Education Week - April 15, 2015 - 19

State Religious-Freedom Laws
Add to Schools' Complex Duties
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state religious-freedom laws are designed
to protect sincere religious
beliefs when they are infringed by
government policies that are applied
very generally. It also offers
a reminder of the challenges public
school administrators face in dealing
with the sensitive issue of religious
accommodation.
In the Texas case, the younger
Arocha, then 5, and his father both
wore their hair in braids. As they
understood their heritage as members
of the Lipan Apache tribe,
uncut hair held religious significance
as a connection to their ancestors
and as reminders of how long
they had lived their lives.
The 2,800-student Needville Independent
School District, 45 miles
southwest of Houston, had a grooming
policy that prohibited boys' hair
from covering their ears or touching
the top of their collars, to promote
hygiene and safety.
The dispute ended up in court,
and a federal appeals panel ruled
2-1 in 2010 that the district's rules
were a significant burden on the
younger Arocha's religious beliefs
and had to give way. The U.S. Court
of Appeals for the 5th Circuit,
in New Orleans, based its decision
on the 1999 Texas religious freedom
law.
"Under tfra, when it is a student's
free exercise of religion at stake, a
school's invocation of general interests,
standing alone, is not enough"
to prevail, the appeals court said.
Said Thomas C. Berg, a professor
of law and public policy at the
University of St. Thomas in Minneapolis:
"The Texas rfra made all the
difference in that case."
Contrasting Statutes
Indiana and Arkansas this year
became the 20th and 21st states, respectively,
to enact state "religious
freedom restoration" laws, and those
two states swiftly become embroiled
in controversy over the intent and
implications of such statutes.
The inclusion of corporations in
the Indiana and Arkansas measures
fueled the debate about
whether the religious-freedom
laws would provide a defense for
anti-gay discrimination, and both
states adjusted their measures to
bar such bias.
Most of the older state religiousfreedom
restoration laws on the
books, however, were modeled on
the federal Religious Freedom Restoration
Act, which was passed by
Congress in 1993 in response to a
U.S. Supreme Court decision.
In the 1990 decision in the case
of Employment Division v. Smith,
the Supreme Court cast aside a
long-prevalent "strict scrutiny" test
for evaluating government action
that infringed the free exercise of
religion guaranteed in the First
Amendment.
The strict scrutiny test in this
area had been established in high
court cases that include Wisconsin
v. Yoder, the 1972 decision that
Amish families' religious interests
in keeping their children out of secondary
schools outweighed the government's
interests in compulsory
education.
Under that strict scrutiny test, the
government had to show that an infringement
on religious exercise met
a compelling governmental interest
and was the least-restrictive means
of achieving that interest.
In Smith, a case in which the
state of Oregon denied unemployment
compensation to American
Indian counselors who had ingested
the hallucinogen peyote as part of
their religious rituals, the court said
government actions that infringed
on religious exercise need only be
justified under the easier-to-meet
rational-basis test.
That decision alarmed many
people in the country, and Congress
passed its version of rfra in 1993.
But in 1997, the justices held in City
"
We're a religiously
diverse society ... we
do have an obligation
... to consider what
exceptions can be
made."
JOY BASKIN
Texas Association of School Boards
of Boerne, Texas v. Flores that Congress
lacked the power to apply the
religious-freedom statute to state
actions. (In the meantime, there
was one notable education-related
case-about Sikh students who
wanted to bring kirpans, or ceremonial
knives, to school-that invoked
the federal rfra.)
Effectiveness Questioned
By 2000, 10 states had adopted
their own religious-freedom restoration
acts, designed to bring the
strict scrutiny standard to state
and local government actions. In
addition to the current number of
21 with such statutes on the books,
another 10 or so states have language
in their state constitutions
that generally accomplish the same
goal.
Scholars seem to agree that while
the state rfras were a largely popular
response (excluding this year's
controversies) to the perception of
threats to religious freedom, in practice
the measures have been lacking.
Christopher C. Lund, an associate
professor of law at Wayne State University
in Detroit, has written about
what he calls "a paucity of cases"
brought under the state rfras, noting
that some of the states with
such laws have had no claims at all,
while others have had only one or
two.
Mr. Berg of the University of St.
Thomas said that claims under the
state statutes may have gotten lost
in the federal courts.
"Lawyers tend to think of the
federal courts as the place to go to
protect a minority," Mr. Berg said in
an interview. "Whether that's true or
not, and it's more complicated than
that, it means that state rfra claims
tend not to come up or be reached in
federal court."
Compelling Interests
Lewis M. Wasserman, an associate
professor in the department of
educational leadership at the University
of Texas-Arlington, recently
studied the impact of state rfras in
education cases.
He concluded in a paper that the
state statutes "have failed to achieve
their purpose in educational settings"
for several reasons, including
that the laws have been written in
general terms, and that protecting
religious practices from infringement
in the school context would
be better served by an educationspecific
law.
"The limitation I see in the state
statutes is that they are not subjectspecific,"
he said in an interview.
Mr. Wasserman, who counts himself
as an advocate for the goals of
the laws, said his review found only
a relative handful of school cases invoking
the state religious-freedom
laws.
But Mr. Wasserman, like other
scholars, points to the 5th Circuit's
2010 ruling in A.A. v. Needville Independent
School District, the longhair
case, as Exhibit A for how the
laws should work.
The appeals court majority rejected
the school district's proposal
that young Mr. Arocha wear his hair
in a bun or tucked inside his shirt
at school. And the court did not find
the district's proffered interests in
hygiene and discipline to be compelling.
The
Texas Association of School
Boards, based in Austin, supported
the Needville school district at the
time. But Joy Baskin, the association's
director of legal services, said
the group's training for board members
now emphasizes that "when
someone has a good-faith religious
belief" that conflicts with a school
rule, "it is incumbent on the school
district to consider making an exception."
That
might mean allowing long
hair or a head scarf for religious reasons,
but not, say, allowing a student
to possess peyote at school, she said.
"We're a religiously diverse society,"
she said. "And we do have an
obligation in our public schools to
pause and consider what [rules] exceptions
can be made."
SCHOOL-RELATED CASES
Congress and 21 states have passed some form of Religious
Freedom Restoration Act, or RFRA, measures aimed at
providing exemptions from generally applicable laws and
policies that place a substantial burden on sincerely held
religious beliefs. The federal law has been held by the U.S.
Supreme Court to apply only to the federal government, not
state or local policies. Below are three examples of education
cases that have invoked federal or state religious-freedom
laws and the issues they dealt with.
CEREMONIAL KNIVES
CHEEMA V. THOMPSON
In 1994, three Sikh siblings sought to wear kirpans, or
ceremonial knives, at school. The Livingston Union School
District in California barred the kirpans, citing its policy
against weapons in schools. When the children refused to
attend school without the kirpans, they were suspended. The
Cheema family sued under the federal Religious Freedom
Restoration Act. The U.S. Court of Appeals for the 9th Circuit,
in San Francisco, ruled that the children were motivated by
a sincere religious belief, and the school district's refusal to
accommodate them put a substantial burden on their exercise
of religion. But the appeals court also found that the school
district's kirpan ban served a compelling interest in campus
safety. It remanded the case to see whether less restrictive
alternatives to a total ban were available. A federal district
court ordered that the children be allowed to wear kirpans
with dulled blades that were sewn into their sheaths. The 9th
Circuit upheld the district court's compromise.
HOME SCHOOLING
COMBS V. HOMER CENTRAL SCHOOL DISTRICT
Six Pennsylvania families who home-schooled their children
for religious reasons challenged recordkeeping and portfolio
review requirements under the state's compulsory-education
law. The parents said the requirements placed a substantial
burden on their free exercise of religion. They sued under the
First and 14th Amendments, as well as the Pennsylvania
Religious Freedom Protection Act. A federal district court held
that the parents had failed to prove a substantial burden on
their religion as defined under the state religious-freedom
statute. In 2008, the U.S. Court of Appeals for the 3rd Circuit,
in Philadelphia, upheld a summary judgment against the
parents on their federal constitutional claims, and it declined
to rule on their claim.
LONG HAIR
A.A. V. NEEDVILLE INDEPENDENT SCHOOL DISTRICT
An American Indian elementary school student sought to
wear his hair longer than the rules permitted by his Texas
school district. The boy and his father, members of the Lipan
Apache tribe of Texas, argued that wearing long hair is part
of a sincere religious belief and symbolizes their ancestry and
length of life. Rejecting proposed compromises by the district,
the family sued under the Texas Religious Freedom Restoration
Act. Both a federal district court and the U.S. Court of Appeals
for the 5th Circuit, in New Orleans, ruled for the family, with
the appeals court in 2010 saying that the boy's sincere
religious belief in wearing his hair uncut and in plain view
was substantially burdened by the district's grooming policy.
SOURCE: Education Week
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Education Week - April 15, 2015

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