On May 14, 7:05 am, David Chesler <ches...@post.harvard.edu> wrote:
> > > Suppose a student wishes to wear a cap, because the overhead
> > > fluorescent lights give him a headache.
* * *
> > > It seems that if he is being treated differently on account that he's
> > > a non-Moslem boy rather than an observant Moslem girl.
To which I replied:
> > That's a very superficial reading of the situation that has nothing to
> > do with the reasons for either decision. He's being treated just
> > like every other normal kid in the school unless he can come up with
> > either a religious or a disability reason why his special needs should
> > be accomodated, if that can be done without undue disruption to the
> > school.
Then Mr. Chesler retorted:
> Exactly. He is being treated differently because he is not
> religious.
* * *
> I suppose my confusion arises because I'm trained in math, not law,
> and in math when the answer (to "How come she's allowed to but I'm
> not?") is "Because she's Moslem and you're not" that is called
> "Treating people differently on account of their religion", regardless
> of whether it is for invidious reasons.
I do take your question seriously, David, but pardon me if at first glance it looks like a little kid saying "Wah! Davey gets to wear a hat to school because he says G-d told him to, but I don't!!"
Your conundrum seems to exist because the law, unlike the training you received in math, is not entirely logical, but also based in social policy. The social policy of anti-discrimination is that the _services_provided_to_the_public_ should be made available to everyone, with equal opportunity to access these services not being denied to anyone just because they are "different" in a way that is fundamental to their identity. Opportunity to flaunt the dress code is not one of those "public services" that have to be provided to all equally, so even looking at it logically, making an accomodation for religious headgear does not invalidate the dress code.
OTOH the way you seem to be looking at the law in this area is, "if you make an exception to a general rule for one person's needs, you need to make an exception for everyone, so the rule is out the window." That may make sense mathematically, where things are either true or false and there is no excluded middle ground (find just one even number besides 2 that is a prime number, and the general prime number rule is out the window) but the law frequently and necessarily makes exceptions for policy reasons while still requiring everyone else to comply with the general rule.
> (MGL C 272 s 98: "Whoever makes any distinction, discrimination or
> restriction on account of race, color, religious creed, national
> origin, sex, sexual orientation ... or ancestry relative to ... his
> treatment in any place of public accommodation... shall be
> punished ..." -- if I remember correctly there are comparable,
> slightly weaker, federal guidelines.)
OK, let's look at your assumptions and see how they fit this analysis. First of all, the "treatment in any place of public accomodation" would include, of course, being able to sit in a classroom with other students and obtain a free, public education. A person who is being denied that opportunity can make an administrative claim and even file suit, alleging that he or she was denied those publicly available services because he or she exhibited a difference from the majority in one of the fundamental characteristics listed in the statute (race, gender, religion etc.)
The service that is being provided, and which the school system is obligated to provide to everyone even if they are different, is education: teachers teaching, books booking, gyms gymming, etc. The dress code, itself, is NOT one of those services they need to provide. However, the school, like other governmental entities, is constitutionally allowed to make rules and regulations of general applicability that have a rational basis, i.e. rules that are not content-based burdens on a particular race, religion, etc., and such rules, including dress codes intended to maintain proper decorum or prevent gang violence, are generally enforceable. But they are NOT enforceable in a particular case if their net effect ON THAT PERSON is to discriminate (in the provision of the "service", e.g. public education) against a particular student who would otherwise be unable to comply with the requirement because of race, religion, disability etc. and who would thus be deprived of a free public education just because of that difference.
That need for individualized accomodation does not invalidate the entire rule, and anti-discrimination does not require that the rule be applied equally even when it has a discriminatory effect; rather, accomodation is necessary, IF that can be done without excessively disrupting the rationale behind the rule in the first place. If the rationale is decorum, and if allowing religious students to wear headgear does not unduly disrupt decorum and a studious atmosphere, then accomodation must be made for those particular needs. However, allowing EVERYONE to claim that they should be allowed to wear hats if ANYONE gets to wear hats, would gut the purpose of the dress code rule, and thus WOULD be an excessive disruption of the legally permissible school rule, and thus is not a required accomodation.
Which gets us back to your original plaint of "why isn't this discrimination too, if they are being treated differently on the basis of their (ir)religion?"
Logically, if the only choices are "true" and "false" and where a single counterexample disproves the rule, you're right. The school IS looking at whether or not a student is religious in determining whether or not that sutdent can wear a hat. But as you noted, that is not "invidious" discrimination because it is not done in contravention of public policy but rather for the purpose of enhancing the goal of the statute -- equal educational opportunity for all -- and also done for the purpose of _protecting_ the right of religious observance, not for the purpose of punishing the observance (or non-observance) of those of other (or no) beliefs. The rule, itself, passes constitutional muster if it is facially neutral.
Keep in mind that, except for the mandated accomodation, the religious kid is ALSO required to comply with the generally applicable dress code; he or she doesn't get carte blanche to wear torn jeans, or tank tops, or flip-flops to school just because of the need for religious accomodation allowing hats.
Take another example: Let's say the school has a facially neutral and reasonable, generally applicable physical education requirement for graduation, that denies a diploma to any student who can't run a quarter mile in, say, two minutes. And we've got a brilliant student in the class, a young Steven Hawking type, who is wheelchair bound and can't run at all. Do we deny this young person a diploma, or make an accomodation by waiving the running requirement to allow him to graduate? And, does the fact that they allowed this junior Einstein to graduate without passing the running test mean that everyone else in the school gets to be a couch potato and skip it too? You know the answer.
--
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