Mississippi Employment Sec. Com'n v. McGlothin

• Decision Date: 10 January 1990
• Docket Number: No. 07-59080,07-59080
• Citation: 556 So.2d 324
• Parties: 51 Fair Empl.Prac.Cas. (BNA) 1491, 52 Empl. Prac. Dec. P 39,657, 58 USLW 2441, 58 Ed. Law Rep. 859 MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Jackson Municipal Separate School District v. Deborah V. McGLOTHIN.
• Court: Mississippi Supreme Court

Page 324

556 So.2d 324

51 Fair Empl.Prac.Cas. (BNA) 1491,

52 Empl. Prac. Dec. P 39,657, 58 USLW 2441,

58 Ed. Law Rep. 859

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Jackson Municipal Separate School District v. Deborah V. McGLOTHIN.

No. 07-59080.

Supreme Court of Mississippi.

Jan. 10, 1990.

Rehearing Denied Feb. 14, 1990.

Fred J. Lotterhos, Jr., Jackson, for appellant.

Cynthia Ann Stewart, Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

This case presents the question whether a public school teacher, dismissed for an on-the-job yet unobtrusive expression of her cultural and religious heritage on grounds not compelled by the demands of orderly school administration, may be denied benefits under the Mississippi Employment Security Law. The Mississippi Employment Security Commission (MESC) found the teacher's conduct "misconduct" within the Act and denied her claim. The Circuit Court reversed, holding on the facts found that the teacher's head-wrap was protected expression under the First Amendment. We affirm.

II.

A.

Deborah V. McGlothin was born on August 26, 1953. She lives in Jackson with her four children whom she supports. McGlothin is a member of the original African Hebrew Israelites out of Ethiopia. As an expression of her religious and cultural heritage, McGlothin would at times wear a head-wrap, "especially during times of spiritual growth." In her words,

It's more of a, just a preference, but at, at times when it really became an issue, I was searching for a spiritual growth. And in this spiritual growth because of my teachings of religion and my spiritual being, it became a part of me and is something that I felt that brought me closer to strength.

McGlothin became employed by the Jackson Municipal Separate School District (JMSSD) on August 26, 1983. She was originally assigned to the McLeod Elementary School. She wore a head-wrap from time to time without incident. McGlothin requested a transfer to another school closer to her home, and beginning with the 1985-86 school year the JMSSD assigned her to the Whitfield Elementary School in west Jackson, where she served as an assistant teacher. During that first year Kisiah Nolan, school principal, expressed displeasure at McGlothin's head-wrap.

At the beginning of the 1986-87 school year, Principal Nolan convened the school's shared governance committee ¹ which adopted a rule for classroom personnel prohibiting the wearing of headdresses or blue jeans. ² Nolan then instructed McGlothin to cease wearing her head-wrap. Fearful of losing her job, McGlothin acquiesced for a time, as she has four children to support.

The Jackson Municipal Separate School District has a prominent district-wide educational policy of encouraging multi-cultural diversity and experience. In January of 1987 McGlothin attended a district-wide multi-cultural workshop where this feature of JMSSD's educational mission was emphasized. Her response is described in the record before MESC by District Personnel Director Terry.

A. I have a statement from Ms. McGlothin that indicated that she attended a multi-cultural workshop that was presented by the Jackson Public School District, wherein the district and the board resolved that multi-cultural educations and the exercises that tend to suggest multi-cultural diversity were acceptable and supported by the school system. She indicated in her response that it was after attending that work shop that she resumed wearing the garments of discussion believing that it was the district's position to be more receptive to items of this nature, and that they were her way of expressing the cultural diversity that was not offensive.

February, 1987, was Black History month in JMSSD, as elsewhere. McGlothin testified:

We went right in to Black History Month and I was constantly called on during Black History Month to give my service because of my expertise and knowledge of the African culture, per se, which is being utilized here constantly, on a constant basis. And that I feel very hurt and offended that when the year comes around of Black History Month that I'm called upon to show my expression of Africanist and no one is objectionable to, you know, when I have it on. Ms. Nolan never verbally or any other way said anything other than praise to me of the programs that were presented and she did not mention that the wear was quite appropriate or inappropriate to have this head dress on at this time that I displayed these, these skits relating to the African culture that we speak of. I put on a skit of people who were in the struggle, who of course wore head wraps and I did not display their character myself. This was the way I'd dressed on those particular days as just a program director of the particular skits. And also I displayed the African folk lore and a number of things of that nature, and nothing was ever verbally said to me in objection or any way by Mrs. Nolen until I received in hand, while I was taking the kids to the restroom on that day I was given the memo. Nothing at all was said to me. I was constantly praised and I would hope that I would be judged on the merits of this.

On March 6, 1987, Principal Nolan delivered a written memorandum to McGlothin on March 6, 1987, concerning her "inappropriate dress." Nolan couched the issue in the need for teachers to dress professionally. "All children need positive role models, but especially do elementary-aged children because of their very impressionable young minds. I am concerned that your appearance is giving them a distorted view of what is appropriate." Nolan suggested that McGlothin "take some time [during spring break] to make a decision as to whether you desire to remain at Whitfield Elementary School."

McGlothin refused to discontinue wearing her head-wrap. On March 17, 1987, JMSSD discharged McGlothin for insubordination to her school principal.

Of importance, nothing in the record supports any inference that McGlothin's job performance as an assistant teacher was deficient. JMSSD's Terry reported "McGlothin's work was essentially satisfactory." Moreover, there is no evidence that McGlothin's actions in wearing her head-wrap had any adverse impact on her ability to do her job, nor upon the educational mission of Whitfield Elementary School.

B.

Following her discharge, McGlothin applied for benefits under the Mississippi Employment Security Law. On May 7, 1987, an MESC referee disqualified McGlothin for benefits on grounds of misconduct connected with her work, Miss.Code Ann. Sec. 71-5-513 A(1)(b) (Supp.1989), and en route found the following facts:

Claimant was employed four years as an assistant teacher with the Jackson Public Schools, Jackson, Mississippi, ending March 17, 1987, when discharged for insubordination. She was discharged because she continued to wear head-wraps after numerous discussions with her advising that her attire was not considered appropriate professional dress for teachers and assistant teachers. The local shared governance committee, comprised of school personnel and parents, had ruled that jeans and head-wraps were inappropriate dress. Claimant wears berets and head dresses as an expression of her religious and cultural heritage. The custom is not dictated by the Ethiopian Culture, but is claimant's preference in expressing her ancestry. Claimant admits she does not wear the head-wrap at all times, but is selective in choosing when to put it on. After prior warnings by the principal, claimant discontinued the practice. She resumed the practice after attending a multi-cultural workshop sponsored by the schools ... by claimant's own admission, she is selective in wearing the traditional head-wrap which she continued to wear after being warned....

[Emphasis supplied] The MESC Board of Review affirmed the referee. The Circuit Court of the First Judicial District of Hinds County reversed on the grounds that McGlothin's conduct was protected under the First Amendment free exercise clause. The Court stated:

Here having found that the claimant wears the head dress in question "as an expression of her religion and cultural heritage," the additional finding that the practice is not mandated and that plaintiff does not wear the head dress "all the time" detracts not at all from the conclusion that such practices are protected by the First Amendment to the United States Constitution and cannot be "misconduct" within the meaning of the statute, so as to deny unemployment benefits."

MESC now appeals to this Court.

III.

A.

Several general premises are not at issue and need be expressed. Those charged to administer our public schools have broad authority with which our law will brook but little interference. See Merchant v. Pearl Municipal Separate School District, 492 So.2d 959, 962 (Miss.1986); Clinton Municipal Separate School District v. Byrd, 477 So.2d 237, 240-42 (Miss.1985); Brantley v. Surles, 404 So.2d 1013, 1018 (Miss.1981). More specifically, public schools have authority to promulgate and enforce a reasonable dress code for faculty, staff and students, provided only that it does not infringe rights otherwise protected and even then the schools may enforce such a code when undergirded by some compelling governmental interest reasonably related to their educational mission, so long as the least restrictive means reasonably available be employed. ³ For example, we have no doubt a school could preclude a Native American Indian teacher from coming to work dressed as an Indian warrior, with full feathered head piece, clad in a loin cloth, war painted, carrying a tomahawk or a Christian teacher emulating Adam before the Fall--as an expression of his religious and cultural heritage. ⁴

It is certainly true that insubordination may be grounds for discharge of a public school teacher. Merchant v. Pearl Municipal Separate School District, 492 So.2d 959, 963 (Miss.1986); Noxubee County Board of Education v. Givens, 481 So.2d...