Mark

**Religious Themes** **36:23. May a school district close school for the observance of a religious holiday?**

Although courts with jurisdiction over New York have not yet ruled on this matter, the United States Court of Appeals for the Seventh Circuit declared unconstitutional an Illinois statute that required all public schools to close on Good Friday because its legislative history reflected that the statute was intended to accord special recognition to Christianity beyond anything. . . necessary to accommodate the needs of [Illinois] Christian majority ( Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995)). However, the court explained its decision might have been different if the state had shown that the majority of students were Christians and would not attend school on Good Friday. Under such circumstances, the court noted it would make sense to close school to prevent the wasteful expenditure of resources.

**36:24. May a school district acknowledge the observance of religious holidays through plays, pageants, and other programs containing religious themes?**

School districts may acknowledge religious holidays in programs that have religious significance as long as these programs also contain some educational or cultural purpose ( Florey v. Sioux Falls Sch. Dist . 49-5, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980)). Thus, singing of God Bless America at a general school assembly memorializing the tragic events of September 11, 2001 did not violate the Establishment Clause ( Appeal of Cayot, 42 Ed Dept Rep 97 (2002)). However, a school boards resolution to change the name of its Winter concert to the Christmas concert did because it began: We, being a Christian community. . ., which the commissioner of education found indicated an unconstitutional religious purpose ( Appeal of Sebouhian , 31 Ed Dept Rep 397 (1992)). According to one federal appellate court outside New York a district policy prohibiting the performance of celebratory religious music at school-sponsored events did not convey hostility towards religion because it constituted the districts attempt to maintain neutrality toward religion. In contrast, the policy permitted religious music when presented objectively and appropriate for the curriculum ( Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597 (3d Cir. 2009); see also Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009), cert. denied, 130 S.Ct. 1937 (2010)). The U.S. Court of Appeals for the Second Circuit, with jurisdiction over New York, ruled that Earth Day celebrations did not impermissibly endorse religion in a case where the record showed no one attending the ceremonies worshipped the earth or attached any significance of a religious nature to the celebration activities ( Altman v. Bedford CSD, 245 F.3d 49 (2d Cir. 2001), cert. denied, Dibari v. Bedford CSD , 534 U.S. 827 (2001)).

**36:25. May school districts adopt guidelines regarding the observance and treatment of religious holidays?**

Yes. A school district may adopt guidelines for the treatment of religious and cultural holidays in the instructional program ( Appeal of Pasquale, 30 Ed Dept Rep 361 (1991)). According to the commissioner, the adoption of such guidelines falls within the broad statutory authority of school boards to adopt bylaws and rules for the governance of the schools ( 1709)). In this regard, a federal appellate court outside of New York has ruled that a district did not violate the Free Exercise of religion rights of an elementary school student when it denied the student permission to distribute gifts containing religious messages at an in-class holiday party. According to the court, because young impressionable students could easily misinterpret a fellow students message, schools must be able to restrict student expression that contradicts or distracts from a curricular activity. The court found significant that the student had not been asked to express his views about the personal significance of the holiday, in which case he would have been attempting to respond to a class assignment or activity ( Walz v. Egg Harbor Township Bd. of Educ. , 342 F.3d 271 (3d Cir. 2003)). Similarly, in another case, a federal appellate court outside New York found it was permissible for a district to prevent a student from selling a Christmas holiday candy cane ornament with a religious message attached as part of a class marketplace project. According to that court, the class assignment did not invite the expression of personal views and the school exhibited a valid educational purpose in seeking to avoid offense to students or parents at a curricular event ( Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008)).  For a discussion with respect to the display of religious symbols in schools see 36:32 37.

**36:26. May a school district include themes of religious significance in its educational program?**

Yes, if the educational program is generally secular in nature. That was the case in Matter of Rosenbaum, 28 Ed Dept Rep 138 (1988), where the commissioner of education upheld a school districts policy permitting religious music and art in its curriculum. They were taught as part of a genuine secular program of education and the policy excused students from participating in those parts of the curriculum which conflicted with their religious beliefs.

**36:27. May a school district excuse or release a student from school attendance for religious observance or religious instruction?**

Yes. School absences for the observance of religious holidays outside of the official state holidays and for attendance at religious instruction are permitted by state law and regulation upon written request from a parent or guardian ( 3210(1)(b); 8 NYCRR 109.2(a)). Students may be released to take such religious instruction in accordance with the commissioners regulations (8 NYCRR 109.2), as long as that instruction is not provided at the public school ( Zorach v. Clauson, 343 U.S. 306 (1952); see also Pierce v. Sullivan West CSD , 379 F.3d 56 (2d Cir. 2004)), including a private trailer parked on school grounds for such purpose (see H.S. v. Huntington Cnty. Cmty. Sch. Corp., 616 F.Supp.2d 863 (N.D. Ind. 2009)).

**36:28. Must school districts accommodate employee religious observance needs?**

Pursuant to Title VII of the Civil Rights Act of 1964, employers must make reasonable accommodations that allow employees to fulfill religious observance requirements, unless to do so would create an undue hardship. An accommodation that allows an employee to attend morning religious services but requires him or her to work after religious services would not be reasonable for an employee who must abstain from work totally on the Sabbath ( Baker v. The Home Depot, 445 F.3d 541 (2d Cir. 2006)). Generally, courts have permitted teachers to take approximately five to 10 days off for religious reasons, even where substitutes must be hired (see Wangsness v. Watertown Sch. Dist ., 541 F.Supp. 332 (D.S.D. 1982); Niederhuber v. Camden Cnty. Vocational & Tech. Sch. Dist. Bd. of Educ., 495 F.Supp. 273 (D.N.J. 1980), affd without op ., 671 F.2d 496 (D.N.J. 1981)). Presumably, more than five or 10 teacher absences for religious observances would be considered an undue hardship for a school district and outside the scope of an employees Title VII protection. As with Title VII, the New York State Human Rights Law (Exec. Law 296(10)) also makes it unlawful for any employer to discriminate against an employee because the employee observes a particular Sabbath day or days in accordance with his or her religious beliefs. Moreover, except in emergencies, a district cannot require a teacher to work on a Sabbath or holy day and must allow the teacher time to travel to his or her home or to places of religious observance (Exec. Law 296(1)(b)). In New York City Transit Auth. v. Div. of Human Rights, 89 N.Y.2d 79 (1996), the New York State Court of Appeals ruled that an employer unlawfully discriminated against an employee by firing her when she refused to work at any time from sundown on Friday to sundown on Saturday because of the tenets of her religion. Employers must make a good-faith effort to accommodate Sabbath-observing employees, even though an accommodation ultimately may not be available. The collective bargaining agreement required the employer to give senior employees preference in selecting days off. The court determined that the employer still had an obligation under the law to attempt to accommodate the employees religious observance, and that the employer had not made any effort to do so.

**36:29. Is an employees leave for religious observance paid or unpaid?**

According to the United States Supreme Court, public employees are entitled to unpaid leave for religious observances if they require days in excess of personal leave days already provided ( Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)). While dismissing a religious discrimination claim as time barred, a federal district court in New York stated a school board met its obligation to provide an accommodation when it allowed a teacher to take unpaid leave in excess of his paid leave to attend prayer services on Friday afternoons ( McLaughlin v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 4794 (S.D.N.Y. Jan. 22, 2008)).

**36:30. May a school district offer paid leave specifically for religious observance?**

There is a difference of opinion among New York state courts regarding the availability of paid leave for religious observance. One state supreme court has ruled that paid leave for religious observance is a permissive subject of bargaining ( Binghamton City Sch. Dist. v. Andreatta, 30 PERB 7504 (Sup. Ct. Broome Cnty. 1997)). But a state appellate court upheld a school districts unilateral decision to no longer comply with a collective bargaining contract provision that allowed teachers to take paid religious holidays determining, in part, that the provision was unconstitutional ( Matter of Port Washington UFSD v. Port Washington Teachers Assn, 268 A.D.2d 523 (2d Dept 2000), appeal dismissed, 95 N.Y.2d 790, lv. app. denied, 95 N.Y.2d 761 (2000)). In contrast, another state appellate court upheld a collectively bargained provision that authorized three days of paid leave for religious observance leave because it did not specify which holidays could be taken. According to that court, the provision merely provided a religious accommodation ( Maine Endwell Teachers Assn v. Bd. of Educ. of the Maine Endwell CSD, 3 A.D.3d 685 (3d Dept 2004)).

**36:31. Must school districts negotiate over paid leave for religious observance?**

The Public Employment Relations Board (PERB) has ruled in two cases that a school district did not violate its duty to bargain in good faith by unilaterally rescinding a past practice of allowing employees to take extra paid leave for religious observances, finding that it was an unconstitutional practice and therefore not mandatorily negotiable ( Auburn Teachers Assn v. Auburn Enlarged City SD, 29 PERB 4671 (1997); CSEA v. Eastchester UFSD , 29 PERB 3041 (1996)). Similarly, one state appellate court deemed unconstitutional a negotiated provision allowing for such leave ( Matter of Port Washington UFSD v. Port Washington Teachers Assn, 268 A.D.2d 523 (2d Dept 2000), appeal dismissed, 95 N.Y.2d 790, lv. app. denied, 95 N.Y.2d 761 (2000)). But according to another state appellate court the issue is negotiable ( Maine Endwell Teachers Assn v. Bd. of Educ. of the Maine Endwell CSD, 3 A.D.3d 685 (3d Dept 2004); see 36:29 ).