Articles of Faith
Fighting Religious Dress
Discrimination in Texas Public
Institutions
ACLU of Texas and the AMSA
Community
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Defend and preserve rights guaranteed in
U.S. Constitution, federal and state law
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Courts, legislature, and communities
Receive civil rights complaints from AMSA
community related to Racial Justice and
Individual Liberties
Dress restrictions implicate rights to free
exercise of religion and free
expression
Government Rationales for
Restricting Dress
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Security
Safety
Student dress codes
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Justifications include: “to teach hygiene, instill discipline,
prevent disruption, avoid safety hazards, and assert authority.”
-Needville ISD Dress Code
Must be balanced against individuals’ rights
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Texas Education Code § 11.162 authorizes local school boards to
require student uniforms, but parents can request an exemption
if they have “a bona fide religious or philosophical objection to
the requirement.”
Legal Protections for Religious Dress:
First Amendment Free Exercise
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Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.
-U.S. Constitution, amt. 1
Triggered when government substantially burdens an
individual’s sincerely held religious belief
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Religious belief: Need not be “acceptable, logical, consistent, or
comprehensible to others,” Thomas v. Review Bd. of Indiana
Employment Sec. Div., 450 U.S. 707, 714-15 (1981).
Sincerely held: Based on “subjective good faith of an adherent,”
but countered by inconsistent practice or indication that
adherent is “fraudulently hiding secular interests behind a veil of
religious doctrine.” Int’l Soc. For Krishna Consciousness, Inc. v.
Barber, 650 F.2d 430, 441 (2d Cir.1981).
Substantial burden: “[T]ruly pressures the adherent to
significantly modify his religious behavior and significantly violate
his religious belief.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir.
2004).
Legal Protections for Religious Dress:
First Amendment Free Exercise
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Strict scrutiny: Incidental burden on free exercise permitted
only when it is the least restrictive means to achieve a
compelling government interest. See Sherbert v. Verner,
374 U.S. 398 (1963).
Rational basis: In 1990, the Supreme Court abandoned strict
scrutiny for neutral laws of general applicability. See
Employment Div. v. Smith, 494 U.S. 872 (1990).
Hybrid rights: Smith noted heightened scrutiny previously
applied only when free exercise was raised with another
fundamental right.
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Some courts read this to require “something more than a
mere reasonable relation to some purpose within the
competency of the State” when free exercise is raised together
with free expression or other fundamental rights. See Alabama
& Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist.,
817 F.Supp. 1319, 1332 (E.D. Tex. 1993).
Legal Protections for Religious Dress:
Religious Freedom Restoration Acts
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Federal RFRA enacted in 1993 to reinstate strict scrutiny
in response to Smith
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Held unconstitutional as applied to states in City of Boerne v.
Flores, 521 U.S. 507 (1997)
Texas enacted its own RFRA in 1999
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State agencies may not “substantially burden a person’s free
exercise of religion,” except where the state’s action “(1) is in
furtherance of a compelling governmental interest; and (2)
is the least restrictive means of furthering that interest.”
Free exercise is any “act or refusal to act that is substantially
motivated by sincere religious belief,” which need not be
“motivated by a central part or central requirement of the
person's sincere religious belief.”
Requires 60 days notice and opportunity for state agency
to remedy by “reasonably remove[ing] the substantial burden,”
though remedy need not be the least restrictive means.
Legal Protections for Religious Dress:
First Amendment Free Expression
Congress shall make no law…abridging the freedom of speech.
-U.S. Constitution, amt. 1
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Triggered when student intends to convey a particularized
message, and that “message is likely to be understood by
those intended to view it.” Canady v. Bossier Parish Sch. Bd.,
240 F.3d 437, 440-41 (5th Cir. 2001).
Courts differ on level of scrutiny for student religious dress:
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Pure speech: Restrictions permitted only if the expression
“materially and substantially interfere[s] with the requirements of
appropriate discipline in the operation of the school,” Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503, 508 (1969).
Speech-as-conduct: Restriction permitted if it furthers an important
or substantial governmental interest that is unrelated to the
suppression of free expression; and the incidental restriction on
First Amendment freedoms is no greater than is essential to the
furtherance of that interest. United States v. O’Brien, 391 U.S. 367,
377 (1968).
Protecting the Right to Religious Dress
Singh v. Cercone
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Amardeep Singh appeared
before Dallas County JP
Albert Cercone on June 23,
2006 for a traffic violation.
Told to remove his “hat”
under the court’s “no hats”
policy, and threatened with
arrest
SALDEF put him in touch
with ACLU and cooperating
attorney Jerry Murad, who
filed suit in state court for
violation of Texas RFRA.
Dallas County and Judge
Cercone adopted new
security screening policy to
be more respectful of
religious dress.
I could not believe that here in the
United States, a judge whose job it
is to uphold the law would show
such disrespect for my religion.
Protecting the Right to Religious Dress
A.A. et al. v. Needville ISD
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Needville ISD put off requests for dress code
exemption for a 5-year-old Native American boy with
long hair
If you want to think we’re backwards…no one is asking you to
move to Needville and have these opinions invoked on you.
-NISD Superintendent, in Houston Press
(7/10/08)
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In August 2008, NISD adopted an “exemption”
requiring the boy to keep his foot-long hair in a
“tightly-woven” braid stuffed down the back of his
shirt at all times
The family refused to choose between their beliefs
and their son’s right to an education, so NISD
punished the boy with In-School Suspension
Protecting the Right to Religious Dress
A.A. et al. v. Needville ISD
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Filed suit October 2, 2008 asserting violations of boy’s rights under
First Amendment and Texas RFRA, and parents’ Fourteenth
Amendment rights to direct his upbringing
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“[W]hen the interests of parenthood are combined with a free exercise
claim … more than merely a reasonable relation to some purpose within
the competency of the State is required … under the First Amendment.”
Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).
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TRO granted October 3 and
boy has been in class with no
problems ever since
On January 20, 2009, U.S.
District Judge Keith Ellison
ruled in our favor on all claims
against the hair requirement
NISD has filed an appeal to
the Fifth Circuit Court of
Appeals
Take Action
Know your rights
 Educate others about your rights and
beliefs
 Seek legal assistance
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Private counsel
 ACLU online complaint: www.aclutx.org
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