By Sarjo Barrow, Esq.
Its Impact on the Peaceful Coexistence of Muslims and Christians.[1]
Ignorance is an enemy, even to its owner. Knowledge is a friend, even to its hater. Ignorance hates knowledge because it is too pure. Knowledge fears ignorance because it is too sure, Sri Chinmoy.
Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
On May 4, 2023, hundreds of people gathered at The Never Again Arch (formerly “Arch 22”) to show solidarity and support veil-wearing students who sued several schools for not allowing them “a reasonable accommodation” to wear the veil on top of their uniforms. The lawsuit is asking for a whooping twenty-million dalasi in damages. As expected, the nation is divided on the suit’s merit and potential to open a floodgate and disrupt the peaceful coexistence between the Muslim majority population and the Christian minority in our nascent democracy. While research showed that this is not the first time this issue was raised by students at some of these schools, however, the suit certainly gives it the notoriety it never had before.
A opinions are divided, and emotions took over the debate instead of reason, I felt compelled to share my thoughts on this issue. My approach is from the legal lens to help educate the citizenry about the competing interests among the parties to help the population in a mature and much-needed debate that the National Assembly should consider before it gets out of hand. Since the lawsuit did not state if the named schools are public or private, and if private, whether they receive subvention from the state (public fund), the article will attempt to address the viability of the state’s power to regulate both public and private schools.
It is black letter law that public school students have a constitutional right to free speech and religion. But this “constitutional protection is not absolute.”[2] “[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”[3] And historically, schools have exercised much discretion over setting student dress codes. However, that discretion is balanced against several competing interests, including students’ right to free speech and right to exercise their religious beliefs under the Constitution freely. Embedded under the right to free speech is the legal history of school dress codes. See Tinker (A case where the U.S. Supreme Court ruled that prohibiting the wearing of armbands in public school as a form of symbolic protest violates the student’s freedom of speech protections guaranteed by the First Amendment).
In contemporary constitutional jurisprudence, the Free Speech and Religious Clause allows for mandatory uniform policies or dress codes in public schools. Notwithstanding, a student’s decision about their clothes is a form of expression.[4] Thus, such consistent policies must generally permit exemptions for students to wear religious garments, head coverings, symbols, or other attire. Policies or codes prohibiting students from wearing religious clothes or different apparel are usually unconstitutional.
Public School: The Intersection of free speech, religion, and mandatory school uniform.
Taking the United States as a benchmark, the apex court has issued four significant public school decisions regulating students’ right to free speech. First, in Tinker, school officials passed a regulation prohibiting students from wearing black armbands to show their dissatisfaction with the Vietnam War. The students challenged the policy in the U.S. Supreme Court. The Court held that “students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (citation omitted) and “[i]n the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” (Citation omitted). Schools can restrict student speech only if it materially interferes with or disrupts the school’s operation and cannot “suppress ‘expressions of feelings with which they do not wish to contend.’” (citations omitted).
Since Tinker, every U.S. Supreme Court decision on student speech has expanded, the kinds of speech schools can regulate. In Fraser (1986), the Court held that schools can prohibit “sexually explicit, indecent, or lewd speech.” And Hazelwood (1988) held that schools could regulate school-sponsored speech. Finally, Morse (2007) went further to rule that schools can prohibit “[s]peech advocating illegal drug use.”
Considering these decisions on the merits (Tinker, Fraser, Hazelwood, and Morse), if the Court in The Gambia established a bright-line rule, then public schools, through its uniform policies or dress code, can only restrict speech that is disruptive, lewd, school-sponsored, or drug-related. But courts have routinely rejected this bright-line rule because it fails to cater to another type of student speech that the school can regulate—content-neutral regulations.
As the Fifth Circuit indicated, content-neutral policies, as written and in an application, are not intended to suppress student expression or viewpoints. Further, the Court analyzed content-neutral policies under the rules of “the traditional time, place and manner analysis and the O’Brien test for expressive conduct.”[5] Simply put, content-neutral policies must meet three criteria to be valid under the Constitution. First, they must further a substantial government interest, which can include increasing student achievement and focusing on learning, promoting safety, providing a more orderly school environment, encouraging professional dress, promoting school spirit, improving student self-esteem, or bridging socio-economic differences. Second, the school’s interest in the code or policy must be unrelated to the suppression of free expression. And third, any incidental restrictions on student expression must be no more necessary than to further or facilitate the government’s interest in the policy or code.5 Furthermore, policies or codes that allow students’ clothes to bear small clothing logos, school logos, or messages or allow students to wear buttons running viewpoints do not generally transform them into policies or codes that differentiate among viewpoints or opinions.
State Regulation of Private Schools
In no uncertain terms, courts have recognized that states have the power to regulate private schools through police powers. A state has a high responsibility for the education of its citizen, and as such, it “may impose reasonable regulations for the control and duration of basic education.”[6] The apex court reasoned that the state’s interest in an informed and self-sufficient citizenry capable of participating in a democratic society is generally cited to support the regulation of private schools. However, the right to regulate is not without limitation.
Unlike public schools, a state’s excessive private school regulation may infringe on a parent’s right to direct their child’s education. Under the U.S. Constitution, parents have a fundamental right to control their children’s education. And since 1925, the apex court recognized that “liberty,” protected through the Fourteenth Amendment, supports a parent’s right to choose private education. See Meyer v. Nebraska, 262 U.S. 390 (1923) (where the Court struck down a Nebraska statute prohibiting the teaching of German to elementary children as unreasonably interfering with the power of parents to control their children’s education); Farrington v. Tokushige, 273 U.S. 284, 298 (1927) (where the Court held that a Hawaiian law unconstitutional that regulated the teachers, curriculum, and textbooks of private language schools and placed control of the schools in public officers).
Conclusion: The Way Forward
In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) in response to protecting religious freedom. While the Supreme Court ruled that Congress exceeded its authority in trying to apply RFRA to states (City of Boerne v. Flores, 1997), in response, 31 states passed similar protection either through legislation or court decision to protect an individual’s right to free exercise of religion. Inherent within many of these laws is the right to freely wear religious attire.
Except for the constitutional protection, the author is unaware of any religious ‘garb’ statute in The Gambia that seeks to protect religious freedom or address content-neutral laws. Considering this issue is recurring and can potentially disrupt the peace, the National Assembly should cease abdicating its responsibility and manage this area of the law. Indeed, the National Assembly’s primary job is to enact legislation. While it’s an open secret that the Assembly cannot do its job, they no longer have an excuse. Since the passage of the National Assembly Service Act, the legislators have been equipped with experts to help them draft legislation instead of relying on the Executive to do their job.
The challenge, however, in regulating private school is for legislators to draft laws that 1) respects the fundamental right of parents to direct the education of their children, 2) protects the state’s interest in an informed citizenry but avoids interference with religious beliefs unless compelling interests are at issue, and then only in the least restrictive manner, and 3) avoids comprehensive regulation of private education that would deprive parents of any choice in education. Adhering to this guidance would strike a balance between the competing state interest and individual liberty.
Like the United States, Arts. 17(1), 25(1) of the Gambian Constitution refers explicitly to the government’s interference with fundamental rights. While it’s conceivable that rights apply to all natural and legal persons, such application is qualified in the adjective. Although the lawsuit would pave the way to address the many misconceptions, several stakeholders must surrender their egos and address this issue head-on.
For The Gambia, our homeland. We strive and work and pray. That all may live in unity, freedom, and peace each day. Let justice guide our actions towards the common good, and join our diverse peoples to prove man’s brotherhood.
[1] Sarjo Barrow, Esq. The author practice focuses on constitutional law, national security, human and civil rights litigation.
[2] Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 441 (5th Cir.2001).
[3] Morse v. Frederick, 551 U.S. 393 (2007).
[4] See Palmer v. Waxahachie Indep. School District, 579 F.3d 502 (5th Cir. 2009), cert denied, 130 S. Ct. 1055 (U.S. 2010).
[5] See United States v. O’Brien, 391 U.S. 367 (1968). The third requirement is generally met if other forms of student communication are available, including peer-to-peer communications, school newspapers, or school organizations.
[6] Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).