United States v. Board of Education

911 F.2d 882, 1990 WL 112500

• Court: Court of Appeals for the Third Circuit
• Decided: August 9, 1990
• Docket: Nos. 89-1694, 89-1740
• Status: Published

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this case the United States uses Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to advance what would more commonly be a free exercise clause challenge (1) the refusal of the defendant Board of Education for the School District of Philadelphia (“Board”) to allow a public school teacher to wear religious attire in the course of her duties, and (2) to the Commonwealth of Pennsylvania’s “Garb Statute,” 24 Pa.St.Ann. § 11-1112, which compelled the Board’s action. We conclude that the United States Supreme Court’s summary disposition of an appeal from a decision of the Oregon Supreme Court in a case presenting such a free exercise challenge, Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986), appeal dismissed, 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987), ultimately compels us to reject the Title VII claim currently before us, although moving from Cooper’s free exercise holding to the Title VII claim requires some analysis.

I. Facts

Alima Delores Reardon is a devout Muslim with a religiously held conviction that Muslim women should, when in public, cover their entire body save face and hands. Since 1970, Reardon had from time to time worked as a substitute and full time teacher in the Philadelphia School District, positions for which she held the necessary certificate and other qualifications. Reardon first embraced her religious conviction regarding dress in 1982, and pursuant to her belief “she wore while teaching ... a head scarf which covered her head, neck, and bosom leaving her face visible and a long loose dress which covered her arms to her wrists.” District Court Finding of Fact ¶ 5. Apparently Reardon taught in this attire without incident until 1984.

Towards the end of 1984, on three separate occasions Reardon reported to various schools for duty as a substitute teacher and was informed by the principals of those schools that, pursuant to state law, she could not teach in her religious clothing. These actions were taken in compliance with what is commonly referred to as Pennsylvania’s Garb Statute, enacted in 1895 as Public Law No. 282:

(a) That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.

(b) Any teacher ... who violated the provisions of this section,, shall be suspended from employment in such school for the term of one year, and in case of a second offense by the same teacher he shall be permanently disqualified from teaching in said school. Any public school director who after notice of any such violation fails to comply with the provisions of this section shall be guilty of a misdemeanor, and upon conviction of the first offense, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), and on conviction of a second offense, the offending school director shall be sentenced to pay a fine not exceeding one hundred dollars and shall be deprived of his office as a public school director. A person twice convicted shall not be eligible to appointment or election as a director of any public school in this Commonwealth within a period of five (5) years from the date of his second conviction.

24 Pa.St.Ann. § 11-1112. On each occasion Reardon was given a chance to go home and change; on each occasion she refused to do so and was not allowed to teach. After exhausting her remedies within the school system, Reardon filed charges of discrimination with the district office of the Equal Employment Opportunity Commission (“EEOC”).

Upon receiving Reardon’s complaint, the EEOC District Office conducted an investigation. During that investigation, the Commonwealth, through its Attorney General, took the position that the Garb Statute was constitutionally valid and enforceable. The EEOC ultimately concluded there was reasonable cause to believe that both the School Board and the Commonwealth had violated Title VII. After pursuing all prescribed conciliation without success, the EEOC transmitted Reardon’s charge to the Department of Justice, pursuant to 42 U.S.C. § 2000e-5(f)(l), which requires such referral- when the respondent to a charge filed under Title VII is a “government, governmental agency, or political subdivision.” The Justice Department then filed a complaint in district court, naming both the Commonwealth and the Board as defendants.

The complaint asserted two theories of liability against the Board: (1) “Failing or refusing to employ as public school teachers individuals who wear or who seek to wear garb or dress that is an aspect of their religious observance,” and (2) “[flailing or refusing reasonably to accommodate individuals who wear or who seek to wear garb or dress ... that is an aspect of their religious observance and practice.” The complaint also asserted that the Commonwealth violates Title VII by “[cjontinuing to give force and effect to Section 11— 1112.” In addition, the complaint charged that both defendants engaged in a “pattern of practice of resistance to the full enjoyment by public school teachers or would be public school teachers ... of their right of equal employment opportunities without discrimination based on religion.” As discussed below, such an allegation is a necessary condition to obtaining prospective in-junctive relief against a discriminatory practice. The United States sought a declaration that the Garb Statute is in conflict with Title VII and therefore unenforceable, as well as injunctive relief and damages.

After a bench trial, the district court entered judgment in favor of the United States and against the School Board, ordering the Board to make Reardon whole and enjoining it from giving any further effect to the Garb Statute. However, concluding that the Commonwealth was not an “employer” of Reardon within the meaning of Title VII, and that in light of evidence that the Garb Statute was sporadically enforced there was no “pattern or practice” of discrimination, judgment was entered in favor of the Commonwealth. The United States appeals from that judgment; the Board cross-appeals the judgment against it.

II. The Legal Standards

Title VII directly protects employees from adverse employment actions on the basis of religion:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion. ...

42 U.S.C. § 2000e-2(a). The only explicit exception to this prohibition is the narrow exception for “bona fide occupational qualifications.” (“BFOQs”). 42 U.S.C. § 2000e-2(e)(l). However, Title VII’s definition of religion also contains what may be characterized as an exception:

The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

42 U.S.C. § 2000e(j) (emphasis added). Thus, perhaps counterintuitively, if an employer cannot accommodate a religious practice without undue hardship, the practice is not “religion” within the meaning of Title VII.

In light of this exception, most Title VII religion cases have turned on the question of whether the employer can demonstrate that it could not accommodate a religious practice without “undue hardship.” E.g., Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); Protos v. Volkswagen, 797 F.2d 129 (3d Cir.), cert. denied 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382 (9th Cir.1984); EEOC v. Sambo’s, 530 F.Supp. 86, 90 (N.D.Ga.1981). Consistent with this analysis, the United States in its complaint alleged that the defendant School Board had failed “reasonably to accommodate individuals who wear or who seek to wear garb or dress that is an aspect of religious observance.” But on appeal, the United States argues this analysis is actually too kind to the defendants because the “reasonable accommodation” requirement has only been applied where an employee’s religious practice runs afoul of an otherwise religiously neutral requirement, while the Garb Statute at issue here explicitly discriminates against certain practices because they are religious. In such a situation, plaintiff argues that only the much narrower BFOQ exception should apply.

This argument runs counter to a straightforward reading of the statute. Since the reasonable accommodation/undue hardship exception is contained within the definition of religion, it must be applied at the threshold of the court’s analysis. The import of the statute is clear: if public schools cannot accommodate the wearing of religious garb without undue burden, then the wearing of such garb is not “religion” within the meaning of Title VII. Thus, the district court correctly concluded that a determination of the undue hardship question was required.

Once a plaintiff-employee has demonstrated that a religiously motivated practice conflicts with an employment requirement, the employer may defend in one of two ways. First, the employer may demonstrate that it has offered a “reasonable accommodation.” In Ansonia Board of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986), the Supreme Court held that the employer need only demonstrate that the proffered accommodation is reasonable, not that it is the most reasonable or the employee’s preferred accommodation. “Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship.” Id. at 68, 107 S.Ct. at 372.

In this case, however, the defendants proffered no accommodation. Instead, they have pursued the second potential line of defense: they have argued that the accommodation Reardon sought — allowing her to teach in religious garb — could not be accomplished without undue hardship.¹ The plaintiff has not argued that alternative means of accommodation are available. Thus, the issue has been joined on the question of whether the School Board could have allowed Reardon to teach in religious garb without suffering undue hardship.

In Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the Supreme Court held that “[t]o require [the employer] to bear more than a de minimis cost in order to [accommodate the employee’s religious practice] is an undue hardship.” Id. at 84, 97 S.Ct. at 2277; see also Ansonia Board of Education, 479 U.S. at 67, 107 S.Ct. at 371; Protos, 797 F.2d at 133. The sort of “de minimis cost” addressed in previous cases has usually been economic in nature. In Har-dison, for example, where an employee refused to work on Saturdays for religious reasons, the Court agreed that the employer should not be required to pay premium overtime pay to other workers to induce them to replace the plaintiff on a Saturday shift. 432 U.S. .at 63, 97 S.Ct. at 2266. In Protos, also involving a worker who observed Saturday Sabbath, in finding that accommodation would not work an undue hardship, this Court deferred to the district court’s weighing of evidence as to whether accommodation would result in diminished efficiency on the assembly line. 797 F.2d at 134-35.

Hardison did, however, recognize an arguably non-economic burden when it held that the employer could not be required to violate the seniority provisions of a collective bargaining agreement in order to ensure that plaintiff would not have to work on Saturdays. 432 U.S. at 79-83, 97 S.Ct. at 2274-76. See also EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir.1988) (“Townley is, of course, right when it says, ‘Cost cannot always be measured in terms of dollars.’ ”), cert. denied — U.S.-, 109 S.Ct. 1527, 103 L.Ed.2d 832 (1989). While one could probably articulate an economic burden suffered by an employer forced to violate a collective bargaining agreement, the Court did not attempt to do so; rather, the opinion stressed the strong national labor policy favoring enforcement of collective bargaining agreements, id. 432 U.S. at 79, 97 S.Ct. at 2274, and the unfairness that would result from requiring employees who have obtained seniority to work on Saturdays when they had “strong, but perhaps nonreligious, reasons for not working on weekends.” Id. at 81, 97 S.Ct. at 2275.

III. Cooper v. Eugene School District

Before turning to our legal analysis of the facts of this case, we must take note of Cooper, a case factually indistinguishable from ours that found its way to the Supreme Court of the United States. Cooper upheld the validity of a pair of Oregon statutes whose cumulative import is nearly identical to the Pennsylvania Garb Statute.²

In accordance with her religious beliefs, Janet Cooper, a Sikh, wore white clothes and a white turban while teaching, even after being warned about the Oregon statutes. As a result she was suspended and her teaching certificate was revoked; in response she filed suit in state court arguing that the statute and the actions taken pursuant to it violated her right to free exercise of her religion. She achieved a short-lived victory in the Oregon Court of Appeals, but the Oregon Supreme Court reversed, reasoning that while the Oregon statutes did constitute a burden on Cooper’s free exercise rights, when properly construed the statutes were narrowly tailored to the compelling state interest in preserving the appearance of religious neutrality in public schools. In so holding, the Cooper court did not conclude that tolerating religious garb in the classroom would violate the establishment clause, but rather that “a rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school. The policy choice must be made in the first instance by those with lawmaking or delegated authority to make rules for the schools.” 723 P.2d at 308.

At the time Cooper was decided, such cases were appealable as of right to the United States Supreme Court, and Cooper elected to take such an appeal. Her jurisdictional statement presented four questions:

1.Whether the [Oregon statutes] im-permissibly infringe on appellant’s right to the free exercise of her religious belief in violation of the First Amendment of the Constitution of the United States, or is the statutory proscription against wearing of religious dress mandated by the establishment clause of the First Amendment.

2. Whether the statutes in question are invalid because impermissibly vague or overly broad.

3. Whether the application of the statutes to appellant deny her the equal protection of the laws, in violation of the Fourteenth Amendment....

4. Whether the statutes in question violate Title VII of the Civil Rights Act of 1964 and are thus invalid.

The Supreme Court dismissed Cooper’s appeal for want of a substantial federal question.

Summary dispositions by the Supreme Court of appeals by right have the controlling effect of Supreme Court precedent with regard to “the specific challenges presented in the statement of jurisdiction,” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam), assuming, of course, that there have been no subsequent doctrinal changes that cast doubt on the continued vitality of the holding.³ However, “[a] summary disposition affirms only the judgment of the court below, and no more may be read into [the Supreme Court’s] action than was essential to sustain that judgment.” Anderson v. Celebrezze, 460 U.S. 780, 785 n. 5, 103 S.Ct. 1564, 1568 n. 5, 75 L.Ed.2d 547 (1983). Thus, “judges of the state and federal systems are on notice that, before deciding a case on the authority of a sum-' mary disposition by this Court in another case, they must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same and, if they were, (b) determine that the judgment in fact rests upon decision of those questions and not even arguably upon some alternative nonconstitutional ground. The judgment should not be interpreted as deciding the constitutional questions unless no other construction of the disposition is plausible.” Mandel, 432 U.S. at 180, 97 S.Ct. at 2242 (Brennan, J., concurring). See generally R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice 247-51 (6th ed. 1986).

In Lecates v. Justice of Peace Court No. 4, etc., 637 F.2d 898 (3d Cir.1980), this court reviewed the various Supreme Court pronouncements on the precedential value of appeals dismissed and concluded that caution must be exercised to avoid reading more into these summary dispositions than is warranted: “In short, ... the prece-dential value of a summary disposition by the Supreme Court is to be confined to the exact facts of the case and to the precise question posed in the jurisdictional statement.” Id. at 904. Thus, we must be careful to focus solely on the jurisdictional statement and those issues necessarily decided by the Supreme Court in sustaining the Oregon judgment in Cooper, resolving any uncertainty about the scope of the Court’s decision in favor of the narrowest possible construction.

Janet Cooper did in her jurisdictional statement raise the question of whether the Oregon statutes violated Title VII, and she had raised the issue in the Oregon courts as well. The Oregon Supreme Court expressly declined to reach the issue, however, noting in part that Cooper’s teaching certificate had been conditionally reinstated during the course of the litigation. 723 P.2d at 305 n. 9. While we do not fully understand the Cooper court’s justification for failing to reach this issue, given that court’s approach we believe this is a case in which the Supreme Court “arguably” may have disposed of the Title VII issue other than on its merits.

Nonetheless, the summary disposition of Cooper does offer us substantial guidance on the question currently before us because it must be taken as an authoritative approval of the Oregon Supreme Court’s disposition of Cooper’s free exercise clause claim, and because certain conclusions inevitably flow from that approval. The free exercise claim was fully addressed in the Oregon Supreme Court’s opinion and was properly set forth in the jurisdictional statement. The United States Supreme Court could not have decided to dismiss for want of a substantial federal question without concluding that Cooper’s free exercise claim was without merit.

Government actions specifically directed at religion that burden an individual’s free exercise of religion can only be sustained if they are narrowly tailored to a compelling state interest. Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963); see also Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981).⁴ Accordingly, Cooper’s free exercise claim could only have been rejected for one of two reasons: (1) the statutes did not burden her free exercise of religion; or (2) the statutes were not narrowly tailored to serve a compelling state interest. In neither Cooper nor the instant case has any party contended that religious garb statutes do not burden the free exercise of religious beliefs, and such a contention could not be seriously maintained. Therefore, we have no trouble concluding Cooper stands for the proposition that the Oregon statutes permissibly advance a compelling interest in maintaining the appearance of religious neutrality in the public school classroom.⁵

This conclusion relieves us from the need to determine with precision the meaning of “undue hardship” under Title VII when applied to non-economic burdens. The Supreme Court’s opinion in Hardisort strongly suggests that the undue hardship test is not a difficult threshold to pass; at the very least, undue hardship is a lower standard than compelling state interest. Put differently, forcing an employer to sacrifice a compelling state interest would undeniably constitute an undue hardship. Accordingly, it necessarily follows from Cooper that the Oregon statutes do not violate Title VII.

As discussed below, the United States seeks to distinguish Cooper on the ground that the Oregon Supreme Court provided a construction of the Oregon statutes which eliminated potential constitutional problems. Further reference to the opinion of the Oregon Supreme Court is therefore appropriate. The Supreme Court of Oregon identified the concern addressed by the statutes as the fear “that the teacher’s appearance in religious garb may leave a conscious or unconscious impression among young people and their parents that the school endorses the particular religious commitment of the person whom it has assigned the public role of teacher.” 723 P.2d at 313. The court identified the objective of the statutes as the preservation of an “atmosphere of religious neutrality.” Id.

In accordance with this concern and objective, the Supreme Court of Oregon interpreted the phrase “ ‘while in the performance of his duties as a teacher’ to include only those duties which systematically bring the teacher, as a teacher, into contact with students.” Id. at 312. The court also observed that the offending dress is dress that communicates to the teacher’s students adherence to a religion, noting that this would not include dress that communicates an ambiguous message, such as, for example, the occasional wearing of jewelry that incorporates common decorations like a cross or a Star of David. Finally, the court pointed out that since the objective of the statutes is the preservation of an atmosphere of neutrality it would not be violated by an isolated occurrence such as the appearance of the teacher “in religious dress ... on her way to or from a seasonal ceremony.” Id.

IV. The Claim Against the Board

From the inception of this case, the School Board has insisted that it had no choice but to comply with the Garb Statute.⁶ On its face, that statute appeared to be an act of the Pennsylvania legislature duly adopted in 1895 and duly reenacted with minor changes in 1949 as a part of Pennsylvania’s Public School Code. 24 Pa. St.Ann. § 1-101 et seq. There was judicial authority in Pennsylvania, Commonwealth v. Herr, 229 Pa. 132, 78 A. 68 (1910), and, as we have seen, a summary disposition by the United States Supreme Court supporting its constitutionality. Accordingly, there was no assurance that the prosecuto-rial authorities in Pennsylvania would not enforce the statute against school administrators who failed to carry out the dictates of the statute. For the Board to have accommodated Ms. Reardon, it would have been required to expose its administrators to a substantial risk of criminal prosecution, fines, and expulsion from the profession. This, the Board insists, would have been an undue hardship on it as it went about the business of running a school district. We agree.⁷

If, as held in Hardison, it is an undue hardship on an employer to require it to violate its collective bargaining agreement by exposing its senior employees to weekend work, we think it follows a fortiori that it would be an undue hardship to require a school board to violate an apparently valid criminal statute, thereby exposing its administrators to criminal prosecution and the possible consequences thereof. The sparse case law addressed to analogous issues provides support for this conclusion. Cf. Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382, 1384 (9th Cir.1984) (company policy promulgated to avoid risk of liability under state safety standards justified requiring employee to shave facial hair despite contrary religious beliefs); EEOC v. Sambo’s, 530 F.Supp. 86, 89-90 (N.D.Ga.1981) (refusal to allow beard in compliance with state health guidelines).

We need not, and do not, here address the situation in which there are sufficient indicia of the unconstitutionality of a criminal statute that the chances of enforcement are negligible and accommodation involves no realistic hardship. Nor do we here address the situation in which the defendant is a government entity with the authority to make decisions concerning the constitutionality of state statutes and, in accordance with such a decision, to control whether or not enforcement actions will be brought.⁸

Because accommodating Ms. Reardon’s desire to express her religious commitment through her attire would have imposed undue hardship on the School Board, the judgment against it must be reversed.

V. The Case Against the Commonwealth

The case against the Commonwealth of Pennsylvania stands on a somewhat different footing than the case against the Board which we have heretofore discussed. We agree with the district court’s conclusion that the Commonwealth was not Reardon’s “employer” within the meaning of Title VII. While the Commonwealth does in various ways exercise control over the terms of employment of public school teachers, this control is exercised exclusively in its regulatory capacity rather than in the course of a customary employer-employee relationship. See George v. New Jersey Board of Veterinary Medical Examiners, 635 F.Supp. 953, 956 (D.N.J.1985), aff'd, 794 F.2d 113 (3d Cir.1986). Accordingly, the Commonwealth cannot be liable to Ms. Reardon for religious discrimination under 42 U.S.C. § 2000e-2(a).

However, the Commonwealth is potentially liable under a provision allowing the Attorney General to seek injunctions against any action by any person that would result in future violations of Title VII:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court ... requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

42 U.S.C. § 2000e-6(a) (emphasis added). One need not be the employer of the employees whose Title VII rights are endangered in order to be liable under this section, but the Attorney General must demonstrate the existence of a “pattern or practice” in order to obtain the prophylactic relief provided. In the instant case the district court held that in light of evidence that the Garb Statute was sporadically enforced at best the Commonwealth had not engaged in a “pattern or practice” within the meaning of the statute.

The district court concluded that the Supreme Court’s opinion in International Bd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977), places a high burden of proof on the Attorney General to demonstrate a consistent history of violation of Title VII. In International Bd. of Teamsters, the Court stated that the plaintiff in a § 2000e-6 claim must “establish by a preponderance of the evidence that ... discrimination was the defendant's standard operating procedure — the regular rather than the unusual practice.” Id. International Bd. of Teamsters, however, was a case in which the defendants denied that the practice in question was occurring at all, let alone pursuant to an admitted policy. Where the allegedly discriminatory policy is openly declared — in this case it was, among other things, published in the Pennsylvania Code — then proof that the policy was actually being followed consistently is not necessary in order to obtain an injunction against subsequent implementation. Cf. United States v. Gregory, 871 F.2d 1239, 1243 (4th Cir.1989) (“[I]f admissions [as to existence of a policy] are credited, the Title VII violation had been proven.”), cert. denied — U.S.-, 110 S.Ct. 720, 107 L.Ed.2d 740 (1990). In short, if the Garb Statute in itself represents a policy in conflict with Title VII, then the district court erred in failing to enjoin the Commonwealth from enforcing that statute. It thus becomes relevant whether enforcement of the Garb Statute would be consistent with Title VII or, stated conversely, whether accommodation by the Commonwealth of Ms. Reardon’s religious expression would impose an undue hardship on it.⁹ It is with respect to this issue that the Supreme Court’s holding in Cooper has its most direct application in this case.

It is apparent from the face of the Pennsylvania Garb statute and from the only Pennsylvania case construing it that its objective is the same as that of the statutes upheld in the Cooper case. Commonwealth v. Herr, 229 Pa. 132, 78 A. 68, 73 (1910) (“As shown by the preamble of the Act under consideration, the Legislature deemed it ‘important that all appearances of sectarianism should be avoided in the administration of public schools of the commonwealth.’ This was the ostensible object of the legislation, and we can discover no substantial ground for concluding that it was not the sole object which the Legislature had in contemplation.”) As we have indicated, the Supreme Court’s dismissal of the appeal in Cooper authoritatively establishes that this objective, i.e., the preservation of an atmosphere of religious neutrality, is a compelling state interest. We have also demonstrated that Cooper authoritatively establishes that the Oregon statutes do not violate Title VII. If the Pennsylvania statute, like the Oregon statutes in Cooper, is narrowly tailored to serve that compelling state interest, then by the same reasoning it too must pass Title VII muster.

It is true, as the United States stresses, that the Oregon Supreme Court construed the statutes before it so as to limit their application to situations that implicate the concerns addressed by the statute. At the same time, however, it is also true that the text of the Pennsylvania statute is as narrowly tailored to its objective as the texts of the Oregon statutes are to theirs. Given the text of the Pennsylvania statute and its objective, we think it highly unlikely that the Supreme Court of Pennsylvania would construe the statute in a manner that would make it offensive to the Court that found no substantial federal question in Cooper.¹⁰

Moreover, even were we to assume that the Pennsylvania statute might possibly be found to have borders somewhat wider than those of the Oregon statutes, we would nevertheless conclude that the United States has not shown a pattern or practice of resistance by the Commonwealth. In the absence of evidence showing prosecution in situations not sanctioned by Cooper, the speculative existence of a penumbra of situations in which the Pennsylvania Garb State might apply where the Oregon statutes would not, combined with the speculative possibility that this penumbra of situations would be in conflict with Title VII, does not satisfy the requirement of a “pattern or practice” within the meaning of 42 U.S.C. § 2000e-6(a). Accordingly, while we disagree with the district court’s analysis, we agree with its conclusion.

VI. The Relevance of Anti-Catholic Animus

In reaching these conclusions, we have not been unmindful of the district court’s finding in the present case that “anti-Catholicism was a significant factor in the passage of the Pennsylvania religious garb bill of 1895, now codified as section 11-1112.” District Court Findings of Fact 11143. A similar contention was raised in Cooper, and in fact the Oregon Supreme Court agreed that considerable anti-Catholic sentiment surrounded the original enactment of the Oregon statutes in 1923, 723 P.2d at 308; however, the Cooper court dismissed this issue by noting that the legislature reenacted the statutes in 1965 in an atmosphere untainted by hostility to any sect, motivated purely by its desire “to maintain the religious neutrality of the public schools, to avoid giving children or their parents the impression that the school, through its teacher, approves and shares the religious commitment of one group and perhaps finds that of others less worthy.” Id. As we have noted, the Pennsylvania Garb Statute was similarly reenacted as part of Pennsylvania’s Public School Code of 1949. 24 Pa.St.Ann. §§ 1-101 et seq. However, the parties in this case tendered no evidence, and the district court made no finding, regarding the circumstances surrounding the reenactment of the statute in 1949.

Since we have already concluded that the School Board has a valid undue hardship defense regardless of the ultimate validity of the Garb Statute, the allegedly impermissible motivation behind that statute is irrelevant to our decision with regard to that defendant. Even if the School Board had had some reason, not reflected in this record, for being suspicious of the motives of the legislature in 1895, we believe that requiring it to litigate over that motivation would itself constitute an undue hardship.

However, we must still consider whether the putatively anti-Catholic motivation behind the Garb Statute is of any greater significance in the context of the case against the Commonwealth. Accepting for the sake of argument the district court’s finding of fact that “anti-Catholicism was a significant factor” in the passage of the statute, we conclude that this fact is irrelevant to this Title VII suit against the Commonwealth.

Pennsylvania’s Garb Statute was passed on the heels of the decision of the Supreme Court of Pennsylvania in Hysong v. Gallitzin, 164 Pa. 629, 30 A. 482 (1894) which held that there was no barrier to garbed Catholic nuns and priests teaching in the public schools. The district court apparently concluded that anti-Catholicism was “a significant factor” in the passage of the Garb Statute because the legislature, or at least portions thereof, favored its passage in order to bar Catholic habit from the classrooms of the public school system.

We need not here address what if any importance this “significant factor” finding would have in the context of an establishment clause challenge to the statute; we have no such challenge before us. The Garb Statute plays a role in this litigation only because the Commonwealth asserts that it would be an undue hardship upon its public school system to require it to permit teachers to wear religious attire as they teach. The Garb Statute is significant solely because it evidences a decision on the part of the Commonwealth that barring religious attire is important to the maintenance of an atmosphere of religious neutrality in the classroom.

In this context, where the statute bans all religious attire and is being enforced by the Commonwealth in a non-discriminatory manner with respect to the Muslim teachers as well as Catholics, we conclude that it is irrelevant whether a portion of those who voted for the statute in 1895 were motivated by a desire to bar Catholic habit from the classroom. We therefore accept that the Commonwealth regards the wearing of religious attire by teachers while teaching as a significant threat to the maintenance of religious neutrality in the public school system, and accordingly conclude that it would impose an undue hardship to require the Commonwealth to accommodate Ms. Reardon and others similarly situated.

VII. Conclusion

For these reasons, we will reverse the district court’s judgment against the defendant School Board and instruct that judgment be entered in its favor. We will affirm the judgment in favor of the defendant Commonwealth of Pennsylvania.

1 . Amicus Americans United For Separation of Church and State has urged us to reconceptualize this case as presenting a question of the first sort, i.e., by remanding the case for a determination as to whether the School Board could reasonably accommodate Ms. Reardon by offering her employment in a non-teaching position. This suggestion is contrary to the manner in which the parties have quite reasonably chosen to litigate this case. The defendant School Board never offered such an alternative “reasonable accommodation," and Reardon did not force the issue by requesting such an accommodation.

2 . No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.

Or.Rev.Stat. § 342.650.

Any teacher violating the provisions of ORS 342.650 shall be suspended from employment by the district school board. The board shall report its action to the Superintendent of Public Instruction who shall revoke the teacher’s teaching certificate.

Or.Rev.Stat. § 342.655.

3 . We have found no case reflecting a doctrinal shift since Cooper. Shortly after the present case was argued, the United States Supreme Court announced its opinion in Employment Division, Department of Human Resources of Oregon v. Smith, — U.S.-, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In this decision the Court sharply restricted the level of review to be applied in free exercise cases in which plaintiffs seek exemptions from criminal laws of general applicability that are not specifically directed at religious practices. Id. 110 S.Ct. at 1602-03. While the Smith decision may represent a considerable shift in the Court's direction in free exercise jurisprudence, it does not have any impact on our interpretation of the significance of the summary dismissal in Cooper.

By its terms, the Smith decision is restricted to situations where government action is not specifically addressed to religious practice. Id. 110 S.Ct. at 1600. Religious garb statutes are, of course, addressed to certain behavior purely because it is religious in nature. Accordingly, Smith has no bearing on cases concerning such statutes.

4 . As we have already noted, see supra note 3, the Supreme Court’s recent Smith decision does not affect our interpretation of the summary dismissal in Cooper.

5 . We note, perhaps unnecessarily, that Cooper does not stand for the proposition that allowing teachers to wear religious garb in the classroom would violate the establishment clause. While the jurisdictional statement in Cooper seems to have assumed that only the need to avoid an establishment clause violation could constitute a compelling state interest, the Oregon Supreme Court explicitly eschewed this assumption, and recognized that "the decisions generally have been that more than a teacher’s religious dress is needed to show a forbidden sectarian influence in the classroom." 723 P.2d at 308. In the present case as well the plaintiff has embraced the assumption that the free exercise clause’s protection can only end where the establishment clause’s prohibition begins, and has suggested that "the statute should be upheld only if the Commonwealth can show that every time a teacher wear religious garb, there’s a violation of the establishment clause.” Transcript of Oral Argument at 34. We are not currently presented with an establishment clause case, and for the present purposes we need only note that Cooper does not mean, and we need not conclude, that tolerating religious garb would violate the establishment clause.

6 . While the United States does not contend to the contrary, we note that the School Board reasonably concluded that Ms. Reardon’s attire fell within the prohibitions of the Garb Statute. The trial transcript reveals that Reardon’s dress was sufficiently unusual that on a number of occasions students asked her about it; on some occasions Muslim students recognized that Reardon's attire identified her as a Muslim. Joint Appendix at 83-85, 89-90. While it is probably unusual that a child would be sufficiently knowledgeable to recognize which religion Reardon’s garb identified her as belonging to, it is likely that many children would realize Reardon dressed as she did for religious reasons.

7 . The district court in this case, citing Protos, 797 F.2d at 135 n. 3, concluded that whether an undue hardship has been demonstrated is a question of fact. District Court Opinion at 33 n. 2. The plaintiff accordingly argues that we should defer to the district court’s judgment in this regard.

In fact, Protos held only that district court determinations as to undue hardship are findings of fact when the district court determines whether economic burdens on the employer constitute undue hardship under the de minimis standard set forth in Hardison. 797 F.2d at 135 n. 3. The question of whether a particular type of non-economic burden constitutes an undue hardship within the meaning of Title VII is a mixed question of law and fact, and to the extent a question of law is presented, our review is plenary.

8 . The Board’s situation is not one in which an administrative agency has been charged with enforcement of a statute and has concomitant responsibilities to defend that statute in court and ensure that the statute is applied constitutionally. Compare, e.g., 71 Pa.St.Ann. § 732-204(a)(l) & (3) (Attorney General, upon request from any Commonwealth agency, shall furnish binding legal advice on any issue concerning exercise of official powers; Attorney General must defend constitutionality of all statutes); id. at § 352(a) & (d) (Pennsylvania Department of Education has power and duty to administer laws concerning public schools and to give advice on issues relating to school laws). Far from having such responsibilities with regard to the Garb Statute, school administrators are the subjects of the statute. While Pennsylvania’s school districts were created by the State and given the powers necessary to fulfill their role, see generally 24 Pa.St.Ann. §§ 2-201 & 2-211, they have not been given discretion to enforce state laws.

9 . Strictly speaking, the "undue hardship" exception of 42 U.S.C. § 2000e(j) only applies where a burden on “the conduct of the employer’s business ” is shown. It is therefore somewhat inaccurate to say that the Commonwealth can defend against a "pattern and practice” action, where it is not the employer, by demonstrating that sacrificing the statute would impose and undue hardship on the Commonwealth. Nonetheless, we believe this is the correct inquiry to undertake in the present situation. The Commonwealth will only be guilty of a "pattern or practice of resistance” to Title VII rights if the subject school boards, in obeying the Garb Statute, violate teachers’ Title VII rights. We have already held that a school board does not violate Title VII in obeying the statute because the threat of enforcement of the statute in itself constitutes an undue burden. But to conclude that the Garb Statute is not a pattern or practice because it in itself constitutes an undue hardship that protects school boards from Title VII liability would be to countenance a bootstrapping theory that would forestall all protection of Title VII rights in this context. Therefore, we conclude that the Garb Statute would be a "pattern or practice of resistance” if the actions taken in compliance with the statute would violate Title VII if taken independent of the statute. A school board that prevented a teacher from wearing religious attire in a state that has no Garb Statute would be required to demonstrate that tolerating such attire would impose an undue hardship on the conduct of its business. Since the School Board in this case has been relieved of that burden, the onus of doing so falls upon the Commonwealth.

10 . While the Oregon Supreme Court can be described as giving the Cooper statutes a "narrowing" construction, Cooper is not a case where a state Supreme Court, in order to sustain the constitutionality of a state statute, has construed it contrary to its literal language or has added provisions not contemplated by the legislature. The Cooper court simply construed the statute in accordance with its text and purpose. The distinction is of significance here. We are not authorized to engage in the former practice in order to save a state statute. Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). On the other hand, we cannot review the constitutionality of a state statute without determining what it requires, and when doing so we are not required to assume that it will be given anything other than a common sense interpretation based on its clear purpose.