Dress codes vs. religious practice: What kind of nation are we?

Sunday, October 19, 2003

Okies from Muskogee may “still wave Old Glory down at the courthouse” – as Merle Haggard puts it. But over at the schoolhouse, Oklahomans need to remember that Old Glory stands for religious freedom.

Last week, school officials in Muskogee suspended – for the second time – 11-year-old Nashala Hearn. Her great offense? She refused to remove an Islamic scarf, or hijab, from her head.

Now this week, after an outcry from civil liberties groups, the school reversed itself and allowed Nashala to return to her sixth-grade class – wearing the hijab – pending a review of the policy.

Like many other school districts across the nation, Muskogee has a “no head covering” dress code – put in place to curb gang activity. Nashala isn’t defying the policy to make trouble or to promote gang colors. She wears a hijab as a matter of conscience.

This issue doesn’t have to provoke a fight. A good many public schools that ban headwear routinely grant exemptions for religious claims. But a growing number of administrators now ask students to choose between following their God and attending a public school.

Muslim Americans aren’t the only ones told to make this painful choice. Earlier this year, Aroniakeha Elijah, a junior at Salmon River Central School near Plattsburgh, N.Y., was given in-school suspension for wearing a red headband to school. Although Aroniakeha explained that the headband was part of his rite of passage within his traditional Iroquois religion, school officials weren’t impressed.

Here’s where the story becomes outrageous. For refusing to remove his bandana, Aroniakeha spent the next 73 school days in solitary confinement. No instruction, no homework, no sports – nothing but time alone in a small room in the library.

Only when two lawyers showed up (one from the Becket Fund for Religious Liberty) did the school finally lift the suspension and allow Aroniakeha to return to class – wearing the red headband.

It took them an unconscionably long time, but Salmon River school officials finally saw the First Amendment light. And it now appears that Muskogee officials will revisit their misguided policy.

These two incidents raise serious questions about the state of religious freedom in the United States. Why are school districts like these saying “no” to religious requests for exemption from the dress code? Doesn’t the First Amendment’s guarantee of free exercise of religion give Americans the right to seek relief from regulations that burden their religious practice?

For some answers, we need to go back to a 1990 Supreme Court decision (Employment Division v. Smith II) that made it easier for government officials to ignore religious requests for exemptions from generally applicable laws or regulations. No longer, said the Court, would the government need to show a “compelling state interest” before refusing to grant an exemption to a law that happens to burden religious practice.

After Smith, Congress attempted to restore the “compelling-interest test” by passing the Religious Freedom Restoration Act (RFRA). But in 1997, the Supreme Court struck down RFRA, ruling that Congress had exceeded its powers by forcing the states to give more free-exercise protection than was required by the Smith decision.

The loss of RFRA meant the U.S. Department of Education had to revise its guidelines for schools to read: “Students generally have no federal right to be exempted from religiously neutral and generally applicable school dress rules based on their religious beliefs or practices.” In other words, schools may accommodate students’ religious requirements – but they may not have to do so under current Supreme Court rulings.

But here’s the bad news for Muskogee school officials (and probably why they changed their minds about Nashala’s hijab): In June, 2000, Gov. Frank Keating signed into law the Oklahoma Religious Freedom Act – a state RFRA – that says, in effect, even if the federal government no longer gives people the right to seek exemptions from laws that burden their religious practice, here in Oklahoma we’re going to restore that right.

Of course, having the right to seek an exemption doesn’t guarantee victory. But in Oklahoma (and 11 other states) the government, including public schools, must have a compelling reason – an interest of the highest order – for turning down a request. Moreover, the government must also demonstrate that it has no less-restrictive way to accomplish that interest than by denying the exemption.

Isn’t curbing gang activity a “compelling state interest”? No doubt about it. But would Muskogee’s anti-gang efforts be seriously undermined if the school gave a limited number of exemptions for religious claims? Unlikely.

Under state RFRAs, school officials have to grant exemptions only to students who can show that their religious practice is substantially burdened by the “no head covering” policy. This may involve a small number of students wearing religious garb that, in most cases, can easily be distinguished from gang regalia.

Kids being kids, some Muskogee students may demand the “right” to wear their Sooners caps if other students get to wear religious headwear. But even though University of Oklahoma fans sometimes resemble religious devotees, the First Amendment and Oklahoma’s law are intended to protect claims of conscience. A Sooners cap is not a hijab or a yarmulke.

Whether or not accommodating religious claims like those of Nashala and Aroniakeha is legally required under current law, it’s the right thing to do. Although we don’t always live up to it, religious freedom is a founding American principle.

That’s why this controversy is about far more than headwear in public schools – it’s about what kind of nation we want to be. In France today, a Muslim girl must remove her head scarf if she wants to attend a public school. And in Germany, efforts are under way to ban the hijab from schools and the workplace.

But here’s the difference: In France and Germany it’s considered “un-French” or “un-German” to wear a hijab. In the United States, it should be un-American to make someone take it off.

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