SB 84 Religious Garb for School Employees | KingSpry

SB 84 Means An Impactful Change for School Districts and Their Employees  

Posted on January 20th, 2023
by Avery E. Smith

Pennsylvania Senate Bill No. 84 passed this week, eliminating the law that penalizes public school teachers for wearing religious garb while in the performance of their duties. Below is a look at what led to the amendment and how this change may impact your school.

Amendment of the Public School Code

Pennsylvania Senate Bill No. 84 amends the Public School Code of 1949 to repeal the provision prohibiting public school teachers from wearing religious garb while in the performance of their duties.

What Did Section 1112 prohibit?

Section 1112 prohibited a teacher from wearing any garb, mark, emblem or insignia that would indicate that they are a member of or adherent to any religious order while in performance of their teacher duties. Pursuant to Section 1112, a teacher’s first-time violation of this ban would  result in suspension from teaching for a minimum of one year. Upon a second offense, the teacher would be permanently disqualified from teaching in that school.   

Moreover, a public school director could be held criminally liable and required to pay a fine for failing to enforce this prohibition.

How Did We Get Here?

The constitutionality of Section 1112 has been challenged in the past. In the pivotal 2003 case of Nichol v. Arin Intermediate Unit 28, the United States District Court of the Western District of Pennsylvania held that the school’s religious affiliations policy violated the Free Exercise of Religion and Free Speech Clauses of the First Amendment to the United States Constitution. 

Ms. Nichol, an instructional assistant at a public elementary school, was suspended for refusing to remove or conceal a small cross necklace. Ms. Nichol, who felt that the cross was a symbol of freedom for her, filed a complaint for injunctive and declaratory relief and a motion for a preliminary injunction. Her basis was that Section 1112 of Pennsylvania’s Public School Code was unconstitutional. 

In his opinion, Judge Arthur J. Schwab found in favor of Ms. Nichol’s complaint, directing Arin Intermediate Unit 28 to reinstate Ms. Nichol to her former position within the elementary school. This case represented a turning point in the Commonwealth’s view on school employees’ First Amendment rights to freedom of speech and expression.  

Subsequent to the Nichol case, efforts within the Pennsylvania Senate created bipartisan support for this legislation.  Pennsylvania lawmakers long agreed that the prohibition of wearing religious garb jeopardized and violated the Free Exercise of Religion and Free Speech Clauses of the First Amendment to the United States Constitution.  

Senate Bill No. 84 was the third and final attempt to repeal Section 1112 of Pennsylvania’s Public School Code.  The repeal was introduced in both the 2019-2020 and 2020-2021 sessions.   In the current 2023-2024 session, with an overwhelming presence of bipartisan support, the Pennsylvania Senate passed Bill No. 84, eliminating the legal language and ban set forth in Section 1112 of Pennsylvania’s Public School Code.      

Though of recent attention, the repeal of Section 1112 is not novel. Every state in the nation, except Pennsylvania, removed similar laws prior to 2017 sessions.

The passage of SB 84 is bound to set up a conflict between the wearing of religious garb or accessories and the recent push by some interests to prohibit the display or even discussion of  political or controversial topics not directly related to curriculum. The line where religious dress becomes ideological proselytizing has yet to be deterined, but will undoubtedly become fodder for future court opinions.

Bottom Line for Schools

School Districts must act quickly. The repeal of Section 1112 will take effect in sixty (60) days, allotting school districts roughly three (3) months to implement updated district-wide policies that follow the new standards of Pennsylvania’s Public School Code. 

KingSpry’s Education Law Group is ready to help you navigate this new legislation and its implications. 

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice.