June 13, 1989
James Heinert, Superintendent
Wessington Springs School District
P.O. Box 449
Wessington Springs, SD 57382
OFFICIAL OPINION NO. 89-19
Right of teacher to refuse to teach AIDS curriculum
Dear Mr. Heinert:
You have requested my official opinion concerning the following facts:
FACTS:
Wessington Springs School District currently has on contract a tenured teacher who is refusing to implement the State mandated and approved AIDS education curriculum because it conflicts with the teacher's religious beliefs. The teacher has indicated that there is no objection to teaching health but the teacher does object to and refuses to teach how the disease AIDS is transmitted and how this disease can be prevented. The teacher has requested that someone else teach the AIDS curriculum to the seventh and eighth grade students. To date the District has taken the position that due to its limited size and resources, it is unable to accommodate this request.
Based upon those facts, you have asked my opinion regarding whether the teacher has the right to refuse to teach this part of the curriculum.
RESPONSE:
The South Dakota Supreme Court has addressed a somewhat similar question. In Dale v. Lemmon School District, 316 N.W.2d 108 (S.D. 1982), the Court was faced with a situation where the Biology teacher in the Lemmon Public Schools spent an excessive amount of time teaching creation and some theories in his Biology class. The Board was of the opinion that the time devoted to teaching creation was so excessive that the teacher, Mr. Dale, failed to teach the basic Biology course. In fact, Mr. Dale informed the Lemmon School Board that he "would not follow instruction on how to teach Biology." The South Dakota Supreme Court upheld the Lemmon School Board's non-renewal of Mr. Dale's contract.
Statutes in this State make it quite clear that school boards, under the general supervision of the State Board of Education and the State Superintendent, are in charge of establishing curriculum, not the teachers. See SDCL 13-1-12; 13-1-25; 13-3-25; 13-3-48; 13-8-39; 13-34-11 and 13-43-7.
Federal courts have also agreed that teachers are required, upon pain of discharge, to follow mandated curriculum. In Palmer v. Board of Education of City of Chicago, 603 F.2d 1271 (7th Cir. 1979), the Court of Appeals held that a public school teacher is not free to disregard the prescribed curriculum even when the curriculum includes a question of religious belief. Were it not for a certain federal legislation, I believe that the matter could be resolved at this point.
Title VII of the Civil Rights Act of 1964 (hereinafter Title VII) prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin in a wide range of employment decisions and practices. In 1972, Title VII was amended to extend coverage to political subdivisions including school districts. In addition, in 1972 an amendment to 701(j) defined religion for the purposes of Title VII.
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 to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
For the record, I would note that this very definition itself has been attacked as a violation of the Establishment Clause of the First Amendment of the United States Constitution. Most of these cases have avoided the issue by finding that there was adequate alternative grounds for the governmental action. See cases cited in "Commentary: Accommodating School Employee's Religious Practices and Observances Under Title VII," 21 ELR 1, 2 (1985).
The principle case in this area arose in South Dakota. In Wangsness v. Watertown School District, 541 F.Supp. 332 (D.S.D. 1982) an industrial arts teacher who was a member of the World Wide Church of God was dismissed after he had missed work to attend the Feast of Tabernacles, a religious festival lasting approximately seven days. The Watertown School Board asserted that it had made a reasonable good faith attempt to accommodate Wangsness's religious practices. The Court noted that the Board of Education had made it quite clear to Wangsness that it did not intend to accommodate his religious beliefs because the Board feared that such accommodation would set a precedent for other leave requests and because it could expect this request from Wangsness annually. 541 F.Supp. at 336. It should be noted that Wangsness was taking leave without pay on these occasions. The Court ordered back pay for Wangsness but denied reinstatement because that would have required dismissal of another tenured teacher.
A similar result for a teacher engaged in the same religion occurred in Edwards v. School Board of Norton, Virginia, 483 F.Supp. 620 (Western District Va. 1980), vacated and remanded on other grounds, 658 F.2d 951 (4th Cir. 1981).
The Tenth Circuit Court of Appeals in Pinsker v. Joint District of Adams and Arapahoe Counties, 735 F.2d 388 (10th Cir. 1984) upheld a school district's collectively bargained policy allowing employees a maximum of two days special leave which Jewish teachers could use to observe their religious holidays. The Tenth Circuit found that the school district had reasonably accommodated Pinsker's religious practices even though he was required to take unpaid leave. Title VII does not, the Court declared, require school districts to accommodate religious practices exactly as employees wish, nor does it require school districts to spare their employees all costs whatsoever. 21 ELR 6.
In the facts you present, I note an assertion by the District that an attempt at a reasonable accommodation has been reviewed and rejected as impractical. There is no indication regarding what possible accommodations might be and there appears to be a concern about the establishment of precedent. As you will note, the cases above deal quite harshly with school districts that do not attempt to make reasonable accommodations. The District may wish to consider employing a part-time teacher or substitute to teach this area of the curriculum and reducing the instructor's contract to 7/8 the full time or some similar percentage reflecting the costs incurred by the District.
Clearly, the problem in this area, if any, is the potential for violation of Title VII. I advise districts with problems of this sort to make a good faith effort to offer a reasonable accommodation. Blanket policies and mere lip service to attempting an accommodation can have serious repercussions for the district.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
RAT:cfc
