Suspension for refusal to wear school uniform brings suit

Sunday, February 7, 1999

When little Aaron refused to wear his school uniform last fall, he was suspended from school. Now his great-grandmother — who is also his guardian — has to drive Aaron 400 miles a week to a private school she can't afford. She's suing the school district to get Aaron back into the elementary school he had, until recently, attended all of his young life.

Aaron's family isn't trying to pick a fight with school officials in their eastern North Carolina town. But they sincerely believe that complying with the dress code would express “allegiance to the spirit of the anti-Christ.”

The court must now determine if Aaron has a First Amendment right to be excused from wearing a school uniform.

Remember the fight in France discussed in this space a few weeks ago? Teachers in a small town there walked off the job rather than teach a Muslim girl who was wearing a head scarf to school for religious reasons. Without First Amendment protections written into their constitution, French officials have the right to make all students conform to dress codes, regardless of the students' religious convictions.

In America, the First Amendment's guarantee of free exercise of religion should mean that school officials will accommodate claims of conscience whenever possible. Unfortunately, however, it's not so simple anymore. In recent years, our religious freedom has been eroded by the courts.

Before 1990, Aaron and his great-grandmother had a much better chance of winning their lawsuit. The courts used to require that the government — in this case represented by the school board — show a compelling state interest for refusing to allow a religious exemption to a law or regulation.

What would that mean in this situation? The school could argue that uniforms promote discipline, school pride and other positive benefits. But could those interests still be served even if some students were allowed to opt out for religious reasons? If the school couldn't show that it had a compelling reason to make the dress code mandatory for everyone, then Aaron would win his case.

Let's take another example: A public school might have a “no caps” policy in order to counteract gang activity. But what about the Orthodox Jewish boy who is required by his faith to wear a yarmulke? While the school has important interests — compelling reasons — for prohibiting gang symbols, it could be argued that exempting Orthodox Jews or Sikhs from the no-hat rule wouldn't cripple the effort to keep gangs out of the schools. Protecting claims of conscience is what religious liberty is all about.

Unfortunately for Aaron, however, the rules changed in 1990. The Supreme Court decided that the government no longer must show a “compelling state interest” when someone wants to be exempted from a general law for religious reasons. So, as long as the school dress code applies equally to all students, then Aaron may have no right to an exemption — even if complying violates his conscience.

But all is not lost. The Supreme Court left the door open for Aaron's family to make their case. If they can link their “free-exercise” claim to another constitutional right — to free speech or parental rights, for example — then the school district might have to show a compelling reason for making Aaron choose between wearing the uniform or leaving the school.

Making that link is exactly what the ACLU is doing on behalf of Aaron and his great-grandmother. On the grounds of both free speech and free exercise of religion, ACLU attorneys are reminding the court of a significant 1943 case in which the Supreme Court ruled that students could not be compelled to salute the flag when doing so would violate their basic religious beliefs. In a memorable passage from that decision, the court stated:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

I have nothing against school uniforms. They may be a good idea. But any public-school dress code that doesn't have an opt-out provision for claims of conscience strikes me as coercive and unjust — a denial of our basic constitutional freedoms.

Accommodating religious-liberty claims can be time-consuming and sometimes frustrating for school officials, especially when they don't understand or agree with the belief behind the claim. But it's well worth the effort.

After all, protecting freedom of conscience is the bedrock of the American experiment in liberty.