IT’S THE LAW PERRY A. ZIRKEL

not display any religious emblems, Employees dress, or insignia … includ[ing] jew- elry such as crosses or Stars of David” and which lists a one-year suspension Wearing as the consequence for the first viola- tion and a permanent suspension for the second. He warned her that if she Religious Attire wore the cross visibly the next day he would have to follow the policy and issue the suspension. She did so, and hile adherents to many religions can be identified by the district issued the suspension. Wdistinctive clothing or accessories, the wearing of such Nichol filed suit in federal court, claiming that the suspen- garb by teachers is not necessarily related to evangelism in sion violated her First Amendment rights of free exercise of the classroom.1 The following case and the accompanying religion and freedom of speech. The district’s defenses were question-and-answer discussion illustrate the problem of the that the state statute (which applies to all professional certifi- principal caught between the rock of cated personnel) required, on penalty First Amendment establishment clause of criminal prosecution, enforcement concerns, often in the form of laws “Employee wearing of against any known violations; and that prohibiting school employees from religious clothing or jewelry the district policy (which applies to all wearing religion-related apparel or employees) is based on not only the jewelry, and the hard place of counter- is a perplexing issue that statute but also the First Amendment’s vailing individual freedoms, including establishment clause for religious free exercise of religion, freedom of merits careful consideration neutrality. speech, and the Title VII protection in collaboration with legal against religious discrimination. Questions and Answers counsel...” The Case Who do you think prevailed in this During the 2002–03 school year, litigation? Brenda Nichol was a paraprofessional in a special education The federal district court issued a preliminary injunction class at Penns Manor Area Elementary School in western in favor of the plaintiff-paraprofessional.3 First, the court Pennsylvania. For the previous five years, she had performed ruled that the state statute did not apply to Nichol because similar duties at the middle school in the same district.2 she was a paraprofessional, not a teacher or other certifi- Sometime before the end of the 1998–1999 school year, she cated professional. Second, although the district policy and all district personnel had received a notice explaining applied to Nichol, the court concluded that she was likely that the Pennsylvania Public School Code did not allow to succeed on her First Amendment claims. wearing religious jewelry such as “crosses or Stars of David.” The court ruled that by drawing a line between jewelry Yet Nichol continued to wear a cross to school approxi- and other apparel that convey a religious message and those mately three days per week without tucking it inside her that convey a secular message, the policy constituted view- blouse and without any reaction from her co-workers or point discrimination contrary to the First Amendment’s students. freedom of religion and expression. The court suggested However, in March of 2003 another staff member that “permitting small crosses or similar jewelry with reli- informed her special education supervisor that Nichol gious content or viewpoint at school, especially in the con- was wearing a cross at work. The next day, the supervisor text that jewelry with secular message content is worn and reminded Nichol and other staff members of the state law permitted” would not violate the First Amendment’s estab- and asked them either not to wear crosses or to keep them lishment clause. In response to the district’s argument that concealed by tucking them in. Nichol was not wearing her elementary school students are particularly impressionable, cross that day, but early the next month she wore it openly the court pointed to the Supreme Court’s 2001 religious- again and the special education teacher in her classroom access decision4 that treated this concern as exaggerated reminded her of the supervisor’s request. and one-sided. When the supervisor followed up a week or so later with another reminder, she explained that his request was like Would the court’s decision have been different if Nichol had asking her to remove or hide her wedding ring, and that been a teacher in Pennsylvania or another state with a strong complying would be to shame her “Lord and Savior Jesus.” statute, had worn conspicuous religious attire, such as that The next day, he gave her a copy of the employee hand- associated with devout Sikhs or Muslims, and relied solely on book, pointing to the district policy that “employees shall First Amendment freedom of religion? Would the outcome be

10 Principal ■ November/December 2004 www.naesp.org the same if she had relied on Title VII of an attempted accommodation, without lar forms of employee garb based on the Civil Rights Act? strict observance, of her Muslim faith, such justifiable concerns as safety and Yes, with limitations in relation to would her Title VII outcome have been effective instruction. both questions. different? In applying such prohibitions, keep In a 1986 decision in Oregon, which Again, the answer is a qualified yes. in mind: has a teacher garb statute that carries In a 1991 decision, a federal district the ultimate penalty of certification court in Pennsylvania upheld the Title ■ Whether the garb is conspicuous revocation, the state’s highest court VII claim of a teacher applicant, con- or ambiguous in terms of religion in rejected the freedom of religion claims cluding that her ambiguous head cov- the eyes of the reasonable observer; of a middle school teacher who wore ering was not reasonably perceived as ■ The extent of contact that the the distinctive dress of her Sikh faith religious garb and that the district had employee has with children and, to a while teaching.5 Skirting an analysis of not explored reasonable accommoda- lesser extent, their age and his or her the First Amendment’s establishment tions, such as having her agree not to level of authority; clause, the court viewed the mainte- tell children that she covered her head ■ Whether the problem is resolvable nance of religious neutrality in the for religious reasons.7 This decision is via less restrictive alternatives or public schools as a compelling interest limited to its relatively narrow factual reasonable accommodations; and that overrode the teacher’s constitu- and Title VII confines. ■ Whether the policy is adminis- tional freedom of religion. tered with reasonable consistency. One of the significant factors in the If the state did not have a law regarding court’s decision was its perception of teachers’ religious attire and a school Finally, in such a fluid area of law, the children with whom the teacher employee wore an ambiguous head the principal’s careful consultation, had regular contact, depending on covering, such as a red beret, in viola- via central office, with district legal their “age, background, and sophistica- tion of a dress code not specifically tar- counsel is especially advisable. P tion.” In dicta, the court distinguished geted to religious garb, would the Title as permissible the wearing of common VII claim likely have a successful judicial Notes symbols of religious heritage, such as a outcome? 1. See, e.g., Perry Zirkel, “Evangelism in the “small cross or Star of David”; wearing No, not if the administrators did Classroom,” Principal, November 1998, garments that unintentionally imply not have reason to know that the head 62–63. For a more recent case, see membership in a religious group; or covering was religious. In a Mississippi Marchi v. Bd. of Coop. Educ. Serv., 173 F.3d 469 (2d Cir. 1999) (upheld consti- dressing in distinctively religious garb case, the federal district court rejected tutionality of directive that special to assume a role in a classroom histori- a teacher aide’s Title VII claim education teacher refrain from using cal exercise or theatrical performance. because, based on her inconsistent religious references in his instruction). As for Title VII, the Third Circuit actions and vague statements, the 2. Although her employer was an interme- Court of Appeals in a 1990 decision administrators were not aware that diate unit, we identify the school district as her employer for the sake of simplic- agreed with the district’s statutory the practice was part of her religious ity and coherence, because the termi- defense that it would be an undue beliefs before they discharged her for nology for and scope of intermediate hardship to require a school board to insubordination.8 units vary from state to state. violate “an apparently valid criminal 3. Nichol v. Arin Intermediate Unit 28, 268 F. statute, thereby exposing its adminis- Conclusion Supp. 2d 536 (W.D. Pa. 2003). 4. Good News Club v. Milford Cent. Sch., 533 trators to criminal prosecution and the Employee wearing of religious U.S. 98 (2001) (district’s denial of facili- 6 possible consequences thereof.” The clothing or jewelry is a perplexing issue ties access to otherwise eligible organi- court cited the Oregon case as factually that merits careful consideration in zation based on its religious viewpoint indistinguishable and pointed to the collaboration with legal counsel rather violates First Amendment expression). Supreme Court’s dismissal of the ap- than either knee-jerk or ostrich-like 5. Cooper v. Eugene Sch. Dist. No. 4J, 723 P.2d 298 (Or. 1986), appeal dismissed, 480 U.S. peal, which included a Title VII issue, administrative reaction. First, deter- 942 (1987). as supporting its position. However, mine whether your state has a perti- 6. United States v. Bd. of Educ. for the Sch. the Third Circuit artfully ducked estab- nent statute and, if so, its strength Dist. of Philadelphia, 911 F.2d 881 (3d Cir. lishment clause analysis, and there was and scope. Second, take a preventive 1990). no First Amendment free exercise or approach to potential problems by 7. EEOC v. Reads, Inc., 759 F. Supp. 1150 (E.D. Pa. 1991). expression claim in the case. developing or revising pertinent school 8. McGlothin v. Jackson Mun. Separate Sch. policy, making sure that it is reasonably Dist., 829 F. Supp. 853 (S.D. Miss. 1992). If a district in a state with a strong clear and not overly broad; that it pro- statute refused to hire a teacher vides for progressive and proportional Perry A. Zirkel is University Professor of based on her ambiguous head covering discipline, with appropriate procedural Education and Law at Lehigh University and her explanation that she did so as safeguards; and that it extends to secu- in Bethlehem, Pennsylvania. www.naesp.org Principal ■ November/December 2004 11