Forums and Foxholes: Garb Statutes and the First Amendment by Candice Andalia

It is an oft-quoted tenet, originating with the U.S. Supreme Court’s holding in Tinker v. Des Moines Indep. Cmty. Sch. Dist.,[1] that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] However, this sweeping language, an avowal that once provided educators with broad protections, is now nothing but a carcass constructed of empty words. And although American courts frequently invoke this noble lineage, Tinker’s promises, starkly juxtaposed with the rotting state of First Amendment jurisprudence, ring hollow. Nowhere is this chicanery more apparent than in Nichol v. Arin Intermediate Unit 28,[3] where the District Court for the Western District of Pennsylvania upheld the constitutionality of the Pennsylvania Garb Statute,[4] which criminally sanctions teachers who wear religious emblems or insignia in the classroom. This law, which openly punishes only symbolic, religious speech, discriminates against a particular viewpoint. Despite being facially discriminatory, the Pennsylvania court, like others that have heard constitutional challenges to similar statutes, upheld the statute because it determined that the legislature’s goal of preserving “an atmosphere of religious neutrality”—preemptively curing an Establishment clause violation— met the compelling state interest standard.[5]

However, the court did not finish the necessary inquiry by requiring Pennsylvania to use the “least restrictive means” of satisfying that state interest.[6] According to Free Exercise jurisprudence, laws that are not neutral and generally applicable, that is, ones that specifically target religion, are strictly scrutinized, requiring the government to proffer a compelling state interest.[7] The law must be narrowly tailored to advance that interest by using the “least restrictive means” necessary to achieve its ends.[8] The Nichols court upheld the constitutionality of the garb statute based on an unfinished inquiry.

Sadly, even if the court had faithfully scrutinized the statute, the whole of First Amendment precedent provides a basis for upholding the constitutionality of such garb laws. For example, courts have generally determined that garb statutes are sufficiently narrowly tailored.[9] Furthermore, even if a teacher challenged a garb statute on Free Speech grounds, her claim would likely fail. Two lines of Supreme Court decisions define the extent to which the Constitution protects the speech rights of public school teachers, as government employees. The first set of cases governs the teacher’s right to speak on matters of public concern; the second line directs a deciding court to consider whether a school created a public forum.

The first group, beginning with Pickering v. Board of Education[10] and Connick v. Myers,[11] entitles a public employee’s speech to First Amendment protection if she speaks as a citizen on a matter of public concern and if her interest in speaking outweighs her employer’s interest in providing efficient public service.[12] The recent modification by Garcetti v. Ceballos[13] introduced the corollary that an employee speaking pursuant to her official duties does not speak as a citizen, and thus is not protected by the First Amendment.[14] The Pickering-Connick-Garcetti formula is a poor fit for analyzing teacher speech. It ignores the unique goals of teacher speech, namely to edify, to enlighten, and inspire students. The Pickering analysis assumes that whenever a teacher expresses herself, she is “speaking as an employee on a private matter. This essentially gives a teacher no right to freedom of speech when teaching students in a classroom, for the very act of teaching is what the employee is paid to do.”[15]

This rubric is even less helpful for analyzing the type of symbolic speech regulated by garb statutes. It requires a court to first determine whether the teacher “spoke” as a citizen, then whether the symbolic speech, as a subset of pure speech, was on a matter of public concern.[16] Only one court has reached the question of whether religious jewelry constitutes speech on a matter of public concern. In Draper v. Logan County Public Library,[17] the District Court for the Western District of Kentucky held that a librarian’s cross necklace constituted expressive speech on a matter of public concern where the employer-public library was expressly concerned with public opinion regarding religious practice.[18] Because most teachers fail the first prong of the test, speaking as a citizen, Draper offers little hope for teachers challenging garb statutes.

The second, and even more useless, line of Free Speech analysis comes from Hazelwood v. Kuhlmeier,[19] a student speech case, where the Court upheld the reasonable regulation of activities that raise “legitimate pedagogical concerns.” First, the rational relation standard is an easy burden for a school administration to meet. Second, the bounds of what constitute “pedagogical purposes” are endless–“that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”[20] Lastly, the Hazelwood Court distinguished the school from traditional and historically recognized public forums, such as streets and parks, holding that schools are public forums only if school authorities have opened them “for indiscriminate use by the general public.”[21] Because schools are presumptively limited forums where speech, especially symbolic speech like the kind contemplated by garb statutes, is heavily regulated,[22] Hazelwood offers teachers very little protection. In fact, the Fourth and Tenth Circuits justified applying Hazelwood precisely because it provided greater discretion for school districts and less protection for teacher speech than Pickering.[23]

Not only are Garcetti and Hazelwood ill-fitting rubrics for assessing the constitutionality of teacher speech, but also the increasing deference of courts to the government employer’s interests in efficiency, alleged viewpoint neutrality, and general discretion in employment decisions renders these analyses, and the protections they purportedly afford, a sham of judicial review. Courts merely go through the motions, engaging in a spurious imitation of applying a meaningful standard, virtually guaranteeing that a teacher’s claim will fail.

Because of the aforementioned inadequacies of various First Amendment tests, [Stephen  1] courts should analyze garb statutes under the standard established by the Supreme Court in Police Department of Chicago v. Mosley.[24] In that case, a Chicago ordinance permitted peaceful labor picketing but forbade all other peaceful picketing. Mosley, a non-labor picketer, challenged the city ordinance for discriminating based on the subject matter of the speech. The Supreme Court held that the Equal Protection Clause and First Amendment required content neutrality when the government grants the use of an open forum.[25] Because there is an “equality of status in the field of ideas,” the government “must afford all points of view an equal opportunity to be heard.”[26]

Classrooms should be construed as more similar to the Mosley open forum than the Hazelwood nonpublic forum. First, by treating class rooms more like open forums, we can reinvigorate the guiding principles of Tinker, namely that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”[27] and that schools are peculiarly the marketplace of ideas where students should not be treated as “closed circuit recipients”[28] of pre-selected information. After all, an educational “program hermetically sealed to exclude all controversy and potentially offensive ideas can hardly be defended as education for the world beyond the classroom.”[29] Second, this standard can better acknowledge the special role of teachers in American society. Because teachers are in a position of extraordinary public trust and confidence, protecting their free speech rights demonstrates how necessary speech is to a functioning democracy and encourages students to appreciate civic responsibility and the diversity of the American experience. Third, the open forum analysis still provides schools with the ability to regulate speech that “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.”[30] This allows school administrators to adapt to particularized threats to the learning environment. Although “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”[31] a school administrator in a religiously divided community could ban religious symbols if she anticipated violence in response to their exhibition. The Mosley Court contemplated precisely these judgments when it held that “[p]redictions about imminent disruption . . . involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter.”[32]

Under Mosley, garb statutes like the ones in Pennsylvania[33] and Oregon[34] would not withstand judicial scrutiny. “Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among [speakers] on such a wholesale and categorical basis.”[35] If courts applied the Mosley standard to symbolic, religious speech, such broadly construed garb statutes would be unnecessary. By relegating discretion to the administrators of individual institutions, the Mosley standard ensures that any government regulation is achieved by employing the least restrictive means. This offers the utmost protection to free speech rights, and guarantees that no one shall “suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”[36] Courts could ensure the very protections contemplated when the Bill of Rights was drafted.

[1] 393 U.S. 503 (1969)

[2] Id. at  506 (1969).

[3] Nichol v. Arin Intermediate Unit 28, 268 F. Supp. 2d 536 (W.D. Pa. 2003).

[4] Pa. Con. Stat. § 11-1112(a) (“That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination”).

[5] Id. at 555.

[6] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 578 (1993).

[7] Id.

[8] Id.

[9] See United States v. Bd. of  Educ. for Sch. Dist., 911 F.2d 882, 894 (3d Circ. 1990) (holding that the Pennsylvania Garb Statute is narrowly tailored); Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 373(1986), appeal dismissed, 480 U.S. 942 (1987) (finding the Oregon statute was narrowly tailored.“[A] rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school. The policy choice must be made in the first instance by those with lawmaking or delegated authority to make rules for the schools.”).

[10] 391 U.S. 563 (1968).

[11] 461 U.S. 138 (1983).

[12] Pickering, 391 U.S. at 568.

[13] 547 U.S. 410 (2006).

[14] Garcetti, 547 U.S. at 421.

[15] Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1051–1052 (2001).

[16] Nunez v. Davis, 169 F.3d 1222, 1228 (9th Circ. 1999).

[17] 403 F. Supp. 2d 608 (2003).

[18] Id. at 618.

[19] 484 U.S. 260 (1988).

[20] Id. at 271.

[21] Id. at 267.

[22] Id. (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

[23] See Miles v. Denver Pub. Sch., 944 F.2d 773, 777 (10th Cir. 1991) (“Although the Pickering test accounts for the state’s interest as an employer, it does not address the significant interests of the state as educator. . . . The concern addressed in Pickering-the right of an employee to participate as other citizens in debate on public matters-is simply less forceful when considered ‘in light of the special characteristics of the school environment.’” (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988))); Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 378 (4th Cir. 1998) (Motz, J., dissenting) (arguing that Hazelwood should apply because “the governmental interest element as set forth in Connick fails to give school administrators the necessary and appropriate control over a teacher’s in-class speech. School administrators should be free to specify curriculum and to curtail classroom speech for any legitimate pedagogical reason. They should not be required to demonstrate that a restriction on in-class speech is necessitated by workplace efficiency or harmony.”).

[24] 408 U.S. 92 (1972).

[25] Id. at 96.

[26] Id.

[27] Tinker, 393 U.S. at 506.

[28] Id. at 511.

[29] Cooper v. Eugene Sch. Dist., 301 Or. 358, 379 (1986).

[30] Tinker, 393 U.S. at 505.

[31] Id. at 508.

[32] Mosley, 408 U.S. at 100–01.

[33] Pa. Con. Stat. § 11-1112(a).

[34] Or. Rev. Stat. § 342.650.

[35] Id. at 101.

[36] Thomas Jefferson, Virginia Declaration of Religious Freedom  (1786).

[Stephen  1]Since you’re more than half-way through the note at this point, it seems unnecessary to say what this note proposes.

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