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 [read more]
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