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AN ANALYSIS OF FEDERAL AND STATE LAW GOVERNING PUBLIC SCHOOLTEACHERS’ RELIGIOUS GARB IN PENNSYLVANIA AND NEBRASKA UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE PENNSYLVANIA RELIGIOUS FREEDOM PROTECTION ACT by Nathan C. Walker Dissertation Committee: Professor Jay P. Heubert, Sponsor Professor Janice S. Robinson Approved by the Committee on the Degree of Doctor of Education Date 16 May 2018 Submitted in partial fulfillment of the requirements for the Degree of Doctor of Education in Teachers College Columbia University 2018 ABSTRACT AN ANALYSIS OF FEDERAL AND STATE LAW GOVERNING PUBLIC SCHOOLTEACHERS’ RELIGIOUS GARB IN PENNSYLVANIA AND NEBRASKA UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE PENNSYLVANIA RELIGIOUS FREEDOM PROTECTION ACT Nathan C. Walker This study is based on a narrow legal examination of the two contemporary state bans on public schoolteachers’ religious garb in Pennsylvania and Nebraska. Legal research and legal analysis are the primary methods used to investigate whether these two statutory bans meet the judicial and legislative tests under the Free Exercise Clause of the First Amendment to the U.S. Constitution and the Pennsylvania Religious Freedom Protection Act. The study applies the Sherbert standard as articulated by the U.S. Supreme Court—a three-part judicial test that courts use to apply the strict scrutiny standard to Free Exercise cases. The study also applies the U.S. Supreme Court’s Smith standard, also known as the general applicability test, which requires that government regulations involving religion must be “neutral and generally applicable,” and cannot “target religious conduct for distinctive treatment.” This study examines the 123-year history of legal bans on public schoolteachers’ religious garb, with special attention to Pennsylvania’s current anti-religious-garb statute was the first of its kind in the United States. It was enacted in 1895 in response to the Pennsylvania Supreme Court ruling that held Catholic nuns were permitted to wear religious garb (habits) while teaching in public schools. Nebraska’s anti-religious-garb law, a replica of Pennsylvania’s ban, was first enacted in 1919 and repealed in 2017. Although at the time this study was published (May 2018), the study notes that earlier attempts to repeal it failed. The study uses Pennsylvania’s anti-religious-garb statute to legally define religious garb as “any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” The study concludes the following: Pennsylvania’s and Nebraska’s statutory bans on teachers wearing religious garb in public schools (1) failed the general applicability test under Smith and (2) substantially burdened religions, as defined under the provisions in Sherbert and the Religious Freedom Protection Act (RFPA). The statutes (3) partially met the rational basis test, but when faced with strict scrutiny, the statutes (4) failed to meet the compelling interest and (5) narrowly tailored tests. © Copyright Nathan C. Walker 2018 All Rights Reserved ii TABLE OF CONTENTS I – INTRODUCTION ...................................................................................................... 1 Overview of Research Questions.......................................................................... 3 Primary Line of Inquiry: Free Exercise Standards ..................................... 4 Secondary Line of Inquiry ........................................................................ 7 Significance ....................................................................................................... 10 Scholarship on Anti-Religious-Garb Laws .............................................. 12 Historical Context .................................................................................. 13 Global Context ....................................................................................... 17 Research Design ................................................................................................ 31 Methodology .......................................................................................... 31 Audience ................................................................................................ 36 Organization ........................................................................................... 36 II – LITERATURE REVIEW ........................................................................................ 39 Literature on Teachers’ Religious Garb .............................................................. 43 Five Bodies of Literature ........................................................................ 44 Legal scholars. ............................................................................ 44 Government officials. ................................................................. 45 Educators and education associations. ......................................... 46 Religious and civil liberties groups. ............................................ 47 Journalists. .................................................................................. 49 Relevant Case Law ............................................................................................ 51 Historical Decisions in State Courts ........................................................ 51 Enumerating causes of action in anti-religious-garb cases. .......... 52 Origins of anti-religious-garb laws and cases: 1894–1910. .......... 59 Expansion of statutes and policies: 1910–1946............................ 63 Conflicting legal developments: 1936–1956. ............................... 70 Summary: 1894–1956. ................................................................ 73 Contemporary Federal and State Developments: 1986–2017 .................. 76 Summary ................................................................................................ 86 Evolution of Free Exercise Standards ................................................................. 87 Origins and Evolution of Free Exercise Standards .................................. 89 Origins of the strict scrutiny test.................................................. 91 From rational basis to strict scrutiny............................................ 92 Extending strict scrutiny to religion............................................. 94 The Sherbert standard. ................................................................ 95 The Yoder exemption. ................................................................ 98 The general applicability test in Smith. ..................................... 101 Related Federal Statutory Developments .............................................. 104 Religious Freedom Restoration Act. .......................................... 104 Title VII of the Civil Rights Act of 1964. .................................. 109 Increased Reliance on State Religion Clauses ....................................... 110 Pennsylvania Religious Freedom Protection Act .............................................. 111 Pennsylvania’s Four-Part Substantial Burden Test ................................ 112 iii Relationship Between RFPA and Pennsylvania Constitution ................ 114 Relevant RFPA Cases........................................................................... 120 Summary .............................................................................................. 123 Synopsis .......................................................................................................... 124 III – METHODOLOGY .............................................................................................. 128 Training and Textbooks ................................................................................... 128 Legal Methods ................................................................................................. 132 Step 1: Synthesize Judicial Tests by Cause of Action............................ 132 Step 2. Collect Primary and Secondary Source Documents ................... 133 Step 3. Articulate Narrow Legal Questions ........................................... 136 Step 4. Set Factual Parameters .............................................................. 139 State anti-garb statutes. ............................................................. 140 Standing.................................................................................... 142 Teachers are paid like all other teachers. ................................... 143 State-employed, state-examined, state-certified teachers. .......... 144 State schools, not federal schools. ............................................. 146 Defining teacher. ...................................................................... 148 Satisfactory performance. ......................................................... 150 The nature of religious garb. ..................................................... 150 No evidence of religious instruction. ......................................... 151 Overview of factual parameters. ................................................ 154 Step 5. Conduct Legal Analysis ............................................................ 154 Summary of Five-Step Legal Methods.................................................. 156 IV – PRESENTATION and ANALYSIS OF FINDINGS ............................................ 159 General Applicability ......................................................................................
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