The core legal dispute on summary judgment is the appropriate
level of judicial scrutiny applicable to Defendants' enforcement
of a no-headwear rule against Nashala Hearn. Defendants contend
that their dress code is a neutral, generally applicable rule,
and rational basis review therefore should apply. As set forth
below, however, the dress code being applied to Nashala is
neither neutral nor generally applicable, and strict scrutiny
applies for any one of several reasons. First, the
dress code does not apply equally to all students, and thus
is not generally applicable. Defendants have reserved for themselves
the prerogative of making case-by-case exceptions to the policy,
and have indeed made many such exceptions, including exceptions
for students suffering hair loss due to chemotherapy treatment.
Thus, a student, like Nashala, who seeks to wear a head covering
for reasons of modesty based on religious reasons like Nashala
cannot do so, but a student who seeks to wear a head covering
for reasons of modesty based on secular reasons can. This is
not a generally applicable rule, and Defendants thus must show
a compelling interest, pursued in a narrowly tailored fashion,
for failing to extend the same exemption to Nashala's religious
request that is given to others. See Argument at 11-14, infra. Second,
Nashala's claim involves free exercise rights coupled with
expressive rights, and therefore heightened scrutiny is warranted
under the case law of the Supreme Court and the Tenth Circuit.
See id. at 14-16. Third, the undisputed facts show
that Defendants' actions were not neutral toward religion,
but rather singled out Nashala based on her Muslim faith, and
strict scrutiny therefore applies to her Free Exercise and Equal
Protection claims for this reason as well. See id. at 16-17.
Finally, strict scrutiny is also warranted under the Free Speech
Clause. See id. at 21-23.
Accordingly, Defendants must show that their conduct
toward Nashala advances interests of the highest order and
is narrowly tailored in pursuit of those interests. They
cannot do so. As set forth below, Defendants' various rationales
posited for enforcing the no-headwear policy against Nashala
are not compelling; indeed they are so lacking in factual
support that they would not even meet the minimal requirement
of rational basis scrutiny. They also are not narrowly tailored.
See id. at 16-19. Therefore, summary judgment for Plaintiffs
and the United States is warranted.
I. Legal Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c).
In the context of Rule 56, the court's function is not
to decide disputed questions of fact, but only to determine
whether genuine issues of fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). The movant bears
the burden of showing the propriety of summary judgment,
and the court "must view the evidence and any inferences that may be drawn from the evidence in the light most
favorable to the nonmoving party." Gray v. Phillips Petroleum
Co., 858 F.2d 610, 613 (10th Cir. 1988).
As shown below, the United States is entitled to judgment as a matter of law on its Fourteenth
Amendment claim because there are no genuine issues as to any material facts.
II. The District's Conduct Violates The Equal Protection Clause
The Equal Protection Clause of the Fourteenth
Amendment, upon which the United States' complaint-in-intervention
is premised, has been violated by Defendants in two ways.
First, the district has violated Nashala's right to freely
exercise her religion, a "fundamental constitutional right" under the
Equal Protection Clause. Johnson v. Robinson, 415 U.S. 361 n.14 (1974) ("Unquestionably, the free
exercise of religion is a fundamental constitutional right.").
The Supreme Court has considered claims alleging a burden
on the fundamental right of religious exercise in violation
of the Equal Protection Clause by looking to whether the
plaintiff's rights under the Free Exercise Clause were violated.
See id.; see also Locke v. Davey, - U.S. -, 124 S.Ct. 1307,
1313 n.3 (2004). Cf. Bd. of Educ. of Kiryas Joel Vill. Sch.
Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O'Connor, J.,
concurring) ("[T]he Free Exercise Clause . . . and the Equal Protection Clause
as applied to religion - all speak with one voice on this point: Absent the most unusual circumstances,
one's religion ought not affect one's legal rights or duties or benefits."); West v. Derby Unified Sch.
Dist. No. 260, 206 F.3d 1358, 1365 (10th Cir. 2000) ("[Plaintiff's] equal protection claim is more
properly considered together with his First Amendment challenge.").
Second, the district, in singling out Nashala because of
her Islamic faith, has intentionally discriminated against
her. See Buckley Constr. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d
853, 859 (10th Cir. 1991) (a violation of equal protection occurs "when the government treats
someone differently than another who is similarly situated").
A. The District Impinged Nashala's Fundamental Right To Practice Her Religion
in Violation of the Equal Protection Clause
The First Amendment's Free Exercise Clause, made applicable
to the States by incorporation through the Fourteenth Amendment,
see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940),
provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S. Const. amend. I.
"The free exercise of religion means, first and foremost, the right to believe and profess whatever
religious doctrine one desires." Employment Div. v. Smith, 494 U.S. 872, 877 (1990). The Supreme
Court has found that it is impermissible to restrict the free exercise right in a variety of contexts,
including "imposing special disabilities on the basis of religious views or religious status." Id.
The level of judicial scrutiny applied to a Free Exercise
claim depends on the nature of the challenged governmental
When "prohibiting the exercise of religion . . . is not the object of [a governmental policy] but
merely the incidental effect of a generally applicable and otherwise valid provision," the
policy need only be rationally related to a legitimate
governmental objective to pass constitutional muster. Smith,
494 U.S. at 878-79; Thiry v. Carlson, 78 F.3d 1491, 1496
(10th Cir. 1996) (citing Smith). But strict scrutiny will
apply when (1) the policy provides for individualized exemptions
and those exemptions are not afforded to religious practices,
(2) the policy violates constitutional rights in addition
to free exercise, or (3) the state actor singles out a
particular faith in applying the policy. Smith, 494 U.S.
at 877-78, 882, 884; Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 540-41 (1993); Axson-Flynn
v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004). (4) Under
those circumstances, a defendant must show that the policy
in question "advance[s] interests of the highest
order" and "is narrowly tailored in pursuit of those interests." Lukumi,
508 U.S. at 546.
1. The District's Policy and Conduct Trigger Strict Scrutiny
The district's dress code policy merits strict scrutiny for any one of three reasons. First,
the policy allows school principals to make exceptions
on a case-by-case basis. The Supreme Court has held that
a policy affecting religious practice is not generally
applicable if it "has in place a system of
individual exemptions." Smith, 494 U.S. at 884. Smith derives this principle from Sherbert v. Verner,
374 U.S. 398 (1963), and later Supreme Court cases applying Sherbert. See Smith, 494 U.S. at 884.
Sherbert held that a State could not constitutionally deny unemployment benefits to a member of the
Seventh-day Adventist Church who was discharged from her job as a mill worker and could not find
equivalent work because her religious convictions prevented her from working on Saturdays. Because
the statute's distribution of benefits permitted "individualized exemptions" based on "good cause," the
Court explained in Sherbert, the State could not refuse
to accept the plaintiff's religious reasons for not working
on Saturdays as good cause without violating the Free
Exercise Clause, unless the State could show that the
denial of the exemption furthered a compelling interest
and did so by the least restrictive means available.
See 374 U.S. at 405-07.
Accordingly, "in circumstances in which individualized exemptions from a general requirement
are available, the government may not refuse to extend that system to cases of religious hardship
without compelling reason." Lukumi, 508 U.S. at 537 (internal quotation marks omitted); see also
Axson-Flynn, 356 F.3d at 1297; FOP v. City of Newark, 170 F.3d 359, 365 (3d Cir.) (holding police
department could not refuse to consider exception to "no beards" rule
for religious reasons where exceptions for medical reasons
In the Tenth Circuit, an individualized system will
be found to exist where "case-by-case
inquiries are routinely made, such that there is an 'individualized governmental assessment of the
reasons for the relevant conduct' that 'invite[s] consideration of the particular circumstances' involved
in the particular case." Axson-Flynn, 356 F.3d at 1297 (quoting Smith, 494 U.S. at 884). The
"system of individualized exemptions" does not need to be a written policy, but may be found by
"show[ing] a pattern of ad hoc discretionary decisions amounting to a system." Id.
In Axson-Flynn, a theater major sued the University
of Utah, alleging, inter alia, that her free exercise
rights were violated by the university's policy that
required strict adherence to a script as written. 356
F.3d at 1294. As a Mormon, she objected on religious
grounds to taking God's name in vain and using a certain
profanity, and sought an exemption from doing so while
participating in the university's Actor Training Program.
Id. at 1280. In reversing a grant of summary judgment
for the university, the court held that she had raised
a material fact issue as to whether the university had
a "system of individualized exemptions" to its script requirement, based on two exemptions: the university
had permitted a Jewish student, without lowering his grade, to miss an improvisational class on Yom
Kippur that could not be made up, and the university had "sometimes granted" Axson-Flynn
herself an exemption from the script adherence requirement.
Id. at 1298-99.
The record here shows - with greater clarity than in
Axson Flynn - that the district had an informal system
of individualized exceptions to its student dress code
policy. By Defendants' own admission, the principals
have the discretion to make exceptions to the dress code
policies, and the district reserves the right to be flexible
and make exceptions for "exigen[t]" circumstances. (Defs. Br.
at 19; United States' Statement of Undisputed Facts ¶¶ 10, 12 [hereinafter Statement of Facts].) And
principals have done so in a number of contexts, including permitting students to wear head coverings in
school for "medical" reasons such as students undergoing chemotherapy treatment (Statement of Facts
¶ 11); Halloween celebrations (Id. ¶ 16); Read Across America Week (Id. ¶ 14); and "hat days"
affiliated with other events like the "Put a Cap on Drugs" program (Id. ¶ 15). Moreover, the district
permitted Nashala to wear the hijab for several weeks until September 11, the day that she was
directed to remove it, and has permitted her to continue wearing a hijab since the parties reached an
interim agreement in October 2003. (Id. ¶¶ 22-36.)
As the Tenth Circuit held in Axson-Flynn, not only exceptions
made for other people, but exceptions made in the past
for the individual who is presently challenging a policy,
constitute evidence of a system of individualized exceptions.
356 F.3d at 1298-99.
The district's discretionary application of its dress code policy is most striking in its conceded
disparate treatment of Nashala and a student who seeks to wear a head covering to conceal the loss of
hair resulting from chemotherapy. Both students are motivated by a desire to deflect attention away
from their personal appearance. The only difference is Nashala seeks modesty for religious reasons -
to show her devotion to Allah - and the cancer patient seeks it for secular reasons, most likely out of
Second, the dress code policy, as applied
to Nashala, violates her free speech and free exercise
rights under the "hybrid rights" principle. When a free exercise claim is coupled with some
other constitutional claim, such as free speech, strict scrutiny is triggered. Smith, 494 U.S. at 881;
Axson-Flynn, 356 F.3d at 1295. This principle applies "where the plaintiff establishes a 'fair
probability or likelihood' but not a certitude of success on the merits" of
the companion claim. Axson-Flynn, 356 F.3d at 1295, 1297. (5)
This case presents such a hybrid-rights claim. The
Hearns' causes of action combine the free exercise claim
with violations of Nashala's free speech rights. As shown
below, at 21-23, this claim is more than colorable; it
entitles the Hearns and the United States to summary
judgment. For example, courts have found the wearing
of rosaries and hair exceeding a certain length to be
protected student speech. Chalifoux v. New Caney Indep.
Sch. Dist., 976 F. Supp. 659, 664-65 (S.D. Tex. 1997);
Alabama & Coushatta Tribes of Tex. v. Trs. of Big Sandy Indep. Sch. Dist., 817 F. Supp. 1319, 1334
(E.D. Tex. 1993); see alsoIsaacs v. Bd. of Educ. of Howard County, Md., 40 F. Supp. 2d 335, 338
(D. Md. 1999) ("If the wearing of headgear constitutes speech and also represents an exercise of
religion, a student would have 'hybrid' constitutional protection arising out of both the free speech and
free exercise. This fact alone would provide ample basis for the school system's decision to exempt
religious headgear from its 'no hats' policy.").
Defendants attempt to dismiss the free speech claim
as simply derivative - "the purported
speech, wearing a religious scarf, derives directly from the fact that the scarf is a religious symbol."
(Defs. Br. at 10.) The short answer to this contention is that religious speech is still speech. The
Supreme Court has consistently held that religious speech is entitled to the same protection under the
Free Speech Clause as secular speech. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S.
753, 760 (1995) (plurality opinion) ("Our precedent establishes that private religious speech, far from
being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private
expression"); see also Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 111-12 (2001); Lamb's Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94
(1993). Accordingly, courts have properly found, in cases
similar to this one, a free speech right independent
of any free exercise right. Chalifoux, 976 F. Supp. at
664-67; Coushatta Tribes, 817 F. Supp. at 1333-34. Since
Nashala has demonstrated that she has a valid hybrid-rights
claim, strict scrutiny is thus appropriate for this reason
And third, strict scrutiny under the Free
Exercise Clause is warranted on the basis that the policy
has not been applied in a religion-neutral manner. As
the Supreme Court held in Lukumi: "At a
minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against
some or all religious beliefs." 508 U.S. at 532. The undisputed facts here lead to the conclusion that
the school district has singled out Nashala because of her Islamic faith. Nashala was permitted to wear
her hijab without sanction until 9/11's second anniversary when two teachers discussing the attacks
spotted Nashala and told her that she would have to remove her scarf. (Statement of Facts ¶¶ 28-29.)
Prior to that date, the district had allowed Nashala to wear her hijab for several weeks without any
intimation that doing so violated the dress code. (Id. ¶¶ 25-26.) Furthermore, school officials have
asserted that Nashala's hijab was frightening to some students and should be barred for this reason.
(Id. ¶ 43.) Finally, the district cites concern about gang symbols as a primary reason for enforcing its
policy against Nashala, yet permits non-Muslim students to wear various religious symbols and clothing
with various religious messages that could just as readily be used as gang symbols. (Id. ¶ 44.)
Under the circumstances, the district's dress code and
its application to Nashala is not religion-neutral and
is properly subject to strict scrutiny for this reason
2. The District's Policy Fails Strict Scrutiny
The dress code policy fails because it is not narrowly
tailored to further a compelling governmental interest.
Such a policy cannot survive strict scrutiny review. See
FOP, 170 F.3d at 365.
The district proffers the following justifications for its interpretation of the dress code policy,
none of which are compelling or even supported by the record:
- The dress code policy is "necessary for student
discipline and safety," particularly
because of gang-related incidents in the district. (6) The
district provides no support for its claim that
applying the dress code to bar religious headcoverings
is necessary to prevent disruptions or maintain
order, or that other less-intrusive means were
unavailable. They have failed to show that the
hijab is a gang-related symbol or that Nashala
has been involved in gang-related or criminal activity.
In fact, the hijab has not caused disruption at
Franklin, with the exception of the principal's
account of some amorphous fright and curiosity
of other students on or near September 11, 2003.
(Statement of Facts ¶ 43; Hallum Dep. 16:6-18:12
("I've had students frightened. I think . . .
because [the hijab] was black, it was the color
. . . .").)
- The dress code policy ensures that the district is a "religion-free zone." The
superintendent stated that the dress code policy
was necessary because "once you move the
[hijab] in school . . . it would bring religion into the school." (Statement of Facts ¶ 39;
Gleichman Dep. 67:22-70:21.) This rationale is not compelling for two reasons. First,
discrimination against student expression on the basis of religious viewpoint is forbidden by the
Constitution. See, e.g., Good News Club, 533 U.S. at 107; Widmar v. Vincent, 454 U.S.
263, 277 (1981). This rationale is thus not merely not compelling, it is illegal. Second, this
"religion-free zone" rationale has not been applied uniformly. Students are permitted to wear
religious symbols and messages, such as crucifixes and Christian messages on their t-shirts.
(Statement of Facts ¶ 44.) The failure of the
school to take efforts to stop this (which also
would be unconstitutional) expression undercuts
their assertion, however misguided, that this rationale
is compelling. (7)
- The district's ban on hijabs is required by the U.S. Department of Education's
guidelines on "Religious Expression in Public Schools." The district's interpretation of the
1998 guidelines is patently wrong. The guidelines were simply a recitation of the current state
of constitutional law, (8) and
as discussed above, the district's policy, as interpreted,
is not consistent with the law. The guidelines
note that there is no right to be exempted on religious
grounds from "religiously-neutral and generally applicable school dress rules." But
dress codes that are not religion neutral
or which are not generally applicable are subject to strict
scrutiny when applied to religious objectors. See Smith,
494 U.S. at 877-78, 882, 884. The district's dress code
is neither. The district has a practice of exempting students
from the policy on a case-by-case basis, but refuses to
consider an exception for the hijab. It is thus not generally
applicable. The district also has singled out Nashala
based on her particular religious beliefs. It is thus not
neutral, either. This evidence puts the district's policy
at odds both with the guidelines and the current law. (9)
Even if the Court finds the district's vague and unsubstantiated justifications to be compelling
state interests, the policy still fails because it is not narrowly tailored. The district does not claim that the
hijab is gang-related apparel. In addition, the district arbitrarily makes exceptions to the dress code
policy, without explaining why a student undergoing chemotherapy is entitled to wear a head covering,
but a Muslim is not. The two students may have different motivations for desiring to wear a head
covering, but ultimately they have the same goal: to cover their head in public to deflect attention away
from themselves.The district can make an exception to the dress code for religious head coverings
such as yarmulkes or hijabs just as easily as it can make exceptions for other reasons. (10)
In sum, strict scrutiny is warranted for any one of
three reasons: the policy is subject to ad hoc exceptions
for various secular head coverings and thus is not generally
applicable; the policy burdens Nashala's "hybrid right" of
religious exercise coupled with religious expression;
and the policy has been enforced against Nashala on a
discriminatory basis because of her particular religious
faith, and thus is not religion-neutral. Because the
policy as enforced against Nashala is not supported by
any compelling justification, and is in any event, not
narrowly tailored to achieve the school's goals, it violates
Nashala's Free Exercise Clause rights, and therefore
infringes her fundamental right of religion in violation
of the Equal Protection Clause. (11)
B. The District's Disparate Treatment of Nashala Based on Her Religion Violates
the Equal Protection Clause
The Equal Protection Clause is violated "when the government treats someone differently than
another who is similarly situated." See Buckley Constr.,
933 F.2d at 859 (citing City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985)). Religion can be
a suspect classification subject to strict scrutiny where
a particular religious faith is singled out for different
treatment. Burlington N. R.R. Co. v. Ford, 504 U.S. 648,
As described in detail in section II.A., supra, the facts
here show that the district intentionally discriminated against
Nashala because she wore a hijab pursuant to her Islamic
faith. Briefly restated, the district decided to bar Nashala's
hijab on the second anniversary of 9/11 after two teachers
discussing the attacks spotted her wearing the hijab, and
a teacher subsequently approached her and told her to remove
it; the district has relied on statements of school officials
that other children are afraid of the hijab as a justification
for continuing to bar Nashala from wearing it; and the district
has claimed that the school should be a religion-free zone
but nonetheless has permitted other students to wear various
types of religious symbols and clothing. Such disparate treatment
is forbidden by the Equal Protection Clause.
III. The District's Conduct Violates The Free Speech Clause Because Wearing A Hijab
Constitutes Religious Speech
Public school students do not "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969). To the contrary, "pure student expression" is fully protected under the First Amendment
unless a defendant can show that the speech being regulated caused a substantial disruption of or
material interference with school activities. Chalifoux, 916 F. Supp. at 666 (citing Tinker, 393 U.S. at
513). More than mere speculation about disruption and interference are required: "undifferentiated
fear or apprehension of disturbance" is not enough to overcome
the right to freedom of expression. Tinker, 393 U.S. at 508.
Nashala's practice of wearing a hijab is akin to pure speech
and therefore is entitled to the highest protection. The
hijab "is a pure symbol, such as the cross, the Star of David, the crescent, the
swastika, . . . or the black armband in Tinker [and] any individualized activity with regard to it outside
of the purely logistical activity of maintaining or storing of it is bound to convey a message of fealty or
revulsion and is 'closely akin to pure speech.'" Goguen v.
Smith, 471 F.2d 88, 99 (1st Cir. 1972); see
Chalifoux (rosaries worn by Catholic students were akin to pure speech); Coushatta Tribes (hair length
worn by American Indian students was akin to pure speech).
As Defendants concede, Nashala has worn a hijab for virtually the entire school year, save for
when she was suspended for doing so, without causing any substantial disruption of or material
interference with school activities:
Q. Tell me about all the incidents that you have heard of where significant disruptions or
violence have broken out in relation to the wearing of hijabs.
A. I don't think I know of any.
(Hallum Dep. 75:22-76:2) (emphasis added).
the district claims that the hijab caused "disruption" because a few students complained about Nashala's hijab, which in turn created an
"uncomfortable" situation for the principal. Id. at 11:15-15:4. As an initial matter, the "mere desire to
avoid the discomfort and unpleasantness" of handling issues regarding the hijab is not enough to justify
restricting student speech under Tinker. West, 206 F.3d at 1366. More to the point, the students'
comments do not rise to the level of a "substantial disruption" envisioned by Tinker. The reaction to
Nashala's hijab centered around the students' curiosity and concern about seeing an unfamiliar object.
Statement of Facts ¶ 43. Rather than instruct students on
what Nashala was wearing and why she was wearing it -- information
easily ascertained -- Defendants chose the path of suppression
of speech. The Constitution does not permit this. (12)
Defendants have nothing more than an "undifferentiated fear or apprehension of disturbance" if
Nashala is permitted to wear her hijab. Tinker, 393 U.S.
at 508. This fear is not enough to overcome her right to
free expression. Id.; Coushatta Tribes, 817 F. Supp. at 1334
(holding that mere speculation that American Indian student's
hair length will lead to disruption in the school was insufficient
to overcome the right to freedom of expression).
Finally, Defendants fail to show that the hijab is a gang-identifier
or has ever, in any way, been linked to gang-related apparel.
Statement of Facts ¶ 40; see, e.g., Chalifoux, 976 F. Supp.
at 667 (finding that defendant had failed to show any link
between rosaries and gang-related activity where they could
point to only one unconfirmed incident over the span of several
months). There is of course nothing indicating that Nashala
is a gang member or that she has been involved in gang-related
activity. (13) She is simply a sixth-grader trying to exhibit the modesty of dress that her faith requires.
For the foregoing reasons, the United States respectfully requests that this Court grant its
motion for summary judgment on the Fourteenth Amendment claim and deny Defendants' motion for
SHELDON J. SPERLING
United States Attorney
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
ERIC W. TREENE
JAVIER M. GUZMAN
TAMARA H. KASSABIAN
JOHN P. BUCHKO
Attorneys for Plaintiff-Intervenor
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section
601 D Street, N.W., Suite 4300
Washington, DC 20530
Dated: May 6, 2004
1. The United States' Response to Defendants' Statement of Undisputed Material Facts is
attached as Exhibit 1.
2. The Hayes Letter also is attached as Exhibit A to Defendants' Response to the United
States' Motion to Intervene and Memorandum of Law in Support of that Motion to Intervene.
3. "[A] district court may utilize the doctrines underlying judicial notice in hearing a motion for
summary judgment substantially as they would be utilized at trial. Thus, a court may consider
stipulations, concessions of counsel, transcripts, exhibits and other papers . . . ." St.
Louis Baptist Temple v. FDIC, 605 F.2d 1169, 1171-72 (10th
Cir. 1979) (citations omitted). The Court may also take judicial
notice of information in the public record. See, e.g., Laborers'
Pension Fund v. Blackmore Sewer Constr., 298 F.3d 600, 607-08
(7th Cir. 2002) (taking judicial notice of website); Ieradi
v. Mylan Labs., 230 F.3d 594, 598 n.2 (3d Cir. 2000) (taking
judicial notice of newspaper article).
4. As set forth more fully below, the Tenth Circuit's decision in Axson-Flynn directly controls
this case. The United States notes that Defendants failed to cite this decision in their Memorandum in
Support of Summary Judgment.
5. Thus, Defendants' formulation that
the hybrid-rights analysis can be triggered by simply "invoking" a
separate constitutional claim (Defs. Br. at 11) is wrong.
6. For example, the district cited to
statistics indicating that crime generally is a problem in
the greater Muskogee community (Defs. Br. at Ex. C ¶¶ 8-10),
but they have made no connection between these statistics
and the dress code, let alone a connection that would justify
impinging on Nashala's right to free exercise.
7. Defendants argue that accommodating
Nashala's hijab would amount to favoritism toward a particular
religion, and hint that such accommodation would violate
the Establishment Clause of the First Amendment. (Defs. Br.
at 2.) This argument is without legal support. As the Supreme
Court announced in Kiryas Joel, the Religion Clauses do not
require "the government to be oblivious to
impositions that legitimate exercises of state power may place on religious belief and practice." 512
U.S. at 705. Rather, the Court held, "there is ample room under the Establishment Clause for
benevolent neutrality which will permit religious exercise to exist without sponsorship and without
interference." Id. (internal quotations omitted). See also Corporation of the Presiding Bishop v. Amos,
483 U.S. 327, 334 (1987) ("This Court has long recognized that the government may (and sometimes
must) accommodate religious practice and that it may do so without violating the Establishment
8. See Statement of Facts ¶ 45. The Department of Education guidelines were created to assist
"school officials, teachers, students and parents find a new
common ground on the important issue of religious freedom consistent with constitutional requirements." 1998 Guidelines at 1 (emphasis
added). The guidelines also state that the principles therein "derive from the First Amendment." Id.
9. Defendants, relying on a dissenting
opinion by Justice Scalia, assert that "[t]he USDOE
guidelines on dress codes are substantive rules and as such are held to carry the 'force of law.'" U.S.
v. Mead Corp., 533 U.S. 218, 245 (2001). Indeed, some substantive rules are held to carry the force
of law, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), but as
Mead makes clear, such rules are only given "force of law" deference if they have been created as a
result of a "relatively formal administrative procedure" such as "notice-and-comment rulemaking or
formal adjudication." 533 U.S. at 230-31. As explained in
the United States' Motion for Protective Order at 3-4 (Apr.
26, 2004), the guidelines have not undergone such a review
and in fact are simply guidelines explaining the current
state of constitutional jurisprudence on the subject.
10. Other school districts across the country, including the Tulsa Public Schools, have carved
out religious exceptions in their dress codes:
Caps, hats or other similar head coverings shall not be worn to class or within school
buildings unless prescribed by a physician, previously approved by the school's
administration for religious reasons, or approved by the school's administration for a
special school activity. . . .
Approved coverings worn as part of a student's bona fide religious practices or
beliefs shall not be prohibited under this policy.
Tulsa Public Schools, TPS Student Dress Code, at 2-3, available at
http://www.tulsaschools.org/dresscode.shtm at 2-3 (emphasis
added) (Ex. 8). See also Isaacs, 40 F. Supp. 2d at 336 ("Both schools make exceptions for religious headgear such as yarmulkes and Muslim
hijab, including head-scarves.").
11. This complete lack of factual support for the district's proffered justifications dooms the
dress code policy even under the rational basis review test urged by Defendants.
12. As the Seventh Circuit aptly stated in a case invalidating a school's censorship of a student's
[The school] proposes to throw up its hands, declaring that because misconceptions are
possible it may silence its pupils, that the best defense against misunderstanding is
censorship. What a lesson [the school] proposes to teach its students! Far better to
teach them about the first amendment, about the difference between private and public
action, about why we tolerate divergent views. Public belief that the government is
partial does not permit the government to become partial. Students therefore may hand
out literature even if the recipients would misunderstand its provenance. The school's
proper response is to educate the audience rather than squelch the speaker.
Hedges v. Wauconda, 9 F.3d 1295, 1299 (7th Cir. 1993) (emphasis added).
13. The cases cited by Defendants to defeat Nashala's free speech claim, Bethel School District
No. 403 v. Fraser, 478 U.S. 675 (1986) and Littlefield v. Forney Independent School District, 108 F.
Supp. 2d 681 (N.D. Tex. 2000), are, quite simply, inapposite. See Defs. Br. at 13-14. Bethel
involved a student's use of lewd and offensive language at a student assembly. Littlefield involved a
mandatory student uniform policy that unlike Defendants' policy here contained an express religious