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Fighting Religious Dress Fighting Religious Dress Discrimination in Texas Public Discrimination in Texas Public

InstitutionsInstitutions

ACLU of Texas and the AMSA ACLU of Texas and the AMSA CommunityCommunity

Defend and preserve rights Defend and preserve rights guaranteed in U.S. Constitution, guaranteed in U.S. Constitution, federal and state lawfederal and state law Courts, legislature, and communitiesCourts, legislature, and communities

Receive civil rights complaints from Receive civil rights complaints from AMSA community related to Racial AMSA community related to Racial Justice and Individual LibertiesJustice and Individual Liberties

Dress restrictions implicate rights to Dress restrictions implicate rights to free exercise of religionfree exercise of religion and and free free expressionexpression

Government Rationales for Government Rationales for Restricting DressRestricting Dress

SecuritySecurity SafetySafety Student dress codesStudent dress codes

Justifications include: “to teach hygiene, instill discipline, Justifications include: “to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert prevent disruption, avoid safety hazards, and assert authority.” authority.” -Needville ISD Dress -Needville ISD Dress CodeCode

Must be balanced against individuals’ rightsMust be balanced against individuals’ rights Texas Education Code § 11.162 authorizes local school boards Texas Education Code § 11.162 authorizes local school boards

to require student uniforms, but parents can request an to require student uniforms, but parents can request an exemption if they have “a bona fide religious or philosophical exemption if they have “a bona fide religious or philosophical objection to the requirement.”objection to the requirement.”

Legal Protections for Religious Dress:Legal Protections for Religious Dress:First Amendment Free ExerciseFirst Amendment Free Exercise

Triggered when government substantially burdens an Triggered when government substantially burdens an individual’s sincerely held religious beliefindividual’s sincerely held religious belief Religious beliefReligious belief: Need not be “acceptable, logical, consistent, : Need not be “acceptable, logical, consistent,

or comprehensible to others,” or comprehensible to others,” Thomas v. Review Bd. of Thomas v. Review Bd. of Indiana Employment Sec. Div.,Indiana Employment Sec. Div., 450 U.S. 707, 714-15 (1981). 450 U.S. 707, 714-15 (1981).

Sincerely heldSincerely held: Based on “subjective good faith of an : Based on “subjective good faith of an adherent,” but countered by inconsistent practice or adherent,” but countered by inconsistent practice or indication that adherent is “fraudulently hiding secular indication that adherent is “fraudulently hiding secular interests behind a veil of religious doctrine.” interests behind a veil of religious doctrine.” Int’l Soc. For Int’l Soc. For Krishna Consciousness, Inc. v. BarberKrishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d , 650 F.2d 430, 441 (2d Cir.1981). Cir.1981).

Substantial burdenSubstantial burden: “[T]ruly pressures the adherent to : “[T]ruly pressures the adherent to significantly modify his religious behavior and significantly significantly modify his religious behavior and significantly violate his religious belief.” violate his religious belief.” Adkins v. KasparAdkins v. Kaspar, 393 F.3d 559, , 393 F.3d 559, 570 (5th Cir. 2004). 570 (5th Cir. 2004).

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

-U.S. Constitution, amt. 1

Legal Protections for Religious Dress:Legal Protections for Religious Dress:First Amendment Free ExerciseFirst Amendment Free Exercise

Strict scrutinyStrict scrutiny: Incidental burden on free exercise : Incidental burden on free exercise permitted only when it is the permitted only when it is the least restrictive meansleast restrictive means to achieve a to achieve a compellingcompelling government interest. government interest. See See Sherbert v. VernerSherbert v. Verner, 374 U.S. 398 (1963)., 374 U.S. 398 (1963).

Rational basisRational basis: In 1990, the Supreme Court abandoned : In 1990, the Supreme Court abandoned strict scrutiny for strict scrutiny for neutral laws of general neutral laws of general applicabilityapplicability. . See Employment Div. v. SmithSee Employment Div. v. Smith, 494 U.S. , 494 U.S. 872 (1990).872 (1990).

Hybrid rightsHybrid rights: : SmithSmith noted heightened scrutiny noted heightened scrutiny previously applied only when free exercise was raised previously applied only when free exercise was raised with another fundamental right.with another fundamental right. Some courts read this to require “something Some courts read this to require “something more than a more than a

mere reasonable relationmere reasonable relation to some purpose within the to some purpose within the competency of the State” when free exercise is raised competency of the State” when free exercise is raised together with free expression or other fundamental rights. together with free expression or other fundamental rights. See See Alabama & Coushatta Tribes v. Trustees of Big Sandy Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist.Indep. Sch. Dist., 817 F.Supp. 1319, 1332 (E.D. Tex. 1993)., 817 F.Supp. 1319, 1332 (E.D. Tex. 1993).

Legal Protections for Religious Dress:Legal Protections for Religious Dress:Religious Freedom Restoration ActsReligious Freedom Restoration Acts

Federal RFRA enacted in 1993 to reinstate strict Federal RFRA enacted in 1993 to reinstate strict scrutiny in response to scrutiny in response to SmithSmith Held unconstitutional as applied to states in Held unconstitutional as applied to states in City of Boerne City of Boerne

v. Floresv. Flores, 521 U.S. 507 (1997), 521 U.S. 507 (1997) Texas enacted its own RFRA in 1999 Texas enacted its own RFRA in 1999

State agencies may not “substantially burden a person’s State agencies may not “substantially burden a person’s free exercise of religion,” except where the state’s action free exercise of religion,” except where the state’s action “(1) is in furtherance of a “(1) is in furtherance of a compelling governmental compelling governmental interestinterest; and (2) is the ; and (2) is the least restrictive meansleast restrictive means of of furthering that interest.” furthering that interest.”

Free exercise is any “act or refusal to act that is Free exercise is any “act or refusal to act that is substantially motivated by sincere religious beliefsubstantially motivated by sincere religious belief ,” ,” which need not be “motivated by a central part or central which need not be “motivated by a central part or central requirement of the person's sincere religious belief.”requirement of the person's sincere religious belief.”

Requires 60 days Requires 60 days notice and opportunity for state notice and opportunity for state agency to remedyagency to remedy by “reasonably remove[ing] the by “reasonably remove[ing] the substantial burden,” though remedy need substantial burden,” though remedy need notnot be the least be the least restrictive means.restrictive means.

Legal Protections for Religious Dress:Legal Protections for Religious Dress:First Amendment Free ExpressionFirst Amendment Free Expression

Triggered when student intends to convey a Triggered when student intends to convey a particularized messageparticularized message, and that “message is , and that “message is likely to likely to be understoodbe understood by those intended to view it.” by those intended to view it.” Canady v. Canady v. Bossier Parish Sch. Bd.Bossier Parish Sch. Bd., 240 F.3d 437, 440-41 (5th Cir. , 240 F.3d 437, 440-41 (5th Cir. 2001).2001).

Courts differ on level of scrutiny for student religious dress:Courts differ on level of scrutiny for student religious dress: Pure speechPure speech: Restrictions permitted only if the expression : Restrictions permitted only if the expression

“materially and substantially interfere[s] with the requirements “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,” of appropriate discipline in the operation of the school,” Tinker v. Tinker v. Des Moines Indep. Sch. Dist.,Des Moines Indep. Sch. Dist., 393 U.S. 503, 508 (1969). 393 U.S. 503, 508 (1969).

Speech-as-conductSpeech-as-conduct: Restriction permitted if it furthers an : Restriction permitted if it furthers an important or substantial governmental interest that is unrelated important or substantial governmental interest that is unrelated to the suppression of free expression; and the incidental to the suppression of free expression; and the incidental restriction on First Amendment freedoms is no greater than is restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. essential to the furtherance of that interest. United States v. United States v. O’BrienO’Brien, 391 U.S. 367, 377 (1968)., 391 U.S. 367, 377 (1968).

Congress shall make no law…abridging the freedom of speech.

-U.S. Constitution, amt. 1

Protecting the Right to Religious Dress Protecting the Right to Religious Dress Singh v. CerconeSingh v. Cercone

Amardeep Singh appeared Amardeep Singh appeared before Dallas County JP before Dallas County JP Albert Cercone on June 23, Albert Cercone on June 23, 2006 for a traffic violation.2006 for a traffic violation.

Told to remove his “hat” Told to remove his “hat” under the court’s “no under the court’s “no hats” policy, and hats” policy, and threatened with arrest threatened with arrest

SALDEF put him in touch SALDEF put him in touch with ACLU and with ACLU and cooperating attorney Jerry cooperating attorney Jerry Murad, who filed suit in Murad, who filed suit in state court for violation of state court for violation of Texas RFRA.Texas RFRA.

Dallas County and Judge Dallas County and Judge Cercone adopted new Cercone adopted new security screening policy security screening policy to be more respectful of to be more respectful of religious dress.religious dress.

I could not believe that here in the United States, a judge whose job it is to uphold the law would show such disrespect for my religion.

Protecting the Right to Religious Dress Protecting the Right to Religious Dress A.A. et al. v. Needville ISDA.A. et al. v. Needville ISD

Needville ISD put off requests for dress code Needville ISD put off requests for dress code exemption for a 5-year-old Native American exemption for a 5-year-old Native American boy with long hairboy with long hair

If you want to think we’re backwards…no one is asking If you want to think we’re backwards…no one is asking you to move to Needville and have these opinions invoked you to move to Needville and have these opinions invoked on you. on you. - -NISD Superintendent, in NISD Superintendent, in Houston Press (7/10/08)Houston Press (7/10/08)

In August 2008, NISD adopted an “exemption” In August 2008, NISD adopted an “exemption” requiring the boy to keep his foot-long hair in a requiring the boy to keep his foot-long hair in a “tightly-woven” braid stuffed down the back of “tightly-woven” braid stuffed down the back of his shirt at all timeshis shirt at all times

The family refused to choose between their The family refused to choose between their beliefs and their son’s right to an education, so beliefs and their son’s right to an education, so NISD punished the boy with In-School NISD punished the boy with In-School SuspensionSuspension

Protecting the Right to Religious Dress Protecting the Right to Religious Dress A.A. et al. v. Needville ISDA.A. et al. v. Needville ISD

TRO granted October 3 and TRO granted October 3 and boy has been in class with no boy has been in class with no problems ever sinceproblems ever since

On January 20, 2009, U.S. On January 20, 2009, U.S. District Judge Keith Ellison District Judge Keith Ellison ruled in our favor on all claims ruled in our favor on all claims against the hair requirementagainst the hair requirement

NISD has filed an appeal to NISD has filed an appeal to the Fifth Circuit Court of the Fifth Circuit Court of AppealsAppeals

Filed suit October 2, 2008 asserting violations of boy’s Filed suit October 2, 2008 asserting violations of boy’s rights under First Amendment and Texas RFRA, and rights under First Amendment and Texas RFRA, and parents’ Fourteenth Amendment rights to direct his parents’ Fourteenth Amendment rights to direct his upbringingupbringing ““[W]hen the interests of parenthood are combined with a free [W]hen the interests of parenthood are combined with a free

exercise claim … more than merely a reasonable relation to exercise claim … more than merely a reasonable relation to some purpose within the competency of the State is required … some purpose within the competency of the State is required … under the First Amendment.” under the First Amendment.” Wisconsin v. YoderWisconsin v. Yoder, 406 U.S. 205, , 406 U.S. 205, 233 (1972).233 (1972).

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