Student receives setback in fight against N.C. school dress code

Wednesday, February 17, 1999

For now, Aaron Ganues, a third-grader in North Carolina challenging his public school district's dress code, will continue attending a private school about 40 minutes away from his home.

In September, Aaron was suspended indefinitely from McIver Elementary School in eastern North Carolina for refusing to abide by the school district's newly adopted dress policy. The dress code requires all students to wear khaki pants and navy blue dress shirts. Aaron and his great-grandmother and guardian, Catherine Hicks, objected to the policy on religious grounds, saying that it would prepare children to conform to the will of the Antichrist.

Represented by the state affiliate of the American Civil Liberties Union, Hicks and Aaron have sued the school district and officials in federal court, arguing that the dress code has subverted several of their First Amendment rights, such as free speech and the free exercise of religion.

Before the federal court last month, the ACLU had argued for a preliminary injunction that would bar the dress code from being applied to Aaron during the course of the litigation. On Feb. 12, the federal court rejected an injunction. Aaron chose to remain in the expensive private school miles away from his home.

In denying the preliminary injunction, U.S. District Judge W. Earl Britt cited federal case law that says not all government actions and policies that happen to infringe upon religious liberty must include exemptions for religious objectors. In 1990, the U.S. Supreme Court concluded in Employment Div., v. Smith that government actions or laws that apply fairly to all do not need to be justified by a compelling government interest if those actions or laws happen to infringe upon a person's religious practices.

“A rule requiring the government to show a compelling interest whenever a generally applicable rule collided with an individual's religious expression would, according to the Smith Court, 'open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, and traffic laws,'” Britt wrote, citing the high court.

Britt also cited a 1986 high court decision that the free exercise-clause did “not afford an individual a right to dictate the conduct of the Government's internal procedures.” In Bowen v. Roy, the high court did not accept an American Indian's argument that permitting the government to use his daughter's Social Security number for identification purposes would violate their religious beliefs.

“Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family,” Justice Warren Burger wrote in Bowen.

In Aaron's case, Britt said he could not grant a preliminary injunction against the dress code, which he described as neutral.

Last April, the Halifax County Board of Education enacted the uniform policy to “help minimize disruptive behavior, promote respect for teachers, build group spirit/school pride, and help schools maintain academic standards through uniformity.”

Britt wrote that the denial of the preliminary injunction “may seem harsh or unappreciative of the sincerity of Aaron's and Hicks' religious beliefs.” He added, however, that “this court understands and sympathizes with those whose sincerely held religious beliefs place them in the position of having to reconcile the laws of man with the laws they perceive to have been set down by God.”

Britt also said “it would be commendable, perhaps even enlightened, for the Halifax County Board of Education to provide for some exception to the policy for those with religious objections.”

Deborah Ross, executive director of the North Carolina ACLU, said she was disappointed with the court's decision but would not be dissuaded from continuing to represent Aaron and Hicks in their battle over the constitutionality of the dress code.

“The court's ruling essentially says that the Board of Education's decision not to have an opt-out of the uniform policy based on religious beliefs is more important than the education of a child,” Ross said. “Not all parents with religious objections to a school- uniform policy have the capacity or the resources to provide their children with home schooling or a private education.”