Religion in the public school workplace

1. Religion in the public school workplace From 1657 to Title VII in 90 minutes.

2. Sixteen words: two clausesThe First Amendment on religion • “Congress shall make no law respecting an establishmentofreligion, or prohibiting the free exercise thereof; …” Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

3. Title VII on religious discrimination • Title VII prohibits: • treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (disparate treatment); • subjecting employees to harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.); • denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – if an accommodation will not impose more than a de minimis cost or burden on business operations; and, • retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone else’s EEO matter), or opposition to religious discrimination (e.g., complaining to human resources department about alleged religious discrimination). Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

4. How we got here:The Freedom of Conscience in early America • The Flushing Remonstrance 1657- “You have been pleased to send up unto us a certain prohibition or command that we should not receive or entertain any of those people called Quakers because they are supposed to be by some, seducers of the people. For our part we cannot condemn them in this case, neither can we stretch out our hands against them, to punish, banish or persucute them,…The law of love, peace and liberty in the states extending to Jews, Turks, and Egyptians, as they are considered the sonnes of Adam.. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

5. The Freedom of Conscience in early America • JamesMadison-1785-Memorial and Remonstrance against Religious Assessments • “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men:…” Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

6. The Founders on religion in public service • The Constitution Article VI: • “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

7. Thomas Jefferson: The letter to the Danbury Baptists Jan. 1, 1802 • Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

8. Religious Expression 20th century • West Virginia v. Barnette 1943- “The right of freedom of thought and of religion, as guaranteed by the Constitution against State action, includes both the right to speak freely and the right to refrain from speaking at all, …Without wishing to disparage the purposes and intentions of those who hope to inculcate sentiments of loyalty and patriotism by requiring a declaration of allegiance as a feature of public education, or unduly belittle the benefits that may accrue therefrom, I am impelled to conclude that such a requirement is not essential to the maintenance of effective government and orderly society.” (Murphy, concurring) Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

9. Religious Expression-19th Century • The Blaine Amendment(N.Y.) “Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, …” NYS Constitution Article 11, section 3. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

10. Religious Expression 21st century • The hijab decision- EEOC v. Abercrombie & Fitch Stores __US__ • Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” (Scalia, J.) Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

11. Religious Expression 21st century • The Bible verse case: Silver v. Cheektowaga Cent. Sch. Dist. 2016 U.S. App. LEXIS 20007 *; 2016 WL 6584914. The teacher decorated her classroom with Bible verses intended to exhort her students to higher achievement. • The administration told her to remove that stuff. She lost. The Court said, "schools may direct teachers to 'refrain from expression of religious viewpoints in the classroom and like settings,…” Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

12. 21st century American belief Pew Research Center’s 2014 Religious Landscape Study found that 3.1% of American adults say they are atheists when asked about their religious identity, up from 1.6% in a similarly large survey in 2007. An additional 4.0% of Americans call themselves agnostics, up from 2.4% in 2007. One-fifth of the U.S. public – and a third of adults under 30 – are religiously unaffiliated today, the highest percentages ever in Pew Research Center polling. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

13. Religious Expression 21st century • Several courts have attempted to balance a public school teacher's right to express his or her own religious beliefs with the school district's interest in avoiding the perception that the teacher's religious statements or activity bears the "imprimatur of the school" in violation of the Establishment Clause.   Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

14. Religious Expression 21st century •  Roberts v. Madigan, 921 F.2d 1047, 1057 (10th Cir. 1990), cert. denied, 505 U.S. 1218, 112 S. Ct. 3025, 120 L. Ed. 2d 896 (1992)-holding that directive to teacher to refrain from silently reading Bible in front of class was justified by district's motive to prevent teacher from violating Establishment Clause and did not violate teacher's First Amendment rights; • Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 n.4 (5th Cir. 1995)- noting that school employees violate Establishment Clause by participating in student-lead prayer circle or otherwise manifesting "approval and solidarity with student religious exercises"; • Pelozav. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994)-finding that school district's interest in avoiding violation of Establishment Clause justified prohibiting teacher from discussing religion with students before and after class. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

15. 21st century American belief Muslims will make up 2.1% of the U.S. population by the year 2050, surpassing people who identify as Jewish on the basis of religion as the second-largest faith group in the country (not including people who say they have no religion). A recent Pew Research Center report estimated that the Muslim share of immigrants granted permanent residency status (green cards) increased from about 5% in 1992 to roughly 10% in 2012, representing about 100,000 immigrants in that year. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

16. Freedom of Conscience 21st century Religious exemption from Immunization-The determination of whether petitioners qualify for a religious exemption requires the careful consideration of two factors: whether petitioners’ purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held. It is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption. However, the exemption does not extend to persons whose views are founded upon medical or purely moral considerations, scientific or secular theories, or philosophical and personal beliefs. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

17. Freedom of Conscience 21st century Religious exemption from Immunization- In determining whether beliefs are religious in nature and sincerely held, school officials must make a good faith effort to assess the credibility and sincerity of petitioners’ statements and may consider petitioners’ demeanor and forthrightness. While school officials are not required to simply accept a statement of religious belief without some explanation, they similarly should not simply reject a statement without further examination. Appeal of A.Z. decision 16,920 decided July 5, 2016. Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

18. Intelligent Design • Some States allow teachers to teach “intelligent design.” But, such statutes appear to run afoul of Edwards v. Aguillard 482 US 578 (1978), “The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term "creation science" was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act.” Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP

19. Thank you • Questions? Hogan, Sarzynski, Lynch, DeWInd & Gregory LLP