Eagle Feather Controversy....

[WCPoke]

http://www.newson6.com/story/291035...-to-wear-eagle-feather-heard-in-federal-court

It seems the Magistrate made the right decision. I would think that her holding the feather or having it in her hair would have more significance than wearing it on a cardboard mortar board mass produced by Balfour......unless people could not see it (which is why most kids put things on top of their caps during graduation in an effort to garner attention).

 

[hollywood]

Seems it was not some arbitrary "decoration" it had a religious/social significance.

When it comes to a local school district's "policy" and the US Constitution which guarantees a right of free expression and a right of religious freedom, the Constitution should prevail every time.

I've got to say that I'm 100% in agreement with the girl's attorney quoted in the article.

Local Rule vs. Constitution, it actually seems pretty clear cut to me from a legal standpoint.

 

[hollywood]

BTW, here's the State Law on the Subject which seems pretty damned clear is on the side of the girl and not the School District! I'm really shocked by the Magistrate's ruling given the previous Supreme Court decisions on this issue, which seem to be pretty clear to me. (BTW, the Smith case below, which cites O'Connor's opinion was about the right of Native Americans to use Peyote as part of their religious rites. Given that the Supreme Court ruled that they had a right to do so under the 1st Amendment, I kind of find it hard to believe that line of reasoning would NOT support something so harmless as attaching a feather to a mortarboard for purposes of comparison.

Oklahoma Religious Freedom Act

§51-253. Burden upon free exercise of religion.
A. Except as provided in subsection B of this section, no governmental entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.

B. No governmental entity shall substantially burden a person’s free exercise of religion unless it demonstrates that application of the burden to the person is:

1. Essential to further a compelling governmental interest; and

2. The least restrictive means of furthering that compelling governmental interest."



The following is from the Kripke Center for the study of Religion and Society, which does a pretty good job of outlining the standards derived from numerous Supreme Court cases and provides a definition of the term "Compelling State Interest" as found in the Oklahoma Religious Freedom Act above:

When a law threatens certain fundamental rights, the laws defenders assume the burden of proof to justify it. They have to convince the court that (1) the challenged law served not just an important public purpose, but a genuinely compelling one; (2) the law was well tailored to achieve that purpose, and (3) the purpose could not be achieved by some less burdensome method. This method of argument is called the compelling state interest test. Perhaps the single dearest statement of this doctrine is in Wisconsin v. Yoder, in which the Supreme Court upheld the right of Amish parents to give their teenagers traditional vocational training in the community rather than send them to schools. In Chief Justice Burger's words ". . . only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.

From Justice O'Connors Concurring opinion in Employment Division v Smith (US SCt 1990)

• 
  "The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order."
  
  "Only an especially important government interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens."
  

• 
  "The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order."
  
  "Only an especially important government interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens."
  

 

[WCPoke]

Seems it was not some arbitrary "decoration" it had a religious/social significance.

When it comes to a local school district's "policy" and the US Constitution which guarantees a right of free expression and a right of religious freedom, the Constitution should prevail every time.

I've got to say that I'm 100% in agreement with the girl's attorney quoted in the article.

Local Rule vs. Constitution, it actually seems pretty clear cut to me from a legal standpoint.

Waste of the Magistrate's time and an attention grab. Too bad she and her mother weren't paying the legal fees.

 

[Ostatedchi]

I actually agree with the district and the judge here. It isn't a religious issue at all. If they allow her to decorate her mortar board then they must allow everyone to. And then they can't restrict it to just one religion.

The school is in the right here.

If she wants a religious ceremony then she is free to go have one.

 

[hollywood]

There's numerous Supreme Court cases which clearly say you two are on the wrong side legally.

You're free to surrender your Constitutional Rights to the local school boards rules, but don't expect everyone else to lay down and take it.

You don't have to simply surrender your rights to participate in a government sanctioned event and the law is very clear on the subject. While the rule is "neutral" that is not nearly sufficient enough to meet Constitutional muster. Even content neutral rules can violate your right to personal religious expression, which again the government should NEVER be able to deny an individual, when they are in no way imposing their beliefs on others or infringing anyone else's rights.

What if the school board passed a rule saying that no one could wear a necklace or bracelet Crucifix, Star of David or other religious symbol in a way that it showed during graduation?

Would you guys think that everyone should comply with that rule? Or, would you recognize that you as an individual have certain unalienable RIGHTS as an American, as guaranteed to you by the Constitution, that the state cannot use its limited powers to otherwise deny, impair or deprive you of?

 

[NeekReevers]

Seems it was not some arbitrary "decoration" it had a religious/social significance.

When it comes to a local school district's "policy" and the US Constitution which guarantees a right of free expression and a right of religious freedom, the Constitution should prevail every time.

I've got to say that I'm 100% in agreement with the girl's attorney quoted in the article.

Local Rule vs. Constitution, it actually seems pretty clear cut to me from a legal standpoint.

Where she loses me is the fact that she wouldn't wear it in her hair or carry it. I admit to knowing next to nothing about Native American religion but I'm not really buying that it would be disrespectful to carry it or wear it in her hair but it's fine to put it on a mortar board. It's not only a reasonable rule about the mortar boards it makes sense. As we know there is little room for that these days.

 

[Ostatedchi]

But they aren't denying her that. She can wear it in her hair. She just can't decorate her mortar board with it. Seems simple.

 

[hollywood]

Please establish for me the COMPELLING STATE INTEREST which makes the rule enforceable in the first place? Especially, when balanced with the Individual's PROTECTED and GUARANTEED Rights of Speech (expression) and Religion?

Here's the high bar (standard) - please give me a solid argument that comes close to meeting its requirements.

"The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order."

"Only an especially important government interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens."

- Employment Division v. Smith, 494 US 872 (1990).

What's so damned important about enforcing this rule, that a person should surrender their Constitutional Rights in light of them, that is the question?

 

[Marshal Jim Duncan]

Kids today... have they never heard the expression: "it's better to ask for forgiveness than permission"?

 

[WCPoke]

But they aren't denying her that. She can wear it in her hair. She just can't decorate her mortar board with it. Seems simple.

Very simple. She's the classic okie "Indian"....1/1000th% and lining up at the trough if given the chance.

 

[squeak]

What if it was a cross, Wood?

 

[hollywood]

squeak,

I hold the same position if it were a cross, a Star of David, etc.

Those are all PROTECTED elements of free expression inculcated in the Constitution.

I can see absolutely NO compelling state interest in play here which overrides the rights of the individual.

Now, before someone asks: What about a swastika or KKK?

While those are likewise protected elements of free speech, on the balancing side - the "compelling state interest" just rose significantly. The state (in the form of the school board) certainly has an interest in preventing violence and as such could reasonably take steps to curtail that speech (displaying a swastika, KKK, etc.) which is likely to result in same.

It's not an "all or nothing" scenario, there is certainly a "reasonableness" test that would apply on a circumstantial and case-by-case basis. (As is outlined in numerous Supreme Court cases.)

This rule seems on its face to be all about forcing a conformity on the part of all students, so that they all look alike. That may be a very compelling reason for how Martha Stewart wants things to look, but it's not a very good reason for the State to make all students conform in appearance, rather than providing some reasonable accommodations to those with such beliefs.

 

[JimmyBob]

I actually agree with the district and the judge here. It isn't a religious issue at all. If they allow her to decorate her mortar board then they must allow everyone to. And then they can't restrict it to just one religion.

The school is in the right here.

If she wants a religious ceremony then she is free to go have one.

Amen! One can only recoil in horror visualizing the trinkets, geegaws, etc. the gerbils would decorate/desecrate themselves with given the opportunity to display self-centered stupidity posing as "it's all about me and my (insert "belief/freedom/etc.)"

 

[lovethempokes]

From the way you are potificating Hollywood, you would think they were making her give up her rights as an American citizen. They have a rule,not unlike many schools with dress codes. It's a feather and if it was that important she would have agreed to the holding it or wearing in her hair. She lost all argumements when she said it would be disgraceful to do so. Guess all those Native American dancers that came to our school in the 80's(not sure they still do that) were being disrespectful. Sad that the courts have to waste time and money on this.

 

[N. Pappagiorgio]

Kids today... have they never heard the expression: "it's better to ask for forgiveness than permission"?

Exactly! My youngest child graduated from OSU three years ago and he wanted to honor his sister who was going through chemotherapy and was at the commencement. He received his diploma on stage and took his cap off to reveal his completely bald head. It was a moment I will never forget and neither will his sister.

 

[hollywood]

Lovethempokes,

Well, if the school has a "rule" then I guess that's the end of the story.....oh wait, that's right - all "rules" by any governmental body has to be in compliance with all state and federal laws and ultimately the Constitution.

The point you make about the feather: I'm not claiming to be an expert on the particular tribe's culture, but from what I've read, this isn't just a standard feather that one would use to adorn your hair. From the evidence submitted in court, by their tradition it holds some special significance and is not to be worn under something else. (Interestingly there was a similar case in ND a few years back where the identical point was made and the school board made an accommodation.)

Contrary to what many seem to think, allowing an exception for a personal, but legitimate religious belief does NOT just completely overturn the schools rule against adornment. It would only apply to this particular instance and in other cases where a person could likewise show a legitimate religious belief/practice in order to get an exemption/exception to the general rule.

I've shown in my post where the Oklahoma Religious Freedom Act is directly on point and it requires that in order to deny someone their ability to freely express themselves in an area of religious belief, the governmental entity seeking to enforce the rule HAS TO BY LAW establish that there is a Compelling Interest in order to do so. I have also shown a Supreme Court decision which establishes the identical criteria.

So yes, IMHO this is a matter of the State (through the local school board) depriving someone of their Individual Constitutional Rights and Liberties through the application of an arbitrary rule, contrary to both State Law and the US Constitution. It's really no different than if a school board somewhere were to try and force a Sikh student to wear a mortarboard over his turban, prevent a Jewish student wearing a yarmulke instead of a mortarboard or a requiring a muslim student to take off her scarf/headress in order to participate in a graduation ceremony. These are all Constitutionally protected RIGHTS of the individual, which outweigh the "Powers" of the State as granted to the government through the Constitution.

At some point, people need to decide whether or not that our Guaranteed Constitutional Rights are actually, in the balance, worth protecting or whether we will simply bow down to every petty dictator and rule that any government official out there makes. Some of you seem to think that this is a waste of time, but in many respects what this girl (and her attorneys) are doing is part of making certain that the government respects the Constitution and gives some semblance of respect in recognizing that ALL of us get to use our guaranteed rights of expression and freedom as established by the Constitution.

As I said, in order to deprive a person of their 1st Amendment rights, the Supreme Court has set the bar very, very high. (As the quote from Justice O'Connor shows.) I just don't see any way that the School Boards rule even comes close to meeting the standard of either the State law or the Federal Constitution. I honestly hope that they will appeal this and keep the issue alive to get an ultimate resolution, because from reading the case law it certainly appears that the magistrate got this one completely wrong.

 

[WCPoke]

Lovethempokes,

Well, if the school has a "rule" then I guess that's the end of the story.....oh wait, that's right - all "rules" by any governmental body has to be in compliance with all state and federal laws and ultimately the Constitution.

The point you make about the feather: I'm not claiming to be an expert on the particular tribe's culture, but from what I've read, this isn't just a standard feather that one would use to adorn your hair. From the evidence submitted in court, by their tradition it holds some special significance and is not to be worn under something else. (Interestingly there was a similar case in ND a few years back where the identical point was made and the school board made an accommodation.)

Contrary to what many seem to think, allowing an exception for a personal, but legitimate religious belief does NOT just completely overturn the schools rule against adornment. It would only apply to this particular instance and in other cases where a person could likewise show a legitimate religious belief/practice in order to get an exemption/exception to the general rule.

I've shown in my post where the Oklahoma Religious Freedom Act is directly on point and it requires that in order to deny someone their ability to freely express themselves in an area of religious belief, the governmental entity seeking to enforce the rule HAS TO BY LAW establish that there is a Compelling Interest in order to do so. I have also shown a Supreme Court decision which establishes the identical criteria.

So yes, IMHO this is a matter of the State (through the local school board) depriving someone of their Individual Constitutional Rights and Liberties through the application of an arbitrary rule, contrary to both State Law and the US Constitution. It's really no different than if a school board somewhere were to try and force a Sikh student to wear a mortarboard over his turban, prevent a Jewish student wearing a yarmulke instead of a mortarboard or a requiring a muslim student to take off her scarf/headress in order to participate in a graduation ceremony. These are all Constitutionally protected RIGHTS of the individual, which outweigh the "Powers" of the State as granted to the government through the Constitution.

At some point, people need to decide whether or not that our Guaranteed Constitutional Rights are actually, in the balance, worth protecting or whether we will simply bow down to every petty dictator and rule that any government official out there makes. Some of you seem to think that this is a waste of time, but in many respects what this girl (and her attorneys) are doing is part of making certain that the government respects the Constitution and gives some semblance of respect in recognizing that ALL of us get to use our guaranteed rights of expression and freedom as established by the Constitution.

As I said, in order to deprive a person of their 1st Amendment rights, the Supreme Court has set the bar very, very high. (As the quote from Justice O'Connor shows.) I just don't see any way that the School Boards rule even comes close to meeting the standard of either the State law or the Federal Constitution. I honestly hope that they will appeal this and keep the issue alive to get an ultimate resolution, because from reading the case law it certainly appears that the magistrate got this one completely wrong.

You give this girl (and her counsel) too much credit. The Magistrate got it right. I've glanced at your responses on the kotv.com site and no matter how many times you call a sheep a goat...

http://www.newson6.com/story/291035...-to-wear-eagle-feather-heard-in-federal-court

It seems the Magistrate made the right decision. I would think that her holding the feather or having it in her hair would have more significance than wearing it on a cardboard mortar board mass produced by Balfour......unless people could not see it (which is why most kids put things on top of their caps during graduation in an effort to garner attention).

http://m.tulsaworld.com/homepagelat...7d4-d639-5610-b675-5db0d06e61c8.html?mode=jqm

 

[hollywood]

WC,

I have little doubt that the magistrate's decision (and the judge's rubber stamping of same) would be overturned at the appellate level.

It's completely inconsistent with prior Supreme Court decisions on similar facts and circumstances.

Let's see if her attorneys sustain the objection and file an appeal, even though factually the issue will now be moot, (as the graduation is tonight) it is still ripe for appeal due to fact it could similarly impact others at a future date.

One thing to bear in mind here, she was asking for an injunction and the rules for obtaining an injunction are a bit more difficult to meet than simply getting and sustaining a regular decision on the merits at the end of a trial. On appeal, that will not be the case and a fuller consideration of the merits will in play.