Probably not. The few published court decisions dealing with teacher dress codes have sided with school officials.

The 1970s case of Richard Brimley is instructive. Brimley, an English teacher in a Connecticut high school, challenged a reprimand he received for violating the teacher dress code by refusing to wear a necktie. The school board argued that its tie code supported its interest in maintaining a professional image for its teachers, and for engendering respect and discipline from the students. Brimley, through the teachers union, argued that his failure to wear a necktie implicated his First Amendment free expression rights in several ways, including (1) presenting himself as someone not tied to "establishment conformity"; and (2) showing his students that he rejected many of the values associated with the older generation.

A panel of three federal judges in the Second Circuit struck the balance in favor of Brimley, finding that the case implicated both a 14th Amendment liberty interest and a First Amendment free speech interest.

However, the full panel of the Second Circuit reversed in East Hartford Education Association v. Board of Education.¹ "The very notion of public education implies substantial public control," the full appeals court wrote. "Educational decisions must be made by someone; there is no reason to create a constitutional preference for the views of individual teachers over those of their employers."² The appeals court concluded: "If Mr. Brimley has any protected interest in his neckwear, it does not weigh very heavily on the constitutional scales."³

Other courts have reached similar results in teacher dress code cases. For example, a federal court in Mississippi upheld the discharge of a teacher's aide for refusing to abide by the dress code of the school.⁴ The aide asserted she had a constitutional right to wear berets to show her African American heritage and her religious beliefs. The school district countered that the berets were "inappropriate attire." Ultimately, the court sided with the school board, finding that the teacher failed to communicate to school district officials that she had a religious basis for her conduct. However, the court noted that the "[d]istrict is required, under the First Amendment and Title VII, to make some accommodation for the practice of religious beliefs when it pursues an end which incidentally burdens religious practices."⁵

Despite this statement in the McGlothlin case, other courts have rejected claims that state statutes restricting teachers from wearing religious clothing are unconstitutional. In United States v. Board of Education, for example, the Third Circuit rejected a Title VII⁶ religious discrimination claim against a school board for prohibiting a Muslim substitute teacher from wearing her religious clothing.⁷

The case originated with a Pennsylvania statute, called the "Garb Statute," which provided that "no teacher in any public school shall wear . . . 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." In its ruling, the Third Circuit determined it would impose an "undue hardship" on the school to require it to accommodate the Muslim teacher's request to wear her religious clothing. Such an accommodation, according to the court, would represent a "significant threat to the maintenance of religious neutrality in the public school system."⁸

Similarly, the Oregon Supreme Court rejected a free exercise challenge -- under the First Amendment and a provision of the state constitution -- to an Oregon statute prohibiting teachers from wearing religious clothing.⁹ The teacher, who was an adherent to the Sikh religion, argued against the constitutionality of a state law that provided: "No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher."

The Oregon high court upheld the statute, writing that "the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference for the legislature."¹⁰

It should be noted that although these decisions permit states and school districts to restrict the wearing of religious garb, they do not require such restrictions. Two states, Arkansas and Tennessee, have statutes explicitly allowing teachers to wear religious garb in public schools. In states without such laws, the vast majority of state courts have held that public schools may allow teachers to wear religious clothing.¹¹

¹ East Hartford Ed. Asso. v. Bd. of Education, 562 F.2d 838 (2nd Cir. 1977)

² Id. at 858.

³ Id. at 861.

⁴ McGlothin v. Jackson Municipal Separate Sch. Dist., 829 F. Supp. 853 (S.D. Miss. 1992).

⁵ Id. at 866.

⁶ Title VII of the Civil Rights Act of 1964 forbids public and private employers from discriminating against employees based on several factors, including religion.

⁷ U.S. v. Bd. of Education, 911 F.2d 882 (3rd Cir. 1990).

⁸ Id. at 894.

⁹ Cooper v. Eugene Sch. Dist. No. 41, 301 Ore. 358 (1986), app. dismissed, 480 U.S. 942 (1987).

¹⁰ Id. at 375.

¹¹ See Moore v. Bd. of Education, 212 N.E. 2d 833 (Ohio 1965); Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956); Zellers v. Huff, 236 P.2d 949 (N.M. 1951); City of New Haven v. Town of Torrington, 43 A.2d 455 (Conn. 1945); Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940); Gerhardt v. Heid, 267 N.W. 127 (N.D. 1936).

Last updated: Wednesday, September 8, 2010 | 22:25:15