Barry,

With confirmation hearings for Supreme Court nominee Kagan set to begin June 28th, we’ll soon find out how much we will learn about Supreme Court nominee Kagan.

I want to turn now to a story developing in New York State.  We represent a 13-year-old seventh-grade student who has been suspended by school officials for wearing a Rosary to school.   

Raymond Hosier and his mother, Chantell, have told us that school officials in Schenectady said the Rosary violated school policy – comparing it to a gang symbol.  They’ve also shared their story with the news media.

Raymond has displayed the Rosary around his neck since last year without incident.  He says the religious artifact, which includes beads and a Crucifix, bring him comfort and he wears it to honor his brother and uncle who have both passed away.

Barry, the school district is simply on the wrong side of the law on this one.  To punish Raymond – who was suspended again today when he showed up at school with the Rosary – for expressing his religious beliefs, as you know, violates the First Amendment.

More than 40 years ago, the Supreme Court resolved the legal issues raised in this case in its decision in Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). 

In that case, students wore black armbands on their sleeves to exhibit their disapproval of the Vietnam hostilities. As a result, the students were sent home and suspended from school. They were not allowed to return to school so long as they wore the armbands.

Ruling in favor of the students, the Supreme Court in Tinker held that students do not lose their constitutional rights of freedom of speech and expression once they step foot on school grounds. School officials do not possess complete authority over students, and students may not be required to express only those sentiments that are officially approved. Students may express themselves on campus so long as their expression does not cause “material and substantial” interference with the workings of the school or with the rights of others.

Barry, the fact is that Raymond’s wearing of the Rosary has never caused  any “material and substantial” interference with the requirements of appropriate discipline in the operation of the school or with the rights of other students.

In equating the Rosary to a gang symbol, the school district said the Rosary violates its dress code which states:   “[a] student’s dress … shall … not denote, represent or be deemed to be gang related, included but not limited to bandanas, colors, flags or beads.”   The fact is this school dress code is unconstitutionally vague on its face, and the application of that code to Raymond violates his due process rights.  The code is written in such a way that people must guess at its meaning and application, which leads to arbitrary and discriminatory enforcement.

The school is interpreting the vague code, which prevents the wearing of gang-related beads, to apply to Raymond ‘ s Rosary simply because it contains beads. Raymond is not part of a gang and is not wearing the Rosary to indicate that he is part of a gang .  He is wearing the Rosary for religious and personal reasons.

It’s also clear that the school is arbitrarily using the vague code to silence Raymond’s religious message.  In contrast, the school is not using the code, which specifically prohibits the wearing of bandanas, colors, and flags, to prevent students who commonly wear bandanas on their heads or hanging out of their pockets, even though the display of bandanas in such a manner is generally considered by the popular culture to be “gang-related.”  The simple fact is that the wearing of a light-color purple Rosary, especially by Raymond, is not.

There are numerous court decisions declaring similarly vague school dress codes unconstitutional.

We’re in the process of preparing a federal lawsuit that we will file – if necessary – to ensure that Raymond’s First Amendment rights are protected.   

Barry, you don’t believe the school district can convincingly argue that a Rosary is a gang symbol, do you?  I am interested in hearing your thoughts on this case.

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