The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Our readers might remember the Zombie Mohammed controversy. Atheist activist (Ernest Perce), who was marching as "Zombie Mohammed" in a Halloween parade (alongside a "Zombie Pope"), was attacked by an angry Muslim passerby, Talaag Elbayomy. When Elbayomy was prosecuted, Judge Mark Martin dismissed the charges, and berated Perce for his blasphemous behavior. Martin was eventually formally rebuked by Pennsylvania judicial authorities for this action.
But now Perce is back! He has apparently become an "Orthodox Christian," and has filed a complaint against a Pennsylvania public school teacher for wearing a "Star of David" necklace. And the complaint, unfortunately, is legally quite plausible (at least assuming the necklace was a sign of religious adherence, and not just ethnic group membership), because the Pennsylvania Garb and Insignia Statute— 24 Pa. Stat. Ann. § 11-1112 (enacted 1895)—provides,
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.
What's more, U.S. v. Board of Ed. (3d Cir. 1990) rejected a constitutional challenge to the statute; Cooper v. Eugene School District No. 4J (Ore. 1986), appeal dismissed, 480 U.S. 942 (1987), likewise upheld a similar Oregon statute, though one limited to religious dress. (The Oregon Legislature repealed its statute in 2010—over the objection of the ACLU of Oregon—but the Pennsylvania statute remains on the books.)
I think, though, that such statutes violate the Free Exercise Clause, because they discriminate against religious behavior; and, as I'll note below, some recent cases so conclude. Religion-neutral statutes—for instance, that bar all jewelry worn by teachers, or set up a rigid dress code that excludes, say, all headgear, whether yarmulkes, headscarves, or anything else—would be judged under Title VII's "reasonable accommodation" standard, and might or might not pass muster. But the Pennsylvania statute overtly and deliberately discriminates against religious behavior, and is thus unconstitutional. (I think the same of the former Oregon statute.)
The common argument in favor of such a law is that it prevents students from assuming that the school endorses religion; under modern Establishment Clause case law, government speech that endorses religion is generally unconstitutional. But such a law isn't actually necessary to prevent such perceived endorsement, and should thus fail the strict scrutiny that is applied (under Church of the Lukumi Babalu Aye v. City of Hialeah (1993)) to deliberate discrimination against religious practice.
First, a child who is old enough to realize that, say, a nun's habit means that she's a Catholic—or a teacher's turban means that he's a Sikh or a teacher's Star of David means that he's Jewish—will generally be old enough to recognize that people of many different religions may work at the same institution. It takes no great maturity or sophistication to recognize that the school's willingness to hire a Catholic, Sikh, or Jew doesn't mean that the school endorses Catholicism, Sikhism, or Judaism.
This would be especially true if the child sees other teachers who don't wear such items, which would just reinforce the fact that the item is the teacher's own choice, not the school's. As a general matter, garments and jewelry aren't interpreted by viewers, even young viewers, as attempts to persuade people of the truth of one's faith. Indeed, all states but Pennsylvania let teachers wear religious jewelry, headgear, and the like, and I know of no evidence that students in those states are somehow perceiving this as an endorsement of religion on the school's part.
Second, even if the court concludes that some very young students may interpret a teacher's religious garb as the school's endorsement of religion, or may be subtly coerced by seeing this garb on an authority figure, the case for this becomes much weaker for older students, and especially for high school students. Surely by the time one becomes a teenager, one realizes that the school may employ overtly Catholic teachers, overtly Jewish teachers, and overtly Muslim teachers without endorsing one or another religion. So the law is certainly overinclusive at least to teachers of older students.
Third, even if younger students may falsely assume that the teacher's religion is endorsed by the school, the school may fulfill its interest in avoiding endorsement by dispelling this misconception, either directly or through the parents. "In America," the school can say, "teachers and students belong to all sorts of religions, but their religions are their personal choices, not the school's choice. Our school neither endorses nor condemns any teacher's religious belief, which is why some teachers wear some kinds of clothes and jewelry and others wear other kinds."
Even for young students, this is not a complicated lesson, and it's likely a lesson that's worth teaching. And teaching this lesson can be done without discriminating against religious practices, and without effectively excluding teachers who feel a motivation or an obligation to wear religious garb or jewelry—which brings us back to the point that the law isn't necessary to serve the government interest in preventing endorsement or coercion.
Fortunately, Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly (3d Cir. 2002) cast doubt on the U.S. v. Board of Ed. ruling, and the district court decision in Nichol v. Arin Intermediate Unit 28 (W.D. Pa. 2003) held—notwithstanding U.S. v. Board of Ed.—that the Pennsylvania Garb Statute is likely unconstitutional: "In the current legal landscape of the Establishment Clause, it is unlikely that the Garb Statute would withstand the heightened scrutiny and endorsement analysis to which it now must be subjected."
And based on this ruling, the school district reportedly told Perce that it won't order the teacher to stop wearing the symbol. The right result, though it's too bad that the matter isn't more legally clear.