JB

CNN reports that an 11-year-old Oklahoma girl, Nashala "Tallah" Hern, has been suspended from a public school because officials said her Muslim head scarf violates dress code policies, originally instituted to prevent wearing gang paraphenalia. The school's policy makes no exception for religious headgear, and school officials stated that they would not create one:

"As I see it right now, I don't think we can make a special accommodation for religious wear," said school attorney D.D. Hayes. "You treat religious items the same as you would as any other item, no better, no worse. Our dress code prohibits headgear, period."

He added that, under the dress code, a Jewish child would not be allowed to wear a yarmulke, the skullcap traditionally worn by orthodox Jews, to school.

Because of a 1990 Supreme Court decision, Employment Division v. Smith, rules of general application do not violate the Free Exercise Clause even if they impinge more heavily on minority religions. That case is, I think, wrongly decided. But, in any case, there is no constitutional problem with a school making religious accommodation for religious headgear. When the Supreme Court held that the military's interest in esprit de corps allowed it to keep a serviceman from wearing a yarmulke without violating the Free exercise Clause (this was before the 1990 decision in Smith), Congress promptly passed a bill mandating accommodation for religious items to be worn with uniforms. Generally speaking, the Establishment Clause does not prevent government from lifting a burden on religion it has itself imposed through a rule of general applicability. Such a rule could be unconstitutional if it specifically mentioned particular religions by name for exemption, or if it gerrymandered the exemption with the intention of benefiting some religions for accommodation but not others. But a well drafted rule can usually avoid such problems.

Congress passed a statute, the Religious Freedom Restoration Act (RFRA) in 1993, to counteract the Smith decision, and to require the federal and state governments to make religious exemptions under certain conditions, but the Supreme Court struck it down in 1997 as beyond Congress's powers as applied to state governments. Many states then passed their own versions of RFRA. Oklahoma is one of them. If the Oklahoma statute is like the federal one, then the student has a strong case for arguing that failure to make an exemption for religious headgear in the school dress code violates the law.

I'm not sure whether the above quote is simply due to a mindless bureaucratic mentality or is due to the fact that the school officials in question are implementing a regulation created at a state level that they do not have authority to change. If the former, their argument that they must treat religious clothing the same as all other clothing is specious. If the latter, I would think that school officials should do everything in their power to interpret the law so as not to apply to religious headgear, and, as I have noted, it's quite possible that the law violates Oklahoma's version of RFRA.

Other accounts of the story seem to suggest that the dress code is not statewide but is the policy of Benjamin Franklin Science Academy, and that the school has defended its decision on the grounds that there is no federal right to religious exemption. That may well be true, but it is irrelevant to the question whether the school is *permitted* to make such an exemption under the Establishment Clause.