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October 19th, 2017

Liberty

State Employed Teachers can't wear 'religious garb' to class but a repeal effort may be possible

Mark A. Kellner

By Mark A. Kellner Deseret News

Published December 15, 2014

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A 65-year-old Pennsylvania law barring teachers from wearing "religious garb" in class, though rarely enforced, has resurfaced, much to the irritation of school officials and religious liberty advocates.

That law — passed originally in 1895 at the height of anti-Catholic hysteria and renewed in 1949 — allowed a man to recently register a complaint over a teacher at the East Pennsboro Middle School who reportedly wore a necklace showing a Star of David, a traditional Jewish emblem.

"I object to any teacher that's breaking the 1949 Religious Garb act," Ernest Perce, who claims to be an "Orthodox Christian" but two years ago was Pennsylvania director for the American Atheists, said in a telephone interview. "I would object to any teacher breaking the law, so that's all faiths or non-faiths included."

Perce, who heads an organization called "Jesus Was Not a Jew Ministries," wrote a letter of complaint to the East Pennsboro Area School District, in which he claimed "it is illegal for teachers to wear religious symbols that can have crushing and traumatic emotional stress upon children."

Attorney Carl P. Beard, writing on behalf of the district, told Perce the teacher would not be instructed to remove the necklace, citing numerous cases under Title VII of the federal Civil Rights Act of 1964, which protects individual religious expression, and a 2003 federal district court ruling that said a western Pennsylvania school district could not enforce the "religious garb" ban against a teacher's aide.

Beard said that in 27 years of providing legal counsel to various school districts in the commonwealth, the "religious garb" question has come before him three times. "It's not a big issue" for Pennsylvania's 501 school districts, he said.

CONSTITUTIONAL TENSIONS

But the question of whether teachers can wear traditional religious clothing or jewelry in class was a big deal in 1894, when the Pennsylvania Supreme Court ruled in favor of a Roman Catholic nun wearing her habit in a public school classroom, so long as she was not performing religious instruction, according to Nathan Walker, a consultant with the Religious Freedom Center of the Newseum Institute in Washington, D.C., and who teaches in the department of philosophy and religion at Rowan University.

Walker, in an excerpt from his dissertation on the issue of religious garb in education, wrote that the 1894 ruling was "unpopular" at the time, prompting lawmakers to respond the following year by passing the anti-garb measure. The statute was revised in 1949 and reaffirmed in 1982.

However, society has dramatically changed in the last 120 years, Walker noted. "Should educators who practice Islam, Judaism, Hinduism, and Sikhism leave their head coverings at the schoolhouse gate? Different world views will result in different responses; however, most can agree that the issue of public school teachers' religious expression derives from the inexorable tension between the free exercise and establishment clauses of the First Amendment," Walker wrote.

At one point, 36 states had bans of such religious garb, Walker's research noted. Today, only Nebraska and Pennsylvania have such statutes. Attorney Darrel Huenergardt of Lincoln, Nebraska, who specializes in religious liberty issues, said he could find no record of any prosecutions under that state's bill, which was first passed in 1919.

Oregon scuttled its anti-garb measure in 2010, when then-Gov. Ted Kulongoski signed a repeal measure advocated by Sikhs, Hindus, Muslims, Jews and Seventh-day Adventists. "Repeal is consistent with Oregon tradition that honors individual beliefs, values, diversity and promotes tolerance," Kulongoski said at the signing, according to the Oregonian newspaper.

A 2011 effort to repeal the Pennsylvania law drew plaudits from teacher, school board and religious groups, but failed to make it out of committee. The measure, sponsored by then-Rep. Eugene DePasquale, a Democrat, and Rep. William Tallman, a Republican, was designed to advance personal liberty. DePasquale was elected state auditor general in 2012 and left the legislature.

"This is about restoring religious neutrality to our public school system and upgrading an old and discriminatory law," Tallmansaid in announcing the 2011 bill. "We want every teacher to be free to exercise his or her religion, regardless of that faith."

'UNCONSTITUTIONAL VESTIGE'

Eugene Volokh, a constitutional law professor at the University of California at Los Angeles, blogged that the Pennsylvania statute "isn't necessary to serve the government interest in preventing endorsement or coercion" in matters of faith.

Eric Rassbach, deputy general counsel of The Becket Fund, a religious liberty law firm in Washington, said, "The anti-religious garb statute in Pennsylvania is an unconstitutional vestige of 19th century anti-Catholic bigotry. It was designed to keep Catholics out of public schools but now this bad law can be used to target other religious minorities such as Jews and Sikhs. Oregon did the right thing by repealing its anti-garb statute a few years ago; Pennsylvania should follow suit."

State legislative sources in Harrisburg, the state capital, who asked not to be named, suggest another repeal effort might come next year.

Ironically, Perce — who said he plans legal action against the East Pennsboro district over the matter — may not be supported by his former colleagues at the American Atheists.

"Ernest was my state director and friend for a while. We parted ways in late '12 or early '13," David Silverman, American Atheist president, wrote in an email.

Silverman said the group doesn't oppose the display of religious symbols.

"If Christians can wear crosses, Jews can wear stars, and atheists can wear Atheist atoms," he said. "It's about fairness, not squelching personal expression."

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