Does Clothing Make the Person: Reflections of the Rights of Public School Employees to Wear Religious Garb in the Workplace By Allan G. Osborne and Charles J. Russo

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This article is part of our “Clothed in Religion: Law and Religious Attire/Garb” series.
If you’d like to check out other articles in this series, click here.

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Introduction

In Shakespeare’s Hamlet, Polonius famously muses that “the apparel oft proclaims the man.” Yet, in today’s increasingly religiously diverse (and religiously unaffiliated) American society wherein about 30% are religiously unaffiliated, as in other nations, issues arise over whether public employees, such as those in the military, can wear distinctively religious garb in the workplace. 

The First Amendment to the United States’ Constitution reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Further, both the Equal Protection Clause of the Fourteenth Amendment to the Constitution and an array of federal and state statutes protect employees and applicants for public employment, including those in the public schools, from discrimination based on factors including race, color, ethnicity, national origin, and religion, personal characteristics that are often intertwined. 

Tensions can arise between individuals’ right to the free exercise of their religious beliefs and the government’s need to avoid endorsing religion. This is most apparent in the public schools, where employees who wish to adhere to the tenets of their religious traditions require accommodations in order to practice their faith.

At the same time, leaders must exercise caution so that impressionable children do not mistake accommodations as endorsements of employees’ religious beliefs. While some accommodations, such as giving employees time off for religious observances, are often innocuous (students would not know the reason for their absence), others, such as allowing individuals to wear religious symbols or garb while engaged in their official duties, could be perceived by school children as an endorsement of the employee’s faith. Thus, school officials must strike a balance between the interests of their employees and the appearance of endorsement.

Title VII of the Civil Rights Act of 1964 provides protections against religious discrimination in the context of employment, and applies to hiring, training, firing, layoffs, and wages.  Title VII is arguably the most far-reaching statute prohibiting employment discrimination. It is also the model for other federal and state antidiscrimination statutes. Title VII states, in part, that it is illegal for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Title VII protects individuals who belong to traditional, organized religions, such as Christianity, Judaism, Buddhism, Hinduism, and Islam, as well as those who have sincerely held religious, ethical, or moral beliefs but are not necessarily associated with an organized religion.

Courts have often been asked to adjudicate issues concerning the separation of church and state. A recent decision of the Supreme Court, Kennedy v. Bremerton School District, a  dispute not involving religious garb, in which the Supreme Court ruled that school officials violated the rights of a high school football coach who prayed silently on the field at the end of games, suggests that its current Originalist majority may lean more towards allowing public employees greater freedom of expression in how they dress while on the job. How Kennedy plays out when lower courts hear disputes over employees’ rights to wear religious garb while working remains to be seen.

Public Schools and Religious Dress Accommodations

As noted, public school officials must tread a fine line between allowing employees the freedom to exercise their religious beliefs freely while not overtly endorsing their religious practices. In this respect, in the 1986 case, Ansonia School Board v. Philbrook, the Supreme Court interpreted Title VII as requiring school boards to make reasonable accommodations for employees’ religious beliefs or practices unless doing so would cause the board undue hardships. Consequently, board officials may need to make reasonable modifications to allow personnel to practice their religions. One accommodation may involve the dress or grooming practices that individuals follow for religious reasons. Some individuals may wear specific head coverings or religious garb or certain hairstyles or facial hair. On the other hand, some employees’ religions may forbid them from wearing certain clothing. For example, some religions prohibit women from wearing pants, which could have implications for employees required to wear uniforms. While some garments may generally be worn by all members of religious groups, others may be reserved for members of the clergy or other religious leaders.

Employees Rights to Wear Religious Garb in the Public Schools

Given the contentious nature of cases involving religion, it is unsurprising that the rulings on the legality of public school employees wearing religious garb or symbols in the classroom are mixed. For example, in decisions issued before the implementation of Title VII, courts in Kentucky (1956) and North Dakota (1936) did not see a problem with public school teachers, typically Roman Catholic nuns, wearing religious dress or emblems. Conversely, courts in Mississippi (1992), New Mexico (1951), New York (1906), Oregon (1986), and, twice in Pennsylvania, (1910 & 1990) over the span of eighty years, upheld rules prohibiting public school teachers from wearing religious apparel, such as habits, turbans, and head wraps, while performing their official duties. For the most part, courts acknowledged that school boards need to be neutral when it comes to religion, but that young, impressionable children might  employees wearing religious garments while working as a sign of governmental endorsement of religion.

In older cases, courts addressed whether teachers, particularly Roman Catholic nuns, could wear distinctive religious garb in the form of  their habits while teaching in public schools. For instance, the Supreme Court of Pennsylvania affirmed that a public school board had the authority to hire Catholic nuns as teachers and to allow them to teach while wearing their habits. A short time later however, the commonwealth’s legislature passed a law to prevent teachers in Pennsylvania from wearing dress or insignia signifying membership in religious orders while on the job. In deference to legislative authority, the same court then upheld a law banning nuns from teaching in their habits.

In a case involving a teacher who, on becoming a Sikh, wore white clothes and a white turban to work, the Supreme Court of Oregon decided that she was subject to a ban on wearing religious garments while engaged in her official duties. In dicta, the court commented that such a prohibition would not have applied to incidental elements such as a cross or Star of David or to ethnic or cultural dress. The Supreme Court chose not to hear an appeal.

Two other cases reached similar results. The Supreme Court of Mississippi agreed that officials could discharge a teacher who was a member of the African Hebrew Israelites for insubordination when she wore a religious head wrap to school. In another dispute, the Third Circuit, relying on the Pennsylvania statute discussed earlier, rejected the contention of a female teacher who believed that, when in public, she should cover her entire body except her face and hands, because allowing her to do so would have imposed an undue hardship on the school board.

The court rejected the policy as violating the Free Exercise Clause because it was directed only at religious exercise and symbolic expression rendered it impermissibly content and viewpoint based, adding that the cross was “unobtrusive.” 

Whether school employees can wear religious symbols seems to depend largely on the size and obviousness of the symbols. The federal trial court in Connecticut granted a school board’s motion for summary judgment in a dispute where officials directed a substitute teacher to either cover up a t-shirt she wore during instructional time that prominently displayed the message “Jesus 2000”  or go home; the words “JESUS 2000” were brown-colored letters that were approximately 5½ inches in height and outlined in black. Centered immediately below were the letters “J2K,” approximately 4 inches in height.  Officials told the teacher to cover the shirt or go home because she was communicating a religious message at work. The court agreed that administrators did not violate the teacher’s First Amendment rights because they never, in any way, hindered her ability to practice her religion. 

In contrast, a federal trial court in Pennsylvania granted an instructional assistant’s motion for a preliminary injunction after officials suspended her for refusing to remove or conceal a small cross she normally wore on a necklace, as mandated by the school board’s religious affiliations policy.

Effect of Kennedy v. Bremerton School District

In Kennedy v. Bremerton School District (2022), the Supreme Court addressed the issue of a school employee’s right to publicly pray on school premises while engaged in his coaching duties. In a six-to-three majority opinion authored by Justice Gorsuch, the Court held that the Bremerton school board’s directive to the coach to cease his practice of praying on the football field after games violated his First Amendment rights as given by the Free Exercise and Free Speech Clauses. 

The Kennedy Court declared that “a proper understanding of the Establishment Clause [does not] require the government to single out private religious speech for special disfavor.” Having acknowledged that it “long ago abandoned Lemon and its endorsement test offshoot,” the Justices ruled that “the Amendment’s Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” 

Recommendations for School Leaders

The Supreme Court’s recent decision in Kennedy may provide lower courts with the impetus for issuing orders allowing school employees more latitude in terms of wearing distinctive religious garb in the workplace. It is an issue that bears watching. In light of the uncertainty surrounding the post-Kennedy claims involving religious garb in public schools, the final section of this essay offers reflections to help guide educational leaders and their attorneys until the courts provide greater clarity.

• As an initial matter, school boards should put together broad-based teams to develop, and revise as needed, policies addressing whether their employees can wear religious garb while on the job. Teams should include, but not necessarily be limited to, a building and central office level administrator, teachers from different levels such as elementary, middle, and high schools, a professional staff member, a representative of an employee union in states where unions are recognized, a board member, and perhaps religious leaders from representative faiths in school communities. 
• All requests by employees to be allowed to wear religious garb, symbols, or insignia should be in writing and addressed on case-by-case bases.
• Boards should be cognizant that employees need not belong to traditional or organized religions to request exemptions from dress policies as long as the request is based on sincerely held religious beliefs.
• School administrators should provide all employees with copies of the school system’s dress requirements, including any prohibitions, and an explanation of how individuals may request exceptions to the dress and grooming policies.
• Policies should not attempt to ban employees from wearing unobtrusive religious symbols or insignia, such as small crosses or Stars of David, worn as part of employees’ jewelry.
• Officials should carefully consider the nature of the garb employees wish to wear while performing their duties. Distinctive garb, such as that worn exclusively by clergy or members of religious orders, may more readily signal endorsement to impressionable children than clothing commonly worn by all congregants. 
• If school officials determine that wearing of religious garb could be viewed by students as an endorsement of the employees’ religion, they should then determine whether asking individuals to cover up the garb while working would be reasonable or would violate the staff members’ religious beliefs. 
• If exemptions to dress policies are made for other reasons, such as for medical purposes or cultural traditions, exemptions for religious reasons may be required.
• School boards should consider state constitutional or statutory provisions when making determinations regarding employees’ requests to wear religious garb.

Conclusion

Religious Freedom is a basic constitutional right. As interpreted by the Supreme Court in 1878 in Reynolds v. United States, wherein the Justices upheld a federal ban on polygamy in Utah territory, it is well-established that individuals may observe their religious beliefs without government intrusion as long as their practices do not violate criminal law. In this respect, individuals do not need to belong to a traditional or even an organized religion to enjoy First Amendment protections. Still, even after Kennedy, officials in public schools, as arms of the state, may not endorse or favor any religion over no religion. In many situations these two values may come into conflict requiring judicial intervention. One of those circumstances is when school employees wish to wear religious garments, emblems, or symbols consistent with dictates of their faiths or as a means of expressing their religious beliefs. ♦

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Recommended Citation

Osborne, Allan G., and Russo, Charles J. “Does Clothing Make the Person: Reflections of the Rights of Public School Employees to Wear Religious Garb in the Workplace.” Canopy Forum, January 21, 2023. https://canopyforum.org/2023/01/21/does-clothing-make-the-person-reflections-of-the-rights-of-public-school-employees-to-wear-religious-garb-in-the-workplace/