Final Examination

Professor Harpaz

Religion and the Constitution

May 5, 1994

Question I

(Suggested time: one hour) (1/3 of total exam points)

Each year the City of Crestwood sponsors a series of ethnic festivals to celebrate the ethnic heritages of residents of Crestwood. The festivals are planned by the City's Office of Community Development with the assistance of various community groups. The festivals are funded by a combination of City funds and donations from various community groups and local businesses. For the last six years, the City has sponsored a Polish festival, an Irish festival and an Italian festival. Each festival is a three day event (Friday through Sunday from 3 P.M. to 11 P.M.) open to members of the public. The Italian festival is called "A Touch of Italy" and takes place during June of each year.

Caesar Park, a public park in Crestwood, is the site of the Italian festival. The festival includes cultural exhibits, food booths, a bocce ball tournament, a Beer Garden set up in a tent, bingo and music acts including a concert each evening featuring Italian music.

Susan Adams, a City employee who is the head of the Office of Community Development, planned last year's Italian festival and is in charge of planning for this year's Italian festival. Scheduled entertainment during this year's festival includes Al Martino, Buddy Greco and comedian Pat Capuzzi. In addition, as she did last year, Ms. Adams has once again asked Father Angelo Biancalana, a Roman Catholic priest, to celebrate mass on Sunday afternoon from 3 P.M. to 3:45 P.M. in the tent otherwise used by the Beer Garden. The mass is called an "Italian Mass" because it will be said in Italian and will include the customary prayers and Eucharist of the Roman Catholic church. An altar will be installed in the Beer Garden tent for the occasion. Plans also call for the display of a cross and lighted candles. At the conclusion of the Italian Mass, the altar, cross and candles immediately will be dismantled so that the tent can reopen by 5 P.M. as a Beer Garden for the last evening of the festival.

John Baldwin is a resident of the neighboring town of Parkdale. He has attended the Italian festival each year of its operation. Last year, the first year of the Italian Mass, he arrived at the festival on Sunday at 5 P.M. and learned that an Italian Mass had been held. Because of his distress at the scheduling of a mass at the Italian festival, he has decided not to attend this year's festival. He has brought suit in federal district court arguing that including the Italian Mass as part of the City's Italian festival violates the Establishment Clause of the First Amendment of the United States Constitution.

You are a clerk for the judge assigned to the case. The judge asks you to write a memorandum of law describing the arguments that will be made by John Baldwin in claiming that the Italian Mass violates the Establishment Clause as well as the arguments that will be made by the City of Crestwood in defense of the Italian Mass.

Question II

(Suggested time: two hours) (2/3 of total exam points)

Delores Reardon is a devout Sikh with a religiously held conviction that Sikh women should, when in public, wear white clothes including a white turban and cover their entire body save face and hands. Since 1980 she has worked as a teacher in the public schools of the City of Eugene, Oregon. For the past 4 years, she has taught the fourth grade at Edgemont Elementary School, a public elementary school in the City of Eugene. Delores Reardon first embraced her religious conviction in February, 1994 and since that time while teaching she has sought to wear a white turban and head scarf which covers her head, neck, and chest leaving her face visible and a long loose floor length white dress that covers her arms to her wrists.

Each time Delores Reardon showed up for work in her Sikh garb, Janet Cooper, the principal of Edgemont Elementary School, gave her an opportunity to go home and change. On each occasion she refused to do so and was not allowed to teach. After four such occasions, Janet Cooper, after consultation with and approval by the Eugene Board of Education, suspended Delores Reardon from her position as a school teacher until such time as she agreed to return to the classroom wearing different clothing. As an alternative, the Eugene Board of Education has offered Ms. Reardon a position as an administrator in the school system. In this position she would have no direct contact with students and would be able to wear her Sikh religious attire. Ms. Reardon has refused this offer of an administrative position.

Janet Cooper, the Principal of Edgemont Elementary School, and the Eugene Board of Education based their objection to Delores Reardon's Sikh clothing on two separate grounds: (1) the Dress Code adopted by the Eugene Board of Education and (2) a state law called the Oregon Garb Law.

(1) The Board of Education Dress Code

The Dress Code provides that "teachers in the public schools may not wear clothing that identifies them as members of an organization, including any political, military, civic or religious organization." The Dress Code was adopted in order to avoid giving students the impression that the public schools were sponsoring or endorsing any particular organization and to avoid making students feel uncomfortable if they did not support a particular organization. Teachers who violate the Dress Code are not permitted to teach until they return to the classroom in clothing that does not identify them as members of an organization. If a teacher refuses to comply with the Code on more than three occasions in a single academic year, that teacher can be suspended from further classroom teaching. Since its adoption, in addition to Delores Reardon, four other teachers have been found to have violated its provisions: (1) a teacher who wore a military uniform; (2) a teacher who wore a nun's habit; (3) a teacher who wore the uniform of the National Socialist Party including its insignia, the Nazi swastika; and (4) a teacher who wore a large Christian cross around his neck.

(2) The Oregon Garb Law

The Oregon Garb Law provides:

(a) No teacher in any public school shall wear in said school or while engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.

(b) Any teacher who violates the provisions of this section, shall be suspended from employment in such school for the term of one year, and in case of a second offense by the same teacher he or she shall be permanently disqualified from teaching in said school.

The Garb Law was originally adopted in 1923. The statute was passed on the heels of a decision by the Oregon Supreme Court that held that there was no statutory barrier to garbed Catholic nuns and priests teaching in the public schools. The Oregon legislature passed the Garb Law in order to overturn that court decision. It is clear that Anti-Catholic sentiment was a significant factor in the passage of the law. However, the Garb Law was reenacted in 1965 in an atmosphere untainted by hostility to any sect. Its reenactment was prompted by a desire to maintain the religious neutrality of the public schools that is mandated by the Establishment Clause and to avoid any appearance of sectarianism in the administration of the public schools.

As a result of her suspension from her position as a public school teacher, Delores Reardon has filed suit against Janet Cooper, in her capacity as the principal of Edgemont Elementary School, and the City of Eugene Board of Education challenging both the Dress Code and the Oregon Garb Law. In her suit, Delores Reardon concedes that her Sikh clothing fell within the prohibitions of both the Dress Code and the Garb Law. She claims that both the Dress Code and the Oregon Garb Law violate her right to religious freedom under both the Religious Freedom Restoration Act of 1993 and the Free Exercise Clause of the First Amendment to the United States Constitution.

You are a clerk for the judge assigned to the case. The judge asks you to write a memorandum of law describing the arguments available to Delores Reardon in challenging her suspension from her position as a public school teacher as well as the arguments available to Janet Cooper and the Board of Education in defense of their action in suspending Delores Reardon. Your memorandum should consider separately: (1) Ms. Reardon's challenge to the Dress Code as violative of her rights under the Religious Freedom Restoration Act and the response of Janet Cooper and the Board of Education to that claim; and (2) Ms. Reardon's Challenge to the Garb Law as violative of her rights under the Religious Freedom Restoration Act and the response of Janet Cooper and the Board of Education. In addition, your memorandum should consider whether any different analysis would be appropriate if Ms. Reardon's challenges to the Dress Code and the Garb Law were based on the Free Exercise Clause of the First Amendment to the United States Constitution.

END OF EXAMINATION