Subscribe
Share
Share
Embed
The Legal Lunch Room, a new education law podcast from the KingSpry Law Firm, invites attorneys and school leaders to sit at our table and share how current education law trends and court decisions impact school boards, students and our community.
Rich 0:19
On November 6, Pennsylvania passed act 26 of 2023. Repealing a section of its public school code related to religious garb, insignia and similar attire and sparking questions about the intersection of personal beliefs and the public learning environment. What exactly is act 26? What language of the public school code did it repeal? What does religious garb mean in the context of teacher apparel? We'll explore this change in the law on today's episode of the legal lunch room. I'm Richard Campbell.
John 0:49
And I'm Jonathan Huerta. We are attorneys with the King Spry law firm in Bethlehem, Pennsylvania. Welcome to the legal lunchroom. Each episode we'll be looking at the laws that affect school boards, administrators, students and our community. Thanks for tuning in.
Rich 1:07
Joining us today our education and employment attorney Liz Kelly and Easton Area School District Superintendent Tracy Piazza. Welcome. It's great to have you with us on the podcast.
Liz 1:18
Thank you Rich.
Tracy 1:18
Thank you for having me today.
John 1:20
Let's start with introductions. Tracy, can you tell us a little bit about yourself,
Tracy 1:24
I am the superintendent of Easton Area School District. I have been with the school district for 35 years, however, in this particular role for six months, and I actually live in the community as well. So very excited to be, you know, part of the district for so long. It's a wonderful community. I do have some legacy there. My father was also the superintendent. And so that's a source of pride for me as well. And there really is no other place I'd rather work. I went to East Stroudsburg for my undergraduate and my principal certification, Wilkes for my masters and Marywood for my PhD, which I am an ABD at this point in time.
John 2:02
Well great. Thank you, Tracy. We are excited to have you on and how about you Liz, can you tell us a little bit about yourself.
Liz 2:07
My name is Liz Kelly and I am an attorney at the law firm of King Spry Herman Freund and Faul in Bethlehem. But I'm a resident of eastern Pennsylvania. So I live in the eastern Area School District, go rovers. And I enjoy living in downtown Easton very, very much. I've been practicing law for the past 29 years and practicing specifically in the areas of labor and employment for virtually all of that time, with the possible exception of one or two years and in education for the last 13 years. Which is why it was so surprising to me that it took so long to repeal the particular law that we're going to talk about today.
John 2:48
Well, thank you, Liz. Happy to have you on. So let's dig in. Liz, what is act 26?
Liz 2:55
Well, it is new legislation that repeals a very old law going back to the early 1900s. And the older law banned public school employees from wearing any visible religious garb. It also enacted the same prohibition against school directors who are elected officials, which is a little unusual. The school code doesn't speak to too many reasons for why school districts, school directors elected officials can be removed from their position. The former law did in fact provide for finding if a school director were to wear religious garb. But the new law repealed that. It simply repealed it, it's now gone. There is absolutely nothing left of it. As much as I would have suspected all along, employees of school districts, public school districts, are now permitted to wear religious guards.
John 3:44
What kind of things fell under the heading of religious garb?
Liz 3:48
It sounds like almost anything if you look at the case that this repeal goes back to actually occurred back in 2003. So there was a big gap between the court holding that the provision was unconstitutional and the actual repeal of the law itself. But it would apply to anything like a cross, a yarmulke, a hijab, or even just a t shirt with some kind of religious message or symbol or photo or drawing.
John 4:19
So Tracy, you've said you've been in your current position for six months, but obviously, you've been with the district for many, many more years than that and you've been in all different positions throughout this time. To your knowledge does does the district have a formal policy to prohibit specific religious garb?
Tracy 4:34
We do not. We do have two policies that mentioned religion in them or maybe around this vein, one is our religion and education policy and the other is our dress code policy. However, within those two policies, while our dress code policy talks about what students can or cannot wear, staff can or cannot wear. Religion is not mentioned within that policy. Anything related to religion is not mentioned within that policy. Nor is it mentioned in religion and education policy that is more around the teachings of religion and the do's and don'ts around that. So we do not have a formal policy around this particular incident.
John 5:12
So you talked about the dress code, you know, what do they mentioned? Do they focus more on impact on education?
Tracy 5:20
Absolutely. It talks about dress code being prohibited if it is impacting the learning of other students or causing chaos within the educational environment over the years that has morphed and been redefined in terms of what's acceptable and not acceptable. And certainly, students test those policies and procedures at times. But really the educational conversation comes back to how much policing do you want to do around dress versus tending to the leadership and education of students. And so you have to find a happy medium between the balance of what keeps some order within the environment, but allowing students to have their personal expression and rights as well.
John 6:03
All right Liz, let's go back before act 26. What were the repercussions of wearing religious garb to school as a public school employee?
Liz 6:12
Well, I have to imagine that many principals and other high ranking school administrators probably just asked for the item to be covered, or maybe even removed. But under the law, the penalty was pretty harsh. It provided for an automatic suspension of one year for a first offense and for removal for a second offense, and not just removal... permanent disqualification from teaching in said-school's what it actually stated. This is probably the harshest penalty for a school employee available under the school code. And also it provided for a fine of approximately $100 for a school director who would commit the offense of wearing religious garb. And if the school director committed a second offense, the school director would be sentenced to pay another fine of $100 but also be deprived to their office as school director for five years.
John 7:13
Liz, can you then give us a sense of the timeline or generally why the new law was passed?
Liz 7:20
The previous law was challenged many times. The first time it was challenged was in 1908. So remember, the school code goes back to the 1800s. Some of the older parts of it. This one apparently was pretty old. But the most recent challenge was back in 2003. So approximately 21 years ago, it was the case named Nichols versus Arin Intermediate Unit 28. The plaintiff Nichols is a woman who was suspended for wearing a small cross necklace. After being suspended, she sued the school district for interfering with her first amendment rights. The case was apparently filed in the United States district courts, so federal court for the Western District of Pennsylvania. And the Court ruled in Mrs. Nichols favor. Many people already thought that the law was an infringement of freedom of religious expression. And the ban on religious garb became very sporadically enforced.
John 8:15
That's interesting. And yet there was a 20 year passage of time from the nickels case until this actually made its way to the legislature.
Liz 8:24
Yes, that is a big question in my mind too Rich I have no idea what explains that gap. All right.
John 8:30
Well, Liz, in plain language tell us what does act 26 mean, in practice?
Liz 8:36
Well, in practice, it means that school employees are now free to wear any religious garb that might be required by their religion while they teach in a public school, or just any other garb or insignia that might tend to reveal what faith they adhere to, while they're teaching in school.
John 8:55
Did you find a time of the year where this could become more of an issue?
Liz 9:00
I would say probably around holiday times, I don't know that I would limit it to just one. But I mean, the big holidays in winter or even in fall, there are some big holidays for some faiths at that time. It's possible that that might be a time when people might be more motivated to wear things that might tend to show their faith.
John 9:20
Liz, correct me if I'm wrong, but prior to the repeal this law students already had the right to express themselves with religious garb. This was strictly limited to staff. Is that correct?
Liz 9:30
That is correct, Jonathan.
John 9:32
So Tracy, we are let's talk about the holiday season. And certainly, you know, we just talked about the fact that Easton doesn't have a policy on religious garb, but certainly a related aspect is simply religious expression during the school day. So how does the district actively strike a balance between celebrating holidays, which, as Liz mentioned, are often tied to particular religions and maintaining focus on education and learning.
Tracy 9:53
So that's a really good question. And particularly noticed in our elementary schools more than our secondary schools in a lot of ways, as our elementary teachers and students like to celebrate, you know, the traditional holidays that people might think about in public schools, our secondary schools may do that a little bit differently. And so for us, it is a couple of things. It's one, trying to respect the faith of all of our clientele. And while there may be a celebration that's leans towards one faith or another, we try to have alternative activities for students, so that they're not forced to participate in a particular activity. But we always also really focus on the education and perspective awareness around the holidays, so that we're not concentrating on just one. That we're giving some information about multiple holidays that happened during that season, to broaden the student's awareness around different cultures and religions, of their peers within that same classroom or school.
John 10:54
Sure, so always kind of linking them back to the educational aspect of it, making them aware of it, certainly no coercion or anything of that nature, that that's where the line would obviously be drawn. Are you able to pray before you take a test?
Tracy 11:07
Absolutely, they can. And that, you know, too brings up a good point that we certainly can have students gather as an individual group and, and say a prayer or whatever faith based mantra they want to do on their own time. It's not led, and it's not scheduled within our schedule. But it's certainly their right to gather as a small group of individuals. And praying before test I'm sure there are lots of words that are that are said before tests are taken.
John 11:12
That's how I got through law school.
You've given us a great sense of the law and how it came to be. Now, what should school districts do in response?
Liz 11:48
Well, I think Tracy captured you know, the essence of it when she said allowing and accommodating religious duress for either students or employees is to take it from a standpoint of respect and fostering respect for people's faiths, no matter what they are. So by allowing the employees to wear religious garb or insignia, it now becomes fact that the school district must respect the employees choice to wear that insignia or garb.
John 12:17
So Tracy does the district have specific policies or guidelines in place regarding holiday celebrations in school to ensure that they're inclusive and respectful of diverse beliefs and backgrounds?
Tracy 12:26
So again, we do. It's not it's not a policy, however, it's in our handbooks as procedures. And some of that has to do with those alternative activities that I talked about, not forcing anyone to participate in something that may be against their religious belief. It also has to do with the practices, how are we celebrating that? What types of foods are included, so it's an inclusive procedure around holiday celebrations. But when you're talking specifically to religious holidays, or faith based holidays, the biggest one most certainly that gets talked about, or biggest two that get talked about in schools, are Halloween, and that elicits responses from folks. And many districts have gone to calling them fall festivals and moved away from the traditional Halloween celebration. And the other one is Christmas. And a lot of districts and Easton is certainly no different, in that we tried to have equal representation of the holidays that fall around that winter time. Again, trying to do a little bit of knowledge and teaching around different holidays that fall within the time period so our students are aware of their friends and their classmates and what they might experience. And certainly as a district, trying to be inclusive of all individuals and making sure that our staff and students feel appreciated and a part of our community, we have to be mindful of that and try not to over represent one holiday more than another. But we don't have a particular policy. It's more in procedures and practice that we expect of our staff.
John 14:06
Liz, what's what's your take on districts drafting and enforcing good policies or guidelines regarding holiday celebrations in school?
Liz 14:16
Oh, well, my take is, and I want to go back to something Tracy said... I think the most important thing to keep in mind when policies are being drafted or guidelines, regulations, you know, whatever guidance the school chooses to give, and I do think they can choose for themselves, what type of guidance they want to give, is to come from a place of respect and respect that some people are going to want to make choices that are different from those of other people. But in the public school, you know, we really do have to be all things to all people and that means basically respecting where each other are coming from and not necessarily enforcing one tradition over another, giving any weight to one particular tradition, as as Tracy said, but enabling celebration to occur as the students of the employees choose.
John 15:06
Well thank you both Liz Tracy for joining Rich and I today. You know, I think we started off the conversation talking about act 26 of 2023 and how there was a unique timeline where, frankly, I think most people recognize that it was unconstitutional and probably not enforceable 20 plus years ago, however, we're finally seeing the legislature react. And I think it just reminds us that there's a misnomer that school districts are religion free zones. And and frankly, it's the opposite. While the school itself certainly cannot persuade or coerce or identify specific religions. Students, and now certainly spelled out in the legislation, teachers are free to express themselves and their religion however they deem appropriate, so long as there's that balance where it doesn't impact the the educational aspect of the school environment.
Rich 15:58
I think it'll be interesting to see whether any cases emerge, pushing the boundaries of act 26 in the sense that employees may attempt to justify offensive or otherwise prohibited dress under the new law.
Liz 16:12
Thank you both for inviting me to be with you in this legal lunch room today.
Tracy 16:16
Yeah, thank you for having us. It really has been a pleasure,
John 16:19
Tracy and Liz, it's been our pleasure. You were wonderful guests, and we certainly appreciate you being here.
Thank you everyone out there for joining us today for the legal lunch room. If you like our show, please subscribe wherever you get your podcasts. You can also visit our website at King spry.com To find more educational resources and programming.
Rich 16:42
This podcast is a production of King Spry's education law practice group. It is meant to be strictly informational and does not constitute legal advice. Should you have any questions about our topic today, please consult with your local legal counsel.
John 16:56
And this episode was produced by Steel Pixel Studios. Our theme music is by Don Loughney and our research assistant for this episode was Morgan Inman. Have a comment or suggestion for a future episode, write to us at legal lunch room at kingspry.com. Until next time,
Rich 17:11
I'm Rich Campbell.
John 17:12
And I'm Jonathan Huerta and we hope you will join us again in the legal lunch room.