Cooper v. Eugene School Dist. No. 4J

• Decision Date: 17 January 1986
• Parties: , 53 Fair Empl.Prac.Cas. (BNA) 1007, 28 Ed. Law Rep. 919 Before the Superintendent of Public Instruction for the State of Oregon in the Matter of the Teaching Certificate of Janet Cooper. Janet COOPER, Respondent--Cross-Petitioner, v. EUGENE SCHOOL DISTRICT NO. 4J, Petitioner--Cross-Respondent, and Verne A. Duncan, Superintendent of Public Instruction for the State of Oregon, Cross-Respondent. CA A31423.
• Court: Oregon Court of Appeals

Page 1161

708 P.2d 1161

76 Or.App. 146, 53 Fair Empl.Prac.Cas. (BNA) 1007,

28 Ed. Law Rep. 919

Before the Superintendent of Public Instruction for the State of Oregon in the Matter of the Teaching Certificate of Janet Cooper Janet COOPER, Respondent--Cross-Petitioner, v. EUGENE SCHOOL DISTRICT NO. 4J, Petitioner--Cross-Respondent and Verne A. Duncan, Superintendent of Public Instruction for the State of Oregon, Cross-Respondent.

CA A31423.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Feb. 11, 1985.

Decided Oct. 30, 1985.

Reconsideration Denied Jan. 17, 1986.

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.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

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, ¹ 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. ² 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).

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 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 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. ³

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 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. ⁴ To be symbolic, the clothes must 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.

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. ⁵ 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.

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 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 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....