Can a school entity’s local policy restrain employees from wearing religious emblems as jewelry, but allow secular emblems to be worn?
13 June, 2021 by
Thomas W. Bailey
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Background: B.N. was employed by the Armstrong Indiana (ARIN) Intermediate Unit 28 as an instructional assistant at Penns Manor Area Elementary School during the 2002-2003 school year.  At that time, B.N. spent most of her time with one particular 4th grade student.  This student was considered emotionally disabled and B.N. was helping him with transitions within the classroom. 

 B.N. had been informed by ARIN of Pennsylvania’s Public School Code’s Garb Statute and ARIN’s “Religious Affiliation” policy.  The local policy prohibited all employees from wearing “religious emblems, dress, or insignia” in schools under ARIN’s authority.

 On April 8, 2003 B.N. was suspended from her ARIN employment for refusing to comply with her supervisor’s request that she remove or conceal a small cross she regularly wore on a necklace.  This cross was between 1.5 to 2.0 inches in height and width.

 B.N. filed a lawsuit in the United States District Court for the Western District of Pennsylvania (Court) claiming her rights under the 1st Amendment of the US Constitution had been violated by ARIN and specific supervisors.  She argued ARIN had violated her right to religious freedom and sought reinstatement to her job at ARIN.

 An evidentiary hearing was held during which B.N. testified “I believe in Jesus Christ as my lord and savior.”  She had worn the cross on her necklace outside of her clothing since 1996.  The Court found that B.N. wore the cross in an unobtrusive manner.  No evidence was presented by ARIN that her “cross wearing caused any disturbances or disruption to any class or school activities.”  Defense presented no evidence that cross wearing caused dissension or controversy with any other ARIN employees.  Also, no evidence that B.N. proselytized or taught religious beliefs to student or faculty came before the Court.

 ARIN permits jewelry to be worn which has no religious symbolism. The Court noted that B.N.’s supervisor, wore a lapel pin in court which spelled out the word DAD.

 

Issue for the Court:  Did the PA Garb Statute and/or ARIN’s Religious Affiliations policy have a discriminatory effect upon B.N. on the grounds of restricting her free exercise of religion?

 

Court’s opinion:  The trial court read the PA Garb Statute carefully as to apply only to “teachers.”  As B.N.’s position was not defined as a teacher, she was not controlled by the PA Garb Statute. 

 ARIN’s religious affiliations policy did cover B.N., as an instructional assistant.  Because this local policy specifically prohibited public school employees from displaying religious emblems and religious jewelry in ARIN buildings, the Court ruled in favor of B.N.  The Court ruled ARIN’s religious affiliations policy unconstitutional as it was applied to B.N.

 “ARIN's Religious Affiliations policy cannot withstand heightened scrutiny, as there are neither compelling nor important government interests promoted by prohibiting free exercise of religion and non-proselytizing, non-coercive religious symbolic speech by employees in public schools, but not secular symbolic speech by those employees.”  In other words, the Court reasoned forbidding B.N. from wearing her cross, while permitting her supervisor to wear his “DAD” pin, was not fair.

 

Importance:  This opinion identified the tension between educational neutrality regarding religious exercise and a government policy that actually discriminated against religious emblems and jewelry.  In addition, it is an excellent example of a plaintiff educator using the court system to protect her civil rights from illegal restriction by a Pennsylvania school entity.  B.N. got her job back.

  Nichols v. ARIN Intermediate Unit 28, 268 F.Supp 2d 536 (US District Court for the Western District of Pennsylvania, 2003)

 Attorneys Joseph L. Luciana, Kirkpatrick & Lockhart, Pittsburgh, PA, Kristina J. Wenberg, Vincent P. McCarthy, American Center for Law & Justice, New Milford, CT, for Ms. Nichols.

 

Attorneys Richard B. Tucker, III, Gary J. Gushard, Tucker Arensberg, Anthony G. Sanchez, Pittsburgh, PA, for Arin Intermediate Unit 28.
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