The Changing Environment of Religious Neutrality in the Schools

In reaction to the 1894 Pennsylvania Supreme Court decision in Hysong v. Gallitzn Borough School District, where the court held that the traditional religious habits worn by nuns in public school would not constitute sectarian teaching, the Pennsylvania Legislature passed a law that banned all religious garb and symbols from being worn by teachers in public schools.  The U.S. Supreme Court’s decision on June 1, 2015 in EEOC v. Abercrombie & Fitch Stores, Inc. has raised questions about public and private employers restricting the religious wear of employees.  The U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an individual applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion.  Title VII applies to employers with 15 or more employees, including state and local governments.

In the past few decades, Pennsylvania’s Religious Garb Statute and its interest in maintaining religious neutrality in schools has come under attack in view of an employee’s Title VII rights concerning religious expression.

For the past few decades, there have been several cases challenging Pennsylvania’s Religious Garb Statute.  In one of the more recent cases, Nichols v. Arin Intermediate Unit, a special education instructional assistant, Brenda Nichols, brought suit in 2003 after she was suspended for wearing a cross pendant around her neck while working with students and refused to hide it after being warned several times.  The Western District Court of Pennsylvania found Ms. Nichols not liable under the Religious Garb Statute because she was not a teacher as defined by the Public School Code.  However, the Court questioned the legality of the Statute because no proof was offered that the religious symbols or pendants were seen as a school’s endorsement of a particular religion and that it only banned dress, symbols, and other items expressing a non-secular message and not secular messages.

In 2011, Democratic Representative Eugene DePasquale, and Republican Representative William Tallman, sponsored a measure to repeal Pennsylvania’s Religious Garb Statute, but the proposed legislation failed to make it out of committee.  Representative Tallman expressed a new interpretation of religious neutrality in the schools when he announced the 2011 bill.  Representative Tallman stated that “[t]his is about restoring religious neutrality to our public school system and upgrading an old and discriminatory law.”  “We want every teacher to be free to exercise his or her religion, regardless of that faith.”  In short, to maintain religious neutrality, he and others saw the importance of protecting individual expression along with other rights.

In light of the recent changes in American Society and the law regarding individual rights concerning gender identity, marriage, and religious expression, it is unlikely that Pennsylvania’s Religious Garb Statute will survive in its current form in the decades to come.  However, in responding to the growing recognition and individual protection of individual religious expression under Title VII of the Civil Rights Act, school boards, administrators, and other school officials must carefully maintain the line between the separation of church and state and not advocate, or appear to advocate, one religion or religious viewpoint over another.