From Eid Al-Fitr to Hijabs

From Eid al-Fitr to Hijabs: Applying Religious Freedom, Nondiscrimination, and Accommodation Standards for Muslim Students and Staff Jollee Patterson, former General Counsel, Portland Public Schools, Portland, OR; Mike Porter, Miller Nash Graham & Dunn, Portland, OR

Presented at the 2016 School Law Practice Seminar, October 20-22, Portland, OR

The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because Seminar papers are published without substantive review, they are not official statements of NSBA/COSA, and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers are those of the author and should not be considered legal advice.

Jollee Patterson Former General Counsel, Portland Public School District, Portland, Oregon

Michael Porter Partner, Miller Nash Graham & Dunn LLP, Portland, Oregon

I. INTRODUCTION

A. General Background

Islam is the fastest‐growing religion in the world.1 Schools across the country are seeing an increase in Muslim students and staff, and this presents a variety of legal issues that school districts must be prepared to address.2 Many school communities already have a population of Muslim students and staff, and may have developed expertise and a level of comfort in addressing specific religious issues. However, because Islam is relatively less known throughout the United States, many school communities are less familiar with Muslim practices and observances than those of religions with larger populations and thus need to develop a greater level of understanding and preparedness to work with Muslim communities.

Most apparent is the need to evaluate requests for religious accommodations that are novel for many school districts, such as foot‐washing stations, requests for the opportunity to pray at specific times of the day, and dietary and dress code accommodations. If schools do not properly evaluate these requests, they can face a variety of legal challenges under the First Amendment, Fourteenth Amendment, Title VI, Title VII, and state laws. School districts are also responsible for promoting a harassment‐free school environment, investigating allegations of harassment, and remedying any

1 According to the Pew Research Center, there were over about 3 million Muslims in the United States in 2015 and this number is predicted to double by 2050. Lipka, Michael, “Muslims and Islam ‐‐ Key Findings in the U.S. and Around the World” Pew Research Center, July 22, 2016, http://www.pewresearch.org/fact‐ tank/2016/07/22/muslims‐and‐islam‐key‐findings‐in‐the‐u‐s‐and‐around‐the‐world/. 2 “Islam” is the word for a religion. A follower of the Islamic religion is referred to as a Muslim. 1

substantiated harassment. Additionally, when schools decide to educate all their students about Muslims and Islam, some members of the community may interpret such efforts as endorsement of religion and assert that majority religions have been shut out of the curriculum or have not been provided the same opportunities for education about their religion.

While these issues are challenging for school districts, and may require examination of deeply ingrained daily practices and routines, they are certainly not new for the United States. The country was founded on the idea of religious freedom. Over generations, public schools have grappled with how to accommodate and integrate the dictates of different religions and religious practices. The legal structure that has evolved over time gives schools the framework in which to evaluate these new issues.

B. Islam at the Top of the News

There are daily headlines about Muslims and Islam and these headlines often feed concern about terrorist acts that are claimed to be done in the name of Islam. In the public debate about how to address these concerns, there is escalated language that threatens the civil liberties of American Muslims. Attacks against Muslims are on the rise across the country.3 In response, the Office of Civil Rights (“OCR”), along with the United States Department of Justice and other federal agencies, has implemented a number of initiatives to address religious discrimination, and is actively pursuing complaints against school districts.4 School districts can easily get caught in the middle of religious issues, trying to balance the need to welcome all students, respect religious practices, not endorse any one religion, and address the perception and reality of safety concerns.

In this presentation, we provide examples of some of the issues that schools are grappling with, and then set forth the legal context in which these issues must be evaluated.

3 Stack, Liam “American Muslims Under Attack,” New York Times, Feb. 15, 2016. http://www.nytimes.com/interactive/2015/12/22/us/Crimes‐Against‐Muslim‐Americans.html?_r=0. 4 Office of Civil Rights, Religious Discrimination: http://www2.ed.gov/about/offices/list/ocr/religion.html. See also, United States Department of Justice, “Justice Department Announces New Interagency Initiative to Combat Religious Discrimination” March 8, 2016. https://www.justice.gov/opa/pr/justice‐department‐announces‐new‐interagency‐initiative‐combat‐religious‐ discrimination. 2

II. COMMON ISSUES FACED BY SCHOOL DISTRICTS

Following are some of the issues that the growing number of Muslim students (and, to some degree, staff) face at schools: Clothing:

Muslim students and staff may choose to wear clothing or head coverings associated with their faith that are not familiar in many public schools. For adolescent girls and adult women, the choices can range from the hijab, which is a scarf that covers the head and neck and leaves the face open, to the burqa, which covers the entire body, head and face, with just a small mesh screen in front of the eyes.5 Male students and staff may wear a head covering called a kufi, and may refuse to wear shorts that don’t reach the knees.

These clothing practices can present challenges for physical education classes, as well as compliance with dress codes that may prohibit hats or head coverings. Some of the more significant coverings, such as the burqa, can create challenges in identifying students, as well as for teachers and staff who may struggle with being able to communicate effectively without being able to read a student’s facial expressions.

Contact with the opposite sex:

Modesty is an important concept in Islam.6 In addition to the clothing requirements discussed above, there are limitations on physical contact between the sexes once students reach adolescence. Some Muslims may choose not to shake hands with a person of the opposite sex. Students may not want to attend dances or similar social activities in which boys and girls will be intermingling freely. Students also may refuse to change or shower in communal, single‐sex locker rooms. Some families may not want their girl students to sit next to boys in class, ride buses with boys, or participate in PE with boys.

5 Other variations for girls include the chador, which covers the head and body, but leaves the face uncovered, and the niqub, which covers the head, mouth and nose, but leaves the eyes uncovered. Arabs in America, University of North Carolina at Chapel Hill, UNC Center for Global Initiatives. http://arabsinamerica.unc.edu/identity/veiling/hijab/.

6 An Educator’s Guide to Islamic Religious Practices, Council on American –Islamic Relations (2005) http://www.cair.com/images/pdf/educators_guide.pdf.

Prayer during the school day:

Muslims are encouraged to pray five times a day at prescribed times, with the frequency of prayer acting as a primary way that Muslims stay connected to God through the day. Two of the prayer times may fall within the school day: right after the sun is at its highest point, and approximately two hours later.7 There is generally some variance in the time in which the prayer can occur, and the prayer ritual generally takes between five and fifteen minutes. An increasing number of students are requesting an opportunity to perform these prayers during the school day, on school grounds. These requests can cause challenges around class scheduling, space and supervision, and raise complex First Amendment questions around the balance between free expression and endorsement.

Religious holidays:

Like all major religions, Islam includes several annual major holidays during which students may not attend school or may be limited in their activities. “Eid” means “festival” or “holiday” in Arabic, and the two Eid holidays are particularly significant for Muslims. Eid al‐Fitr marks the end of Ramadan and Eid al‐Adha is the “sacrifice feast” and is celebrated on the tenth day of the twelfth Islamic month. In addition, Muslims celebrate Ramadan, which is a month‐long observance during which Muslim are required to fast from sunrise to sunset. The dates of these observances change from year to year depending on the lunar calendar.

As with other religious holidays, schools should expect requests that students avoid penalties for absences or other accommodations or policy modifications on these holidays. For Ramadan, schools will have to address requests to be excused from rigorous physical education (since students will not be eating during the day), as well as other activities that involve the consumption of food during daylight hours.

7CNN Religion Blog, Why do Muslims Pray Five Times Daily, March 21, 2011 http://religion.blogs.cnn.com/2011/03/21/why‐do‐muslims‐pray‐five‐times‐daily/ and Islamic Networks Group, Frequently Asked Questions About Muslims and their Faith, https://ing.org/top‐100‐frequently‐asked‐questions‐ about‐muslims‐and‐their‐faith/.

Dietary restrictions:

Many Muslims follow halal, which establishes rules around the consumption of certain foods and beverages.8 Halal prohibits consuming pork, pork products, and alcohol and requires meat to be prepared according to specific requirements. These requirements are similar to kosher foods for those who follow the Jewish faith.

Bullying and harassment:

Bullying is a significant problem for Muslim students.9 Muslim students report being called “terrorists,” “ISIS,” and other slurs. With new terrorist attacks, students report an uptick in bullying in their schools and communities.10 According to OCR, “[s]uch inappropriate conduct in schools can take many forms, from abusive name‐calling to defamatory graffiti to physical violence directed at a student because of a student's actual or perceived race or ancestry, the country the student's family comes from, or the student's religion or cultural traditions. If ignored, this kind of conduct can jeopardize students' ability to learn, undermine their physical and emotional well‐being, provoke retaliatory acts, and exacerbate community conflicts.”11

Schools must promote a harassment‐free school environment, and must take effective action to respond to reports of bullying and harassment. According to OCR, bullying and harassment based on national origin can be a violation of a student’s civil rights.12 School districts must have policies and procedures to effectively prohibit and respond to concerns about bullying and harassment based on religion or national or ethnic origin.

8 Islamic Food and Nutrition Council of America, What is Halal, http://www.ifanca.org/Pages/staticwebpages.aspx?page=whatisHalal. 9 Sanchez, Tatiana Muslim students report bullying at twice the rate of non‐Muslim peers, survey shows, Los Angeles Times, October 31, 2015 http://www.latimes.com/local/california/la‐me‐1031‐bullying‐20151031‐ story.html. 10 Robbins, Liz, Orlando killings rob young New York Muslims of a cherished holiday respite, New York Times, June 18, 2016 http://www.nytimes.com/2016/06/18/nyregion/orlando‐killings‐rob‐young‐new‐york‐muslims‐of‐a‐ cherished‐holiday‐respite.html?_r=0. 11 United States Department of Education, Office of Civil Rights, Dec. 31, 2015 Dear Colleague Letter http://www2.ed.gov/policy/gen/guid/secletter/151231.html. 12 United States Department of Education, Office of Civil Rights October 26, 2010 Dear Colleague Letter http://www2.ed.gov/about/offices/list/ocr/letters/colleague‐201010.pdf. 5

Conflicts among value systems and the role of public education:

As school districts seek to teach students more about Muslims and Islam— both to increase core knowledge about the world in which students will grow up, and to prevent bullying and harassment based on rumors and misunderstandings—schools can also face criticism that they are focusing too much on Islam and not enough on other world religions. Parents and community members may be suspicious of attempts to teach about Islam, and question the role of schools in religious matters.13 Teachers must walk a familiar, but fine, line between teaching about religion and endorsing or promoting any one religion.

These are examples of some of the issues that are likely to come across a school administrator’s—and a school lawyer’s—desk. Following is a legal framework within which to evaluate these issues.

III. LEGAL RIGHTS OF STUDENTS AND STAFF AND SCHOOL DISTRICT OBLIGATIONS

When assessing any religious‐accommodation request or issue, whether from Muslim students or staff or from those of another religion, school attorneys should consider a variety of federal and state constitutional and statutory sources. A. Students: Avenues for Accommodation Claims

1. Federal Constitutional standards related to accommodation

Unlike the plain federal statutory obligation to accommodate employee religious observations and practices under Title VII of the Civil Rights Act of 1964 ("Title VII"),14 the sources and substance of the law concerning religious accommodations for students are varied. Federal law does not have a clearly developed standard for assessing whether a religious accommodation for a student will be required in a specific instance. Court decisions on constitutional rights concerning religious liberty are one component of the variety of legal constructs that school attorneys must consider when assessing accommodation issues and are useful when assessing requests to act based on a student, parent, or community member's religion.

13 Pearce, Matt Public schools struggle with lessons about Islam amid renewed fears of terrorism, Los Angeles Times, December 20, 2015 http://www.latimes.com/local/education/la‐na‐islam‐schools‐20151220‐story.html. 14 42 USC § 2000e et seq. 6

The First Amendment to the United States Constitution precludes government actors from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof." The Establishment and Free Exercise Clauses are frequently cited as the basis for accommodation‐like claims. a. Free Exercise Claims

In 1925, in Pierce v. Soc'y of Sisters of Holy Names of Jesus & Mary,15 the Supreme Court upheld injunctive relief against Oregon's compulsory education statute based on parents' right to choose a religious school for their children. And in Wisconsin v. Yoder,16 the Supreme Court held that the Free Exercise Clause precluded Wisconsin from enforcing compulsory education laws beyond eighth grade. These cases form a backdrop for religious‐liberty cases, recognizing individual rights to avoid government requirements on the basis that the requirements interfere with religious beliefs. The Supreme Court's seminal case on free exercise that still guides any individual free‐exercise claim analysis is Emp't Div. v. Smith.17 The Smith Court rejected an attempt by a former employee to be exempt from the denial of unemployment benefits based on the former employee's religious use of peyote. Justice Scalia wrote for the Court, rejecting a strict‐scrutiny test for government actions that affect religious beliefs, and expressing concern that adoption of a strict‐scrutiny test for laws that affect religious practice would be "courting anarchy."18 Thus, the Court established the test that a neutral rule of general applicability may be enforced in any area in which the government is entitled to regulate.19 Smith significantly diminishes the likelihood of success by plaintiffs seeking an accommodation on a free‐exercise theory. The result of Smith and cases following it is that while school attorneys must consider free‐exercise claims when evaluating whether to provide an accommodation to a student or parent, constitutional free exercise doesn't create an easy avenue for a person to insist on an accommodation.

15 268 US 510 (1925). 16 406 US 205 (1972). 17 494 US 872 (1990). 18 494 US at 888. 19 494 US at 879. 7

b. Establishment Clause Claims

The Establishment Clause does frequently provide an avenue for claims that school actions, programming, or requirements establish religion. The three part "Lemon test" from Lemon v. Kurtzman,20 is the primary tool that courts use to evaluate Establishment Clause claims. The "Lemon test" considers whether (a) the purpose of a rule/statute is secular, (b) the principal or primary effect advances or inhibits religious practice, and (c) whether the rule results in an excessive entanglement between religious affairs and the government, considering the character and purpose of the institution benefited, the nature of the aid provided by the government, and the resulting government/institution relationship.21 The "Lemon test" and cases following it are commonly cited in religious‐freedom cases that have an accommodation component. For example, in Hansen v. Ann Arbor Pub. Sch.,22 the court ruled that the Establishment Clause could be violated when a school created a panel discussion on homosexuality but refused to allow a student to express the religious view that homosexuality was sinful. While not an accommodation case per se, the concept of exclusion of a religious point of view based on Establishment Clause concerns can be a vehicle for an accommodation. An interesting Establishment Clause case involving a Muslim student is Doe v. Cape Henlopen Sch. Dist.23 The court denied summary judgment when a Muslim student asserted that heavily Christianity‐focused activities in a fourth‐ grade classroom violated the Establishment Clause. The court applied Delaware's state constitutional provision precluding religious establishment, which is interpreted consistently with the First Amendment. While not a direct "request for accommodation" case, had the parent and student asserted that a more balanced curriculum should have been provided, the parent would effectively have argued that the Establishment Clause required an accommodation of a more balanced curriculum. Indeed, the factual lead‐up to the case included an offer by the teacher to allow the student to present about Ramadan. In contrast, in Eklund v. Byron Union Sch. Dist.,24 the court ruled that an educational program class in which students engaged in Muslim role‐playing exercises did not violate the Establishment Clause.

20 403 US 602 (1971). 21 403 US at 612‐13. 22 293 F Supp 2d 780 (ED Mich 2003). 23 759 F Supp 2d 522 (D Del 2011). 24 154 F App'x 648 (9th Cir 2005). 8

c. Other individual liberties claims

Other individual rights, such as parental‐liberty rights or free‐speech claims, are frequently used as the basis for accommodation‐like claims. For example, parents have sought to avoid children's exposure to school programs or activities, arguing that their liberty interest in raising their children is infringed on by school requirements. Fields v. Palmdale Sch. Dist.,25 and C.N. v. Ridgewood Bd. of Educ.,26 provide examples. Parents in these cases objected to surveys administered by schools, asserting that the schools' actions violated their constitutional right to control the upbringing of their children in matters concerning religion. Courts tend to reject these claims, finding that parental liberty rights are not so broad that they effectively permit a parent to dictate what schools teach; otherwise, “the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school's choice of subject matter.”27 First Amendment speech cases or the Equal Access Act (the "EAA")28 may be vehicles through which students or parents seek "accommodations" by asserting that religious speech is subjected to viewpoint discrimination in a limited or public forum. See Bd. of Educ. of Westside Cmty. Schs.v. Mergens;29 Walz ex rel. Walz v. Egg Harbor Twp. Bd. Of Educ.;30 Seidman v. Paradise Valley Unified Sch. Dist. No. 69.31 In sum, school attorneys must consider the legal contours of a variety of constitutional standards when assessing requests for and issues concerning accommodation. 2. Federal and state Religious Freedom Restoration Act

Legislatures responded to Smith by passing the federal Religious Freedom Restoration Act ("RFRA")32 and corresponding state laws precluding the

25 427 F3d 1197 (9th Cir 2005), amended on denial of reh'g en banc, 447 F3d 1187 (9th Cir 2006). 26 430 F3d 159 (3d Cir 2005). 27 427 F3d at 1205 (quoting Brown v. Hot, Sexy & Safer Prods., Inc., 68 F3d 525, 534 (1st Cir 1995)). 28 20 USC §§ 4071‐4074. 29 496 US 226 (1990) (holding that under the EAA, a school district may not prohibit formation of religious student clubs if it allows other student clubs to form). 30 342 F3d 271 (3d Cir 2003) (upholding school's restriction on grade school student's passing out religiously themed holiday treats during school time). 31 327 F Supp 2d 1098 (D Ariz 2004) (rejecting restrictions on religious statements on tiles; even in school‐ sponsored speech, a school cannot engage in viewpoint discrimination against religious speech). 32 The Supreme Court held that the federal act cannot apply to the states. City of Boerne v. Flores, 521 US 507 (1997). The Religious Land Use and Institutionalized Persons Act, 42 USC § 2000cc et seq, however, governing land 9

government from substantially burdening religion even through a rule of general applicability unless the government could meet a statutory strict‐scrutiny test.33 The National Conference of State Legislatures lists 21 states with RFRA statutes as of October 2015.34 Statutory language varies some by state, but in general, the inquiring court will assess the sincerity of a religious practice or belief and whether a rule burdens (or substantially burdens) the practice or belief. If so, the school district must satisfy a strict‐scrutiny type of test demonstrating the compelling reasons for the rule and whether less restrictive alternatives would not infringe on the religious belief or practice. The consensus among experts who follow religious‐ freedom cases is that these statutes have been largely ineffective because courts have required too great a showing of a burden on religion or do not apply strict scrutiny. A relatively straightforward application of an RFRA school‐accommodation request is found in A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.35 There, a school district was challenged by a male Native American student over a restrictive hair regulation that conflicted with the student's religious practice of not cutting his hair. The court ruled that the facts that the school district asserted to allege safety and discipline concerns were not compelling and that it was thus required to accommodate the student. Rejecting a parent's claim of a state RFRA violation, the court in Battles v. Anne Arundel Cty. Bd. Of Educ.,36 found that the parent could not show that a homeschool‐monitoring program that was fairly intrusive substantially burdened religious exercise. 3. Specific accommodation requirements

States also have statutes or regulations concerning specific activities such as sex education or general religious‐discrimination statutes that must also be considered when assessing a religious accommodation request.37 Similarly, many

use regulation and prisons, does apply to the states. Holt v. Hobbs, ____ US ___, 135 S Ct 853 (2015), for example, held that a prison was required to allow a Muslim prisoner to grow a half‐inch beard despite a grooming rule otherwise precluding it. 33 42 USC § 2000bb et seq. 34 http://www.ncsl.org/research/civil‐and‐criminal‐justice/state‐rfra‐statutes.aspx. 35 611 F3d 248 (5th Cir 2010). 36 904 F Supp 471 (D Md 1995). 37 Mass Gen Laws ch 71, § 32A; Ga Code Ann § 20‐2‐143; RCW 28A.230.070. 10

states require release time for religious instruction and preclude penalties for absences.38 An example of a general state law with an accommodation obligation is found in Nakashima v. Board of Education39 There, the Oregon Supreme Court applied a statute, ORS 659.850, that defines "discrimination" to include "any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation," to require a state athletic association to accommodate Sabbath obligations of a participating private school. 4. Federal oversight and enforcement

School attorneys must also be mindful of the active role played by OCR in addressing religious discrimination allegations. OCR’s scope of authority covers enforcement of laws prohibiting discrimination on the basis of race, color, national origin, sex, disability, and age. None of these laws specifically address religious discrimination. However, according to OCR, Title VI of the Civil Rights Act of 1964,40 which prohibits discrimination on the basis of race, color or national origin, prohibits religious discrimination and harassment based on a student’s actual or perceived shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity. Under this mandate, “OCR can investigate complaints that students were subjected to ethnic or ancestral slurs; harassed for how they look, dress, or speak in ways linked to ethnicity or ancestry (e.g. skin color, religious attire, language spoken); or stereotyped based on perceived shared ancestral or ethnic characteristics. Hindu, Jewish, Muslim, and Sikh students are examples of individuals who may be harassed for being viewed as part of a group that exhibits both ethnic and religious characteristics.”41 These issues can arise when school administrators respond negatively to requests for accommodation or make statements that are or are perceived as discriminatory, and can also arise when schools provide accommodations but other students or community members bully or harass students who have been accommodated.

Multiple federal agencies, including the U.S. Department of Education and the U.S. Department of Justice, have announced that confronting religious

38 See, e.g., Cal Educ Code § 46014; Ind Code § 20‐33‐2; 24 Pa Cons Stat § 15‐1546. 39 344 Or 497, 185 P3d 429 (2008). 40 42 USC § 2000d. 41 Office of Civil Rights, Religious Discrimination http://www2.ed.gov/about/offices/list/ocr/religion.html.

discrimination is a top priority. The Office of Civil Rights created a Religious Discrimination website that lists the numerous enforcement actions it has taken involving school districts.42 5. Summary and evaluation

When faced with an accommodation issue concerning students, a school attorney should consider at least the following:

Establishment: Could the school be considered to be establishing or favoring a religion?

Free Exercise: Is the challenged policy/act/omission based on a neutral rule generally applicable to all students?

First Amendment: Might failure to accommodate result in a claim of viewpoint discrimination under the First Amendment?

State Constitution: Are there state constitutional provisions that affect the analysis?

RFRA: Does the state have an RFRA, and if so, what is the language and how is it interpreted?

Specific Statutes/Regulations: Is there a specific statute or regulation that might affect the analysis?

42 OCR Case Resolutions Involving Religious Discrimination Claims (as of July 2016) http://www2.ed.gov/about/offices/list/ocr/religion.html. 12

In some cases, the answer to whether there is an accommodation obligation may be that there is not one. As discussed below (and in our session), if that is the answer, a school attorney must work with the leadership to assess the practical consequences of accommodating or not accommodating a religious‐ accommodation request. B. Employees: Statutes Provide Clear Accommodation Right

The law with regard to employees is simpler (but not simple). While an employee may use theories such as the constitutional claims described above to assert entitlement to an accommodation, federal law (and many state laws) requires religious accommodation. Title VII prohibits discrimination on the basis of religion.43 It defines "religion" as follows: "The term 'religion' includes 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."44 Title VII's construction is different from the accommodation obligations under the Americans With Disabilities Act (the "ADA") because it comes from a definition and the "undue hardship" phrase means "more than a de minimis" burden.45 The less defined and less familiar standards have prompted courts to struggle more in interpreting the statute when it comes to when an employee is actually entitled to an accommodation. An employee must show that a workplace rule or requirement conflicts with a sincerely held religious belief that can be accommodated without more than a de minimis burden. (State laws may require a greater showing by an employer denying an accommodation.)46 The Equal Employment Opportunity Commission (the "EEOC") has substantial guidance about when an accommodation might be required: What You Should Know About Workplace Accommodation47 and Religious Garb and Grooming in the Workplace.48 School attorneys should consult these resources when

43 42 USC § 2000e‐2(a)(1). 44 42 USC § 2000e(j). 45 See, e.g., Webb v. City of Philadelphia, 562 F3d 256 (3d Cir 2009) (rejecting claim by police officers that wearing a headscarf with a uniform was an accommodation, in part because of religious‐neutrality appearance concerns of the department). 46 See, e.g., ORS 659A.033 (more closely tracking the ADA value hardship standard for some types of accommodation). 47 https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_accommodation.cfm. 48 https://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm. 13

considering employee accommodation requests because they provide many examples that the attorneys may see as analogous. Most employers do not question the sincerity of a religious belief beyond a cursory confirmation (if necessary), however, whether there is an actual conflict between a religious obligation and workplace rule is often evaluated. In some cases employers argue that the employee is seeking to act on a personal preference, not because of a religious requirement. For example, in Tiano v. Dillard Dep't Stores, Inc.,49 the plaintiff/employee (a devout Catholic) requested time off to take a pilgrimage to Yugoslavia during a time of year for which her employer had a "no leave" policy. She went anyway, and upon her return, the store told her that her actions had been a voluntary quit and that she no longer had a job. Although the court found that the behavior had been motivated by the employee's religious beliefs, the trip was a "personal preference," and the employer did not have to accommodate.50 Similarly, in Vetter v. Farmland Indus.,51 the Eighth Circuit affirmed a verdict for an employer because the plaintiff's alleged religious belief (that he needed to live in a city with an active Jewish community) was in fact a personal preference. There, the employee "contended that his religious beliefs required him to live in a city with an active Jewish community and synagogue and that Farmland had discriminated against him on the basis of his religion by enforcing its residence requirement [living in the trade territory] and not reasonably accommodating his beliefs."52 Turner v. Boy Scouts of Am., Inc.,53 provides another example. There, the plaintiff‐ employee had been suspended without pay after meeting his pastor. That was "not part of a regularly scheduled religious service or other activity required by his religion," and the employer had no accommodation obligation.54

States may impose different standards. Oregon, for example, has an undue‐hardship standard similar to the ADA, but it applies only to release time and clothing accommodations.55 School attorneys should be aware of any substantive state law differences from Title VII.

49 139 F3d 679 (9th Cir 1998). 50 139 F3d at 683. 51 120 F3d 749, 750 (8th Cir 1997). 52 Id. 53 No. CIV‐09‐180‐C, 2009 WL 2567962 (WD Okla Aug. 17, 2009). 54 2009 WL 2567962, at *2. 55 ORS 659A.033. 14

With respect to accommodation requests from Muslim employees, school attorneys should utilize EEOC guidance to evaluate the reasonableness versus the potential burden. If denying a request, schools should ensure that they have a strong record of the reason why a request was denied (e.g., no conflict between religion and work, not reasonable, personal preference) and, ideally, a record of exploring possible solutions if rejecting on reasonableness grounds.

IV. PRACTICAL SOLUTIONS FOR, AND CHALLENGES OF, REQUESTS FOR RELIGIOUS ACCOMMODATIONS

Section II outlined several practices and observances for which Muslim students and staff may seek accommodations and/or support. Section III set forth the legal structure in which these requests must be evaluated, but there are few cases that provide specific guidance, in particular with regard to student accommodation requests. Further, the legal requirements may vary court circuit by court circuit and state by state. Against this complex religious, social and legal backdrop, school districts must be prepared to evaluate and respond to their community’s needs. This may involve the desire to accommodate the requests of Muslim students so that they feel safe and supported at school, while addressing questions and concerns from other segments of the school community. Following are some practical suggestions for accommodations: Clothing: In most cases, the request by Muslim students to wear clothing or head coverings associated with their faith can be accommodated without a significant burden on the school, and denying a request could easily lead to a challenge before a court or OCR. Muslim students across the country wear clothing affiliated with their religion to school, and so a district would likely face skepticism in arguing that allowing Muslims to do so is unreasonable or not required. Contact with the opposite sex: Requests to not have contact with the opposite sex may be more difficult to evaluate. In some cases, such as a dance component of PE, it would be relatively easy to provide students with an alternative activity for a short period of time. In contrast, requests for single‐sex classes or gender‐specific teachers are significantly more burdensome. In some cases, consultation with the parents— and potentially involving a local imam—can be an avenue to reach a mutually‐ 15

agreeable solution. Schools should work with their legal counsel to assess the legal parameters and issues surrounding this type of request. Prayer during the school day: This is one of the most challenging issues facing schools, and districts should involve their counsel. Of course, students are free to engage in voluntary prayer during the school day. However, students may request a specific place to pray in the school, may request to be excused daily from class for prayer, may request a foot‐washing station and may require staff supervision during their prayer time. These requests can create Establishment Clause concerns. Again, informal conversations with parents and local religious leaders can often result in a mutually‐agreed upon solution that allows the student to fulfill their religious prayer requirements without excessive entanglement with the school. Again, schools should work with their legal counsel if an agreement cannot be reached. Religious holidays: In general, schools provide excused absences for students who are absent for religious holidays, and the same support should be offered to Muslim students. School districts should endeavor to make sure that major examinations or school activities are not offered only on significant religious holidays. Further, many school districts offer students an alternative to PE during Ramadan if students do not want to engage in physical activity. Finally, students should be provided with an alternative place to sit, such as the library, during lunch time if they do not want to be with other students who are eating. Dietary restrictions: Muslim students may request that the school lunch include a non‐pork alternative. In many cases, schools provide alternatives for school lunches, so it should be possible to provide pork‐free options. This may be another area where informal discussions with parents can lead to practical solutions. Bullying and harassment: This is a very significant area of concerns for school districts. OCR takes concerns about bullying and harassment based on ethnicity and national origin very seriously. It has reached case resolutions with school districts that impose

significant requirements to address concerns about bullying and harassment.56 Schools should endeavor to teach students about Muslims and Islam to create more understanding and dispel harmful myths and rumors. Of course, schools must have policies prohibiting bullying and harassment, and must investigate claims of harassment and take effective action to remedy validated claims. While practical recommendations such as those listed above can often resolve an issue without much fuss or attention, schools should also exercise some caution. School leaders seeking inclusive school environments understandably and rightly may want to make what appears to be a simple modification to standard policy or practice to accommodate a religious practice, observance, or belief. School attorneys surely do not want to create barriers to administrator efforts to be inclusive. School attorneys also, however, must be prepared to advise their clients that acceding to an accommodation request may have consequences beyond the particular issue. For example, to help a student avoid feeling harassed or discriminated against, and to avoid conflict with a parent, a school may find it simple to assign alternative academic work when the curriculum conflicts with religious beliefs. But schools are legally permitted to set their curriculum, and an effort to accommodate one parent's request for avoidance of certain topics may lead to more parents attempting to pick and choose their own curriculum. Again, schools must manage the balance of accommodating many different communities without setting unmanageable precedents. It is incumbent on school attorneys to help their clients carefully consider whether an accommodation is required and then, if not, consider whether unintended consequences might arise if an accommodation is made when not required.

V. CONCLUSION

The growth of Islam in the United States creates an exciting opportunity to enrich the religious diversity of our communities and enhance understanding of a religion that is too often misunderstood and mischaracterized based on inaccurate generalizations. Throughout our national history, we have grappled with the intersection between our public schools and the religious tenets of the families that make up our school communities. Thoughtful consideration of how

56 OCR Case Resolutions Involving Religious Discrimination Claims (as of July 2016) http://www2.ed.gov/about/offices/list/ocr/religion.html. 17

a school addresses religious issues related to Muslim students, staff, and families and how our laws address the delicate balance between individual liberty and avoiding government entanglement with religion should result in inclusive treatment that appreciates the role Islam and all religions play in the fabric of our communities.