still waiting for concrete examples

[Douglas Laycock]

Pretext suggests they did it out of hostility to Islam, or to religion.  Maybe so.  Far more likely, they made a judgment in which they placed zero value on religous liberty, and focused only on whatever safety risk there was, however small or remote.  Facts matter, as Marci said, and the dominant fact here is 20 years of experience with no one hurt.  If any one had ever been hurt, that would have been the city's exhibit A. 

Quoting Hamilton02 at aol.com:

>
> Art--  We may only be talking to each other at this point, but the  facts
> matter in these cases.  So why do you think DC moved to an  across-the-board
> rule regarding beards and why does the rule appear in fire  companies across
> the country?  If it was all a pretext, why not just give  up and let
> everyone wear a beard?
>
>
> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
> ArtSpitzer at aol.com writes:
>
> In a message dated 6/22/09 1:31:13 PM, Hamilton02  writes:
>
>
>
> I have to ask Art one question--  It seems quite  clear from the record
> that there really is a danger to those with facial  hair in responding to
> emergencies....
>
>
>
> Those not interested in the minutiae  of the case can press delete now.
> I've pasted below a short (500 word)  excerpt on safety from my opposition to
> the Fire Department's petition for  rehearing.  The petition was denied.
>
> Art
>
> III.     This Case Does Not Present a  Serious Issue of Public Safety.
>
> The District  urges the Court to apply a ?particularly strong? preference
> for resolving this  case on the merits, because ?public safety is at issue.?
>   Pet. at  8.  But the district court's judgment poses no threat to public
> safety.
> The D.C. Fire Department, as a matter of  official policy, allowed hundreds
> of firefighters to  wear beards from sometime before 1973 until mid-2005.
> [Citation.] While  initially limited to men with a skin condition, from 1994
> until 2005  all employees were permitted to wear  beards, and many did.
> [Citation omitted.] It is uncontradicted that these  thousands of 
> man-years of
> bearded firefighting did not result in a single  safety problem. [Citation.]
> At the very outset of  this litigation, the retired Chief of Safety of the
> F.D.N.Y. explained in  detail why facial hair does not undermine the safety
> of an SCBA  [Self-Contained Breathing Apparatus].  [Citation.]  Faced with
> that  compelling evidence, the Fire Department did not appeal the preliminary
>  injunction issued at that time, and made no effort to pursue the
> litigation in  the district court for four years, during which time 
> all firefighters
> remained free to wear  beards. [Footnote omitted.] That changed in 2005,
> when the district court grew  tired of having this case sit dormant on its
> docket and ordered the Fire  Department to file within 15 days ?a plain
> statement of what its official  policy is with respect to facial 
> hair.? R. Doc. 60.
> Seventeen days later  the Department announced the new policy that is at
> issue in this case. R. Doc.  61.
> When called before the district court to  justify the new rule, the Fire
> Department represented--at length and  unambiguously--that its safety concern
> was limited to the use of  negative-pressure respirators in circumstances
> not requiring the greater  protection of SCBAs.  [Citation.]  The Department
> explained that  ?what we're worried about is a situation where you have to go
> into a  contaminated area for an extended period of time,? and an SCBA
> would not be  suitable because ?once the air runs out, that's it,? while ?
> negative pressure  masks . . . will allow them to work.  They can 
> work the eight
> hours.  [Citation.]  That explanation never changed until after summary
> judgment  had been entered.
> The district court rejected the  District's argument on the ground that it
> had not adduced credible evidence  that in such a situation ?bearded
> firefighters  . . . could not be  redeployed either 'up' to areas of 
> duty where
> SCBA use is required, or 'down'  to cold zones where no respiratory 
> protection
> is needed.?  Mem. Op. at  19.  The District did not contest that ruling on
> appeal.
> The record here should therefore leave the  Court entirely comfortable that
> its affirmance of the district court's  judgment creates no danger to the
> public safety of the District of  Columbia.  The handful of bearded
> firefighters and paramedics protected  by the permanent injunction in 
> this case can
> hardly be cause for alarm in  light of the undisputed fact that the D.C. Fire
> Department protected the city  for more than 30 years with hundreds of
> bearded firefighters, without a single  beard-related safety incident.
>
>
>
>
>
>
>
>
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
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