacher to wear a scarf
required by her religious faith would be likely or probable to
create a perception among students that the school, the school
district, or the municipal or state q'vernmental entity endorsed
the religion of the teacher.
Dr. Landy, the Commonwealth s exp^r at trial on the
issue Of the •f feet of a teacher s religious garb on students,
did not testify that such a result vas likely or probable to
occur. Moreover, I have previously found that Dr. Landy s testimony that permitting a teacher to wear religious garb night
possibly result in a perception by students that the school or
local governmental entity endorsed that teacher s religion was
unpersuasive. Defendant Board has simply failed to demonstrate that accommodation of Ms. Reardon s religious practice would
contravene the important interest of avoiding the symbolic or actual endorsement of religion by the Board or other official
entity, and thus has failed to demonstrate that accommodation would require the Board to incur more than a 4 s hardship.2
2. While the articulation of the g standard has been set forth in this section as part of the court s conclusions of law, the conclusion that the Board has failed to demonstrate any actual undue hardship due to contravention of the important interest of avoiding the symbolic endorsement of religion is a factual finding. $" p tn, 797 9.2d at 135 n.3.
C3^ 40 15. The Board finally assorts that it would incur undue hardship in accommodating Ms. Reardon s religious practice because to do so would violate the establishment clause of the
first amendment, This contention can be viewed as requiring two
separate lines of analysis. The first issue arising from the
Board s contention is whether the Board would violate the
establishment clause if it failed to prohibit Ms. Reardon from
wearing the attire of her religious faith. The second issue is
whether the religious accommodation requirement of Title VII itself violates the establishment clause of the first amendment. I conclude that no violation of the establishment clause would result from the Board s acquiescence in Ma. Reardon s religious practice pursuant to the religious accommodation requirement of Title VII. 16. The Board s acquiescence in Ms. Reardon s religious practice would not violate the establishment clause. The relevant test for determining whether government action violates the establishment clause is the three-pronged test set forth in Lemon v. Kurtzman, 403 V.S. 602 (1971). The Supreme Court has noted that the Lemon test has been relied on win every case involving the sensitive relationship between government and religion in the education of our children." Grand Rapids School Dist. V. Sall, 473 U.B. 373, 383 (1985). The Lemon test requires that: (1) the government action or statute gust have a secular purpose: (2) the principal or primary effect of the statute or action must be one that neither
[34J advances nor inhibits religions and (3) the action or statute must not foster excessive governmental entanglement with religion. L mon, 403 U.S. at 612-13.
17. None of the defendants has disputed that the first and third prongs of the Lemon test are net here. first, if the
Board allowed lbs. Reardon to wear the attire of her religious
faith in the classroom, it would be for the purpose of complying
with the accommodation requirement of Title VII, a manifestly
secular purpoit, WOOW, the purpose of the accommodation requirement itself is plainly "to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others." Protca, 797 f .2d at 136 (citations omitted). Second, permitting Ms. Reardon to wear the attire of her religious faith, or more precisely, refraining from enforcing section 11-1112 s prohibition against wearing such garb, would not foster institutional entanglement with religion. To the contrary, entanglement in the form of monitoring or continuing evaluation and surveillance would necessarily arise in the course of enforcement of section 11-1112, rather than in the course of refraining from enforcement of that section in :ompliance with Title VII. Enforcement of section 11-1112 would require an evaluation by the Board or its designees of whether the particular garb or symbol at issue indicated that the wearer was a member or adherent of a religious group, whereas non-
42 C
enforcement of section 11-1112 would require no action by the
Board whatsoever.
1$. The issue whether, in permitting Ms. Reardon to
wear the attire of her religious faith, the Board s action would
have the principal or primary effect of advancing or inhibiting
religion presents a closer question. The United States, the
Commonwealth and the Board have focused primarily on this issue
in their arguments before the court and in their briefs. The
Court 3s not uh Lndful of the sensitive inquiry required in the
circumstances presented by this case. As the Supreme Court has
noted, an important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices. The inquiry into this kind .f effect must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years. Grand Rapids School Dist, V. Sall, 473 U.S. at 390 (footnote
omitted).
Initially, it must be noted that I have concluded that
the testimony of the expert witness presented on the issue of the
effect of teacher s religious garb on students did not demonstrate that students were likely to perceive the wearing of
religious garb by a teacher as an endorsement of religion by the school, the Board, or the state or local government entity.
Moreover, the defendants expert witness in applied psychology C6J 43 testified at trial, upon viewing photographic exhibits depicting two of the witnesses in this case wearing a Star of David and the
attire of the Islamic faith, respectively, that neither the
symbol nor the garb pictured was a sufficiently novel stimulus to
generate question asking behavior among students, and
specifically that students would have no idea that the Islamic
head scarf pictured was worn for religious purposes.
19. The state action at issue in the present case is
distinguishable from statutes or governmental action previously
held by the Supreme Court to violate the establishment clause in
the context of primary or secondary education. For example, the
impermissible effect in Grand Ra pids School District arose from the symbolic union of government and religion inherent in two
programs in which state-paid instructors conducted non-religious courses in non-public schools, in classrooms leased from the predominantly religious schools. The Court concluded that because the government-financed programs took place in the religious school buildings and the classes were composed largely
of students who were adherents of the same religious
denomination, the resulting enterprise involving both government
and religion created a symbol of state endorsement of the
religious beliefs taught at other times in the non-public schools. Grand _ids School District, 473 V.S. at 391-92. Unlike the programs in Grand Raids School District, the
government action at issue in the case before this court involves
no activities conducted in religious school classrooms nor any C J 44 activities conducted in classes composed of adherents of one religion. I conclude that the mere acquiescence of the Board in lbs. Reardon s religious practice would not create an environment
establishing a symbolic union of government and religion in a
united enterprise such as was found impermissible in Grand Rapids School District.
Additionally, acquiescing in Ns. Reardon s wearing of
the attire of her religion involves no endorsement by the Board
of any substantive religious viewpoint. The Board would not, for
example, be permitting or requiring a moment of silence in the
classroom, see Wallace v. Jaffree, 472 U.B. 38 (1985), nor would
the Board be forbidding the teaching of evolution, B,jg ZRverson
y . l^rkansas, 393 U.B. 97 (1968), requiring the teaching of
creation science along with the theory of evolution, aaaEdwards X. aauillard, 482 U.S. 578 (1987), or requiring that the Ten
Commandments be posted in public classrooms, w Stone v. Graham, 449 U.S. 39 (1980). While the Court focused on the impermissible
purpose behind the statutes at issue in the above cases, a comparison of the dramatic state action involved in those cases
with the Board s non-action in permitting Ms. Reardon to wear her
reliq{ously-required attire demonstrates the stark contrast
between state action which has been held to violate the establishment clause and the action at issue in this case.
Unlike any of the cases referred to above, the action of the Board in permitting Ns. Reardon to wear bar religiously-required
[3 J 45 attire does not involve the endorsement of a particular substantive religious message or viewpoint.
20. The history of sporadic and inconsistent enforcement of section 11-1112 by both the board and the
Commonwealth does not support the Board's contention that enforcement of section 11-1112 is essential to avoid the effect of symbolic state endorsement of religion in the public schools.
Quite to the contrary, the Board s assertion that failure to enforce section 11-1112 would violate the establishment clause is severely undercut by the history of failure by the Board to consistently enforce section 11-1112 or to develop any program setting forth guidelines for the application of the provision or promoting awareness of the provision among the administrators or teachers of the Philadelphia public school system. In fact, the
"Handbook for Substitute Teachers" issued by the Philadelphia School District contains no reference to section 11-1112. Moreover, Mr. Moss, Assistant Director of the district s Office of Personnel Operations since 1966, became aware of section 11- 1112 only as a result of the incident involving Ms. Reardon in 1984. 21. In contending that failure to enforce section 1i-
1112, in compliance with the requirements of Title VII, would
violate the establishment clause, the Board is in effect arguing that enforcement of section 11-1112 is compelled by the establishment clause. Nevertheless, the unrebutted evidence presented at trial demonstrates that only three other states have LJ 46
cJ statutes similar to section 11-1112 and that only two other
states have similar regulations, all of which were enacted prior
to the passage of Title VII.
Moreover, in light of this court s finding that a
substantial activating factor in the enactment of section 11-1112
was anti-Catholic animus, the provision is sore closely analogous
to the state statutes invalidated in g S, I; son. E, ds,
and , in that the provision was enacted for the p rpo`s of
advancing 6! Whiting a prrticular religious viewpoint, thus
rendering the presently asserted justification for the provision
less compelling. 22. Additionally, no evidence has been presented which
demonstrates that the negative effects of non-enforcement of section 11-1112 asserted by the defendants to be certain to occur
have in fact occurred. This absence of evidence is especially persuasive in light of the fact that Ms. Reardon was permitted to
teach in the Philadelphia public school system while wearing the
attire of her religious faith in 1985, and in light of the
evidence of the wearing of religious garb or symbols by others in
the Philadelphia public school system without complaint or
incident.
• This lack of evidence of incidents of perception by students of religious endorsement, and of complaints regarding
such perceived endorsement is significant, unlike the absence of
evidence of incidents of religious indoctrination deemed
insignificant in Grand Rapids School District. In grr4 R DpId_s GoJ 47 W
School District, the Court noted that there was no reason to
believe that incidents of impermissible ideological influence
would be reported by students or parents, where the students
attending the classes at issue were predominantly adherents of
the religion associated with the non-public school in which the
classes were taught. fl Grand Rapids School District, 433 U.s.
at 388 •89. In this case, on the other hand, the wearing of
religious garb or symbol$ took place in public schools, in lost
instances QVtr I period of yeti, and yst tha evidence at trial demonstrated no complaints or reports by parents or students of
any perception of .impermissibis official endorsement of the
wearer s religion. 23. The Supreme Court has noted, in Lynch v. Donnelly, 465 U.S. 668 (1984), that the metaphor of a wall between church
and state "is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church
and state." ZA. at 673. The Lynch Court further noted that a
rigid, absolutist view of the establishment clause is
inappropriate "(iln our modern, complex society, whose traditions
and constitutional underpinnings rest on and encourage diversity and pluralism in all areas." Id. at 676. The Court stated:
No significant segment of our society and no institution within it can exist in a vacuum or in total or absoluto isolation from all the other parts, such isss fron government. . . . Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids r41-3 4S hostility toward any. Anything less would require the callous indifference vs have said was never intended by the Establishment Clause. Indeed, we have observed, such hostility would bring us into war with our national tradition as embodied in the First Amendment s guaranty of the free exercise of religion.
Id. at 673 (citations omitted .
In sum, I conclude that the Board, in permitting Ms.
Reardon to substitute teach dressed in the attire of her religious faith, would not violate the establishment clause. in so concluding, I am y the teaching of Lei, and I therefore decline to apply the establishment clause in an absolutist fashion. I conclude that permitting Ms. Reardon to wear her religiously-required garb does not have the principal or primary effect of endorsing and thus advancing her religion, or of inhibiting the religious beliefs of-others or their freedom to have no religious beliefs at all. If the Board s compliance with the religious accommodation requirement of Title VII in this case has any communicative effect, it is instead the effect of endorsing the principles behind the religious accommodation requirement, the principles of freedom of conscience and freedom
from discrimination in the workplace. I Qs, 797 ?.2d at
136. 24. I also conclude that the religious accommodation requirement of Title VII does not violate the establishment clause, either facially or as applied in this case. in Pro, the Third circuit found no constitutional infirmity in the
religious accommodation requirement, in part relying on the
C423 difference between that provision and the Connecticut law providing an absolute guarantee of the right not to work on one s
Sabbath which was hold to violate the establishment clause in Thornton V. Caldor, The., 472 V.S. 703 (1985). 1.11 Pr=, 797
Y.2d at 136. The 2 gt court additionally relied on Justice
O Connor s concurring opinion in Thornton v. Caldor, in which she
concluded that Title Vii s religious accommodation requirement
would satisfy the Lemon test. Il. (cttiq Thorntg, 172 a1S 1 it 11142 (O'Connor, J. , oonouttinq)) ,
I conclude that the religious accommodation requirement
of Title VII as applied in this case does not violate the establishment clause, for the reasons stated previously in this
Memorandum, as well as pursuant to the analysis sot forth by the
Third Circuit in proton. As the P of toe court noted, section 2000e(j) has a clearly secular purpose, would not lead to
excessive governmental entanglement with religion, and has the "primary effect of promoting freedom of conscience and
prohibiting discrimination in the workplace." g.
25. The Commonwealth and the Board have not engaged in
a pattern or practice of resistance to the full enjoyment of the right established by section 2000s-2(a) to be free from discrimination in employment because of one s religion. The
Supreme Court bas stated that the plaintiff s burden on a claim
pursuant to section 2000e-6(a) is "to establish by a
preponderance of the evidence that . . . discrimination was the (97 50 (defendant s) standard operating procedure--the regular rather 1 than the unusual practice. International Bhd,of Teamster v.
United States, 431 V.B. 326, 336 (1977).
The United States has not proved more than the
occurrence of isolated or sporadic acts of refusal of the
Commonwealth and the Board to reasonably accommodate the
religious practices of employees.
The Commonwealth and the board each have stated that it
is their intent to enforce section 11-1112 in the future.
Nevertheless, the evidence presented by the United States
demonstrates that the actual practice of the defendants vas not
the consistent application and enforcement of section 11-1112. Instead, the evidence clearly shows that any enforcement of
section 11-1112 was an unusual occurrence, and that virtually all
of the defendants officials responsible for the interpretation
or application of section 11-1112 were unaware of the existence of that provision-until the occurrence of the incidents involving Ms. Reardon which led to the institution of this civil action. The evidence therefore compels the conclusion that the
enforcement of section 11-1112 was not the standard operating
procedure of either the Commonwealth or the Board.
26. Pursuant to 42 O.S.C. 1 2000e-S(g), the board shall
be required to provide make-whole relief to Ns. Reardon for the period of time in 1984 in which she vas prohibited from teaching
in the Philadelphia School District because of her religious
[447 practice. The parties have stipulated that Ms. Reardon s 27 day 0 backpay loss is $1,734.75. The parties have additionally
stipulated that the interest on that backpay loss is $779.06,
calculated through June 30, 1988 on the basis of Internal
Revenue Service interest rates. The court awards the stipulated
amount of backpay loss and prejudgment interest to Ms. Reardon.
The Board shall be enjoined from enforcing section 11-
1112. Section 11-1112 is contrary to and in conflict with 42
U.S.C. ZObbt(, the resse,ntbl, sCCOmmodation requirement of Title VII, in that section 11-1112 sets forth an absolute
prohibition against any accommodation to religious practices of public school teachers which involve the wearing of certain garb, emblems, symbols or insignia.
CO3 52 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA s CIVIL ACTION
V.
BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF $ PHILADELPHIA and COI*IONWEALTH OF PENNSYLVANIA : NO. 87-2842
AND NOW, this 17th day of Kay, 1989, in accordance with the foregoing Findings of Fact and Conclusions of Law, the court enters the following Order:
1. Judgment is ENTERED in favor of the United States and against defendant Board of Education for the School District of Philadelphia, and in accordance therewith, it is ORDERED that the Board of Education for the School District of Philadelphia shall pay Ms. Alima Dolores Reardon the amount of $2,513.81. It is further ORDERED that defendant Board of Education for the
School District of Philadelphia is enjoined from giving any
further force or effect to Pa. Stat. Ann. tit. 24, 11-1112. 2. Judgment is entered in favor of defendant
Commonwealth of Pennsylvania and against the United states.
53 I
3. It is declared that Pa. Stat. Ann. tit. 24, 1112 is contrary to and in conflict vith Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 1 2000. g &q.
SY Tl F COURT: i1
TiMES MCGIRR Y, J
3
Q
n 54 C 23