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Public school dress code challenged on religious-liberty grounds

Jeremy Leaming
First Amendment Center

02.01.99

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A third-grader and his great-grandmother are fighting an eastern North Carolina school district's dress code on religious-liberty grounds.

After the Halifax County Board of Education announced a dress code for the 1998-99 school year, the great-grandmother of Aaron Ganues, a third-grader at McIver Elementary School, told the school that Aaron would not wear the required khaki pants and navy blue shirts. (Editor's note: Aaron's last name was incorrectly given as Hicks in a previous version of this story.)

Catherine Hicks, Aaron's great-grandmother and guardian, wrote letters to the McIver principal and the district superintendent in July saying she was a minister in two Christian churches and had a "great relationship with Jesus." She added that complying with the dress code would "amount to allegiance to the spirit of the Antichrist."

Hicks, 62, concluded her letter by warning that no school officials were to "take my child's clothes off or change what I have on him."

The principal and superintendent responded by suspending Aaron for 10 days last August. In mid-September they suspended him indefinitely. The Halifax Board of Education supported both actions.

In a letter to Hicks, Superintendent Willie J. Gilchrist advised her to "look into another placement if you feel that [Aaron] cannot abide by the rules and regulations" of the district.

The school district's policy states: "The Halifax County Board of Education believes that school uniforms are a positive and creative way to reduce discipline problems and increase school safety. We expect that the wearing of uniforms will help minimize disruptive behavior, promote respect for teachers, build group spirit/school pride, and help schools maintain academic standards through uniformity. In addition we believe uniforms will ease the strain on parental budgets, de-emphasize socioeconomic differences, allow for easy identification of intruders on campus, encourage students to concentrate on learning rather than on what to wear, and support the connection between school, learning, and future success."

After the long-term suspension, the American Civil Liberties Union of North Carolina filed a lawsuit on behalf of Hicks and Aaron against the school board, the superintendent and the principal. The ACLU argued that the school's actions subverted a whole host of Aaron's fundamental rights, including free exercise of religion and free speech.

Because of North Carolina's compulsory school-attendance laws, Hicks had to find another school for Aaron to attend. She enrolled him in a private church school about 40 minutes away from their home. In legal briefs and before a federal district judge late last month, ACLU attorneys argued that Aaron should not be forced to choose between the state constitutional right to a free public education and his First Amendment rights of freedom of speech and religion.

"The plaintiffs believe that [Aaron] is entitled to an education at McIver Elementary School," the ACLU argued in a brief submitted to the court in mid-January. "He has attended McIver Elementary School since pre-kindergarten. It is the school he is assigned to attend based on his residence, and it is the school where he now has friends and is comfortable. Forcing him to leave these things behind because of his religious beliefs amounts to punishment for the exercise of the freedom of expression and religion by opting not to wear a uniform because of sincerely-held religious beliefs."

Deborah Ross, executive director of the North Carolina ACLU, told free! that Aaron's case was analogous to the situation of Jehovah's Witness students being forced to pledge allegiance to the flag. She said the ACLU wanted the judge to declare the school dress code unconstitutional, bar the school from enforcing it, and compensate Hicks for the money she has spent in sending Aaron to a private school.

"Wearing the uniform is the same as pledging allegiance to the flag; and is antithetical to this child's sincerely held religious beliefs," Ross said.

In 1942, the West Virginia Legislature passed a law requiring public school students to recite the pledge of allegiance at school. A year later, the U.S. Supreme Court invalidated the law in Board of Education v. Barnette. The high court ruled that Jehovah's Witnesses could not be forced to recite the pledge. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox or force citizens to confess by word or act their faith therein."

The Supreme Court's 1972 decision in Wisconsin v. Yoder allowed Amish parents to remove their children from school after the eighth grade for religious reasons, despite a state compulsory-education law.

Ross said that Aaron was "suffering the same level of religious persecution" as Amish and Jehovah's Witnesses.

"It is very important for our public schools to respect the variety of different beliefs," Ross said. "When a school policy, which has nothing to do with an important education function, is allowed to override a child's religion, then basically the child is being denied an education."

Citing parts of the Supreme Court's 1990 decision in Employment Div., v. Smith, attorneys for the Halifax school district maintain that the dress code does not violate Aaron's religious liberty. In Smith, the high court said that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

According to the school's attorneys, the dress code is neutral because it applies to all. "There is no allegation that the policy was adopted for the purpose of limiting the religious exercise of [Aaron] or any other student or guardian," the school district's attorneys argued in a brief submitted on Jan. 21. "As for its application, the very essence of a mandatory uniform policy is its general applicability: all students must be in uniform and any student who does not comply is subject to discipline."

In 1995, the Clinton administration issued guidelines for student religious expression in the public schools. The guidelines were created after the administration consulted with a wide array of civil rights and religious-liberty groups. The guidelines state that: "Schools enjoy substantial discretion in adopting policies relating to student dress and school uniforms. Students generally have no Federal right to be exempted from religiously-neutral and generally applicable school dress rules based on their religious beliefs or practices; however, schools may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation."

Ross said she believed the judge would decide soon.

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