The Constitutionality of NYC’s New Public School Calendar

Yes, I'm well aware that this is not a photo of the Bill of Rights.

Yes, I’m well aware that this is not a photo of the Bill of Rights.

New York City mayor Bill de Blasio said on Monday that he supports a state bill calling for the closure of the city’s public schools on at least two Muslim holidays. He was not willing to say whether the bill will be amended to cover other religious groups’ holy days.

The bill is a positive move toward acceptance of Muslims and their religious traditions. It shows that the New York legislature recognizes the city’s large Muslim population, and also respects its religious beliefs. If this bill does pass, it will be a small step in the direction of recognizing major religious holidays apart from Christmas.

However, as wonderful as the sentiment behind the bill is, the change to the school calendar gives rise to a legal question: is it constitutional for a public school system (meaning one that is run and funded by the government) to designate certain religious days as official public holidays, but not designate other religious days as such?

The background

Before answering that question, a brief explanation of the bill’s history and purpose is in order. Mayor de Blasio’s comments during a radio interview came just one month after the bill was introduced in the New York State Senate, and they have been lauded by the city’s Muslim community.

The bill states that its purpose is “[t]o designate as school holidays in the New York City School District the first days of the Muslim holidays of Eid Ul-Fitr and Eid Ul-Adha, to allow Muslim students, teachers and staff to celebrate these important holidays.”

de Blasio hinted that the holidays will not be added to the public school calendar immediately, but he has hopes that they will be soon.

“The goal is to get there,” he said. “I’ve said repeatedly —it will take time. It is complicated in terms of logistics of school calendar and budget, but it’s something I want to get done in a reasonable time frame.”

He also mentioned that schools would be closed to mark the Chinese New Year, as well as the Lunar New Year, which are two holidays that the original bill does not address.

So, is it constitutional or not? 

Here’s a lawyer-ly answer for you: it depends. We (being the general public) don’t have all the facts surrounding the senate’s decision. There is some evidence that the bill satisfies the some (but not all) of the criteria set forth by the Supreme Court for these types of “establishment clause” cases. If the policy stays the way it is, a judge will likely rule it unconstitutional. In order for this policy to be upheld, the state must change the policy so that schools are closed on other minority religions’ holy days.

Just as a refresher, the First Amendment to the U.S. Constitution stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This portion of the First Amendment is split into two clauses. The first is known as the “establishment clause,” while the second is known as the “free exercise clause.”

If someone was to challenge the new school calendar, the challenge would likely be framed as an establishment clause issue. This means that the challenge would be scrutinized based on the requirements of the Supreme-Court-created Lemon test.* The test, which was developed in the mid-20th century case Lemon v. Kurtzman, requires that for a state law, regulation, or policy to adhere to the establishment clause, 1) it must have a secular legislative purpose, 2) its principle or primary effect must be one that neither advances nor inhibits religion, and 3) it must not foster excessive government entanglement with religion.

The state would have the burden of proving that the three Lemon factors are met. There is a strong argument to be made that the bill satisfies the first Lemon factor, but the possibility that the state can satisfy the other two Lemon factors is slim.

Factor 1

First, members of the state senate have publicly stated that the legislature drafted the bill because so many students and teachers were absent from school on those specific days. In essence, this bill aims to deal with an attendance problem. The state would argue that the fact that the days are holy days is more of a coincidence – not a pure reason for the bill. It could make the argument that it would cancel school in the same manner if one-third of its students and faculty were absent every year to attend some secular event (such as an academic symposium or a purely cultural festival).

So, while one of the bill’s purposes is to make it more feasible for staff and students to take the day off from school, that is not its sole purpose. The bill’s secular purpose is likely to save resources and avoid putting students at a disadvantage (teachers may choose to give the students who are at school on those holy days an “easy” day – little teaching may actually take place in order to keep the absent children from falling behind).

Factor 2

But when we arrive at the second factor, things get a bit murkier. It’s arguable whether closing schools during Muslim holy days promotes or enhances Islam. One could argue that Muslim students would have skipped school anyway, regardless of whether school was actually closed that day or not. Plus, there is nothing in the facts to indicate that the school system will be telling students to actually observe the holy day (for example, by telling them to partake in traditionally Islamic ceremonies, attending a mosque, or even praying).

On the flip side, the policy is not neutral toward religion. It only covers Muslim holidays, but not Hindu or Jewish holidays (despite Hindu organizations asking for the holy day of Diwali to be an official school holiday). Plus, opponents may argue that this new school policy will make it easier for Muslims to practice their faith. Students or faculty who may have chosen to forgo religious practices or festivities on those days will now be able to do so. The policy also promotes Islamic holy days, but not Jewish or Hindu holy days. Finally, the co-founder of the Muslim Bar Association of New York, Farhan Memon, admitted in a Huffington Post article that faculty working on-call will not be paid on days that schools are closed.

Factor 3

Is the school calendar causing an excessive entanglement with religion? It may. Islam follows a lunar calendar, meaning that holy days fall on different days every year. This means that the school system will have to keep up with the lunar calendar. The lunar calendar is not exactly predictable; sometimes the new moon doesn’t appear on the day that astronomists (and our solar calendars) expect it to. This is problematic because some Muslims will only observe the holy days of Eid Ul-Fitr and Eid Ul-Adha when the new moon has actually been seen in the sky.

How will this cause excessive entanglement? Memon offers an explanation: “Since the setting of a school calendar for thousands of students, teachers and administrators cannot be dependent on the vagaries of lunar observance any Eid date set by calculations will be viewed as invalid by those Muslims who are more orthodox. The Board of Education should not be in the business of endorsing one religious practice over another.”

One final note: what about Christmas?

I’m sure you’re wondering why we don’t think it’s unconstitutional to close schools and other public buildings on Christmas. It’s because the Supreme Court has ruled in a slew of cases that Christmas is a holiday that has been stripped of its religious context and is a holiday that is observed (at least by the government) out of a sense of tradition.

*In recent years, a handful of Supreme Court justices have voiced their qualms with the Lemon test, but have never completely abandoned or overruled it.

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