Adriel Arocha was a kindergartner with long braids in 2008 when his American Indian religious beliefs and those of his father, Kenney, ran smack into the grooming policy of the Needville, Texas, school system鈥攁nd led to a federal court ruling centered on that state鈥檚 religious-freedom law.
The law, the Texas Religious Freedom Restoration Act, is among the varied, but similarly named, statutes in 20 other states now under intense public scrutiny in the wake of controversies in Arkansas and Indiana over whether they would allow business owners to discriminate against people based on sexual orientation.
The Arochas鈥� case, advocates and scholars say, is an example of how these little-used state religious-freedom laws are designed to protect sincere religious beliefs when they are infringed by government policies that are applied very generally. It also offers a reminder of the challenges public school administrators face in dealing with the sensitive issue of religious accommodation.
In the Texas case, the younger Arocha, then 5, and his father both wore their hair in braids. As they understood their heritage as members of the Lipan Apache tribe, uncut hair held religious significance as a connection to their ancestors and as reminders of how long they had lived their lives.
The 2,800-student Needville Independent School District, 45 miles southwest of Houston, had a grooming policy that prohibited boys鈥� hair from covering their ears or touching the top of their collars, to promote hygiene and safety.
The dispute ended up in court, and a federal appeals panel ruled 2-1 in 2010 that the district鈥檚 rules were a significant burden on the younger Arocha鈥檚 religious beliefs and had to give way. The U.S. Court of Appeals for the 5th Circuit, in New Orleans, based its decision on the 1999 Texas religious freedom law.
鈥淯nder TFRA, when it is a student鈥檚 free exercise of religion at stake, a school鈥檚 invocation of general interests, standing alone, is not enough鈥� to prevail, the appeals court said.
Said Thomas C. Berg, a professor of law and public policy at the University of St. Thomas in Minneapolis: 鈥淭he Texas RFRA made all the difference in that case.鈥�
Contrasting Statutes
Indiana and Arkansas this year became the 20th and 21st states, respectively, to enact state 鈥渞eligious freedom restoration鈥� laws, and those two states swiftly became embroiled in controversy over the intent and implications of such statutes.
The inclusion of corporations in the Indiana and Arkansas measures fueled the debate about whether the religious-freedom laws would provide a defense for anti-gay discrimination, and both states adjusted their measures to bar such bias.
Most of the older state religious-freedom restoration laws on the books, however, were modeled on the federal Religious Freedom Restoration Act, which was passed by Congress in 1993 in response to a U.S. Supreme Court decision.
Congress and 21 states have passed some form of Religious Freedom Restoration Act, or RFRA, measures aimed at providing exemptions from generally applicable laws and policies that place a substantial burden on sincerely held religious beliefs. The federal law has been held by the U.S. Supreme Court to apply only to the federal government, not state or local policies. Below are three examples of education cases that have invoked the federal or state religious-freedom laws and the issues they dealt with.
Ceremonial Knives
Cheema 鈥塿. Thompson
In 1994, three Sikh siblings sought to wear kirpans, or ceremonial knives, at school. The Livingston Union School District in California barred the kirpans, citing its policy against weapons in schools. When the children refused to attend school without the kirpans, they were suspended. The Cheema family sued under the federal Religious Freedom Restoration Act. The U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that the children were motivated by a sincere religious belief, and the school district鈥檚 refusal to accommodate them put a substantial burden on their exercise of religion. But the appeals court also found that the school district鈥檚 kirpan ban served a compelling interest in campus safety. It remanded the case to see whether less restrictive alternatives to a total ban were available. A federal district court ordered that the children be allowed to wear kirpans with dulled blades that were sewn into their sheaths. The 9th Circuit upheld the district court鈥檚 compromise.
Home Schooling
Combs 鈥塿. Homer Central School District
Six Pennsylvania families who home-schooled their children for religious reasons challenged recordkeeping and portfolio review requirements under the state鈥檚 compulsory-education law. The parents said the requirements placed a substantial burden on their free exercise of religion. They sued under the First and 14th Amendments, as well as the Pennsylvania Religious Freedom Protection Act. A federal district court held that the parents had failed to prove a substantial burden on their religion as defined under the state religious-freedom statute. In 2008, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, upheld a summary judgment against the parents on their federal constitutional claims, and it declined to rule on their RFRA claim.
Long Hair
A.A. v. Needville Independent School District
An American Indian elementary school student sought to wear his hair longer than the rules permitted by his Texas school district. The boy and his father, members of the Lipan Apache Tribe of Texas, argued that wearing long hair is part of a sincere religious belief and symbolizes their ancestry and length of life. Rejecting proposed compromises by the district, the family sued under the Texas Religious Freedom Restoration Act. Both a federal district court and the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled for the family, with the appeals court in 2010 saying that the boy鈥檚 sincere religious belief in wearing his hair uncut and in plain view was substantially burdened by the district鈥檚 grooming policy.
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In 1990, in the case of Employment Division v. Smith, the Supreme Court cast aside a long-prevalent 鈥渟trict scrutiny鈥� test for evaluating government action that infringed the free exercise of religion guaranteed in the First Amendment.
The strict scrutiny test in this area had been established in high court cases that include Wisconsin v. Yoder, the 1972 decision that Amish families鈥� religious interests in keeping their children out of secondary schools outweighed the government鈥檚 interests in compulsory education.
Under that strict scrutiny test, the government had to show that an infringement on religious exercise met a compelling governmental interest and was the least-restrictive means of achieving that interest.
In Smith, a case in which the state of Oregon denied unemployment compensation to American Indian counselors who had ingested the hallucinogen peyote as part of their religious rituals, the court said government actions that infringed on religious exercise need only be justified under the easier-to-meet rational-basis test.
That decision alarmed many people in the country, and Congress passed its version of RFRA in 1993. But in 1997, the justices held in City of Boerne, Texas v. Flores that Congress lacked the power to apply the religious-freedom statute to state actions. (In the meantime, there was one notable education-related case鈥攁bout Sikh students who wanted to bring kirpans, or ceremonial knives, to school鈥攖hat invoked the federal RFRA.)
Effectiveness Questioned
By 2000, 10 states had adopted their own religious freedom restoration acts, designed to bring the strict scrutiny standard to state and local government actions. In addition to the current number of 21 with such statutes on the books, another 10 or so states have language in their state constitutions that generally accomplishes the same goal.
Scholars seem to agree that while the state RFRAs were a largely popular response (excluding this year鈥檚 controversies) to the perception of threats to religious freedom, in actual operation the measures have been lacking.
Christopher C. Lund, an associate professor of law at Wayne State University in Detroit, has written about what he calls 鈥渁 paucity of cases鈥� brought under the state RFRAs, noting that some of the states with such laws have had no claims at all, while others have had only one or two.
Mr. Berg of the University of St. Thomas said that claims under the state statutes may have gotten lost in the federal courts.
鈥淟awyers tend to think of the federal courts as the place to go to protect a minority,鈥� Mr. Berg said in an interview. 鈥淲hether that鈥檚 true or not, and it鈥檚 more complicated than that, it means that state RFRA claims tend not to come up or be reached in federal court.鈥�
Compelling Interests
Lewis M. Wasserman, an associate professor in the department of educational leadership at the University of Texas-Arlington, recently studied the impact of state RFRAs in education cases.
He concluded in a paper that the state statutes 鈥渉ave failed to achieve their purpose in educational settings鈥� for several reasons, including that the laws have been written in general terms and that protecting religious practices from infringement in the school context would be better served by an education-specific law.
鈥淭he limitation I see in the state statutes is that they are not subject-specific,鈥� he said in an interview.
Mr. Wasserman, who counts himself as an advocate for the goals of the laws, said his review found only a relative handful of school cases invoking the state religious-freedom laws.
But Mr. Wasserman, like other scholars, points to the 5th Circuit鈥檚 2010 ruling in A.A. v. Needville Independent School District, the long-hair case, as Exhibit A for how the laws should work.
The appeals court majority rejected the school district鈥檚 proposal that young Mr. Arocha wear his hair in a bun or tucked inside his shirt at school. And the court did not find the district鈥檚 proffered interests in hygiene and discipline to be compelling.
The Texas Association of School Boards, based in Austin, supported the Needville school district at the time. But Joy Baskin, the association鈥檚 director of legal services, said the group鈥檚 training for board members now emphasizes that 鈥渨hen someone has a good-faith religious belief鈥� that conflicts with a school rule, 鈥渋t is incumbent on the school district to consider making an exception.鈥�
That might mean allowing long hair or a head scarf for religious reasons, but not, say, allowing a student to possess peyote at school, she said.
鈥淲e鈥檙e a religiously diverse society, and we do have an obligation in our public schools to pause and consider what [rules] exceptions can be made,鈥� she said.
