05/28/2010 04:54 pm ET Updated May 25, 2011

Protecting Students' Rights to Religious Expression

In the midst of the Iraq War, a 12-year-old girl attending a middle school in the Schenectady, New York Central School District began wearing a red-white-and-blue beaded necklace. She wore the necklace to display her support for soldiers in Iraq and, more specifically, her family members serving in the war overseas. Officials at her school told her she could not wear the necklace because it might be "gang-related" and thus violated the school's dress code. When the school told her that if she didn't remove the necklace she would face disciplinary action, her family filed suit in federal court.

The school district, after failing to have the suit dismissed, agreed to an out-of-court settlement with the family. At the time, Eric Ely, an assistant superintendent in the school district, was a named defendant. Today, Eric, now the superintendent, may be a defendant again.

Thirteen year-old Raymond Hosier, a seventh grader at Oneida Middle School in Schenectady, New York, who has never been considered a rabble rouser, recently began wearing a rosary around his neck. He says he wears the beads "for my uncle and my brother and because I'm religious. My brother died almost five years ago, from getting hit by a car. My uncle died about two and a half weeks ago from brain cancer." When the school told him he had to take off the beads because they might be "gang-related," Raymond told them that it was for his brother and uncle, and that he's a Christian who should be allowed to wear them. Raymond was not trying to start a constitutional controversy; the rosary was simply something he wore to help him cope with two difficult losses. The particular rosary he wears was the same rosary the family placed in his late brother's hand when he was in the hospital following the car accident that ultimately took his life.

The school officials, showing no sympathy for Raymond's explanation, gave him two options: remove the rosary or go home. Raymond chose the latter, and when he arrived at school the next day with the rosary still on, he was suspended for two days. After the weekend, when Raymond came back to school with the rosary on again, he was suspended indefinitely.

This school district is not only violating Raymond's constitutional rights but also impeding his education. As it turns out, Raymond knows a lot more about his constitutional rights than the school's officials and has decided to fight them in court. Supreme Court precedent and the American Center for Law & Justice (ACLJ) are on his side, while the school has taxpayer-funded attorneys on theirs.

The United States Supreme Court, in a landmark 1969 case commonly referred to as Tinker, held that students do not forfeit their constitutional rights when they attend school. The opinion, authored by Justice Abe Fortas, stated:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

At the height of the Vietnam War, students in Des Moines, Iowa were suspended from their public school for wearing black armbands in protest of US involvement in the war. The school argued that the armbands were "disruptive" and thus an inappropriate accessory. The Supreme Court strongly disagreed and described the armbands as "closely akin to 'pure speech' which ... is entitled to comprehensive protection under the First Amendment."

The Schenectady Central School District now faces four major problems: First, the district and current superintendent have already experienced an embarrassing incident when it had to settle with the young girl told to remove her patriotic beads. Now, the district is being embarrassed at the national level.

Second, the school district's dress code policy could face constitutional scrutiny. We have reviewed it at the ACLJ and are certain that the "bans" it includes are unconstitutionally vague. The code says that "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 school suspended Raymond under the "beads" ban, but think about the other vague terms used in this dress code. For instance, who deems something to be "gang-related"? Red and blue are well-known gang colors; therefore, could the school ban the wearing of those colors altogether? Lump together the "colors" ban and the "flags" ban and this school district could ban the American flag. Think this is outlandish? Don't forget what happened to students in California who were sent home for wearing American flag t-shirts on Cinco de Mayo.

Third, under established Supreme Court precedent, Raymond has First Amendment rights just like any other student in the public schools. A Jewish student should never be told to remove a yamaka nor a Muslim to remove a hijab.

The school district's fourth problem is Raymond. Unlike many young teenagers who would probably decide to follow the commands of school authorities rather than be suspended, Raymond decided to take a stand and dared the school district to stick to its guns. Schenectady Central School District and Oneida Middle School have until tonight to respond to the ACLJ's demand letter, let Raymond return to school, and clear his record. If the school district does not meet his demands, the district and its officials will find themselves in federal court next week.

Like many students before him, Raymond knew that sometimes you have to fight the system. Our hope is that his fight, now garnering national attention, will force school administrators to think twice before fighting the student.