United States: CAS Legal Mailbag – 9/28/23

Dear Legal Mailbag:

Last week, I received a request from a parent for accommodation, and I write to Legal Mailbag because I am at a loss at how best to respond.

The "request" (such as it is) is simple. In a handwritten note, the parent informs me (principal at an elementary school) that his son is "no longer permitted to participate in school activities that use electronic devices." Though the note is a simple declarative sentence, I am treating this note as a request for accommodations.

I can't imagine how we would ever accommodate this request, and, as Legal Mailbag may well imagine, I just want to tell the parent no. However, as an elementary school principal, I have been surprised before to learn about the things we must do to stay within the law. So, Legal Mailbag, how should I respond here?

Signed,
Thought I'd Seen It All

Dear Seen:

The threshold question is whether the request is based on religious grounds. If it is not, there is no legal issue here at all. The school district relies on electrical devices in various ways to provide education to students, and you can simply inform the parent that you will not be honoring his request.

If the objection is religious in nature, this "request" does raise a legal issue, because under the Free Exercise Clause of the First Amendment, school officials do have a duty to make reasonable accommodation for the religious practices of students and their families. The question, of course, is what is "reasonable."

In such matters, the courts have distinguished between exposure to ideas and required conduct. On occasion, parents have requested that their children be excused from instruction because, they claim, certain reading series or other instructional materials are contrary to their religious views. Typically, however, the courts have ruled that exposure to ideas does not implicate parent/student Free Exercise rights, and the courts have rejected their claims.

Requiring students to engage in conduct that is contrary to their religious beliefs, however, is a different matter. When school activities conflict with a family's religious practices, the district must show that it has a compelling interest in following the challenged practice, and that it does so in the least intrusive way possible. These rules arise from the "strict scrutiny" test under the Equal Protection Clause of the Fourteenth Amendment, and they have been codified in this context in Conn. Gen. Stat. Section 52-571b, which provides in relevant part:

(b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.

Notwithstanding the rigor of the "strict scrutiny" test and Conn. Gen. Stat. § 52-571b(b), Legal Mailbag advises you that you may deny this parent's request, at least as to the activities that are a required part of the educational program. The use of electronic devices in the education of children is ubiquitous, and Legal Mailbag is not aware of any reasonable way to provide alternative education to the child in question. Accordingly you may inform the parent that you are not able to honor his request and that the district will continue to use electronic devices in delivering the curriculum. If there are other school activities outside of the required curriculum that use electronic devices, however, the student must be excused from such activities (again, only if the parent is asserting a religious objection against the use of such devices). That distinction was drawn many years ago in Davis v. Page, 385 F. Supp. 395 (D. N.H. 1974), a very interesting case.

You will want to meet with the parent and explain what is possible and what is not. But Legal Mailbag is happy to answer your question so that you know your legal rights in this matter.

Originally appeared in the CAS Weekly Newsletter