Summary of facts: A Connecticut public school teacher kept a small crucifix beside her classroom desk along with other items such as student artwork. School administrators instructed her to remove the crucifix due to Establishment Clause concerns. The teacher refused to remove the crucifix, so the school removed her and transferred her to an administrative role. The teacher sought a preliminary injunction in federal district court, alleging that school officials violated her rights under the Free Speech and Free Exercise Clauses of the First Amendment to the U.S. Constitution. The court declined to order the school district to reinstate the teacher. It held that she would be unlikely to prevail on her free exercise claim because of concerns over an Establishment Clause violation. The court distinguished the Supreme Court’s decision in Kennedy v. Bremerton, reasoning that students in this case were in the classroom while the crucifix was displayed, while in Kennedy, the students were engaged in other activities during his prayer. The teacher has now appealed to the U.S. Court of Appeals for the Second Circuit.

RFI’s position: The school district’s policy discriminates against religion by permitting teachers to place secular personal items near their desks but not religious items. Such selective enforcement strips the policy of its neutrality and triggers strict scrutiny—a standard the school district cannot satisfy here. The school cannot cure this violation by invoking the Establishment Clause. In Kennedy v. Bremerton, the Supreme Court resolved the tension between the Free Exercise Clause and the Establishment Clause by holding that private religious expression neither establishes religion nor constitutes government endorsement. Moreover, the district court’s order permitting selective enforcement against personal, visible, religious exercise by teachers will disproportionately burden minority and underrepresented faith traditions. Allowing rules that burden religious practice adds another tool in the arsenal of government officials prejudiced against minority faiths. The court of appeals should hold that the First Amendment prohibits this kind of selective, religion-targeting enforcement.

Read the brief here.