Muslim attire and track suits: let religious belief run free

A multi-colored unitard running outfit is not what I usually think of when it comes to Muslim attire. But according to an Associated Press article in The Washington Post, a high school student was disqualified from a track event because her attire, a multi-colored unitard that complied with her Muslim beliefs, did not comply with competition rules. Note: according to the student, the unitard is not a performance-enhancing item.   

Although she had competed in other scholastic track events wearing the same outfit (and apparently with much success), officials at an invitational event in Montgomery County, Maryland found the outfit violated its rules. The outfit – a custom one-piece blue and orange unitard – covered her head, arms, torso and legs, overtop of which she wore her school’s uniform. Evidently, the unitard violated a rule against multi-colored uniforms and track officials offered to permit her to wear a white tee-shirt over the unitard covering the offending multiple colors. Track officials denied that the decision was based in any religious bias. 

What actually occurred, I can’t say any more than I can predict how the matter will run course, so to say. But the issue of persons wearing traditional Muslim attire in school and other public settings is more than an interesting academic issue. This is particularly so when the attire involves full body and face coverings, or burkas, which can present a sincere security concern in a school or public setting. 

The burka-wearer’s free exercise of religion is not to be burdened by conditioning government benefits (such as education or access to public places) on conduct mandated by religious belief. Yet not every religious belief must be accommodated by government and not all religious beliefs excuse compliance with otherwise proper rules. (Permitting students to wear head scarves (and a unitard) would seem a reasonable and non-controversial accommodation.  See also here for the First Amendment Center.)

But given the heightened security awareness in schools and public places, a requirement that students not cover their faces or wear burkas might be the sort of neutral and generally applied rule that could withstand challenge. For example, in Freeman v. Department of Highway Safety and Motor Vehicles, 924 So.2d 48 (Fla. App. 5 Dist.), rev. denied, 940 So.2d 1124 (Fla. 2006), the driver’s-license-photograph case, the court held it was proper to require the applicant to be photographed without a veil. In particular, expert evidence at trial showed there are exceptions to being veiled, one being the concept of “necessity” under Islamic law (usually, it seems, for identification purposes), as well as whether the state has made its “best efforts” to accommodate the belief. If so, permitting head coverings seems a reasonable accommodation.

The Supreme Court has noted that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” Employment Div., Dept. of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990). This is the so-called “hybrid-rights” analysis that says, a free exercise claim in conjunction with a free speech claim, for example, is subject to the compelling state interest standard, rather than a mere reasonable standard. 

So in the case of the student-athlete, the little information available indicates the issue involves simply a free exercise claim and no overlapping other constitutional right, such as free speech. In the hypothetical burka-wearer scenario the issue might also be simply free exercise. The question in these situations is simply whether the rule – a ban on multi-colored unitards or a ban on identity-concealing face coverings – was reasonable.

Wisconsin v. Yoder, 406 U.S. 205 (1972), noted that “ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Even a virtuous way-of-life cannot be a “barrier to reasonable state regulation of education if it is based on purely secular considerations.” Personally, I tend to think a security-based rule to know who is in your school seems reasonable, while not letting the student-athlete compete in her multi-colored, non-performance enhancing unitard seems unreasonable. But let those who learn the full facts be the judge. And they probably will.

BONG HiTS 4 JESUS

The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

In the line of student speech case precedent, this case is more on the side of Fraser, which involved a student’s “elaborate, graphic, and explicit sexual metaphor,” than Tinker, which addressed a silent anti-Vietnam war protest involving black arm bands. Gibberish, even elaborate gibberish, involving either lewd and indecent speech or illegal drug use, is not protected. The Court appears to be creating categories of prohibited student speech, a point criticized in the dissent, that should be easy for school officials to apply in theory.

But in practice, the decision does not give guidance in the event student political speech, or perhaps just non-gibberish speech, includes illegal drug references, for example, “The President smoked dope, so can I” to support decriminalization. Justice Breyer wrote at 3, that he “cannot find much guidance in today’s decision.” Indeed, what if, as he rhetorically asks, the next banner instead reads “Bong hits 4 decriminalization?” Will the Court apply Tinker’s substantial disruption inquiry in that instance, or will the Court take a Fraser-Morse categorical approach? 

The Court hinted at this tension while discussing the case precedent, noting student speech can be subject to either Tinker’s or Fraser’s analysis, but declined to say which test applies and when. Morse at 8-11. As Justice Thomas, in his concurring opinion at 9-10, sees it, “our jurisprudence now says that students have a right to speak in schools except when they don’t. . .” and so Tinker should just be overruled. On this First Amendment issue, Justices Thomas and Alito stand far apart. Justice Alito’s concurring opinion draws a line up front by stating his view that political and social speech would likely be protected even if combined with drug references. Given the case precedents and divergent views on the current Court, the lack of wider guidance is not surprising.

Such guidance will have to wait for another, and surely inevitable, day. And given how the Justices align (or not) on the issue, that will likely be quite an interesting read.