|
723
P.2d 298
53
Fair Empl.Prac.Cas. (BNA) 1012, 34 Ed. Law Rep. 614
(Cite
as: 301 Or. 358, 723 P.2d 298)
Supreme
Court of Oregon.
Janet
COOPER, Respondent on Review,
v.
EUGENE
SCHOOL DISTRICT NO. 4J, Petitioner of
Review,
and
Verne
A. Duncan, Superintendent of Public Instruction for
the
State of Oregon,
Petitioner
on Review.
CA
A31423; SC S32472; S32469
Argued
and Submitted April 1, 1986.
Decided
July 29, 1986.
Proceeding was instituted on petition by school district
and cross petition by teacher to review an order of the
superintendent of public instruction revoking teacher's
teaching certificate for wearing religious dress while teaching
in a public school. The Court of Appeals, Young, J., held
that: (1) conduct of teacher in wearing traditional religious
attire while teaching in public school in order to communicate
her adherence to particular religion was violative of statute
prohibiting wearing of religious dress while teaching in
a public school, but (2) revocation of teacher's certificate
for violation of that prohibition was a much greater sanction
than was necessary to preserve school district's neutrality
in religious matters and, as such, amounted to an unconstitutional
infringement upon teacher's right to free exercise of religious
beliefs. Order set aside.
West
Headnotes
Terms employed in statute prohibiting a teacher in any public
school from wearing religious dress while engaged in performance
of his duties as a teacher [ORS 342.650] are exact terms
which the superintendent of public instruction may apply
without rule making. Policy behind prohibition in statute
[ORS 342.650] against wearing of religious dress while teaching
in a public school, to preserve the school's religious neutrality,
would be violated if a teacher communicated his or her religious
preference to students in a way which implied that the school
supported the teacher's preference. Term "while in the performance
of his duties as a teacher," within statute [ORS 342.650]
prohibiting wearing of religious dress while teaching in
a public school, includes only those duties which systematically
bring the teacher, as a teacher, into contact with the students.
Conduct of teacher in wearing traditional religious attire
while teaching in a public school in order to communicate
her adherence to particular religion was violative of statute
[ORS 342.650] prohibiting wearing of religious dress while
teaching in a public school. Statute prohibiting the wearing
of religious dress while teaching in a public school [ORS
342.650] is not impermissibly vague. Sanction contained
in statute requiring the superintendent of public instruction
to revoke the teaching certificate of any teacher found
to be in violation of the prohibition against the wearing
of religious dress while teaching in a public school [ORS
342.655] is a greater sanction then that which is necessary
to preserve the state's religious neutrality and, as such,
is unconstitutional as excessively restrictive of a teacher's
religious beliefs. U.S.C.A. Const.Amend. 1. The First Amendment
takes from the government the power to require compliance
with some otherwise valid laws when compliance would violate
a person's religious beliefs, but even when the First Amendment
allows the government to regulate an area of a person's
beliefs, it does so by requiring that the government's power
be so exercised as not to unduly infringe the protected
freedom. U.S.C.A. Const.Amend. 1. A burden on religious
observance is not valid if the state may accomplish its
purpose by means which do not impose such a burden on religious
expression. U.S.C.A. Const.Amend. 1. A government may impose
substantive restrictions on First Amendment freedoms only
if those restrictions are the least restrictive alternative
available to achieve the legitimate governmental objective.
U.S.C.A. Const.Amend. 1. Revocation of teacher's certificate
for wearing religious dress while engaged in performance
of duties as a teacher was a much greater sanction then
was necessary to preserve school district's neutrality in
religious matters and, as such, amounted to an unconstitutional
infringement upon teacher's right to free exercise of religious
beliefs. ORS 342.655; U.S.C.A. Const.Amend. 1. The superintendent
of public education acted in excess of his constitutionally
valid authority when he did not purport to exercise any
discretion in revoking teacher's certificate for violating
prohibition against wearing of religious dress while teaching
in a public school. ORS 342.655; U.S.C.A. Const.Amend. 1.
*147 **1163 Margaret E. Rabin, Salem, argued the cause for
cross- respondent Verne A. Duncan and petitioner--cross-respondent
Eugene School Dist. No. 4J. With her on briefs were Dave
Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol.
Gen., Salem, and Bruce E. Smith and Jacquelyn Romm, and
Case, Scott, Woods & Smith, Eugene. Rohn M. Roberts,
Eugene, argued the cause for respondent--cross-petitioner
Janet Cooper. With him on brief was Jack R. Roberts, and
Adkins, Roberts & Roberts, Eugene. Leslie M. Swanson,
Jr., and Sharon A. Rudnick, Eugene, filed a brief amicus
curiae for the American Civil Liberties Union. *148 YOUNG,
Judge. This case requires us to review a final order of
the Superintendent of Public Instruction in which he revoked
the teaching certificate of Janet Cooper, [FN1] because
she wore religious dress while teaching in a public school
operated by Eugene School District No. 4J. The district
petitioned for review of the superintendent's order, seeking
to have it affirmed. [FN2] Cooper cross-petitioned, seeking
reversal of the superintendent's order. The parties raise
a number of issues concerning the statutory and constitutional
validity of prohibiting a teacher from wearing religious
dress while teaching. We do not reach those issues, because
we hold that, even if the prohibition is proper, the sanction
of revoking Cooper's teaching certificate is unconstitutional
because it is greater than is necessary to enforce the prohibition.
We therefore set aside the order. ORS 183.482(8)(a)(A).
FN1.
Cooper has since legally changed her name to Karta Kaur
Khalsa. The district's petition and her cross-petition use
her former name, and she has not moved to amend the caption;
we will therefore refer to her as "Cooper."
FN2.
ORS
183.480(1) allows "any party to an agency proceeding" to
seek judicial review of a final order in a contested case.
It does not require that the petitioning party attack the
validity of the order.
ORS 342.650 provides: "No teacher in any public school shall
wear any religious dress while engaged in the performance
of his duties as a teacher." ORS 342.655 provides: "Any
teacher violating the provisions of ORS 342.650 shall be
suspended from employment by the district school board.
The board shall report its actions to the Superintendent
of Public Instruction who **1164 shall revoke the teacher's
teaching certificate." (Emphasis supplied.) Cooper is a
member of the Sikh religion. As an expression of her religion
she chooses to wear white clothing and a white turban. That
dress is traditional to the Sikhs, but it is not a religious
obligation. On December 6, 1983, Cooper wore her Sikh dress
while teaching a public school class of sixth to eighth
grade special education students. She intended to *149 continue
wearing it from then on. She explained the significance
of the dress to her students and encouraged them and the
staff to talk with her if they had any questions. [FN3]
FN3.
We state the facts, which we take from the parties' stipulation,
in some detail to explain the circumstances of this case,
although many of the details are unnecessary to our decision.
When Cooper began wearing her Sikh dress she sent the following
letter to the staff of the school in which she taught:
"There
are some changes happening in my life * * *. I would like
to share them with you so that you can be prepared in case
of questions from students or parents.
"As
some of you already know, I am a Sikh, a member of a religion
originating
in India. As part of my religious practice I will begin
wearing my turban all of the time and often be dressed all
in white. * * * I am very open to hear your concerns or
to explain more fully what I am doing.
"*
* *
"I
have explained this to the kids that I have in class--they
or others may have questions. If you are unable to answer
them please encourage them to ask me."
Although
this letter and Cooper's actions other than wearing Sikh
dress might be significant in some contexts, in this case
they are not.
The school principal notified Cooper that wearing religious
dress is prohibited by statute and is cause for suspension
from teaching and for revocation of her teaching certificate.
She directed Cooper not to wear religious dress while
performing her duties as a teacher and informed her
that, if she again wore religious dress to the classroom,
she would face suspension. The next day, Cooper wore
her Sikh attire to class. On December 8, the district
superintendent suspended her from teaching for violating
ORS 342.650. He notified the Superintendent of Public
Instruction of his action. The state superintendent
issued a proposed revocation of Cooper's teaching certificate
and appointed a hearings officer who conducted a contested
case hearing. The hearings officer found that Cooper
had violated ORS 342.650 and proposed that the state
superintendent revoke her teaching certificate. The
superintendent adopted the hearings officer's findings
of fact and conclusions of law in toto and revoked the
certificate. Cooper is now teaching in a private school
in New Mexico. Since this petition was filed, the superintendent
has reinstated her teaching certificate on condition
that she not teach in Oregon while wearing religious
dress. Because the reinstatement is conditioned upon
compliance with ORS 342.650 this appeal is not moot.
The first issue is whether Cooper violated ORS 342.650.
Cooper argues that the statutory terms "religious dress"
and "while engaged in his duties as a teacher" are "delegative"
terms under Springfield Education Assn. v. School Dist.,
290 Or. 217, 621 P.2d 547 (1980), and that the superintendent's
failure to adopt rules interpreting those terms makes
it impossible to hold that her actions violated the
statute. In Springfield, the Supreme Court described
three classes of statutory terms: precise terms, inexact
terms and delegative terms. The terms in question in
this case are clearly not precise in the way that "21
years of age, male, 30 days" and similar terms are.
290 Or. at 223, 621 P.2d 547. On the other hand, they
are not delegative in the sense that they express an
incomplete policy choice which the agency must complete.
290 Or. at 228, 621 P.2d 547. The legislature has determined
its policy. There is nothing left for the superintendent
to do other than to decide whether Cooper's challenged
actions violate the statutory expression of the legislative
policy. That is precisely what the Supreme Court meant
by an inexact term: one in which the application of
the term to particular facts is a function of effectuating
the legislative policy which the inexact term represents.
290 Or. at 224, 621 P.2d 547. The hearings **1165 officer
in this case found that "[n]othing in the statutory
scheme suggests that the legislature intended that before
ORS 342.650 could be enforced, either a school district
or the Superintendent would have to promulgate rules
* * *." We agree and hold that "religious dress" and
"while in the performance of * * * duties as a teacher"
are inexact terms which the superintendent may apply
without rule making. In applying inexact terms to specific
facts, the "task of the agency, and ultimately of the
court, is to determine whether the legislature intended
the compass of the words to include those facts. The
determination of the meaning of the statute is one of
law, ultimately for the court." Springfield Education
Assn. v. School Dist., supra, 290 Or. at 224, 621 P.2d
547. The apparent legislative policy behind ORS 342.650
is to preserve the school's religious neutrality. That
policy would be violated if a teacher communicated the
teacher's religious preference to students in a way
which implied that the school supported the teacher's
preference. We therefore construe the term "religious
dress" to mean clothing that is associated with, and
symbolic of, religion. [FN4] To be symbolic, the clothes
must *151 communicate the wearer's adherence to a particular
religion. We construe "while in the performance of his
duties as a teacher" to include only those duties which
systematically bring the teacher, as a teacher, into
contact with students. The facts establish that Cooper
wore traditional Sikh attire in order to communicate
her adherence to the Sikh religion, that she wore it
while teaching her class and that students understood
what her clothing communicated. We affirm the superintendent's
conclusion that Cooper violated ORS 342.650. Given our
construction of the statute, we reject Cooper's argument
that ORS 342.650 is impermissibly vague.
FN4.
We need not decide in this case whether the statute also
prohibits the wearing of jewelry or other ornaments which
express a religious belief.
We turn to the more difficult question of the constitutional
validity of ORS 342.650 and 342.655. Both parties rely on
the First Amendment-- Cooper on the Free Exercise Clause,
the superintendent on the Establishment Clause. [FN5] In
most cases involving religion and government, the issue
is either whether the government has shown such support
for a religion that it can be held to have established it
or whether it has placed impermissible burdens on an individual's
free expression of religious belief. The two provisions
are not often involved in the same case.
FN5.
The First Amendment to the United States Constitution provides
in part:
"Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof * * *."
These
First Amendment guarantees apply to the states through the
Fourteenth Amendment.
Everson
v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed.
711 (1947) (Establishment clause);
Cantwell
v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213
(1940) (Free Exercise clause).
What is unusual about this case is that the two federal
constitutional requirements come into direct conflict. Cooper
has a federal constitutional right to exercise her religion,
and that right includes the right to wear clothes expressive
of her beliefs. The school district has a federal constitutional
obligation not to lend its authority to the support of any
religion, including Cooper's. Walz v. Tax Commission, 397
U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970).
The difficulties arise because Cooper, like every other
public school teacher, has a dual role. She is both an individual
entitled to express her individual beliefs and an agent
of the state who represents its authority to her students.
If, as a *152 result of her wearing religious dress while
teaching, the school district appeared to support her religion,
she caused it to violate the establishment clause. In order
to end that violation, the district had to order her to
change her attire and to remove her from the classroom if
she refused. On the other hand, if it was clear that Cooper
**1166 acted in her individual role and that the district
took no position on her religion, any action by the district
or the state to require her to change her dress or to impose
any sanction on her for refusing would violate the Free
Exercise Clause. This is not a case, as the superintendent,
the district, and amicus argue, of balancing a compelling
secular interest against an incidental infringement of religious
practice. See United States v. Lee, 455 U.S. 252, 257-258,
102 S.Ct. 1051, 1055-1056, 71 L.Ed.2d 127 (1982) (payment
of Social Security taxes); Braunfeld v. Brown, 366 U.S.
599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (uniform application
of Sunday closing laws); Prince v. Massachusetts, 321 U.S.
158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (conviction of Jehovah's
Witness under child labor laws). The only possible application
of ORS 342.650 is to limit a teacher's free exercise rights.
We will assume, without deciding, that the Establishment
Clause requires the district to prevent Cooper from teaching
in religious dress. The fact that such acts may be prohibited
does not establish what sanctions may constitutionally be
imposed for violating the statute. In other words, we must
still decide whether the requirement in ORS 342.655 providing
that the superintendent must revoke Cooper's teaching certificate
is constitutionally valid. What we review in this case is
the order of revocation. If that sanction is improper, the
order cannot stand. Cooper does not, in this proceeding,
challenge the suspension by the district. We hold that the
sanction of revocation is unconstitutionally severe and
that the superintendent's order must be set aside. The right
to believe and to express that belief may be the most important
guarantee of the Bill of Rights. For many believers, their
religion shapes their understanding of the world, expresses
their primary loyalties and provides the foundation for
all their other relationships. It comes before their obligations
to their country and before their duty to obey their country's
laws. The First Amendment, in recognition of *153 those
overriding loyalties, takes from the government the power
to require compliance with some otherwise valid laws when
compliance would violate a person's religious beliefs. Wisconsin
v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)
(compulsory high school attendance); Board of Education
v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628
(1943) (compulsory flag salute). Even when the First Amendment
allows the government to regulate in an area of a person's
beliefs, it places limits on the regulation. The government's
power "must be so exercised as not, in attaining a permissible
end, unduly to infringe the protected freedom." Cantwell
v. Connecticut, supra n. 5, 310 U.S. at 304, 60 S.Ct. 903.
Cooper's adherence to the Sikh religion obviously plays
an important role in her life--so important that she chose
to wear characteristic Sikh attire while teaching despite
the threat of losing her job and her teaching certificate.
Assuming that her choice is outside the constitution's protections,
it was nevertheless an expression of Cooper's religious
beliefs. Imposing sanctions on her for making that choice
restricts her religious freedom. If the sanction is more
severe than necessary to preserve the state's religious
neutrality, it is an excessive restriction of Cooper's rights
and is therefore impermissible. A burden on religious observance
is not valid if "the State may accomplish its purpose by
means which do not impose such a burden [on religious expression]."
Braunfeld v. Brown, supra, 366 U.S. at 607, 81 S.Ct. at
1148. "Whatever might be said of [the State's] objectives
they cannot be pursued by means that needlessly chill the
exercise of basic constitutional rights." United States
v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 1216, 20 L.Ed.2d
138 (1968). The First Amendment protects the rights of religion,
of speech, of the press and of assembly with the expectation
that Americans will vigorously exercise those rights to
their outer boundaries. In the process, some will inevitably
exercise their rights so vigorously that they exceed the
limits of **1167 constitutional protection. When they do
so, they expose themselves to sanctions for violating laws
which validly limit expression. Yet First Amendment considerations
do not disappear even then. If the legal limits on expression
are too great, or if the sanctions are too heavy, people
will retreat from the questionable areas, thereby limiting
freedom for all. For *154 this reason, the Supreme Court
has restricted the government's authority to set the limits
of permissible expression. No matter how valid the governmental
purpose, that purpose "cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be
more narrowly achieved. The breadth of legislative abridgment
must be viewed in the light of less drastic means for achieving
the same basic purpose." Shelton v. Tucker, 364 U.S. 479,
488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). (Emphasis supplied.)
(Footnotes omitted.) "An order issued in the area of First
Amendment rights must be couched in the narrowest terms
that will accomplish the pin-pointed objective permitted
by constitutional mandate and the essential needs of the
public order." Carroll v. Princess Anne, 393 U.S. 175, 183,
89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968). In short,
a government may impose substantive restrictions on First
Amendment freedoms only if those restrictions are the least
restrictive alternative available to achieve the legitimate
governmental objective. An unnecessarily severe sanction
may chill the exercise of First Amendment rights as effectively
as an impermissibly broad restriction; indeed, a severe
sanction may deter possible tests of the validity of the
restriction because the price of losing will be too high.
People will play it safe and limit their actions to what
is unquestionably acceptable. The full expression of religious
belief and the robust speech which the First Amendment contemplates
cannot thrive in such a cautious atmosphere; indeed, the
current limits of expression would be far narrower if there
had not been people in the past who were willing to test
the limits of their time. Any reservation on the free exercise
of religion, whether in the form of a prohibition or a sanction,
must be limited to what is necessary to achieve a legitimate
governmental purpose. We need not determine the precise
extent to which the First Amendment limits the legislative
choice of a sanction. [FN6] Revocation of a teaching certificate
is so much greater a *155 sanction than is necessary to
preserve the district's neutrality in religious matters
that it is invalid under any conceivable standard. ORS 342.655
itself shows this to be the case, for it requires the school
board to suspend the offending teacher from employment.
After being suspended, the teacher will return to the classroom
only in appropriate dress. Extending the sanction to require
revocation of the right to teach in any dress serves no
possible purpose beyond pure punishment greater than that
the legislature has found sufficient for more serious misconduct.
[FN7]
FN6.
Deciding what kind and degree of sanction is necessary to
achieve a particular purpose obviously requires considerable
judgment and weighing of alternatives and involves important
policy choices. The need to deter others, as well as to
punish the particular violator, may play a legitimate role.
These are considerations for the legislature. We must, nonetheless,
review the legislative choice to ensure that it is consistent
with First Amendment values and does not unnecessarily chill
the exercise of protected rights. In this case, where the
government's only concern is to protect its neutrality in
religious matters by controlling the actions of its employes,
sanctions beyond removing the offending employe from the
immediate arena of the violation, possibly followed by other
discipline for wilful disobedience, may never be necessary.
In different situations a wider variety of sanctions may
be appropriate.
FN7.
The legislature has provided a range of possible sanctions
for teacher misconduct, leaving to the Teacher Standards
and Practices Commission the determination of which sanction
is appropriate in a
particular
case. Aside from wearing religious dress, the only offense
requiring revocation of the teaching certificate is conviction
of certain sexual crimes or of an obscenity offense involving
a minor.
ORS
342.175(2). Conviction of other crimes, including drug-related
crimes, gross unfitness and gross neglect of duty may subject
a teacher to state- wide discipline, but the sanction may
be as little as a public reprimand.
ORS
342.175(1);
ORS
342.177(3). When the legislature has provided discretion
to allow a murderer or a grossly incompetent teacher to
retain a teaching certificate with a public reprimand, we
cannot say that automatic revocation for wearing religious
dress is necessary to preserve the government's neutrality.
Because
less restrictive alternatives which would achieve the governmental
purpose exist, ORS 342.655 is unconstitutional to the extent
that it requires the revocation of a teaching certificate
for wearing religious dress while engaged in the performance
of duties as a teacher. The superintendent did not purport
to exercise any discretion in revoking Cooper's certificate.
Because his actions were based solely on the requirements
of ORS 342.655, he acted in excess of his constitutionally
valid authority in doing so. [FN8]
FN8.
Amicus argues that revocation is an improperly disproportionate
penalty under
Article
I, section 16 of the Oregon constitution. Appellate decisions
have applied that provision only to criminal penalties.
See
State
v. Turner, 296 Or. 451, 455-57, 676 P.2d 873 (1984). Although
we normally decide state constitutional issues before reaching
the federal constitution, we do not consider this to be
an appropriate case for deciding whether
Article
I, section 16 also applies to civil sanctions. The substantive
rights involved in this case are federal, and the question
of the propriety of the sanction is so closely tied to those
substantive rights that the entire issue is best seen as
one of federal law. Nor do we reach the issues Cooper raises
under Title VII of the Civil Rights Act of 1964,
42
U.S.C. § 2000e et seq, or under the Oregon constitution's
religion clauses.
Or.
Const., Art. I, §§ 2-
5.
Those issues are necessarily superseded by the federal constitutional
question.
*156 Order set aside. Or.App.,1985.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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