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?
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. Continue reading