My criticism the ACLU of Oregon's stance on religious freedom for teachers

The Oregonian is running my op-ed, which criticizes the ACLU of Oregon's stance on religious freedom for public schoolteachers.  Here's the full text:

Should public schoolteachers be allowed to wear religious garbs such as head scarves and turbans while teaching? Right now, Oregon law says no, but the Legislature is considering House Bill 3686, which would repeal that prohibition. 

Those who would benefit from the passage of this bill include Muslim women and Orthodox Jewish men, among others. Letting such persons satisfy the dictates of their religions is consistent with the spirit of the First Amendment, which states in part that the government "shall make no law . . . prohibiting the free exercise" of religion. 

Yet, the American Civil Liberties Union of Oregon is on record as opposing House Bill 3686, which has passed the House and is pending in the Senate. According to the ACLU, "[p]ublic schools have a special obligation to ensure an atmosphere that is welcoming to all students and their families regardless of their religious beliefs." Few reasonable people would disagree with that statement. The more challenging task is to demonstrate how a rule that lets female Muslim teachers wear headscarves while teaching would create an unwelcoming atmosphere for non-Muslim students and their families. 

The ACLU has thus argued that "any change or repeal of the Oregon religious dress law may have unintended consequences that could result in an inappropriate expansion of religious activity in our public schools." I'm not exactly sure what the ACLU means by "inappropriate expansion of religious activity"; if the point is that public school teachers should not be allowed to proselytize to their students, then the ACLU would be on strong ground, for that is the point of the First Amendment's Establishment Clause.

But House Bill 3686 does not permit teachers to do anything of the sort. It merely lets them wear religious garb when teaching. So the ACLU's opposition appears rooted in the speculative notion that if schoolchildren see their teachers wearing headscarves or turbans, they will somehow perceive that the teachers are proselytizing to them, even if the teachers say nothing about religion in class. 

I suppose that's possible, although it would be instructive to look at the 47 other states that do not have this ban on the wearing of religious garb by teachers to see if those states have experienced this kind of indirect proselytization. The point is that whether this hypothesized harm will actually befall children is speculative and diffuse; even if it did happen, parents would likely mobilize and protest. On the other hand, the harm of the current ban is direct and individual, and it is concentrated on a small number of persons who are forbidden from complying with their religions during their working hours. 

What is especially strange about the ACLU's position is that traditionally, the ACLU has often defended the civil rights of the minority against the majority, the disfavored and powerless against society. Whatever the original reasons for the ban on religious garb for teachers, the law today impacts such minority religious adherents as Muslims (approximately 0.5% of Oregon's population). 

One need not agree with all of the ACLU's cases or positions to admire its underlying principles – but in this instance, its position seems to contradict those underlying principles. 

Tung Yin is Professor of Law at Lewis & Clark Law School. 

Comments

[Kelly Wellington]

Interesting point of view.

Do you support the wearing of lethal weapons in public schools? It is my understanding that to allow full religious freedom of expression with regards symbolic garb runs into some startlingly harrowing possibilities.

To whit: The Sikh religion, as I understand it hold that the 'kirpan' is one of the sacred items which each and every baptised Sikh male must carry on their person. The 'kirpan' is a sizeable lethal bladed weapon....a dagger, strapped to the body, under the clothing.

To allow full religious freedom, we would allow the violation of the strictures against carrying concealed weapons to this particular religious adherents. Is that the intent?

If not, how is this conflict of principles addresssed?

[Tung Yin]

I'm guessing that lethal weapons would violate religion-neutral rules (i.e., no guns or swords on schools). Smith v. Employment Division, 494 U.S. 872 (1990), says that laws of general applicability can be enforced to block religious practices from being practiced.

The problem with Oregon's current prohibition is that it's not a law of general applicability. It applies specifically to religious garb.

[George Anonymuncule Seldes]

As a longtime ACLUer and former state ACLU board member, I have to say how sorry I am every time the ACLU gets sucked into debates and school dress codes (for students or teachers) where all parties agree to ignore the real civil liberties violation, that of a government-mandated institution of state-directed indoctrination (a/k/a "public schools").

Trying to fight for a tiny dab of freedom in a system built on coercion to inculcate a state orthodoxy is absurd.

When the ACLU is ready to challenge compulsory education laws then I'll care about whether the government dictates what the government agents giving the state-approved indoctrination to the students are allowed to wear. Until then, I could care less.

[gaye harris]

Wearing a hijab is not a religious requirement. It is a social custom fuelled by **some*** religious writings, and by no means universally agreed upon by Muslims as either acceptable or recommendable. There are Islamists who believe that the teachings of Islam advocate that the style of dress of persons is best left totally unrestricted, because it interferes with the focus on internal religious life and the cultivation of goodness.

So, given the hijab is a social custom fuelled by religion, it can't be treated as a simple "religious freedom" under the law.

Social customs masquerading as religious practices should be examined in light of the role of teachers in young people's life. The headscarf has experienced a resurgence of popularity in the Islamic world as a political statement supporting the universal application of Sharia, so-called Islamic law. The hijab's association with a political system which is repressive and systematically, profoundly degrading toward women, in my view, argues strongly against letting it in to the classroom under the guise of "religious freedom".

[Tim]

Gaye - You may be right on the theology, I have no idea, but the notion of a sovereign engaging in some sort of theological inquiry and making proclamations about what is and isn't "really" required by Islam seems much more troublesome. Unless there's some reason to think that a religious belief is not sincere, such as in conscientious objector status for the draft, shouldn't the government have to pretty much accept that a person's religious beliefs are what they say they are? There's no requirement that a religious belief be widely accepted or monolithic within the particular religion to be protected. There are pretty significant theological distinctions between Christian denominations, but it shouldn't be up to the state of Oregon to decide who is a Christian and who isn't, just as they shouldn't be telling a Muslim whether or not wearing a hijab is "really" required by Islam.

[gaye harris]

Tim,

while there may not be a requirement that a belief be universal within a religion to guarantee freedom of religion, the fact that a belief is NOT universal within a religion is relevant to defining "religious freedom" as a whole. The guarantee of "religious freedom" should protect the freedom to practice a religion generally, not necessarily the freedom to bring religion-related social customs in to a classroom of impressionable people, when doing so has the potential effect of recruiting them in to a religious community.

Remember, young people, adolescents in particular, can develop fierce and loyal attachments to teachers. At least I did, as a kid, when teachers were my only lifeline to a sane existence. I was taught by a Tunisian, an Armenian, a Lebanese American, a Venezuelan, a Brit, an English Jew, and others; I was lucky. And at least one of my attachments was of a deeply emotional nature and if she had been wearing a headscarf, I would have been, too.

Just saying.

[Tim]

Gaye - But if it's a social custom, why should we be concerned about impressionable children being exposed to it? There's no prohibition against the establishment of social customs.

[gaye harris]

Because Islam, unlike any other major religion, has a huge body of writing espousing the establishment of religion as social law, through any means possible, including killing those who do not submit to the cause.

That is why we only have Islamic theocracies left on the planet. The Catholic theocracies died with the Armada, the puritan theocracy with Oliver Cromwell, etc

The advent of Islamic theocracies in the 20th century has been made possible precisely through the dress code, where, for example, the entire female population of Saudi Arabia has been held, intellectually and physically, in the shackles of dress.

The hijab communicates the following: I am a conservative Muslim woman. Most conservative Muslim women are held, by fundamentalist interpretation of their religion, to the idea of bringing about a new world order, involving an Emirate governed by Sharia law.

Personally, I am not interested in having gullible young people taught by religionists with an agenda communicated by their form of dress.