Law.com - 3rd Circuit Rejects Muslim Cop's BidtoWearReligiousScarf

[Volokh, Eugene]

           I wonder what exactly is constitutionally troublesome about 40% of teachers wearing such a T-shirt every Friday.  I can see why a school might want to restrict such speech, just as they might want to restrict political proselytizing and the like; wearing a “Vote for Obama” T-shirt every Friday might be bad, too, and a religiously neutral restricting message T-shirts might well be permissible, as would a rule restricting message T-shirts worn as an organized activity by many teachers.  But if the school doesn’t want to restrict message T-shirts, even if worn by 40% of the teachers (a situation that strikes me as pretty unlikely, but let’s assume it for now), why isn’t explaining to the students that this is the message of some teachers, not of the school, quite sufficient to satisfy any compelling interest in preventing a false perception that the school is endorsing the message?  And even if it isn’t sufficient for some reason connected to the fraction of teachers who wear the T-shirts, why let this highly unusual hypothetical affect the much more normal scenario where people wear not-commonly-seen-as-proselytizing jewelry or headgear?

           Eugene

John Taylor writes:

4.  I do find it a closer question, in any event, whether a school might justifiably take stronger steps in situations where "private expression" by teachers would tend to reinforce majoritarian religious norms.  (Perhaps this kind of thing seems like a bigger problem when one teaches in WV rather than California!)  There are plenty of places where any religious garb or symbols worn by teachers will be uniformly Christian and will be worn by most teachers, and I don't think that is a trivial concern from an EC standpoint.  If we are talking about small crosses or the like, which would probably be the norm as Eugene suggests, maybe that's not problematic and kids ought to be expected to understand that not everything a teacher wears is "official."  Yet I do think the role of public school teacher is one where lines between private and government expression are not easily drawn, and schools ought to have some leeway in dealing with this.  

 

To give a fairly extreme example, imagine a school where a teacher (10% of teachers, 40% of teachers?) wears a T-shirt every Friday printed with "John 3:16" in large letters.  (Yes, I know that wearing a T-shirt would be considered unprofessional attire and so this is a bit far fetched, but perhaps "casual Fridays" are practiced with a vengeance at this school!)  Now, perhaps I am idiosyncratic, but I confess to thinking that the EC concerns here are sufficiently significant that a school should be able to do more than simply point out to kids that there is a difference between what teachers choose to wear and what the boss tells them to wear.  (Now Eugene is going to say, "Well, if it's casual Fridays maybe a bunch of teachers will wear Grateful Dead T-shirts and no one thinks the government is endorsing the Grateful Dead.  So my point stands."  OK, I grant that makes the question closer.  But to come at it from the other direction, does it matter if lots of the teachers wear the John 3:16 shirt?  If they do so in a coordinated fashion?  I think O'Connor talks somewhere -- in Pinette, I think? - about the idea of overwhelmingly one-sided religious expression in public forums and how that worries her.  Perhaps I'm on a similar wavelength here.)  This seems, at least to me, quite a bit different from the Muslim teacher who wears a head scarf.  Why would that be so?  Perhaps it is the sense that wearing the scarf is religiously obligatory in a way that wearing the John 3:16 shirt presumably is not.  Perhaps it is the sense that the shirt is inherently proselytizing in a way that the headscarf is not -- that, to use Alan's terminology, it communicates the message that "you should believe what I believe."  Perhaps it is the difference between religious expression which reinforces majoritarian religious norms and that which does not.  Perhaps there are other reasons.  In any event, I confess to thinking that there are situations where a school ought to be able to restrict what a teacher can wear in the pursuit of Establishment Clause values.  I certainly do not claim to have a fully worked out theory of when this is so; and I recognize that even if I had the worked out theory, there could be another gap in turning that theory into an judicially administrable rule.  Perhaps someone more sympathetic to Smith than Alan is -- and perhaps Eugene is such a person -- would say that extreme examples could be adequately remedied through a religiously neutral rule, but that a religion specific approach is never proper.  

 

 

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