Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.  

Procedurally, the issue was whether the District Court erred by not allowing discovery first after the school moved for summary judgment based on the exemption. Not surprisingly, the Third Circuit reversed and vacated. But it doing so, it noted as follows. 

Whether [AFS] qualifies for the ADA's religious exemption is a mixed question of law and fact, the answer to which depends, of course, on the existence of a record sufficient to decide it. The ADA's exemption can apply only if [AFS] (1) is a religious organization or (2) is controlled by a religious organization. See 42 U.S.C. § 12187No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now. Whatever the scope of that exemption, though, the District Court here needed to allow the parties to develop the record as to potentially relevant facts. The extent of discovery, of course, is within the Court's discretion, but the circumstances of this case require more than was given.

Doe, 480 F.3d at 258 (footnote omitted). Although the District Court’s decision was reversed on the procedural issues, the trial court’s opinion, Doe v. Abington Friends School, slip. op 04-4647, 2005 WL 289929 (E.D. Pa.), is still instructive. 

The court observed that only one other case, White v. Denver Seminary, 157 F. Supp. 2d 1171 (D. Colo. 2001), had considered the religious exemption under Title III of the ADA. Considering that case, together with the U.S. Department of Justice’s regulations, 28 CFR Part 36, App. B, interpreting the religious exemption, the court in Doe looked to the following factors: AFS is owned and controlled by the Abington Monthly Meeting of the Religious Society of Friends (“church”); the church ensures AFS adheres to Quaker principals, manages AFS’s, and selects the Headmaster; students are taught Quaker principals and values and are required to attend a weekly Quaker meeting; and AFS is classified by the Commonwealth of Pennsylvania as religiously affiliated. 

Later that same year, another district court case addressed applicability of the religious exemption to a disability discrimination claim. Marshall v. Sisters of the Holy Family Of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).  Plaintiffs claimed the private religious primary school violated the ADA and § 504 of the Rehabilitation Act when it refused to readmit the student for the following school year. The court found the school properly met the religious exemption test looking at similar factors: Nazareth Academy is a religious organization or is controlled by a religious organization; the Academy is controlled and solely operated by a canon law religious community composed of Roman Catholic nuns; the Academy has a religious mission; the curriculum includes religious instruction and focus on religious principals; and the Academy is a § 501(c)(3) tax-exempt organization based on affiliation with the Roman Catholic Church. 

Both cases repeat the regulatory appendix’s statement that the religious exemption is “very broad.” 28 CFR Pt. 36, App. B (page 682) (2004). The source and authority for this interpretation is not identified in the cases or regulations. The statute itself is quite direct and clear that Title III does not apply to “religious organizations or entities controlled by religious organizations. . . .” It makes no reference to either broad or limited scope. Given the Supreme Court’s recent ruling regarding plain statutory language, see Arlington Central School District v. Murphy, 548 U.S. 291 (2006), and the general tendency to view broad regulatory pronouncements with skepticism, private schools should not put stock into regulatory protection. Rather, taking in all information and the important factors assessed by the court, religiously affiliated schools need to review their currency with those factors and make changes if desired.

Although the claims of disability discrimination against independent schools and colleges are not yet numerous, they do occur. As a matter of responsible risk-assessment, an institution should review its circumstances against the apparent salient factors, including—

  • Curriculum
  • Religious instruction and or service requirements
  • Religious mission
  • Board membership
  • Ownership or control by a religious entity
  • Affiliation or sponsorship by a religious entity
  • Head of school is selected by the religious entity
  • State recognition or categorization
  • Ownership of school property
  • Tax status
  • Funding support

The religious exemption is based on a desire to protect the free exercise of religious belief. Still, there may be limits. In the end, entitlement to the exemption depends on whether there is enough religion in the entity; the law, however, does not say how much is enough. At some point, the facts of the entity’s religious nature could be trumped by the facts of the bad conduct. 

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.