. 4
( 13)


nity from land use regulation, nor does it relieve religious institutions
from applying for variances, special permits or exceptions, hardship ap-
proval, or other relief provisions in land use regulations, where available
without discrimination or unfair delay.”88 As RLUIPA has worked its way
through the courts, one of the questions that has required resolution (be-
cause Congress failed to be clear enough) concerns when a religious
landowner may go to federal court with RLUIPA. The federal courts,
which rarely heard land-use proceedings before RLUIPA, have split on
when a religious land use claimant can get into federal court.
In Mamaroneck, New York, a suburb of New York City, an Ortho-
dox Jewish school™s construction permit for a new school structure in a
residential neighborhood was denied for environmental/neighborhood
reasons in 2002.89 The school immediately took its case to federal court,
before “the possibility of approval of a resubmission with modi¬cations
designed to address the cited problems” was explored.90 The district court
granted summary judgment in favor of the school and directed immedi-
ate and unconditional approval of the school™s application.91 A panel for
the U.S. Court of Appeals for the Second Circuit was not so inclined.
It reversed the district court™s ruling and held that the decision did not
seem to be ¬nal at the local level.92
In Morgan Hill, California, San Jose Christian College did not even
bother to ¬le a complete application for a zoning amendment to allow for
the conversion of a hospital, grandfathered into a residential community,
into an educational facility. The U.S. Court of Appeals for the Ninth
Circuit correctly found there was no substantial burden on the college,
where it had not even initiated the proper land-use processes.93

RLUIPA is not limited to religious institutions; private
homeowners have invoked it as well
In New Milford, Connecticut, Robert Murphy believes in praying at
home with family and friends and has held weekly prayer meetings at his
home.94 Often, attendance reached or exceeded 50 people, and the guests

stayed a number of hours every Sunday. The neighbors did not respond
to the religious character of the meetings, but they did voice objections
to increased traf¬c and parking problems. In response, Murphy asked for
permission to install a parking lot on his property. He eventually withdrew
the parking lot request, which made sense, given that a parking lot is not a
typical accessory use for a single-family home. The Zoning Enforcement
Of¬cer counted 13 to 20 cars in the driveway, rear yard, or cul de sac
on three separate occasions, and issued a cease-and-desist order for the
intense use of the home to cease. This was not a “customary” use for a
residential property, which is to say it was not “commonly, habitually,
and by long practice established” as a use reasonably associated with a
single-family home in an R-40 zone (which is a low-density, single-family
zone that permits residences, farms, and associated accessory uses).
There were several options open to Murphy at that point. He could
have ¬led an appeal with the zoning board of appeals in New Milford
or he could have requested a variance. Either avenue was open. Instead,
he chose to go straight to federal court on the basis of a single cease-and-
desist order. On the basis of this undeveloped record and incomplete
determination in New Milford, the magistrate judge, Holly Fitzsimmons,
found in favor of the Murphys in 2003 in a 39-page opinion on a number of
theories, and the zoning enforcement of¬cer, Kathy Castagnetta, whom I
represent, appealed. The case is now pending in the U.S. Court of Appeals
for the Second Circuit. The point here is not to debate the merits, but
to point out how RLUIPA could transform a single zoning action taken
by a town into costly litigation that lasts years. The rational person must
wonder if it is worth it, at any level.

The problem with RLUIPA, or any law that gives neighboring
landowners different rights simply on the basis of religious status
The primary problem with RLUIPA is that it alters the balance between
neighboring properties in the same zoned district. Residential homeown-
ers who are faced with ambitious religious building plans have a strong
claim that their right to the equal protection of the laws has been vio-
lated. The religious entity is attempting to do that which the homeowner
may not, and in effect, there are two classes of citizens under RLUIPA

or the state RFRAs. The ¬rst class is classi¬ed as “religious” and the
second class envelops everyone else. It is fundamentally unfair, as any
homeowner who has been in this circumstance will tell you.
Lower courts have been hoodwinked into believing that RLUIPA is just
a reiteration of the Free Exercise Clause, so no harm, no foul. The signif-
icant uptick in federal litigation over religious land use since RLUIPA™s
passage would seem to indicate just the opposite. The law was passed
because religious landowners demanded better than the status quo pro-
vided. Enterprising defenders of the law, however including some in the
U.S. Department of Justice, hit upon a way to have their cake and eat
it, too. Religious landowners are granted better treatment than ever be-
fore, but the law™s defenders wave a wand as they chant that nothing has
Here is how it works. Before RFRA and RLUIPA imposed strict scrutiny
on land-use laws to the bene¬t of religious entities, those same enti-
ties were required to follow generally applicable, neutral laws. By strict
scrutiny, I mean that the courts treat the law as though it is presump-
tively unconstitutional.95 The clever trick is that RLUIPA imposes strict
scrutiny on land-use laws that involve “individualized assessment,”96 be-
cause there are some Supreme Court free-exercise cases that invalidate
laws that employ “individualized assessment,” or so they say. Then in ev-
ery RLUIPA case, they argue that any application of a land-use law entails
an “individualized assessment,” in the sense that each landowner™s case
is decided on its own facts. Trust me, this is crazy reasoning.
The Supreme Court has never treated case-by-case analysis as pre-
sumptively unconstitutional. That is tantamount to saying that every time
a court decides a case by applying the law to the facts, its decision should
be presumptively unconstitutional. What™s happened is that the drafters
of RLUIPA ingeniously included the term “individualized assessment,”
but they left off its modi¬er. That has permitted them to argue in a
huge universe of cases (virtually all land-use cases) that RLUIPA is sim-
ply replicating free-exercise law. It is masterful, wishful thinking, or just
plain devious.
“Individualized assessment,” by itself, means “case by case.” If gov-
ernment making individualized assessments makes the outcome pre-
sumptively unconstitutional, then every judicial decision in the United

States is likely unconstitutional. That™s just plain silly. In the cases where
government regulations employed individualized assessments and the
Court treated the government™s action as presumptively unconstitutional,
the constitutional error was not case-by-case analysis, but rather the fact
that government engaged in case-by-case analysis of the reasons for the
requested exemption.97 Where the government was willing to exempt
some from its rules for secular reasons, but would not provide any relief
for religious reasons, the court was suspicious of animus toward religion,
and rightly so.
For example, there was no rational explanation for the Newark Police
Department™s rule that no of¬cer could have facial hair unless he had
a medical condition.98 Those with religious reasons for facial hair were
not accommodated. If the department™s policies were not undermined by
creating an exemption for the few that had a medical problem, then they
could not be harmed for the few that required a religious exemption.
Similarly, an unemployment compensation scheme that permitted
people to take certain days off for secular reasons was unconstitutional
when it rejected religious reasons to take those days off.99 Again, if the
general policy could tolerate the secular exceptions, it should tolerate the
religious. It is the disparate treatment between secular and religious rea-
sons for the exemption that justi¬es strict scrutiny, not the individualized
assessment itself. Thus, RLUIPA goes signi¬cantly farther for religious
entities than the Constitution does. Under settled constitutional princi-
ples, religious entities are bound by generally applicable, neutral laws,
including land-use laws, but now those laws are presumptively illegal
under RLUIPA. It is a large net win for the religious.
The lower courts that have addressed the issue so far, though, have
fallen for the “individualized assessment” language. In the Eastern Dis-
trict of Pennsylvania, Judge Stewart Dalzell, saw the issue as obvious:
“What Congress manifestly has done . . . is to codify the individualized as-
sessments™ jurisprudence in Free Exercise cases that originated with the
Supreme Court™s decision in Sherbert v. Verner [the individualized assess-
ments™ unemployment compensation case].”100 The point was equally
unremarkable to Magistrate Judge Holly Fitzsimmons, who stated that
it is “˜apparent that [RLUIPA] faithfully codi¬es the ˜individual assess-
ments™ jurisprudence in the Sherbert through Lukumi line of cases.™”101
They missed a step in the free exercise analysis.

Religious landowners will still have special privileges in some
states once RLUIPA is found unconstitutional or dramatically
narrowed in scope
Twelve states have some form of privilege for religious entities to transform
generally applicable, neutral laws into presumptively illegal laws. They
usually state that the government “may not substantially burden a per-
son™s exercise of religion, even if the burden results from a rule of general
applicability, unless it demonstrates a compelling governmental interest
that is ˜the least restrictive means of furthering that compelling govern-
mental interest.” Ten states have legislative religious freedom restoration
acts or state constitutional amendments that extend to land use. These are
Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico,
Pennsylvania, South Carolina, and Rhode Island.102 At the same time,
two states have RFRA-like laws that carve out speci¬c exceptions to al-
low local governments to carry out generally applicable land-use laws.
Oklahoma and Texas allow that “a governmental entity has no less au-
thority to adopt or apply laws and regulations in a nondiscriminatory
manner concerning zoning, land-use planning, traf¬c management, ur-
ban nuisance, or historic preservation, than the authority of the gov-
ernmental entity that existed under the law prior to the passage of this
These state laws are like ticking time bombs, which have not yet been
used extensively, but that will be ready for action when RLUIPA is held
unconstitutional or severely restricted in scope to make it constitutional.
The home prayer case discussed above, invoked not just RLUIPA, but also
the Connecticut RFRA, which (like the Alabama constitutional amend-
ment) has the troubling provision that it is triggered by any burden on
religion, substantial or not. That means that any de minimis burden on
religion may trigger the special treatment and severely disable the uni-
verse of land-use regulation as applied to religious entities. Other cases
have adverted to the RFRAs, as well, but there are precious few decisions,
because the theory is usually duplicative of RLUIPA at this point.
The con¬‚ict between religious land use and residential owners gener-
ated by the likes of RFRA, RLUIPA, and the state RFRAs entrenches on
the most fundamental beliefs of most Americans. Private property is the
building block that permitted a massive middle class to be built and to

have upward mobility. It broke the bonds of the aristocracy on property
ownership, and equalized citizens in ways that no other innovation in
the United States would. The private property norm brings into question
the notion that entities should have different property rights simply be-
cause of their religious status. Real property is real property, and its use
affects neighbors regardless whether the homeowner is having a Tupper-
ware party or a prayer meeting, or a large building is hosting religious or
secular child care.
It also cuts to the heart of another cherished American principle: the
belief in fair dealing. When churches get special privileges, their neigh-
bors feel (and rightly so) that they have been cheated. It is fundamentally
unfair to treat property owners in the same location differently because of
their identities. It™s a gut instinct for Americans, and altering the balance
between property owners has been divisive, to say the least.
The real property system in the United States established opportunity
and equality. So long as religious entities insist on having special property
rights, they will generate the backlash they are just now beginning to


The public school system was initiated with religious dispute, and
religious accommodation con¬‚icts continue to today. Public schools
were originally instituted by a Protestant majority and re¬‚ected Protes-
tant religious viewpoints, including mandatory daily readings from
the King James Bible. In the early 1820s, New York started funding
schools, and by 1840, some Catholics were objecting to the Protes-
tant religious curriculum. As Professor Philip Hamburger recounted in
his excellent book, Separation of Church and State, the early public
schools started with indoctrination in a Protestant perspective. More-
over, they protected their turf, by denying funding to “sectarian” schools
(as though the Protestant public schools were not sectarian), “in-
cluding Baptist, Methodist and Catholic.” Over the succeeding years,
the political will to prevent funding for any schools other than the


Protestants™ was distilled into an antifunding drive aimed mainly at
A signi¬cant number of Christians in the United States might be
tempted to latch onto the early Protestant practices in the schools as
proof that the schools should now reintroduce prayer and religion in the
schools. They would argue that public education has been corrupted, be-
cause prayer and Bible reading have been excised. The Rev. Jerry Falwell,
following 9/11, remarked: “We have seen the course of secularism in our
schools, and it is obviously time for a change. It is high time our nation
once again favors its people of faith by allowing our public-school stu-
dents to be exposed to prayer and the pursuit of faith.”2 When Wing¬eld
High School (Jackson, Mississippi) principal Bishop Knox was ¬red after
starting the school day at the public school with the prayer, “Almighty
God, we ask that you bless our parents, teachers and country throughout
the day. In your name we pray. Amen,” the American Family Association
provided Knox an attorney to challenge his ¬ring.3 Mississippi Governor
Kirk Fordice opined that “˜[I]f we keep on with what started in Jackson,
Mississippi, one day, I hope soon, it™s not going to be legal to keep prayer
out of public schools.™”4 The Rev. Louis Farrakhan also has urged a re-
turn to prayer in the public schools: “Thomas Jefferson was rooted in
the Gospel of Jesus Christ even though he didn™t apply it to his slaves.
Those Founding Fathers of this nation were God-fearing men [who would
be displeased] if they could come back today and see that the children
can™t utter a prayer in school, that this nation has put God out and rele-
gated God and religion to some back seat, when without God you have
no government.”5
Before embracing a return to the supposedly golden era of the public
school system, though, it is worthwhile to consider how the early prefer-
ence for the majority religion affected citizens. Instead of simply crafting
good character among the students, it sowed religious con¬‚ict. Catholics
legitimately objected to the use of the King James Bible, but Protestants
“refused . . . to withdraw the King James Bible, which, although Protes-
tant, no longer seemed to [them to] belong to any one church.”6 When
the Protestants insisted on their own version, the Catholics walked away
from the entire system and created their own, at their expense. The ex-
tensive Catholic parochial school system that exists today is a result of
that exchange.

The early con¬‚ict between Protestants and Catholics is not an indict-
ment of public education. Rather, it is an object lesson about the dangers
of any one religious worldview dominating.
The more diverse the U.S. student body has become, the more extraor-
dinary are the claims that have arisen. The United States is well past the
era when it could be credibly claimed that the public schools catered ex-
clusively to a Judeo-Christian population. School districts face a dizzying
menu of challenges from Sikhs to the Amish to the United Pentecostal
Church, just to name a few.
This chapter describes three areas of school regulation where religious
entities have requested accommodation: antiviolence regulations, dress
codes, and curriculum. Each request taken by itself may seem innocu-
ous enough (leaving out the violence category), but the problem for
the schools was nicely captured by U.S. Supreme Court Justice Robert
Jackson in 1948:

If we are to eliminate everything that is objectionable to any of these
warring sects or inconsistent with any of their doctrines, we will leave
public education in shreds. Nothing but educational confusion and a
discrediting of the public school system can result from subjecting it to
constant law suits.7

The problem is the enormous assortment of religions in the United States.
The accommodation question, as in every other context, cannot be ade-
quately addressed by an examination of the believer™s tenets and conduct,
for they are not the only ones affected by the exemption. When the issue is
education, the other students, the educational mission, and the society as
a whole that bene¬ts from a well-educated citizenry all have a stake in the
decision. Discipline and a controlled atmosphere necessary to educate
young people would evaporate if there was slavish accommodation.
The court-ordered accommodations “ under either the Religious Free-
dom Restoration Act (RFRA)8 or the Wisconsin v. Yoder9 line of cases “
are the most dif¬cult to harmonize with common sense, because the
court is drawn into a sympathetic, almost narcissistic, assessment of the
believer and invited to discount society™s interests in the light of this one
believer. There is a tendency in these cases to minimize the actual impact
the religious conduct has on the government interests necessary to create
the conditions for a good education. For example, when a child carries

a relatively small knife for religious purposes, it is easy to believe that
this one accommodation will not hurt anyone “ it™s just a de minimis in-
fringement of the no-weapons rule. But the child carrying the knife does
not live in a vacuum, or in a constant state of grace. Here, as elsewhere,
accommodation needs to be accomplished by a legislative body that can
calculate the balance of harms within a broader context, not by a judge
who may only consider the facts of the case before him or her.
These cases address only public and not private schools, because the
First Amendment™s free-exercise guarantees only limit government ac-
tion. But they have tremendous impact, because 90 percent of U.S. stu-
dents attend public school.10 The same free exercise formula is necessary
here as in every other context: legislative accommodation must be consis-
tent with the public good, and the legislature needs to consider all sides,
because it imposes a larger perspective than any one religious believer,
faith, or administrator.

Religious accommodation in con¬‚ict with preventing violence
in the public schools
weapons. In 1990, there were approximately 13,000 Sikhs in the United
States; by 2001, there were 57,000.11 Most of the roughly 20 million Sikhs
in the world live in the Punjab region of India, which is in the northwest,
near Pakistan, with signi¬cant populations in the United Kingdom and
Canada, whose Sikh population now sits at over 270,000, as well.12 The de-
vout Sikhs are initiated into the Khalsa, and wear the 5Ks, which are Kesh
(uncut hair), Kara (a steel bracelet), Kanga (a wooden comb), Kaccha
(distinctive underwear), and Kirpan (sword).13 (Other, less-doctrinaire
believers have moved toward Western style dress and hair.)14 The Sikhs
believe generally in mutual tolerance and respect. Even so, it should
come as no surprise that the sword, or knife, they carry has caused con-
sternation in the schools.
In the Sikh faith, kirpan (knives) are considered to be “ceremonial,” and
there is no set style, which means they can be only a few inches or as long
as three feet. They are worn in a sheath over or under clothing.15 While
the rule is that they are only to be drawn if the person believes himself
to be in a life and death situation, they are potentially lethal weapons,
at times concealed, and at the ready in volatile circumstances.16 Human

nature being what it is, the kirpan have not been simply benign symbols
of the Sikh faith.
The Sikhs live in the real world where crime and drug traf¬cking exist.
Two drug addicts (one of whom was a police of¬cer™s son) purchased
some heroin in Delhi, India, and when they discovered it was mixed with
other chemicals, returned, killed two of the dealers and injured a third
with a kirpan.17
There are many Sikhs in British Columbia, Canada, and provincial
authorities have had their share of kirpan-related problems. A Toronto
Sikh temple™s high priest, Jatinder Singh, allegedly stabbed one of his
members, Sarbjit Singh Sandhar, with a kirpan in the midst of a heated
exchange regarding whether a Sikh holy book was available for a blessing
ceremony. After Singh said none was available, a ¬ght ensued, and
Singh allegedly stabbed Sandhar in the chest, and then attempted to
stab his neck as well. The priest claimed that his turban was knocked
off by the men, and therefore, he feared for his life (which would have
justi¬ed the stabbing in the Sikh religion if not the secular law). The
court did not ¬nd his claims credible, but later evidence was discovered
that indicated someone else may have used his kirpan in the dispute,
so that he was granted a new trial. Singh ultimately pleaded guilty to
assault for stabbing the parishioner with his kirpan.18
In Toronto, Canada, Tarlochan Dhillon pulled his kirpan on a distant
relative, Harvinder Virk, and stabbed him in the stomach. Dhillon was
convicted of aggravated assault, but amazingly, while in custody, he ob-
jected to the prison authorities taking away his kirpan (and turban), but
there was no question that an inmate could not have a knife in prison.19
In Vancouver, fundamentalists believe in eating on the ¬‚oor because it
signi¬es all are equal, but others do not think it is necessary. The con-
troversy (which was actually international in scope) turned into a battle
royal at one Vancouver temple when a crowd gathered and some tried to
bring tables and chairs into the temple. A lot of them carried kirpan, and
in the resulting melee, there were six injuries before the police could pry
the two factions apart. One man™s throat was slit, leading to charges of
attempted murder.20
The school problems have arisen when Sikh children wear kirpans,
typically strapped to their leg, to elementary school. The kirpan that have
been at issue have been approximately seven inches long.21 Every public

school in the United States has a no-exceptions weapons ban at this point,
so a con¬‚ict was inevitable.
In California, the Livingston Union School District refused to permit
Rajinder, Sukhjinder, and Jaspreet Cheema, who were Khalsa-baptized
Sikhs, to wear their kirpan to school. Under the Supreme Court™s domi-
nant free-exercise jurisprudence, the school should have had no problem
applying its neutral, generally applicable law to these children.22 Indeed,
it is highly unlikely that the case would have even been brought but for the
fact that the RFRA encouraged claims to the free exercise of religion even
when the customs are well beyond accepted practices. In the infamous
Cheema v. Thompson case, the U.S. Court of Appeals for the Ninth Cir-
cuit held that the school had a compelling interest in safety, but it had not
engaged in the “least restrictive means” of regulating the “ceremonial”
knives, and therefore preliminarily enjoined the school district from pre-
venting the Cheema children from coming to school with their kirpan.23
This is a classic case of a court with only the record of two parties
before it, thinking only in terms of the needs of the believer, and letting the
RFRA suspend common sense. According to judges Betty Binns Fletcher
and Cynthia Holcomb Hall, the school could not ban the knives simply
because other students might be frightened; rather, it could only regulate
them in response to “those [threats] which are reasonably related to a real
threat,” implying that any children™s fears would have been irrational. The
school district, according to the court, had failed to prove that “any of its
students are afraid of or upset by kirpans.” Under the RFRA, the school
district had to avoid “all unnecessary burdens” on religious believers, so
the Sikhs could not be prohibited from attending school with the knives,
because the record showed no “school-related violence” from kirpan to
date and some school districts had permitted kirpan if they were riveted
to their sheaths or the blade was blunt with a rounded tip.24 Only a ¬‚awed
legal doctrine would lead a court out on such a weak limb. Knives are
knives, and children are not safe in their presence, no matter who they are.
Judge Charles Wiggins, in dissent, invoked a far more rational analy-
sis, by thinking beyond the believer™s perspective. The Sikh believer may
sincerely believe that a kirpan is only a formality, not intended to be used
as a weapon, but Judge Wiggins asked, not what the believer sincerely
believed, but rather what was the impact of the conduct for which protec-
tion was being claimed. He identi¬ed three categories of danger arising

from a kirpan, even if the average Sikh child would not be likely to draw it
on other children. First, there was the “abnormal, non-law-abiding Sikh
child,” which is to say that one must bring one™s knowledge of the hu-
man race to bear on these questions, and there is no question that some
children (and adults) do not follow the mores they are taught. Second,
he noted that it is not only the child carrying the weapon who is a poten-
tial threat, but also the child who could grab the kirpan to hurt others.
Finally, he made the observation that the plaintiffs were children, who
had only the

maturity and judgment of children. Given that Sikhs are to use their
kirpans in life-or-death situations, we would be forced to rely on school
children to make the determination as to when their lives are at stake.
Clearly, school of¬cials need not knowingly expose the non-Sikh school
children to such an unacceptable position of vulnerability. . . . [I]t is
not clear that any feasible means exist to accommodate the Cheemas™
need to carry kirpans.25

Without the RFRA, the case likely would not have been ¬led.
After the RFRA was invalidated, and the proper free-exercise rule was
reinstated, the only legitimate forum for the Sikhs to obtain permission for
their children to attend public school with kirpans was in the legislature,
where the costs and bene¬ts of exempting children from the weapons
bans could be weighed, and there could be intensive investigation of how
the kirpans might, perhaps, be made nonlethal. In fact, the sizable Sikh
population in California persuaded the California legislature to pass just
such a measure. Governor Pete Wilson, though, vetoed the exemption
in 1994, saying “I am unwilling to authorize the carrying of knives on
school grounds and abandon public safety to the resourcefulness of a
thousand districts.”26 Thus, the system vetted the issue, and common
sense prevailed.
In the Cheema case™s Canadian counterpart, a trial court granted a Sikh
student, Gurbaj Singh, the right to wear a wooden kirpan underneath his
clothes and in a sheath with a fold that was then sealed so that it could
not be drawn either intentionally or accidentally. The student was also
required to maintain control of the kirpan. The appellate court reversed,
because the “kirpan is intrinsically dangerous and the conditions imposed
by the trial judge do not address all the risks. . . . [N]ot only the [school],

but any students, would have to assume the risks associated with the
presence of a kirpan. Firstly, the physical integrity of the entire school
community is threatened by the presence of dangerous objects at school.
Secondly, the perception of the climate of security can also be affected.”27
It is hard to disagree with the court™s reasoning. The conduct of carrying
a knife is inherently dangerous, even if the motivation is sincere religious
The question on many readers™ minds, I imagine, will be: What is a
Sikh family to do? The kirpan has a long tradition in the faith. History
gives three answers. First, the family may choose to send their children to
religious schools or to home school, just as the Roman Catholics did in
the United States when they disapproved of the public schools™ religious
bent. Second, the religion might adjust to the legal requirements, as
happened with the Mormons and polygamy in the United States, by
jettisoning the practice altogether. Third, there might be some attempt
on the part of the faith to meet the law halfway. For example, no adult
Sikh can ¬‚y or enter a federal courtroom with a kirpan. Perhaps, children
might be given the same dispensation for school hours. To be clear, these
are not legally enforceable suggestions and should not come from the
government. It is not the business of the government to direct the Sikhs
to alter their beliefs, but it is certainly within the government™s purview
to reject religious practices that are innately dangerous in the hands of
children (and adults). The accommodation, therefore, will have to be
made by the Sikh believer to conform to the law, not vice versa.

gang colors and insignia. U.S. schools have struggled mightily to
eradicate gangs in the schoolhouse. They are inherently violent and when
given free rein in the schools, terrorize other students, foster the drug
trade, and commit other heinous crimes.
With 48 school-related violent deaths, 2003“04 was the deadliest in
several years.28 The upward trend is making the issue more important
than ever. “Increases in gang membership and violent gang activities
have negative effects on our nation™s schools.” Some 40,000 school stu-
dents reported being threatened or attacked by a gang or gang member.29
Interestingly, girls make up a signi¬cant percentage of the gangs. For
example, 16,000 to 20,000 of Chicago™s 100,000 gang members were fe-
male, according to the 1999 study by the Chicago Crime Commission.30

Schools have found that in order to remove gang activity from their
halls, they need to force students to remove gang identi¬cations, for
example, gang “colors” or jewelry containing gang symbols. “The primary
consensus is that a gang is a group with social, racial, or ethnic ties that
acts to further a criminal purpose.”31 They alter their colors or symbols so
that members are more dif¬cult to detect. One school board explained,
“clothing which is identi¬able as gang related changes frequently and is,
therefore, often dif¬cult to discern.”32
Frank Hutchins, the principal of the Horace Mann Junior High School
in Baytown, Texas, expressed his alarm at the effects that gang apparel
caused in his school:

It wasn™t subtle at all. . . . You™d see students dressed in black and red,
for instance, clustering together in the mornings. Students said they
were being told if they didn™t wear a gang™s ˜colors™, they™d be jumped.
Teachers noticed the increased presence on campus and said it was
becoming disruptive in the classroom.33

A dress code was instituted.
Horace Mann Junior High is part of a movement among public schools
nationwide to institute school uniforms and rigid dress codes to minimize
the impact of gangs (who are so often identi¬ed by their apparel) on the
learning environment. A survey of school principals revealed that 85 per-
cent wanted dress codes at their schools, and they cited the elimination of
gang activity as one of the top motivations for instituting the policy.34 At
the beginning of the movement, President Bill Clinton urged the adop-
tion of such policies to improve behavior and eradicate gang clothing in
schools.35 The Department of Education published a widely distributed
“Manual on School Uniforms” that listed decreasing violence and gang
af¬liation in schools as important goals of instituting dress codes. The
department further cited several “Model School Uniform Policies” that
appeared to have had an impact on the school environment. For example,
after requiring uniforms in all elementary and middle schools, the Long
Beach, California, schools saw a 36 percent decrease in overall crime
and 50 percent fewer weapons offenses. Other schools commended by
the Department of Education did not detail crime statistics, but all saw
marked changes in the attitudes and educational environments at their

When schools restrict gang symbols, they can come into con¬‚ict with
other students™ religiously motivated conduct. In Levon v. O™Rourke, the
Calumet City [Illinois] School District was worried about gang activity
at the school and in adjacent areas, and therefore considered a dress
code. Street gangs calling themselves the Latin Kings, Black Gangster
Disciples, Black P Stones, and Insane Unknowns were known to be in
the vicinity near the school. During the 1995“96 school year, the District
asked students to wear blue “bottoms” and white “tops,” but when com-
pliance was low, instituted a mandatory dress code for the 1996“97 school
year, because “[s]tudents™ choice of clothing disrupts the learning environ-
ment where it may be representative or suggestive or [sic] gang af¬liation,
or activities. The Board of Education recognizes that gangs are present
in the District™s community and pose a real threat to the disruption of
the schools.” The policy also contained a religious and health accom-
modation provision as well, which authorized the principal discretion to
accommodate the student™s religious- or health-motivated conduct where
there was a “genuine con¬‚ict” between the policy and the conduct.37
When the policy was under consideration, one mother, Kathryn Levon,
in 1994 objected to the school board™s policy, because jeans were more
durable and the cost of a uniform was beyond her means. Two years later,
she argued that it violated her parental rights and that it would not solve
the gang nuisance. In August 1996, she objected on numerous religious
grounds, most drawn from the New or Old Testament of the Bible, one
from the Rev. Martin Luther King, Jr., and another from the Rev. John
Irvin. Finally, she quoted an ancient proverb, “A monkey in silk is still
a monkey.” The board then offered to purchase a uniform for her son,
Adam, which was refused, and after Adam was expelled for refusing to
follow the code, the board offered him a uniform again, home tutoring,
or tutoring in the public library. The parents declined, and Adam was
not educated during the fall term.
Magistrate Judge Joan Lefkow found that the Levons failed to prove
there was a substantial burden on their religious conduct, because their
beliefs were not being coerced. The question was whether the parents
were “˜being prevented from engaging in religiously motivated conduct
or expression,™”38 and under that standard, the court concluded that the
burden placed by the school district was de minimis, and therefore could
not rise to a free-exercise violation (under RFRA or the Constitution).

As a matter of black-letter law, the court™s decision was correct, but
one must wonder why Principal Chinino refused the accommodation,
which seemed reasonable and de minimis. To the extent that the parents™
religious beliefs dictated that the dress code be struck altogether, their
claims were bound to fail. When a regulation serves an important public
interest, like reducing the effect of gangs on schools, no single faith has
the right to obliterate the rule for all. The closer question was whether
accommodation should have been made by the school board for the
Levons, in particular. From a constitutional perspective, the district policy
could be applied to the Levons, but from a public policy perspective, the
principal failed to explain, at least in my view, why blue jeans did not
satisfy the white shirt/blue pants formula. There could be a neutral reason.
Perhaps it is a slippery slope where it is too dif¬cult to regulate which jeans
will be worn and therefore the potential for gang identi¬cation arises, but
on the basis of the reported opinion, it is dif¬cult to understand why blue
(not black or any other color) jeans would not have served the board™s
It appears the outcome was determined by a mistake by the principal.
The reason he rejected the accommodation was that he found the reli-
gious objections to the code weak, because they were not voiced from
the beginning,39 and perhaps because they were so peculiarly tailored
for the situation. Yet, these elements offer no justi¬cation to deny a re-
quested accommodation. As the reviewing court rightly pointed out, the
fact a sincerely held religious belief is peculiar to the believer is no rea-
son to deny accommodation,40 and there is no obligation to assert one™s
religious objections to a government policy before asserting secular ob-
jections. Thus, the principal should have proceeded from the assumption
that the request was sincerely religious. It would have been at that point
that the principal would have had to determine whether blue jeans were
inherently different from dark blue pants for purposes of avoiding gang
activity. The same result might have accrued, but it would have been
better explained and therefore more legitimate.
Evenhandedness is the hallmark of a constitutional policy. No school
district may choose to enforce a rule against some students and not against
others. When the district permits a child to avoid any rule, it better be
prepared to permit other students that are similarly situated to avoid it
as well, and if it lets the policy be abridged for secular reasons, it must

permit the same abridgement for sincere religious reasons. For example,
in Biloxi, Mississippi, school of¬cials refused to permit Jewish student,
Ryan Green, to wear a Star of David necklace outside his clothing.41
His grandmother had given it to him as a symbol of his heritage. On a
unanimous vote, the school board supported a teacher who had ordered
him to take it off, because students were forbidden from wearing any
symbol that might be construed as a gang symbol. Gang insignia have
included a six-pointed star, like the Star of David, as well as crosses and
The constitutional problem arose, however, when the board decided
to permit Christians to continue wearing cruci¬xes and crosses. Thus, not
only is this a case where the rule was not so necessary that it could not be
broken in some circumstances, but also the board was picking and choos-
ing between religious symbols. That smacks of potential discrimination
and justi¬es the courts™ closest scrutiny of the school board™s actions and
purposes. After a lawsuit was initiated by the ACLU, the board properly
reversed its position.43

Dress codes in con¬‚ict with religious mandates (beyond gang issues)
Sometimes a school district will prohibit an article of clothing or jewelry
because it is disruptive to the educational atmosphere. Overly short skirts,
skimpy tank tops, and T-shirts with obscene messages ¬t into this cate-
gory and show that instilling a dress code can be an appropriate means
of encouraging the proper learning environment. The concept of “dis-
ruption,” however, can also play into the marginalization of uncommon
religions, but school districts are capable of learning from their mistakes.
Rebecca Moreno was a student at the Waxahachie, Texas, High School,
and her family was Wiccan. The Morenos explained Wiccan religion as a
pagan religion that incorporates witchcraft, multiple gods and goddesses,
and nature worship.44 In 2001, when she was 15 years old, she wore a
pentacle necklace, which is a ¬ve-pointed star that is a central symbol for
the Wiccan religion. First, the school district banned it for its disruptive
qualities. Then, Rebecca and the school compromised; she could wear
it under her clothing. It needed to be concealed from the other students,
because it scared the Christians. The school authorities said they banned
the pentacle because Christians associated it with Satan worship and an-
imal sacri¬ce. September 11 made everyone in the community feel like

they were a united force, even if they did not all share the same religious
faith. The school superintendent, Bobby Parker, told the Morenos in
writing that “While the Wiccan faith may not be the majority religion in
our community, our board policies protect all faiths.”45 From a situation
that demanded a lawsuit, the parties were able to land on the correct
constitutional and policy rule.
The Religious Freedom Restoration Act promised to reach an irrational
result in this arena as well, however. The dress code and apparel regula-
tions do serve (when applied as they should be) important ends, includ-
ing safety and maintaining a nurturing educational environment. RFRA
robbed school districts of their power to enforce uniform dress codes,
by making it likely that “schools generally may not prohibit the wearing
of [religious] items,” in the words of the U.S. Secretary of Education
Richard Riley and Attorney General Janet Reno memorandum to the
schools on religious liberty in the schools in 1995.46 The invalidation of
RFRA makes it possible for the school district experiencing severe gang
problems or drug trade to take the steps it may need to take to address
the problem, even if it means not accommodating all religious clothing.
The Illinois High School Association prohibited any person playing
high school sports from wearing hats or headgear (except a headband
no wider than two inches). The reason was that they feared the head-
wear would fall off during play, and create an unsafe condition for the
other players. Orthodox Jewish males challenged the rule, saying that
they were required to wear a yarmulke (a small skull cap worn on the
crown of the head) except when unconscious, immersed in water, or in
a life-threatening situation.47 The con¬‚ict was obvious, but because the
case was decided in 1982, which was the era when the Supreme Court™s
doctrine handed the authority to legislate exemptions to the courts, the
result was not so clear. The United States Court of Appeals for the Sev-
enth Circuit held, in an opinion by Judge Richard Posner, that the rule
was neutral and generally applicable and it violated no equal protection
principles, and then he proceeded to weigh the interest of the believer
against the interest of the state, which turned into a complicated calculus:
The more valuable the bene¬t to the claimant and hence the greater
the burden on him of forgoing it in order to continue to observe his
religion, the greater must be the burden on the government of relaxing
the conditions it places on that bene¬t for a refusal to make an exception
for the claimant to survive a challenge based on the First Amendment.

Free exercise of religion does not mean costless exercise of religion, but
the state may not make the exercise of religion unreasonably costly.48

In plainer English, the court™s task was to assess (1) how important the
religious conduct was to the believer, (2) the degree of the burden on
that conduct imposed by the law; and (3) what it would take for the
government to create an exemption for the conduct. At this time, when
free-exercise doctrine had gone off track, the court took it upon itself to
be the judge of a person™s beliefs and to know just how the law should
have been crafted to ¬nd the right median point between “costless” free
exercise and “unreasonably costly” legislation. It is a lot to ask from a
court delimited by the Establishment Clause and its own institutional
incapacity to engage in broad-ranging social policy determinations. This
is an excellent case to show how misguided such an approach is.
First, the court speculated that the Talmud did not really require the
wearing of yarmulkes every minute other than the three exceptions per-
mitted, pointing out that that would mean no haircuts. Further specula-
tion centered around whether the bobby pins used to hold the yarmulke
on the head, which were not very successful in keeping the yarmulke
on in sports, were required by the Talmud. The conclusion on this latter
question was that they probably were not religiously required, with Judge
Posner opining, “while we are not Talmudic scholars we are reasonably
con¬dent, and the plaintiffs™ counsel acknowledged at oral argument, that
the precise nature of the head covering and the method by which it is kept
on the head are not speci¬ed by Jewish law.”49 In other words, the court
was basing its decision on its individual assessment of Jewish law, which
was not in the record, but was con¬rmed at oral argument, of all places.
The court™s jurisprudence at the time invited this sort of unseemly judi-
cial assessment of the meaning of religious doctrine. While courts may
acknowledge religious doctrine as a factual element in a case, they may
not determine its contours, and this poking around Jewish belief should
ring all sorts of constitutional bells. The oral argument sounds more like a
legislative hearing than a discussion of legal principles properly addressed
by a court.
Having assessed the meaning of Orthodox Jewish law, the court then
viewed its role as divining whether there is a necessary con¬‚ict between
the sports rule and the Jewish law. In effect, the court asked itself whether

there was a way for the rule and the conduct to coexist peacefully. This
essentially legislative inquiry led Judge Posner to delve into the ways in
which a yarmulke might be secured to the head so that the Orthodox Jews
could wear it and the association™s concerns could be put at rest. In an
unintentionally humorous passage, he says, “We are not the people to de-
vise the method [of attaching the yarmulke more securely to the head], to
say that yarmulkes should be equipped with chin straps or sewn to head-
bands or replaced by some form of head covering that ¬ts the head more
securely.”50 If they weren™t the people to ¬x the problem, what was the
second clause of that sentence doing? Maybe a mild suggestion, which
just so happened to take into account that headbands were permitted? In
case those who were supposed to make such decisions came to believe
no accommodation could be crafted that works, the court said, “But we
are reasonably sure that a secure head covering exists or can be devised
at trivial cost without violating any tenet of [O]rthodox Judaism. . . . ”51
The court had by then taken on the full power of the legislative or reg-
ulatory powers “ assessing the need for accommodation, the means of
accommodation, and even the ¬nancial cost.
But how did the court know all this? Not because the record provided
support. To the contrary, the court made it all up. It did not know for a
fact whether bobby pins are required or whether another head covering
could substitute for the yarmulke, that a chin strap would be feasible in
any situation, or that the manufacturing of a device to keep the yarmulke
on the head would be cost effective, let alone, only a “trivial cost.”
But here is the most entertaining part of the opinion. After going
through all of these legislative details, the court ¬nally reached its hold-
ing, and lo and behold, the players lost. The association™s no-headwear
rule stood, because there was “no constitutional right to wear yarmulkes
insecurely fastened by bobby pins.”52
The resolution of the question adverse to the players normally would
have been cause for dismissal of the case, but, no, not when the courts
were in control of accommodation. Judge Posner ordered the district
court to retain jurisdiction “so that the plaintiffs can have an opportunity
to propose to the association a form of secure head covering that complies
with Jewish law yet meets the association™s safety concerns.”53
In other words, the court arrogated to itself the power to order an ac-
commodation that was not constitutionally mandated. The court further

micromanaged the process by placing the “burden of proposing an alter-
native” on the players, because they “know so much more about Jewish
law.”54 This was judicial lawmaking at its most arrogant, and the 1990
decision in Employment Division v. Smith decision “ which held that
legislatures, not courts, are the appropriate branch to decide whether
to create exceptions to a neutral, generally applicable law “ could not
have been decided fast enough thereafter. Smith took the courts™ un-
bounded power to force religious accommodation and placed it where
it belonged “ in the legislature “ where these issues of fact and be-
lief can be openly debated by various experts and no one need bear
any particular burden of proof, because everyone involved in the pro-
cess is intended to work toward an outcome consistent with the public
A recurring contemporary problem here and abroad has been the con-
¬‚ict between school prohibitions on headgear and the Islamic belief that
adolescent girls and women should wear a burka, niqab, hijab, khimar, or
headscarf.55 Headgear bans in the schools exist because hats detract from
the educational atmosphere, may be used as gang reinforcement, and
are preferred hiding places for contraband, such as drugs and weapons.56
Once again, one can hardly fault any school district for the policy, and the
First Amendment is no defense to a neutral rule. Even though the Con-
stitution does not mandate the accommodation, the door always remains
open, and various school districts have accommodated a variety of re-
ligious headgear. For example, the Lafayette, Louisiana, school board
permitted eight Rastafarian children to attend school, even though their
religion required head coverings, crowns (loose-knit circular hats, which
typically are knitted red, yellow and green, which represents the Ethiopian
¬‚ag), worn over dreadlocks.57 In February, 2004, a computer teacher at
Antelope Valley College in Lancaster, California, ordered a student to
remove her hijab, but she refused on religious reasons. When the dean
backed her up, the teacher resigned.58
The problem has not been limited to the United States, as Canadian
schools have had to deal with it as well. In 1994, Emilie Ouimet, age
12, was expelled from Ecole Louis Riel, a public high school, for wear-
ing a hijab, but a year later, the Quebec Human Rights Commission
ruled that public school dress codes banning the hijab violate the char-
ter.The issue is rather different when the question is whether the hijab can

be worn in the context of a nonpublic religious school. In 2003, Irene
Waseem, 16, was expelled from College Charlemagne, a private Catholic
girls™ school, for wearing the hijab.59 The different results lie in the
fact that private schools have more latitude to impose beliefs and reli-
gious symbols in their schools. Dania Bali, a straight-A student at College
Regina Assumpta, a private Catholic girls™ school in northend Montreal,
was permitted to wear her hijab for two years, but then was expelled
for wearing it. Upon consideration, the parents™ committee voted unan-
imously to retain its strict school uniform policy of banning headwear,
and the school™s administration agreed. Despite her fellow students™ sup-
port, Ms. Bali was told to remove her scarf or shop for a new school the
following year. When she chose the latter, there were no further legal
There is a strong First Amendment defense where the rule is selec-
tively enforced. A Muskogee, Oklahoma, school district had in place a
rule against wearing “hats, caps, bandannas, plastic caps, and hoods on
jackets inside the [school] building.”61 The policy was enforced against
sixth-grader Nashala Hearn, who wore a niqab to the Benjamin Franklin
Science Academy, by suspending her twice. Apparently, the school per-
mitted some students to wear head coverings for secular purposes, at the
same time it refused to let Nashala wear her niqab. The U.S. Department
of Justice, which intervened after the conservative Rutherford Institute
¬led the lawsuit, reached a consent decree with the school district and
condemned its actions, saying, the department “would not tolerate dis-
crimination against Muslims or any other religious group. . . . [S]uch in-
tolerance is un-American, and is morally despicable.”62 This is an archety-
pal case for explaining when the courts should strongly suspect uncon-
stitutional purposes. Whenever the government has a rule and permits
some exceptions, it cannot prefer nonreligious reasons over religious rea-
sons. This is exactly the sort of individualized assessment of the reasons
for the conduct that calls for a presumption of unconstitutionality and
strict scrutiny by the courts.63 After all, if the policy behind the hat ban
is not severely undermined by those wearing hats for secular reasons, the
religious individuals are not going to undermine it either. We do not have
the bene¬t in this case of a fully developed trial record to know precisely
what happened, but the existence of the consent decree speaks volumes.
The decree required the district to permit Nashala to wear her niqab and

to revise its dress code to permit headgear for a “bona ¬de religious rea-
son.” The accommodation was not absolute, however, as the district was
instructed to consider requests for religious accommodation individually.
The school could reject the request only where the claimed belief was not
sincerely held and where to grant the accommodation would endanger
“safety and security.”64 In addition, the district was ordered (1) to educate
administrators, teachers, parents, and students on the new policy, which
permitted head coverings in only three circumstances: doctor™s orders,
religious accommodation, and for a “special school activity”; (2) to cer-
tify compliance over a four-year period; and (3) to pay the Hearn family
an undisclosed sum.65 Had the school district enforced its headgear ban
uniformly against all students, without reference to religion, the Depart-
ment of Justice would have had no constitutional argument against the
district. By its arbitrary actions, the district invited federal intervention.
France has followed a principle that forbids all religious and political
symbols from the public schools, which includes head scarves. This is
an apt place to show the differences between the French and the U.S.
approaches to accommodation.
In the United States, there is a value placed on encouraging a free mar-
ketplace of religion. Two First Amendment principles work together to
let religion operate in a free and open market. The Free Exercise Clause
prevents persecution based on religious belief that would rid the market
of certain religious elements and the Establishment Clause prevents the
government from supporting religion, which would torque the market
away from actual demand toward government-managed demand. The
result is not only a truly amazing variety of religious faiths, but also a
fascinating blend of a public square ¬lled with religious talk and images,
juxtaposed with a government that does not itself take positions in that
square on religious belief. The celebration of religious diversity that is at
the heart of the First Amendment encourages accommodation, and so a
¬‚at ban tends to appear undesirable if religious belief can be accommo-
dated consistent with the public good. The problem in the United States
is that too often the drive to accommodate religious conduct takes ¬‚ight
from common sense and public security.
The French appear to have the opposite inclination “ a presumption
against accommodation. As of March 15, 2004, it became illegal in France
to wear clothing, insignia, or symbols that “conspicuously manifest a

religious [or political] af¬liation.”66 The directive applies across the board
to all students, though some believe it was prompted by Muslim girls
wearing head scarves to school,67 at a time of large Muslim migration
into France and resulting discord.68
The motive behind the French law would not have made it uncon-
stitutional in the United States, because the law is neutral and generally
applicable. But the culture created by the First Amendment™s robust
protection of belief and speech would have set the default position at ac-
commodation. That, in turn, would have opened the door to the Islamists
to persuade parliament that head scarves could be worn without harm
to the public good. For those in the United States who believe that this
country has reached the point of factually separating church and state
and has eviscerated all traces of religion from public places, the French
example provides an outstanding context for understanding that strict sep-
aration never was and likely never will capture the spirit of the Religion
Hair length also has posed accommodation issues in the schools, es-
pecially for Native Americans. The Alabama Coushatta Tribes of Texas
and 12 Native American students challenged the hair-length regulations
of the Big Sandy Independent School District in east Texas. A number of
the students received in-school suspensions for refusing to cut their hair,
because they believed in the context of their Native American and Chris-
tian beliefs that long hair was a “symbol of moral and spiritual strength,”
and was an integral part of the body™s “oneness.”69 The school™s hair
code was enacted to “minimize disruptions attributable to personal ap-
pearance,” to “foster an attitude of respect for authority,” and to create a
favorable impression of the district when its students participated in ex-
tracurricular activities elsewhere.70 While acknowledging that the U.S.
Court of Appeals for the Fifth Circuit had previously upheld a hair policy
because it did not violate any fundamental rights, the Big Sandy court
distinguished that case, because it did not implicate the free exercise of
religion.71 The students prevailed, because the court believed the rule
announced by the Supreme Court in Employment Div. v. Smith, giving
legislatures the power over accommodation, rather than courts, did not
apply. Because the case involved a combination of rights, free exercise,
free speech, and equal protection, the court examined the rule closely
and presumed that the accommodation should be permitted. Where the

school had not shown that enforcing its hair-length rule against these
students was the least restrictive means of achieving its goals of order,
respect, and public image of the school, the regulation could not be ap-
plied to them. (The court then went on to reach the same conclusion
under various other theories: the Free Speech Clause, parental rights to
direct their children™s upbringing, and procedural due process.)
This notion that multiple rights, which the Smith court called “hybrid
rights,” justify heightened judicial scrutiny of a law is questionable at best.
Some circuits have simply thrown up their hands trying to understand or
apply it,72 because it is dif¬cult to understand how combining rights ought
to in¬‚uence the constitutional conclusion. Where there are two rights,
for example, and the government has not violated either individually,
it makes no sense to conclude that their coexistence justi¬es treating
the law as presumptively unconstitutional, so this decision is on shaky
If there is any case, though, that argues for judicial intervention in the
religious accommodation context, this might be the one. The students
were not themselves disruptive, their hair did not block anyone™s educa-
tional experience, and, in this day and age, surely no one was so distracted
by the fact of its length so as to be unable to pay attention in class. The
school district™s refusal to accommodate them seems willful, if not just
plain silly, and maybe the judge in this case got a whiff of discrimination
that led him to ¬nd for the Native Americans under as many theories as he
could. Having said all that, however, the rule was generally applicable; it
was found by the court to be neutral, and the district™s policy was rational,
so under existing free-exercise jurisprudence today, the outcome should
have been the opposite.
That would have left the tribe with the Texas legislature to obtain
accommodation. Some will immediately shake their heads and assume
that they have no chance, because they are a small group or because they
lack political power, but exemptions for Native Americans were already
in place. Religious use of peyote, which is used by the Native American
Church as part of the worship service, is exempt from the Texas drug
laws.73 And where the hair-length restriction is unevenly applied, so that
only one group, like the Native Americans, is being punished for the
infringement, the punishment would be unconstitutional.74

The challenges of choosing a curriculum to ¬t all
religious viewpoints
My vote for the worst Religion Clause case in the United States goes to
Wisconsin v. Yoder, which held that the Amish could avoid Wisconsin™s
compulsory education laws by removing their children from school af-
ter eighth grade, because the First Amendment required it.75 As I will
discuss in more detail in Part Two, I would deep-six it for its roman-
tic, rose-colored depiction of Amish life, its assumption that parental
rights automatically trump any question about the children™s needs or
beliefs, and its judicially forced accommodation, which forestalled any
legislative debate and determination regarding whether permitting a sig-
ni¬cant number of children to forego higher education was consistent
with the public good. There is good reason to question that conclusion
in a society where every other citizen is required to complete 12th grade
(and therefore the Amish children are being severely disabled in terms of
their future prospects) and where the political and social welfare of the
country rests on well-educated and informed adults. The Amish com-
pulsory education issue is on a par with the religious medical neglect
cases. Should parents be permitted to deprive their children of medi-
cal treatment or education, when that deprivation could disable them
permanently? These are not easy questions, though I would weigh the
children™s interests in health and education more weightily than they
have been to date. In any event, the issues certainly were not resolved by
the Court™s love letter to the Amish in Yoder. For purposes of this chap-
ter, Yoder is emblematic of the entire social debate over curriculum. If
students can be pulled from school altogether during the last four com-
pulsory years, in order to pursue a more agrarian education, it is hard
to argue that they must participate in any particular curriculum at any
stage. It would also seem to be quite dif¬cult to argue that any religious
organization™s alternative education, including home schooling, must be
accommodated under the Free Exercise Clause. If farming can replace
the classroom, then why can™t any other content just as well “ in light
of the purposes of public education? The answer is that Yoder was badly
reasoned and wrongly decided, that it is up to the legislature to weigh
these different considerations, and that there is a very strong interest

in a well-educated public if this system of representative democracy has
any chance of succeeding.

homeschooling. There is a tremendous movement in the United
States toward homeschooling, where parents keep their children out of
public or private schools and shoulder the responsibility for education
One of the impetuses has been the ongoing debate involving the sci-
ence curriculum dealing with the beginning of humankind “ scientists
talk about “evolution,” while some believers advocate what is called “cre-
ation science,” or the theory that God created the ¬rst human, as the
Bible says.76 Mainstream believers tend to be able to incorporate the
evolution theory into their belief systems, while fundamentalists, who
read the Bible literally, cannot. The 1987 Supreme Court, Edwards v.
Aguillard, decision held that a school policy of banishing evolution in
favor of creationism alone, or requiring denigration of evolution the-
ory, violated the Establishment Clause, because the statute permitted
government funds and power to achieve a religious purpose.77 The deci-
sion left the door open, however, to curricula choices that permitted
both to be taught, and school boards continue to struggle with that
For example, the school board of a Wisconsin district has revised its
curriculum to allow the teaching of creationism.79 In 2001, the Kansas
State Board of Education restored the teaching of evolution to the cur-
riculum after having controversially voted to remove it from public school
science standards in 1999.80 The existence of a middle ground in some
school districts, though, does not signify the end of the power struggle
between the two views. In Cobb County, Georgia (just outside Atlanta),
in 2002, 2,000 parents presented a petition to school of¬cials complaining
that their science textbooks discussed evolution but not creationism. The
schools responded by requiring science textbooks to contain an evolution
warning sticker, that read:

This textbook contains material on evolution. Evolution is a theory,
not a fact, regarding the origin of living things. This material should
be approached with an open mind, studied carefully and critically

The ACLU and six parents ¬led an Establishment Clause challenge,
saying that the stickers promote creationism and discriminate against
certain religions. Federal District Court judge Clarence Cooper refused
to dismiss the lawsuit, because he was not satis¬ed that the stickers did
not have the effect of advancing or inhibiting religion. During the bench
trial, Cooper asked, “How were teachers told to address questions or
con¬‚icts stemming from the disclaimer?” The school district™s answer
was troubling: the sticker was supposed to bring the students™ attention
to the fact that “there is a scienti¬c discussion and there™s a religious
discussion, and we™re going to have a scienti¬c discussion.” That made it
sound as though the sole purpose of the stickers was to inject religion into
the schools. Moreover, he tried to use the pressure by the creationists to
justify the schools™ action, saying that the school, “had an obligation to
those who felt very strongly about this.”81 Private individuals may have any
views they like, but a public school may not use those citizens™ religious
viewpoints to justify its actions. Accordingly, the court found the stickers
However the debate over creationism resolves itself, the movement
toward home schooling has taken on a life of its own, as the existence
of the active and often in¬‚uential Home School Legal Defense Associa-
tion (HSLDA) illustrates. Homeschoolers typically are escaping from the
“secular” environment and curriculum in the public schools, and thus
¬nd themselves leaving the system for religious reasons.82 The HSLDA
website makes this position quite clear:

God has delegated the authority and responsibility to teach and raise
children to the parents ¬rst. Parents can delegate their authority to
teach and raise children to someone else, but they can never delegate
their responsibility to teach their children to anyone else. God will hold
parents responsible for what education their children receive (whether
from teachers, books, projects, or peers). To whom much is given, much
is required. We have a free choice in this country to not send our children
to an ungodly public school “ we will, all the more, be responsible.
Remember, our children are dying souls entrusted to our care!83

Two con¬‚icts have arisen as a result. The ¬rst involves access to ex-
tracurricular programs while the second deals with how the state can
ensure that each child is being adequately educated, in light of the

overriding interest in an educated citizenry in a republican form of
First, homeschooled children have asked to participate in the extracur-
ricular activities typically offered by the public schools, despite the fact
they are receiving their education at home. Of the 26 states that have
legislation or case law addressing access of private school or home school
students to public school activities, all but seven permit access. In states
without laws addressing the issue, the decision is generally left to individ-
ual schools and school districts to decide. Most states also have private
sports league associations for interscholastic sports, which have adopted
bylaws that usually do not permit schools to allow a student™s participation
in these activities unless the student is enrolled full time in the school.84
Second “ and this is the far more dif¬cult issue “ is how to monitor
each child™s education. The states impose requirements on each public
and private school to satisfy certain educational aims in each subject,
so that the education of each child in the system is monitored and well
documented. Paperwork goes back and forth between the school districts
and the state, and the private schools and the state. In addition, there
are state visits to each school, and there is standardized testing “ which
determines whether each school is teaching the necessary curriculum
and whether individual students are achieving certain minimum stan-
dards. The homeschooling context poses a dif¬cult challenge for the
states, because it is so dif¬cult to monitor such students. It™s a problem
of enforcing some kind of reporting requirement, having the manpower
to deal with the individual education of children outside the public and
private school system, and the expense associated. Homeschooling elim-
inates the ef¬ciencies created by the school systems™ ability to take on the
administrative burdens of monitoring education child by child. In con-
trast, homeschooling parents ¬nd some state™s reporting requirements
onerous, invasive, and unnecessary. “Homeschooling parents are over-
burdened” says former HSLDA president Michael Farris.85 Moreover,
most believe that parents have the constitutional right to choose to ed-
ucate their children as they wish. The Supreme Court has rejected the
notion, however, that a child can be a “martyr” for his or her parents™
faith, and held that “those who nurture [a child] and direct his destiny
have the right and high duty to recognize and prepare him for additional

The HSLDA is spearheading litigation in handpicked states to ¬ght
the burdens placed on parents by the states™ education reporting require-
ments. Currently, in a pair of Pennsylvania cases, two families are ¬ghting
the state™s home education law under Pennsylvania™s Religious Freedom
Protection Act, claiming that the home education law imposes a sub-
stantial burden on the free exercise of their religion. The plaintiffs are
challenging the provisions of the statute that require parents to notify the
district that they are homeschooling their children, provide a detailed
curriculum, submit homeschool students to regular testing, and have
their program certi¬ed annually by the superintendent.87 The HSLDA™s
agenda is to deregulate education for homeschoolers, but complete dereg-
ulation is inconceivable in light of the importance of education in the
United States, and the school boards and state are expected to ¬ght the
case vigorously.
From a free exercise perspective, the issue presents the typical ana-
lytical hurdle in all accommodation cases: from the perspective of the
individual believer, it seems like a de minimis burden on the state, but
from the state™s perspective, the individualized element in it poses nearly
insuperable administrative and cost barriers. In general, no matter the
prevailing standard, the government has won these sorts of cases. When
the Amish challenged the requirement that they pay Social Security taxes,
the Supreme Court rejected the claim, saying “Congress drew a line in
§ 1402(g), exempting the self-employed Amish but not all persons work-
ing for an Amish employer. The tax imposed on employers to support
the Social Security system must be uniformly applicable to all, except as
Congress provides explicitly otherwise.”88 The same result accrued when
Native American parents objected to the requirement that every child
must have a Social Security number. They argued that, under their reli-
gious beliefs, the assignment of a unique Social Security number would
“rob the spirit” of their daughter.89 The Court held that the government™s
interest in the fair and ef¬cient administration of the system trumped the
family™s interest in accommodation. Under Employment Div. v. Smith,
the analysis is even more straightforward “ education laws (except in the
rare instance) are neutral and generally applicable, which means the
homeschoolers™ best route for accommodation is in the state legislatures.
And they have not done too badly, as they have obtained exemptions for
participation in interscholastic activities, truancy laws, drivers™ education

requirements, and the necessity of having someone trained in CPR
present. Some have even enacted a special tax credit for them.
The public good calculus on this topic, though, is not limited to the
state™s interest in educating children, or the parents™ right to determine
their children™s education. Children have rights as well, and in particular
the right not to be made “martyrs” by their parents™ religious beliefs.90
Where their level of education is inferior to their peers™, children are being
disabled for later life. The state also has an obligation to protect children
from abuse and neglect. Homeschooling removes one of the most ef-
fective means the state has of ensuring that children are not abused “
the teachers and principals who see the children outside the home on a
regular basis. Doctors are another crucial layer of protection as well, and
where the home-schooling family does not believe in medical care, or
does not take the child to the doctor because of the abuse, the schools
are literally the last line of defense. For the state to fully deregulate
homeschooling may well abdicate its responsibility toward children po-
tentially at risk of abuse or neglect. This is not to say that homeschoolers
abuse children anymore than do other parents (unfortunately, the amount
of abuse never reaches zero), but rather that children who are being
homeschooled do not have the additional protection of a teacher or prin-
cipal who can intervene and that has a mandatory obligation to report
any abuse. It is just a fact that these children are at a higher risk of
abuse.91 Many homeschoolers would respond that their children engage
in extracurricular activities, so their children are seen by other adults;
the question is whether they are adults with a legal obligation to report
perceived abuse.
All of which is to say that the question of legislative accommodation for
the homeschoolers is complicated. There are weighty issues on both sides.
It should be crystal clear that no court has the tools or powers necessary
to determine the right balance between the competing interests of the
children, the parents, and the public.

choice of reading series. There can be no more likely stage for
con¬‚ict between religious parents and the schools than in the choice of a
reading curriculum. It is impossible to teach reading without substantial
content, and religious parents have had objections to a large range of ma-
terials, including the fantasy materials at the heart of the following case.

Parents in Wheaton, Illinois, challenged an elementary school™s adop-
tion of the Impressions Reading Series, which encourages reading skills,
using the works of C. S. Lewis, A. A. Milne, Dr. Seuss, Ray Bradbury, L.
Frank Baum, Maurice Sendak, and other authors, because it established
a religion of “superior beings exercising power over human beings by im-
posing rules of conduct, with the promise and threat of future rewards and
punishments.” It also “indoctrinates children in values directly opposed
to their Christian beliefs by teaching tricks, despair, deceit, parental disre-
spect and by denigrating Christian symbols and holidays”92 and therefore
deprived them of the free exercise of religion. A contrary view of the se-
ries was put forth by, among others, the Institute for First Amendment
Studies, which ¬led an amicus brief in the case:

The Impressions reading series employs the whole language approach
to language arts instruction. Many fundamentalists believe the whole
language method is a deliberate scheme on behalf of the National
Education Association to produce functional illiterates, thus creating
a dependent society susceptible to a one-world government. Believing
that phonics is the only correct way to learn to read, they ¬nd inventive
ways to reject whole language curricula.93

The parents lost on both Religion Clause theories, as they should have.
The court listed certain types of activities in the schools that had been
held to violate the Establishment Clause, and each of them involved the
school sending a rather clear message to the students about what they
should believe: for example, inviting clergy to offer prayers at gradua-
tion, daily Bible readings or recitation of the Lord™s Prayer, distribution
of Gideon Bibles to public school students, posting the Ten Command-
ments in classrooms, excluding evolution science or requiring it be taught
along with creation science, beginning school assemblies with prayer, and
“teaching a Transcendental Meditation course that includes a ceremony
involving offerings to a deity.” In comparison, the courts have not been ea-
ger to invalidate the use of particular books in the public schools, whether
they were novels, textbooks, other reading series, or even the Bible when
employed for literary or historical purposes.94
The court struggled to identify what religion was allegedly being es-
tablished in the series, which appeared to the court to be no more
than a “collection of exercises in ˜make-believe™ designed to develop and

encourage the use of imagination and reading skills in children that
are the staple of traditional public elementary school education.”95 In
a refreshingly frank passage, the court vehemently rejected the notion
that fantasy and make-believe amounted to a “pagan” religion, asking,
“[W]hat would become of elementary education, public or private, with-
out works such as these and scores and scores of others that serve to ex-
pand the minds of young children and develop their sense of creativity?
With that off our chest, we can now properly dispose of the parents™ claim
within the structure of the ˜Lemon™ test.” The court found a “clear secular
purpose” in the choice of “fantasy and ˜make-believe™ to hold a student™s
attention” and develop the child™s creative side, and that despite the pres-
ence of a few stories employing witches and goblins, the series “¬t the
norm.”96 Nor did the court ¬nd that the series had the effect of furthering
a religion, because some of the stories employed imaginative characters,
some were consistent with Protestantism and Catholicism, and overall
the series simply improved reading skills. Finally, there was no entangle-
ment with religion where the school board chose the series, because that
is a standard school board activity.
The parents lost on their free-exercise claim as well, because there
was no coercion of the parents or the children™s religious beliefs and the
school™s interest was extremely important. The same result accrued when
a mother of four challenged the Holt, Rinehart, and Winston reading
series, because her children were not permitted to abstain from using the
series, which is used in many schools.97 The court distinguished Yoder
in that it “rested on such a singular set of facts” that it did not announce
a general rule. Unlike the Amish parents in Yoder, the parents in the
present case wanted their children to acquire the necessary skills to live
in modern society, and it was not impossible to reconcile the religious
requirements with the aim of public education.98

coeducational classes. Intellectual content is not the only arena
where parents have objected to a school™s curriculum. In McLean
County, Illinois, children of the United Pentecostal Church objected to
having to attend coed physical education classes, because of the “immod-
est apparel” worn.99 The decision was predetermined by the Yoder Court™s
reasoning, as it evidences every bit as much concern about preserving the
religious entity™s future as it does the government interest at stake:

Given the abundant support in the record that modest dress is a tra-
ditional way of life of the plaintiffs, the compulsory attendance at a
coeducational physical education class is in sharp con¬‚ict with the fun-
damental mode of life mandated by the Pentecostal religion. . . . Under
the present facts there is, through coeducational physical education,
daily exposure of the children to worldly in¬‚uences in terms of atti-
tudes and values of dress contrary to their religious beliefs. This expo-
sure . . . substantially interferes with the religious development of the
Pentecostal children and their integration into the way of life of the
Pentecostal faith community at the crucial adolescent stage of devel-
opment. These two effects of the way this Illinois statute has been
construed contravenes the basic religious tenets and practice of the
Pentecostal Church, both as to parents and the children.100

The students suggested that they be permitted to have sex-segregated phys-
ical education or individual physical education, and the court added a
third option, providing them an exemption from physical education al-
together. The court obviously had some discomfort about its holding, be-
cause it stated more than once that it was “not telling the school system or
these defendants what they must do; only what they may not do.”101 But,
like Judge Posner™s yarmulke decision above, the court did indeed indicate
the option it thought should be considered to adequately accommodate
the religious adherents, without serious investigation into the state™s in-
terest. It expressly disavowed forcing the district to provide the students™
suggested sex-segregated or individual physical education (P.E.), saying
that its holding simply meant the students could not be forced to go to
the coeducational P.E. In effect, the judge mandated at a very minimum,
the exemption he earlier suggested. The decision is a product of its era,
which placed courts in the impossible position of adjudicating constitu-
tional rights and crafting exemptions that call for legislative judgment.

Schools stand in the position of parens patriae, literally in the shoes
of the parents, so they have a strong responsibility to enforce fair rules
evenhandedly, to keep the atmosphere positive for learning, and to ensure
the children™s health and safety. It is impossible to accommodate the
kirpans carried by the Sikhs; children and knives do not mix, no matter
how good and pure the intentions are. At the same time, schools must

guard against enforcing their dress rules unevenly. If the school is willing
to wink at the kid wearing a hat for fun, it cannot then punish the girl
who shows up in a hijab. The willingness to let the rule be bent speaks
volumes to the actual necessity of the rule in the ¬rst place. Because most
dress codes can tolerate some differences on the margins, many have and
should have exemptions for religious reasons.
But those exemptions are never absolute, because there is always the
possibility that the girl who is wearing the hijab is not in fact wearing it
for religious reasons, but rather because it is a perfect place to hide the
drugs she sells. So inquiries into sincerity are perfectly appropriate. And
in schools with intractable and pervasive problems with contraband, it
may be impossible to permit anyone to wear a head covering of any kind.
In that situation, the no-exceptions policy is perfectly constitutional, so
long as it is applied as strictly as it is intended and written.


Terrorist networks within United States borders before September 11,
2001, were an undetected cancer spreading through the system. Our own
prisons “ and the military “ were potential breeding grounds for extremist
Muslims who believed that the United States was evil and should be
eradicated. It took the annihilation of almost 3,000 victims from abroad
and the U.S., including the World Trade Center “ two of the tallest
buildings in the world “ for Americans to realize that there was a religious
movement that was intent on their destruction.
In the aftermath of September 11, it quickly became apparent that
Muslim chaplains in the prisons and the military were in a strategic
position to recruit, train, and indoctrinate those individuals who were
open or vulnerable to an approach. Like the pedophiles discussed in
Chapter 2, terrorists seek out individuals who are vulnerable to their


. 4
( 13)