PORTLAND, Ore. — A law backed by the Ku Klux Klan nearly a century
ago to keep Catholics out of public schools is still on the books in
Oregon, one of the last states in the nation to prohibit teachers from
wearing religious clothing in classrooms.
Both Pennsylvania and Nebraska have similar laws, which try to balance the constitutional conflict between protecting students from the establishment of religion in schools and the rights of teachers to express their beliefs through their dress.
Oregon's law, originally aimed at priest collars and nun habits, survived a legal challenge in the 1980s by a Sikh convert who wanted to wear her turban in the classroom and was recently upheld by the state's Legislature.
A Muslim teacher in Pennsylvania lost a similar challenge in 1991 to that state's even older law for the right to wear a headscarf at school. So far, it has not posed any serious legal issues in Nebraska.
That such a law still exists was a surprise for many Oregonians who learned about it when Gov. Ted Kulongoski signed the Oregon Workplace Religious Freedom Act in July, allowing workers to wear religious clothing on the job.
But the did law did not change the ban for teachers enacted in the 1920s, after that portion was opposed by the Oregon chapter of the American Civil Liberties Union on the grounds that impressionable children should not feel indoctrinated by their teachers.
The laws' existence also surprised Mona Elgindy, a law student at Loyola University in Chicago who wrote a paper on the issue. She is a Muslim and a former teacher.
"I kept doing research and research, and thought I must be finding something that's overruling this, or repealing the law, and there was nothing," Elgindy said.
In her paper, one of the few studies on religious clothing laws in recent years, Elgindy noted she could find no evidence that the laws statutes have ever been invoked by students. Rather, the recent legal history has been created by teachers trying to keep their jobs after administrators confronted them.
Court rulings in both Oregon and federal court in Pennsylvania rejected the claims by teachers and pointed out conflicts with the First Amendment: Teachers have a constitutional right to freedom of religion, but school districts must avoid supporting any religion.
Michael Kaufman, one of Elgindy's professors and an education law expert, said laws banning religious clothing used to be fairly common. But there has been a gradual shift away from them to protect teachers' religious freedom as long as it does not disrupt the classroom.
"It's now sort of gone full circle," Kaufman said. "The law now requires neutrality regarding religion, meaning the states or schools can neither favor nor disfavor religion."
The few remaining bans "are really suspect constitutionally now," he said.
During her eight years as a teacher in the Chicago area, Elgindy says she never ran into a conflict over her style of dress and covering her hair.
"It never was something that seemed to be in the way of my being a teacher," she said, adding it was often the opposite reaction. "They said, 'Here's somebody of a different background who can bring diversity to the staff.' It was always seen as positive thing."
An example of a shift in court attitude may have been signaled when the 3rd U.S. Circuit Court of Appeals ruled unanimously in 1999 that Muslim police officers in Newark, N.J., must be allowed to wear beards.
Tom Hutton, senior staff attorney for the National School Boards Association, said he did not know of any significant pending cases that might test the bans.
"It's really anybody's guess, but my own personal view is it would be more of an uphill battle to defend a religious garb statute than attack it," Hutton said.
Oregon House Speaker Dave Hunt wanted to include teachers in the new workplace law. But it was opposed by the ACLU during a legislative session dominated by the recession and one of the highest unemployment rates in the nation.
Dave Fidanque, ACLU executive director for Oregon, said the law helps ensure religious neutrality in public schools even though times have changed. "It's not an easy issue," he said.
Schools have been battlegrounds because "those who feel very strongly that their particular brand of religion is best feel the need to have their religion endorsed by public schools to attract more followers to their beliefs," Fidanque said.
The battle has not changed much since the 19th century when Pennsylvania voters passed a law in 1895 aimed at preventing nuns from wearing religious clothing in schools, said Stuart Knade, attorney for the Pennsylvania School Boards Association.
The effort to ensure religious neutrality in schools came from parents who had the strongest religious beliefs, "so there's an interesting irony there," Knade said.
Rajdeep Singh Jolly, legal director for the Sikh American Legal Defense and Education Fund, and Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, both say the laws are not only unconstitutional, but discriminatory because their enforcement now tends to fall on minorities.
The Sikh group has asked the U.S. Justice Department to investigate whether the Oregon law violates Title VII of the federal Civil Rights Act, and received a letter this week saying the department would give it "careful consideration."
Jolly and Hooper say the best way to deal with any problem involving religion in classrooms is to discipline teachers if they try to proselytize students or advocate favoring a particular religion, not for the way they dress.
"I think it's perfectly reasonable to expect that teachers will not talk about their religion in the classroom," Jolly said.
But when it comes to a Sikh turban or other clothing, he asked: "Why should I have to surrender something that is such an integral part of my life in order to pursue a career? It just doesn't make sense."
The Elgindy paper is available online at Loyola University here.