Oregon Legislature to Repeal Ban on Religious Dress by Teachers

The Oregon Senate has voted to repeal a ban on religious dress by teachers in public schools, specifically referring to head coverings.

From Religion Clause:

Beginning in the 2011-12 school year, teachers will be allowed to wear head coverings or other clothing in accordance with sincerely held religious beliefs. The state House of Representatives has already passed the bill, but it now goes back to the House because of two changes in wording made by the Senate. Opponents of the bill argued that a classroom should be a religiously neutral environment. (OPB News.)

Volokh Conspiracy also comments on the story:

Though it facially discriminates against religious practices, it was nonetheless upheld against a Free Exercise Clause challenge, in Cooper v. Eugene School Dist. No. 4J (1986). I think it should have been struck down, and I’m glad it has been repealed. [UPDATE: Because some comments seem to miss this, I thought I’d stress it again: The law is presumptively unconstitutional because it discriminates against religious practices on the basis of their religiosity. If the law were religion-neutral, such as a uniform dress code for all teachers without regard to religion, then it would be judged under Title VII’s “reasonable accommodation” standard, which gives employers — private or governmental — considerable though not unlimited flexibility to impose such restrictions, including on religious objectors.]

The common argument in favor of such a law is that it is necessary to prevent students from assuming that the school endorses religion (which might even give rise to an Establishment Clause, under modern Establishment Clause caselaw). But the law is not necessary to prevent such perceived endorsement, and should thus fail the strict scrutiny that should be applied to deliberate discrimination against religious practice.

In Europe, especially in France, displays of religion are banned because they distract from national identity. In America, we are fortunate to have the freedom to express our religous affiliation as we see fit. Such a ban in a school setting doesn’t make any sense other than to suppress the free expression of religiousity. Euguene Volokh is right that the law is unconstitutional on its face, and it should have been overturned long ago. It says a lot about the true motives of the ACLU that the ACLU of Oregon opposed lifting the ban on the  grounds that it would be a de facto endorsement of religion.

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