concurring in judgment.
I respectfully concur in the judgment of the court.
I agree with the majority that the issue of main concern is whether the School Board could have accommodated1 Ms. Reardon to teach in her religious garb without the Board suffering undue hardship — an issue under Title VII. See majority opinion, at 888. I agree with the majority that undue hardship may be a non-economic burden placed on an employer. Id. at 889. After that, we part company. Herein, I first will explain why I disagree with the majority’s reasoning and, second, I will put forth my view as to the disposition of these appeals.
I
The majority’s thorough opinion, after the background and exposition of the governing law, essentially breaks down to individual analyses of the liability of the two defendants, the Board of Education and the Commonwealth of Pennsylvania. With respect to the defendant Board’s liability, the majority concludes,
From the inception of this case, the School Board has insisted that it had no choice but to comply with the Garb statute. 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 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 prosecutorial 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 undue hardship on it as it went about the business of running a school district. We agree.
Majority opinion, at 890-891 (footnotes omitted). Hence, the majority holds that the Board did not violate Title VII because the instant accommodation would have caused it undue hardship.
With respect to the Commonwealth, the majority observes that the Commonwealth may be potentially liable under the “policy or practice” clause of Title VII, unless enforcement of the garb statute would be consistent with Title VII. Majority opinion, at 893-894. To pass Title VII muster, the majority reasons that the Commonwealth must suffer undue hardship — i.e., be barred from its compelling state interest in enforcing the garb statute — if the accommodation took place. Utilizing the authority of 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), the majority explains:
As we have indicated, the Supreme Court’s dismissal 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.
Majority Opinion, at 893. The majority states that the Pennsylvania statute is as narrowly tailored as the Oregon statute is, and, thus, serves the compelling state interest. In view of this analysis, the majority determines that the statute passes Title VII muster. Id. As a secondary position, the majority indicates that the United States has not shown a pattern or practice of resistance by the Commonwealth. The *896majority takes the possible cases outside the scope of the Oregon statute (which it deems to be few and speculative), combines this with the unlikely probability that these occurrences would be in conflict with Title VII, and concludes that the product of these two improbable factors could not equal a “pattern or practice.” Accordingly, the majority agrees with the district court’s ruling concerning the Commonwealth of Pennsylvania.
There are two premises (one underlying the majority’s ruling with respect to the Board and one underlying the majority's ruling with respect to the Commonwealth) that I do not agree with. First, with respect to the Board, the majority holds that the specter of penal sanction hanging over the heads of the Board’s agents for non-enforcement of the garb statute is undue hardship. I do not accept this premise because there is little in the record to indicate that the penal section of the Pennsylvania garb statute was being enforced. I simply do not believe that undue hardship can arise from a non-event, although, con-cededly, it may arise from a non-economic burden. Moreover, the majority’s rule, in view of the non-enforcement, provides the precedential material from which wily legislatures could effectively insulate like statutes from review merely by appending a like, unused section providing sanctions to the statute. Accordingly, I do not agree with the majority’s reasoning regarding the Board’s liability.
Second, with respect to the majority’s ruling regarding the Commonwealth, the majority’s reliance on Cooper is simply in error for a number of reasons. Initially, I do not accept the majority’s reliance on the United States Supreme Court’s dismissal of the appeal in Cooper. The foremost academic authority on United States Supreme Court practice, Messrs. Stern, Gressman, and Shapiro, have explained that the lower courts should exercise caution in affording Supreme-Court summary action prece-dential value. In their treatise, they observed that:
[t]he lower court judges, in other words, must make intensive inquiries into the factual and constitutional bases of the earlier decisions summarily approved by the Supreme Court. Only if the facts involved in the earlier decisions are not “very different” from those presently under consideration, and only if the earlier decisions rested solely on established constitutional principles and did not break any new ground, can the summary actions of the Supreme Court be safely followed. To perform this concentrated type of inquiry, the lower court judges must have before them most if not all of the appeal papers in the earlier proceedings, and must not rely too much on the rationale expressed in the lower court opinions in earlier cases. It is not too surprising that some lower court judges and many members of the bar find this approach to prior Supreme Court summary actions both difficult and hazardous to follow.
R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice § 4.30, at 251 (6th ed. 1986); see Zobel v. Williams, 457 U.S. 55, 64 n. 13, 102 S.Ct. 2309, 2315 n. 13, 72 L.Ed.2d 672 (1982) (“summary affirmance by this Court is not to be read as an adoption of the reasoning supporting the judgment under review”). Restated, before a lower court utilizes the United States Supreme Court’s dismissal of the appeal as authority, it must, as a matter of prudence and caution, (1) be sure to have examined the whole record of the earlier action and (2) be sure that this decision did not break any new ground. In the instant action, we do not have the full appellate record in Cooper before us. At best, we only have the jurisdictional statement of appellant Cooper to the United States Supreme Court with five attachments: (1) the Oregon Supreme Court’s decision; (2) the Oregon Court of Appeals decision; (3 & 4) the proposed findings of fact and conclusions of law of the two administrative hearing officers; and (5) the notice of appeal to the United States Supreme Court. Without analyzing the full record, I am extremely hesitant to give Cooper any more weight than this panel would accord decisions from other state appellate-court panels.
*897Moreover, according Cooper the reading that the majority would give it, would be to say that, in dismissing Ms. Cooper’s appeal, the United States Supreme Court concluded that garb statutes like the Oregon act do not offend the free-exercise clause because they further the state’s compelling interest in not endorsing a particular religion over any other, or in not endorsing religion over nonreligion. I believe that such a ruling concerning garb statutes would be a first from the Court, thus breaking new ground. I therefore believe that the Court would not agree with such formulation absent a full decision from it, particularly in this area where free-exercise rights may be in tension with the establishment clause. Thus, I cannot accept the majority’s reading of Cooper for this reason, too.
Let me also note that I am somewhat puzzled by the way the majority utilizes Cooper in this case. The instant case is a Title VII case. At one point in their opinion, the majority explains the relationship between Cooper and Title VII, stating,
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 the merits.
Majority opinion, at 889. In other words, the majority is stating that Cooper cannot stand for the proposition that the Oregon garb statute did or did not violate Title VII. Yet, two pages later, the majority concludes that “it necessarily follows from Cooper that the Oregon statutes do not violate Title VII.” Id. at 890. So, in essence, the majority states that while Cooper did not speak directly to Title VII, the reasoning in Cooper imports that Title VII would not be violated by the garb statute.
I have two distinct concerns with the court’s logic in this regard. First, pragmatically, if the reasoning in Cooper indeed imported that Title VII was not violated, then could not the Oregon Court have reached the same conclusion about the Oregon garb statute and Title VII that the majority does here? After all, the Title VII issue and the Oregon Court’s reasoning about the other issues in Cooper were in that court’s grasp. Yet, the Oregon court chose not to write on the Title VII issue. Thus, I consider the majority’s reasoning predicated on Cooper to be on uncertain ground in view of the Oregon court’s silence on the issue.
Second, it is fair to say that the majority’s use of Cooper rests on the following line of reasoning: (1) the first-amendment free-exercise claim was fully addressed in Cooper, see majority opinion, at 890; (2) the Supreme Court rejected Ms. Cooper’s free-exercise claim; (3) there are only two grounds for such rejection — (a) the statutes did not burden Ms. Cooper’s free exercise of religion, or (b) the statutes were narrowly tailored to serve a compelling state interest, see id. at 890; (4) there is no doubt that the Oregon statutes were a burden on free exercise; (5) therefore, “Cooper stands for proposition that the Oregon statutes permissibly advance a compelling interest in maintaining the appearance of religious neutrality in the public school classroom” id. at 889; and, thus, (6) forcing the Commonwealth to order accommodation would cause undue hardship because in so doing the Commonwealth would have to forsake a compelling state interest, see id. at 893-894. My view is that I would not rely on Cooper for the proposition that implementation of the garb statute furthers a compelling state interest under the first amendment because such a reading of Cooper is a strained one. After all, in Cooper, the Oregon court defined the issues before them as being issues under the Oregon constitution, not the federal constitution, see 723 P.2d at 306, and in the body of the opinion, made reference only to Oregon constitutional precepts, although some*898times drawing on federal law. See id. at 306-13. Also, the Oregon Court for the first time in the conclusion of its opinion briefly states that its decision also means that the garb statute does not violate the federal constitution. In view of these two facts from the text of Cooper, I would not rely on Cooper as authority in the instant case.
Accordingly, for all of these reasons, I will not accept the majority’s reasoning concerning the precedential value of the disposition of the Cooper appeal with respect to the Commonwealth in this case.
II
Having identified the problems with the majority’s reasoning, it is incumbent upon me to put forth different reasoning upon which to decide these appeals. I conclude that deciding the appeals in this case boils down to one issue: whether the only accommodation possible by the two state actors in this case (allowing Ms. Reardon to teach in her garb) would cause undue hardship to them because such accommodation would violate the establishment clause of the first amendment to the United States Constitution?
The defendants basically contend that this accommodation would cause it hardship because this accommodation would be in violation of the establishment clause of the first amendment. The United States counters, in a nutshell, that the wearing of religious dress or symbols by teachers does not violate the establishment clause unless such wearing is accompanied by “clearly problematic factors,” not present here, such as teaching of religion in the classroom. United States’ Brief as Cross-Ap-pellee and Reply Brief as Appellant, at 25. The district judge ruled that, under the now-familiar test which the United States Supreme Court first put forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) and which the Court has reiterated many times thereafter, the principal or primary effect of the accommodation would neither advance nor inhibit religion and, thus, would not cause undue hardship. In so ruling, the district court observed that: (1) the state would have no purpose of furthering religion if they accommodated Ms. Reardon; (2) Section li-li 12 was applied sporadically and inconsistently, indicating that the statute was not essential to avoid symbolic state endorsement of religion; (3) the state statute itself was invalid because it was passed based on anti-catholic animus; and (4) there was a lack of evidence in the record of students perceiving the wearing of such garb as indicating state endorsement of religion. The district court therefore concluded that the Board could have reasonably accommodated Ms. Reardon.
In Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), Justice Brennan recently explained the calculus necessary for deciding whether state action violates the establishment clause of the first amendment, stating,
[t]he Establishment Clause forbids the enactment of any law “respecting an establishment of religion.” The Court has applied a three-pronged test to determine whether legislation comports with hte Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute’s principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 [91 S.Ct. 2105, 2111, 29 L.Ed.2d 745] (1971). State action violates the Establishment Clause if it fails to satisfy any of these prongs.
Id., 482 U.S. at 582-83, 107 S.Ct. at 2576-77. I conclude that the district court erred in determining that the -proposed accommodation would not have the primary or principal effect of endorsing religion under Edwards and Lemon. I therefore believe that the accommodation would cause the state defendants undue hardship.2
*899The United States Supreme Court has explained "endorsement” in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, stating,
Of course, the word “endorsement” is not self-defining. Rather, it derives meaning from the other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Wallace v. Jaffree, 472 U.S. [38,] 70, 105 S.Ct. [2479,] 2497 [86 L.Ed.2d 29] (1985)....
Whether the key word is “endorsement,” “favoritism,” or “promotion,” the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from “making adherence to a religion relevant in any way to a person’s standing in the political community.” Lynch v. Donnelly, 465 U.S. at 687, 104 S.Ct., at 1366 (O’Connor, J., concurring).
— U.S.-, 109 S.Ct. at 3086, 3101, 106 L.Ed.2d 472 (1989) (citations omitted in part). Accommodating Ms. Reardon by permitting her to wear her religious garb while she is teaching conveys to her students that the state favors or prefers religion over nonreligion. In the classroom environment, it cannot be gainsaid that a teacher is a powerful influence on children, particularly, as here, young children (elementary-school age). Further, as the record indicates, the wearing of religious garb creates curiosity in the child. It is undisputed that students have asked teachers who wear religious garb about that garb (e.g., district court’s findings of fact para. 55). It is a short leap in logic from these facts to conclude that children could, in the exercise of their curiosity, think that a school is favoring religion per se to the detriment of nonreligion by permitting Ms. Reardon to wear her religious apparel. In fact, as the district court noted, the defendants’ expert testified that there was a possibility that the wearing of religious garb by a teacher could be seen by the students as an endorsement of religion by the state or the school district.3 Moreover, since the wearing of such garb occurs in the intense and “captive” classroom atmosphere, this would further enhance the “symbolic connection” between religion and the state. See Grand Rapids School District v. Ball, 473 U.S. 373, 390-91, 105 S.Ct. 3216, 3226-27, 87 L.Ed.2d 267 (1985) (icomparing McCollum v. Board of Edcation, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) with Zorach v. Clauson, 343 *900U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952)). In view of a child’s delicate constitution and curiosity, the testimony by the defendants’ expert concerning the children’s possible conclusion of endorsement, the fact that the students did indeed ask particular teachers about their garb (indicative of a child’s curiosity), and the atmosphere where the garb is worn, it is clear to me that the sought-after accommodation would have the effect of the state appearing to endorse religion over nonreligion.4
This effect, of course, is prohibited under the establishment clause. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 896, 103 L.Ed.2d 1 (1989) (“It is part of our settled jurisprudence that ‘the Establishment Clause prohibits government from abandoning* secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization,’ ” quoting Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 836, 28 L.Ed.2d 168 (1971)); see also Board of Education of the Westside Community Schools v. Mergens, — U.S. -,- -, 110 S.Ct. 2356, 2372-73, 110 L.Ed.2d 191 (1990) (O’Connor, J., White, J., Blackmun, J., and Rehnquist, C.J.) and — U.S. at-, 110 S.Ct. at 2378 (Brennan, J. and Marshall, J., concurring) (the establishment clause proscribes public schools from “conveying a message ‘that religion or a particular religious belief is preferred.’ ”). Time and time again, the United States Supreme Court has expressed particular concern over the power of the state public schools to influence the child with respect to religion. See Edwards, 482 U.S. at 584, 107 S.Ct. at 2577, where Justice Brennan, writing for the majority, explained that
[fjamilies entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.... The State exerts great authority and coercive power through mandatory attendance requirements, and because of the student’s emulation of teachers as role models and the children’s susceptibility to peer pressure.
Id. at 584, 107 S.Ct. at 2577 (citations omitted) (footnotes omitted). See also Grand Rapids School District v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), where Justice Brennan again wrote for the majority,
[t]he inquiry into [endorsement] must be conducted with particular care when many of the citizens perceiving the governmental message are children in their formative years.... The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice.
Id. at 390, 105 S.Ct. at 3226 (footnotes omitted) (citations omitted). This same concern influences me here. I, too, have no doubt as to the sincerity of Ms. Reardon’s religious beliefs. The first amendment does not proscribe religious beliefs, it protects them. However, preventing subtle inculcation of the message that religion is preferred over nonreligion (irrespective of whether that message is intentional or inadvertent) by forbidding one to teach in public schools while clothed in religious raiment keeps public-school classrooms *901swathed in constitutional neutrality — their proper philosophical attire.
Since the only accommodation possible in the instant case would violate the establishment clause of the First Amendment of the United States Constitution, I believe that the district court erred in finding that no undue hardship would come to the Board were it to implement the accommodation. A violation of the First Amendment would have more than a de minimis effect on the defendant’s “business.” See Trans World Airlines v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2277, 53 L.Ed.2d 113 (1977). Not only would it harm the interests of the children who are essentially the defendants’ consumers, but such accommodation could subject the defendant to the costs of litigating a First Amendment suit, in turn detracting from the public fisc used for education.
In sum then, since the only accommodation possible in this action would violate the establishment clause,5 I would conclude that the district court erred in determining that the Board violated Title VII. Further, since the accommodation in this particular instance, and instances like it, would cause undue hardship, I would affirm the judgment of the district court respecting the Commonwealth of Pennsylvania.
For these reasons, I respectfully concur in the judgment of the court.
. Accommodation in this case is simply allowing Ms. Reardon to teach in her garb.
. In ruling on the accommodation/undue-hardship issue, the scope of review in the normal case would be a "clearly-erroneous” standard, Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 135 n. 3 (3d Cir.), cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986), because in the *899usual "undue hardship” case, the determination is one of fact. Id. at 134. The majority observed this point. Majority opinion, at 891 n. 8. It then states that in this context such questions are afforded plenary review because they are mixed questions of law and fact. Id. I agree.
Let me also add that embedded within the undue-hardship question, as I see it, is another question of law — namely, the court’s determination of whether the proposed accommodation would pass the Lemon test. As Justice O’Con-nor wrote in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 693-94, 104 S.Ct. 1355, 1370, 79 L.Ed.2d 604 (1984):
whether a government activity communicates endorsement of religion is not a question of simple historical fact. Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts.
Accord Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 348, 107 S.Ct. 2862, 2875, 97 L.Ed.2d 273 (1987) (O’Connor, J„ concurring); see also County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, — U.S. -, 109 S.Ct. 3086, 3112 n. 60, 106 L.Ed.2d 472 (1989); Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 690 n. 4 (11th Cir.1987). Therefore, like the majority, I believe that the issue of accommodation/undue hardship may be reviewed de novo.
. The district judge discredited this assertion because Dr. Landy (the defendants' expert) did not base his view on any studies calculated to assess the impact of religious garb on students and the fact that Dr. Landy and his research team did not conduct any clinical studies. Since review is de novo, I need not accept this conclusion.
. An argument could be made that this statute might be read to encompass religious symbols such as a mezuzahs, crucifixes, or mini-Buddhas, etc., worn, for instance, on necklaces. However, a case involving small-sized religious articles is not before this panel. Were such case to come before this court, then, the court would consider that case's specifics in view of Lemon and come to a determination. The difference from the instant case to the next case may simply be one of degree and effect. The United States Supreme Court, through its crafting of the flexible test in Lemon has indicated that it, and the inferior courts, will deal with these factors, making distinctions where appropriate. The articulation of the Lemon test itself demonstrates the Court’s confidence in the judiciary’s ability to make distinctions. Hence cases involving smaller-sized religious symbols do not affect my analysis here. Their propriety awaits another day.
. In opposition to the above reasoning, one might argue that such a ruling impinges on a teacher’s free-exercise rights. However, Justice O’Connor, in Wallace v. Jaffree, 472 U.S. 38, 82, 105 S.Ct. 2479, 2503, 86 L.Ed.2d 29 (1985) (concurring in judgment), stated that "judicial deference” to all state action purporting to facilitate the free exercise of religion "would completely vitiate the Establishment Clause. Any [state action] pertaining to religion can be viewed as an 'accommodation’ of free exercise rights." Such powerful logic provides a devastating rejoinder to this argument.