Colorado Senate Bill 138, or the “Religious Bill of Rights,” is—as Vincent Carroll argues in the Rocky Mountain News — another in a long line of bureaucratic “solutions” to what are essentially First Amendment questions. Still, as Carroll also notes:
the meat of this measure mostly reinforces solid First Amendment rights, even if some districts and educators aren’t aware of it. Yes, students should be able to express personal religious beliefs on school grounds – or reference religion in a classroom if it’s relevant to the task.
[…]
Then there’s this: “a public school student has an inalienable right to . . . wear religious garb . . .”
Now, that’s a fine principle in the vast majority of cases. Depending upon their faith, students should be able to don a yarmulke, cross, turban and kirpan, or headscarf if they like. But this is, after all, the age of radical Islam on the march. What about a burqa, which covers virtually a woman’s entire body? What about a face veil?
Most Americans haven’t had to consider the possibility of such religious-based garb, both because our Muslim population remains small and because it tends to be more assimilated and less influenced by radical ideology than similar communities in Europe. But every major European country has grappled with some version of the burqa question – the matter reaching a boil in Britain last fall when Cabinet member Jack Straw declared that he was more comfortable dealing with female visitors if he could see their faces.
I’m with Straw. In terms of social and professional relations, a veil has an effect similar to donning a mask or disguise. It’s disruptive for someone to demand the equivalent of physical anonymity; it hampers the open, easy nature of everyday relationships.
How to account for the burqa question in a religious bill of rights? It won’t be easy, given the First Amendment, nor should it be – but surely the right to wear religious garb falters at the point that it transforms and degrades the classroom experience itself.
Unfortunately, given how risk-averse the contemporary educational establishment has become (to the point where some have, for instance, shied away from literary titles like The Hunchback of Notre Dame and The Old Man and the Sea as, respectively, offensive to those with physical deformities and ageist), what we’re more likely to see, should the burqa indeed be excluded, is a lawsuit that challenges all religious garb—the effect being that the school system buckles and, rather than allow burqas, bans everything from crosses to yarmulkes.
This was the French solution. How our courts might respond to First Amendment countersuits would be quite an interesting thing to watch.
Because, in effect, what Colorado Bill 138 does, should it happen to pass, is clears the legal path for a confrontation between religious freedom (which, for some devout believers, involves mandatory accoutrements) and the responsibility of schools to provide a safe environment for students and staff—which, it could be argued, it is unable to do once it allows what are, in effect, students to mask themselves (even if this masking is done in accordance to religious dictates).
What this dilemma points up, then, is both the problem with First Amendment absolutism and boutique multiculturalism, particular with respect to religious beliefs. Can one claiming to be a Rastafarian light up a spliff in physics class? Can native Americans take peyote before an algebra test?
These may seem unserious questions—speaking of which, can Christians adorn themselves in chain mail and carry shields emblazoned with the red cross?—but they aren’t, really, given that it is at the point where what makes the religion or culture truly different and in conflict with other societal strictures that we tend to lose our “tolerance.”
But will the courts, when asked to decide upon such issues, affirm our rights to do so? You decide.
So the question becomes, how and when can we place limits on Freedom of Speech / Religion? Do we say, as the French have, that banning all religious tolerance creates a de facto condition of social tolerance? Do we say that, should we allow the wearing of yarmulkes or crosses or (perhaps a better example, the locks of Hasidim), we must also allow the wearing of burqas? Or are we allowed to, from a legal standpoint, argue that—while certainly must fundamentalist Islamists in this country aren’t likely to prove a threat—we will nevertheless show the legal courage to rule that, in some situations, what amounts to an ability to completely camouflage oneself is not something we can, as a society, condone?
For free speech absolutists, this is a difficult question. Specifically, just how much can the government interfere with religious freedom or the free speech protections? Is it really fair to place the wearing of the burka in shools—or in driver’s license photos—into the same category as libel or shouting “fire” in a crowded theater?
I welcome your thoughts. Me, I tend to believe the government has both the ability and the responsibility to strike a balance. But I’m not sure that such a position will hold up to legal scrutiny, should it make it all the way to the Supreme Court.
one of these days, someone is going to claim to be from the “Chirch of Jacob and Dylan”, wanting to come to school with trenchcoats and armaments. God forbid we prevent their free expression of their religion.
Every society has its conventions. How about, when Islamic societies permit women to go about in mini-skirts, we will permit the burqa?
I suspect poor draftsmanship in this bill will lead to another proof of the old saw “Hard cases make bad law”…
If you do not put some language in granting some discretion to school authorities, then God (Yaweh, Allah, Budda, Shiva, The Flying Spaghetti Monster, whomever) help you out there in the Colorado judiciary.
Governor could veto the thing and the veto message could be “Thanks, you see we already got one – see Amendment I to the US Consitution.”
Sure. But theoretically, at least, lets say this abomination of bureaucratic interference passes. What happens? What should happen?
How does the First Amendment handle the burqa question?—Anybody know?
What if you were from the church of nude wicca’s, and your choice was to wear nothing at all to school. What then?
Does the Burqa quallify as “speach”? I thought it was purely something worn to keep women modest.
I think a good case can be made that prohibitions against covering the face are done for public safety reasons. Schools have a duty to ensure that the student is who he/she claims to be, which is difficult to do when you can’t see their face.
Jeff, the easiest solution is probably to provide everybody with X-Ray Specs.
Just wait until some over anxious sci-fi fan insists on wearing his storm trooper or star-fleet uniform because they symbolize his/her true beliefs. No one will be happy until required & defined school uniforms are only allowed to insure our religious & speech freedoms.
With schools concerned about rude t-shirts, Pimp-wear, and hooker cotoure, not to mention religious garments. Perhaps the best solution is simply uniforms.
I imagine there’s a few kids that can’t wait for this bill to pass so they can start wearing the most offensive, over-the-top Satanist gear thay can find.
Allow reasonablness, get rid of Zero Tolerance by stating that zero tolerance equals zero judgement equals minimum wage. You get paid to exercise judgement, be ready to defend your judgement. Judges who deny judgement need to be the first to go.
School vouchers inclusive of private schools would probably help obviate these sorts of problems. Myself, I think a burqa functions semiotically as a rejection of assimilation. Insightful huh? People that don’t want to assimilate don’t belong in public school.
Maybe it’s time to look at the rationale for mandatory education requirements. It might be better to invert the current system and make education mandatory only as pursuant to a court order. I think school choice programs would actually function even better if they were asked to compete with a choice of “none of the above.”
Well, there are limits and then there are limits.
For example, it’s common in Moslem countries to circumcise women, just as it’s common among Semites of all types (and in the US for about a century) to circumcise men. But it is not common elsewhere in the world or in Europe. We have evolved to the point where the latter is fairly common. We adamantly oppose the former custom. It is a crime. We have a right to make such a law, and there it is.
Now then there are laws that cater to religious interests. These are usually local laws. I think we should respect that. For example, some local laws like opposite side of the street parking in NYC serve the large local Jewish population (the laws have to do with not having to move your car on religious holidays; normally you have to clear the opposite side of the street every day for the street sweepers). I doubt if there would be such laws in areas without a significant (religious) Jewish presence. I have seen in the last 25 years that these laws have been extended to Moslems. My guess it has something to do with an increasing Moslem community in the NYC area.
I would also expect that local laws in, say, a place like Utah, which is state with a high concentration of specific religious adherents, probably has some special rules. I have no problem with that.
As to burqas, then, it would depend on where you are. In general I am in favor of local—I mean truly local, town, etc.—laws. If people on the town of New Baghdad, CO, want to allow burqas and have a halal menu at Yassir Arafat High, I couldn’t care less.
On a STATE level, well, identification with a burqa on defeats the entire purpose of identification, so, sue me. Burqas off, or no identification, with all that that entails. On a FEDERAL level, I do not endorse ID cards.
That’s my start.
Public school is not merely public it is also essentially compulsory for those who cannot avail themselves of a sanctioned alternative. Meaning that the state has to balance multiple potentially conflicting interests. First amendment rights are important, but so are other things like basic safety and a functional learning environment. What would be the point of a school so disrupted that education is no longer possible?
Don’t think it poses a disruption? How can a teacher be sure this is the named student actually taking the final exam when he may have never actually viewed the face of said student? What, only women can teach female students? Not gonna fly. Thumbprints on test papers? Sounds like fun. What about physical education?
No covered faces is not an issue if it is applied equally, without respect to any specific religion.
Thorny legal issues here indeed. Perhaps framing the questions in their proper “Rights / Responsibilities†balance would help. Even “Absolutists†agree there are limits to free speech [insert classic “fire†example here]. Rights [all rights] are bounded to some extent by correlative Responsibilities. And those boundaries vary based on where and how – the environment in which – they are exercised. Alone, in the middle of a vacant field, yell “fire!†all you want. In a crowded theater? Not so much.
A large part of what’s made 1st Amendment issues in the context of Public Schools such a dilemma is the notion of who is compelled to do what and why? Who controls the rules in the public school environment and, therefore, the boundaries imposed on certain absolute rights by virtue of the intrinsic Responsibilities of association in the Public School?
If Public Schools were purely a free association decision, then the Freedom of Expression answer would be clearer. But attendance/education is now sufficiently blurred somewhere between compulsory [governed by the State] and an inalienable “Right†– an entitlement – in and of itself.
If Public Education is a privilege [please, stop snickering] then schools get to set the rules and you get to play by them or be asked to leave. Yes, including what you can and can’t wear.
So, I guess I don’t have a good answer after all, Jeff. But I do think these issues mitigate strongly in favor of: School Vouchers providing at least the potential for a purer free association scenario within which an efficient Market [that negotiates ideas, rules, responsibilities] would deliver most of these answers.
Short of that, I’m afraid we’re stuck “banning all religious tolerance†and making School Uniforms mandatory. You can wear whatever you want the other 18 hours of the day.
Instant bloviation: I’m under the impression that even students in public schools at any level don’t have First Amendment free speech rights to begin with, or at least as a result of various USSC rulings. So why should students have freedom of religion rights?
And who defines what a “religion” is, anyway, the IRS?
What happens when Tiffany, Ashley, Ian and Josh decide they want to wear burqas too?
J. Peden. The bill would give them those rights.
Disallowed by individual school policy, the same as forbids, “Get this straight: I am a twat” Amanda Marcotte t-shirts.
This is actually pretty easy. We only have the exercise of our rights insofar as they are not damaging to another’s rights and in a strict hierarchy. Briefly:
Life is the highest right, without it we have no other rights.
Liberty is the second highest right, without liberty we cannot exercise any of the rights that we have.
Property is the third, because even with liberty if we have no property or ability to own anything, we cannot exercise the rights we have freedom to.
The rights go downward from there, although the order is debatable.
Further, the rights we have are limited by damage they cause to society or how they limit other peoples’ exercise of their rights. We have already defined the ability to exercise our freedom of speech to be limited by libel and slander, for instance. Deliberately inflammatory speech (“fighting words”) are also prohibited. We retain the right of free speech but the exercise of this right is limited by what damage it causes others.
The right to freedom of religion is limited in the same way – no matter how much you call it a religion, you cannot sacrifice virgins to Dagon on each New Moon. Your exercise of the freedom of religion is limited by the right to life that each person holds. This exercise would be too damaging to another person’s rights and society as a whole.
Wearing identity-concealing gear is damaging to society in some areas, such as an identity card. This cannot be protected by freedom of religion for the same reason my “right to swing my fist ends at your face.”
It really isn’t all that tough to work out once you ponder the meaning of rights, responsibilities, and freedoms. It’s just that nobody teaches this much any more, and nobody cares to read their Locke, Jefferson, Rousseau and others.
The problem with laws is, some guy in Idaho steps on a piece of fence with a nail sticking out and has to get a tetanus shot. Next thing you know, leaving out a piece of fence is a Federal Offense, $500 minimum fine. It’s ridiculous.
We can certainly endorse (extremely local) injunctions about feminine modesty (which is what burqa laws are about), see Amish or strict Hassidic communities here and there. I really don’t see the point of making a federal, let alone a STATE case out of this at this time.
Do Amish ladies have photo ID driver’s licenses, anyway?
I think a Religious Bill of Rights would in practical terms go beyond sanctioning religious expression to actually inducing that expression. It’s too easy to imagine various clergy of different sects using the Bill as a means of asserting influence within a school system. Imagine Pastor Jebediah sending his little flock into the schools with buttons and t-shirts conveying whatever little message strikes his fancy, to say nothing of more clever attempts to exploit such a law. Sounds like a well-intentioned recipe for sectarianism to me.
why is it unsafe for students to wear masks? Perhaps a better example is a sikh and his/her knife.
as to your peyote question, I do believe there is already precedent on that.
Another good argument for abolishing public schools. When the state “owns” the schools, there’s almost no way for them not to step on their own crank from time to time.
The problem the burkha and school issue is thast those who believe the burkha is necessary for a woman outside the home also beileve that she should not be in the company of any other males than a close relative. So, a woman that needs to be under a tent doesn’t belong in school. She needs to get her ass back in the house, or get with the program. Co-eds don’t wear burkhas.
Um…because then you don’t know who you’ve got in your school, perhaps?
Not yet, anyway.
Do we ban ski masks in Colorado?
Sunglasses? I remember Schopenhauer wanted to ban beards 150 years ago, because he felt they allowed men to disguise themselves.
Let’s just resolve that burqas will be allowed, disallowed, on a local school district level.
Frankly, if Arab women want to cover their faces, I really don’t care.
That’s all well and good until one of those districts runs into a case where a student without the means to attend school in another district or at a private school finds her burqa banned.
Vouchers would work in that case, provided there is an all-girls Muslim school available anywhere such a case might pop up. As Pablo mentioned, it would be patently retardiculous for Muslims to complain about burqas being banned in school, as those second-class citizens oughtn’t be slutting it up around those strange boys anyway.
Woah,
Have you read the actual Bill that’s being offered?
It goes waaaaaaaaaaaaaaaaay beyond wearing religios gear.
Text of SB 138(warning, PDF file)
THE RELIGIOUS BILL OF RIGHTS FOR TEACHERS AND EMPLOYEES OF PUBLIC SCHOOLS SHALL INCLUDE, BUT NEED NOT BE LIMITED TO, A DECLARATION THAT A TEACHER OR AN EMPLOYEE OF A PUBLIC SCHOOL HAS AN INALIENABLE RIGHT TO:
(I) TEACH A RELIGIOUS TOPIC IN PUBLIC SCHOOL FOR HISTORICAL OR LITERARY PURPOSES;
(II) TEACH THE RELIGIOUS ORIGIN OF A HOLIDAY;
(III) DISPLAY RELIGIOUS MATERIALS AND ITEMS THAT RELATE TO A TOPIC BEING DISCUSSED IN THE CLASSROOM, INCLUDING BUT NOT LIMITED TO A CRECHE DURING CHRISTMAS OR A MENORAH DURING HANUKKAH;
The bill also says teachers and administrators can be sued if they fail to meet their religious duties.
Bad Bill.
Bad, Bad, Bill.
That’s very good, alphie.
That’s also very not the point of this discussion. Why don’t you start your own blog, so you can hijack your own threads?
There’s a huge difference between deciding what religious clothing a student can wear and allowing public school teachers to functions as preachers, rabbis and mullahs, I M P.
You can’t evaluate the message without evaluating the messenger first.
Yes, alphie, I’ve read it. I chose to focus on a specific aspect that I found interesting, from the perspective of a certain nexus of rights and responsibilities—particularly when coupled with a judiciary that sometimes appears in favor of a Living Constitution.
But if it makes you feel better, I did refer to the bill as “this abomination of bureaucratic interference”.
alphie:
Is it really rabbinical of a teacher to teach on a religous topic FOR HISTORICAL OR LITERARY PURPOSES (your bold), given the enormous role religion has played through the years in shaping both?
Retard.
I don’t see the problem with I, II, and III above. Now, granted, my high school didn’t offer any classes on the topic of religion, I had to take those in college, but I can’t see how it could possibly be a problem to have a History of Religion class or some such. Still doesn’t need to be written into a state law, I’d venture, but studying the mythologies of various religions can be entertaining and instructive.
I fear I will regret this, but can you tell me specifically what you find objectionable about the three items you cite alphie?
No, it does not, because this bill is not, in fact, a religious duty. But nice try at using loaded language. It does say that you can be liable for not following the rules laid out in the bill. I hope you can see the difference.
As an aside, I for one would love to see the “show your work†parts of someone taking an algebra test on peyote.
I won’t opine as to what “should” happen, but as a seasoned legal pro I can predict with some confidence what actually will happen in the courts: (i) the bulk of the early lawsuits will be patently frivolous, involving trivial impediments to dubious religious claims; (ii) the courts will decide such cases on the most narrow grounds possible, without purporting to create any rules of general applicability; and (iii) over time, a rule will emerge that minimal impediments are OK provided that it does not appear that they were consciously aimed at any particular religion.
“At the proper time, the secret priests would take great Cthulhu from His tomb to revive His subjects and resume His rule of earth….Then mankind would have become as the Great Old Ones; free and wild and beyond good and evil, with laws and morals thrown aside and all men shouting and killing and revelling in joy. Then the liberated Old Ones would teach them new ways to shout and kill and revel and enjoy themselves, and all the earth would flame with a holocaust of ecstasy and freedom.”
Plus: Snowcones!
So, y’know, it’s all good. Or evil. Whatever, man.
Wow.
Does it really matter? We’ll not be making any decision in the matter either way. As soon as any bill regarding the matter gets approved it will be moved up to the supreme court, where nine unelected judges will make the decision for us. How nice of them…
Peyote and algebra? holy frickin timothy oleary.
If I barf do I have to eat it?
I cannot see a way to parse this problem in a way that doesn’t involve a lot of… ambiguous legal standards that rely on the judgement of whoever presides… without say, forcing school uniforms, or at the very least making religious clothing subservient to school dress codes, but that just allows for school-level anti-religion totalitarianism, and a bit more punting than should be done.
“My dad was totally beating me up for shaming family honor last night. I didn’t get a chance to study at all. Would you wear my burqua and take my algebra test for me?”
– Islamist school girl
I would not want to be on the side of an argument in the school system that was in favor of allowing folks to cover their faces with anonymizing garb.
I say if a Muslim girl wants or is forced to wear a full burga or veil to school LET THEM. Let our kids see what the Religion of Piece (Piece of NY, Piece of DC, Piece of Madrid, Piece of London, Piece of Paris, Piece of Bangkok, Piece of Tel Aviv…) has to offer them…
I can see the ACLU coming in on this on the side of the burkha weareres and really muddying up the water. However since the courts have seen fit to limit the amount of religious expression in public schools ie, praying, wearing religious symbols, etc. There is a precedent for denying the wearing of a burkha. Strickly observant muslims can do what every other religion has done, create their own schools.
In my opinion a burqua is a useful tool like a Che t-shirt. It tells you at a glance who the idiots are. In the case of the burqua it might reflect more on the family than the girl at 12 but it usually adds up to the same thing as she gets older.
Google “hoodies.”
Maybe it’s just me, but it seems as if some commentors are looking to fight the battle on the wrong front. While I’d never want to wear a Burka or expect a child of mine to wear something like that (nor do I suspect many kids would want to wear something like that in general)- I don’t think we can say that in itself Burka wearing is a problem. There seems to be some wish to conflate making a child wear something like that with abusing the child- and I don’t buy it.
Does a burka bring about some practical problems in terms of educating children? Certainly- but I don’t know that those problems immediately reach the level of a clash between Western enlightenment and Islamic tradition.
But I’ve had a real shitty day, so maybe I’m just full of it.
If some little Arab girl wants to cheat on her algegra test that’s not really something I am going to worry about.
Jeff,
A lovely “conflict of laws” set up if this would pass. US Constitution would only trump if judge can find that it is being violated somehow – with this bill, wouldn’t take much for one to do so. End effect is an unholy mess – everyone claiming “violated rights” and leaving it to the Federal judiciary to sort it out. My guess – they would vitiate some parts of the law as the “state” (small s) would have a compelling interest in not having people run about anon, etc. After all, gang colors bans have been upheld despite Amend I…
Maybe I should have skipped the sauvignon blanc before mulling this one over.
This may come as a shock to you, but this is one of the reasons why it will never be up to you.
Actually, what this dilemma points up is the problem with having a system of “public schools.” Education is not a government role; compulsory government education most certainly is not.
Hmm. I think they can ban burkas, just like they can disallow people to be naked. A certain standard of dress is required, defined usually by simple rules relating to the function of the school. You could for instance say:
No clothes which render the student unidentifiable may be worn.
Seems cut and dry to me. I can’t come to college every day wearing one of those awesome Mexican Wrestling masks, so no burkas. Body covering- fine, face covering- not okay.
If you wanted to wear a burka, you would have to reveal your face to the teacher whenever you came in so he or she could identify you. Same with any personnel such as security guards/desk workers etc, they would have to be able to ask you to remove the face part so as to identify you. If you wanted to wear a burka, you would have to undergo this risk.
I never fire up a spliff in Physics, but I did take some mushrooms before a German final.
It showed too.
I think both the multicultis and the Islamics should like this Bill, since “culture” can equal “religion” are both terms are undefined. So if the Bill is passed, the multicultis can then possibly take control of the definition of these terms, as per usual, in service of their prime focus, which is control, as it is with the Islamists.
Otherwise, mojo above covered the situation quite well, imo.
Speaking of smoking, the Germans now want to ban all smoking in cars. This in a country that hasn’t even banned it in bars or restaurants.
http://today.reuters.com/news/articlenews.aspx?type=healthNews&storyid=2007-02-17T135914Z_01_L17162738_RTRUKOC_0_US-GERMANY-SMOKING-BAN.xml&src=rss&rpc=22
I have great respect for some aspects of German culture, and have some German ancestors as well. But, once a fascist, always a fascist.