The New Republic

I have Muslim, Hindu and Jewish students.  I don't formally recognize any religious holiday in my class.  The calendar is already set to accommodate the Christian year, so they (the Christians) are taken care of.

If any student has a religious observance that conflicts with class, that is an "excused" absence.  That means that make-up exams will be given outside of class according to mine and my student's schedule.  There is a generous limit to the number of excused absences in a semester.  Beyond that, the student is responsible for being in class (as would be the case if they were members of a traveling sports team or had a long illness, at some point not going to class is not going to class).

I'm with the Constitutional scholars who argue that official recognition of any religious holiday in public schools is a violation of the Constitution.  However, it can be argued, I suppose (and I'm not happy with it) that Christmas and Easter are now essentially secular holidays in the United States.  Fine.  If it satisfies everybody, we should have a winter and spring break that coincides with Christmas and Easter and NOT recognize any religious holidays but DO allow for excused absences.  

Now let's see Mayor Bloomberg reject the Muslim option and THEN get rid of the official observance of Yom Kippur.  Hell, he's the one who wanted to run for a third term.

- poldpf

July 9, 2009 at 9:16am

There are counties in which schools close on the first day of the county fair. If 10% of the class is going to be out, and it is not too difficult to tack a couple more days on the end of the school year, I certainly don't see a constitutional objection.

Unconstitutional would be if say, you had a district that was 2% Jewish and 20% Muslim and you had Jewish but not Muslim holidays off.

- WillPastor

July 9, 2009 at 9:37am

Why not just give the schools "institute days" and they can use them for religious holidays where sizeable percentages of the students are gone.  That's how some of our local schools handled Good Friday.

- Lymon1

July 9, 2009 at 10:27am

yeah, I am with Willpastor, one or two days ain't going to kill anyone especially since it can be added later and it can be educational. But besides Christmas what other Christian holidays are celebrated? Easter is on Sunday. And what are the Muslim holidays they are talking about?

- blackton

July 9, 2009 at 10:32am

Not to be frivolous, but I'll mention that at my Jesuit high school in DC in the 60s school always  let out at noon one Monday in early April, Opening Day!, so that the Jebbies, and many of us students, could attend the Senators' game.

- cvillekid

July 9, 2009 at 10:43am

In mywestern state, many students just simpluy don't show to honor the "religious" holidays encountered during the opening of elk and deer hunting season.

It always annoyed me, a non-hunter.  Why should I have to endure school just 'cuz I shoot with a camera instead of a gun?

- desertdog

July 9, 2009 at 11:50am

Allow the Muslim holidays. Call it the ten percent rule. If your religion manages to produce ten percent of the students in a school system, then you get your holidays. People that fear a slippery slope, always think that the first concession will result in concessions ad infinitum. But context and percentages and reality almost always intervene and we rarely get the ride down the slippery slope. To the teacher who doesn't formally recognize religious holidays, how do you spin the Christmas break? Do you tell your students that you will see them after the pagan winter solstice festival?

- liberal reformer

July 9, 2009 at 2:54pm

This is a great question.  I think you steer clear of establishment clause problems and equal protection clause problems if you've got a compelling *totally secular* reason for the day off that has nothing whatever to do with favoring or recognizing any religious group or practice; if not, not.  Like the second law professor, I'm uncomfortable with the government deciding which religions to favor based on the volume of citizen requests to do so.  The government does not favor religion *at all*, and does not hand out official endorsements to *anyone*, no matter how many people practice the religion or might crave the endorsement.  At least, that's the way it's supposed to work.  A day off for the big Christian holidays is, I think we all understand, a recognition not of religion but of the reality of common practice, much as government offices are closed on Sundays.  It is unusual for Jewish holidays to also be recognized in the same way, which doesn't bother the vast majority of Jews because they understand the practical purpose of the different treatment.  Meanwhile, I can well imagine that in New York, unlike most other places, Jewish holidays would pose a practical problem approaching the scale of that posed by Christian holidays, justifying similar action.  If that is the case -- if it would be basically pointless to hold school because of the numbers of teachers and students who would be out -- it is neither religious discrimination nor religious endorsement to give everyone the day off.  If you don't meet that practicality threshold, however, then you're basically doing both (discrimination against remaining religions not so recognized and endorsement of favored religions), which is why Bloomberg should probably resist in this case.  As for free exercise, that problem is easily solved by giving all students excused absences for religious observance.

- jhildner

July 9, 2009 at 3:00pm

Has the claim that Muslims have reached a 10% threshold in New York schools been substantiated?

As a general rule, we should discourage specific religious holidays in the public school system. There would be no end to them and to potential conflicts in a diverse community like New York City. As is the case in many places of employment, students should be allowed X number of floating vacation days  per year,  which they would be allowed to utilize as their parents see fit. Christmas and one or two other Christian holidays are the exceptions simply because they are a deeply rooted part of America's historical and civic-cultural tradition. (I am not a Christian, but appreciate both the essential contribution of Christian culture to America and the tolerance displayed by America's Christians).

- amidut

July 10, 2009 at 12:36am

amidut and libref:  I don't think government offices and schools are closed on Christmas out of recognition of "the essential contribution of Christian culture to America."  (Not quite sure what that means.)  Rather, as a matter of fact, a lot of people want the day off -- a *lot* -- such that doing business on the day in question is practically impossible.  That should be the standard -- practical impossibility -- when it comes to making a religious holiday an official holiday, for public schools and otherwise.  In New York, I gather, Jewish holidays rise to that level.  A great many teachers, as well as students, are Jewish, observe the holidays, and want the day off -- much more so than in most other places.  Holding classes in that case becomes a practical impossibility, and does not represent a cultural/religious recognition or endorsement.  Ten percent of students, even if that number is correct, doesn't strike me as sufficient to rise to the level of practical impossibility.  If that justification -- the compelling practical justification -- is eroded, we're left with a situation whereby various religious groups go to the government to seek an equal measure of endorsement.  Not all religions can be thus accommodated, leading to a violation of religious equality, and *any* endorsement violates religious neutrality.  Thus, governments should firmly stick to a very compelling practical justification -- something like "practical impossibility" -- when contemplating making a religious holiday official.

- jhildner

July 10, 2009 at 1:43am

The most notable element of this essay & thread is how cultural displacement of traditional America is treated as a mere matter of logistics.  A classic case of how an absolutist  religion manipulates the weak-minded tolerance of Western peoples who are abetting their own destruction. England now has over 60 Sharia courts to accomodate its invaders.  When the demographics shift enough here, tolerance will be dealt with rigorously.      

- jeanag

July 10, 2009 at 8:44am

Why not start giving students religious holiday hours, where they are alloted a budget of, let's say 3 or 4 days a year that they can use to take time off school for religious observation.  Obviously a good amount of students will abuse this policy and leave for the beach and not Yom Kippur or Ramadan or Canada Day, but then the burden will be on them and not the school system.  

- dylanposer

July 10, 2009 at 9:59am

dylan (et al.) -

I have to disagree with the "floating holiday" idea.  The problem is that the burden IS on the school system, not the child - every time a kid takes off school, there is at least makeup homework, and possibly makeup quizzes or even tests that will need to be graded separately from the rest of the class's.  For that matter, there will have to be separate questions on the makeup tests to prevent passing of answers from friends who have already taken the tests to those who were "honoring observances" (wink, wink).  Talk about a major pain in the ass for teachers.  

It would be bad enough if limited to just a couple of the major religions, but since the whole point is to not favor any religion, you will also have to allow for Pagan holy days, Zoroastrian holy days, Gozer the Destructor's, uh, unholy days, what have you.  Pretty soon, every day of class is missing one or two kids, and the teacher is constantly trying to make up for it.  No, thank you.

I think it's great that Bloomberg opposes it - not because I am against it, but because that's a quick way to find out whether or not there is a large enough population, who cares enough about this issue, to warrant making such a major change.  If Bloomberg loses the next election because a large number of Muslims refuse to vote for him, or if he can be convinced that such would be the case and so decides to support the change, then there is good reason for the holidays; if not, then not.  Moreover, if he were to be booted over this, the mayor who replaced him would come in already knowing that this is legislation he should pass.  Problem solved, democracy wins again, and everyone goes home for tea and cakes.

- dhauck

July 10, 2009 at 12:57pm

Let's face it, high school sucks. I'm working on a proposal for a new charter school, where all juniors and seniors can come to school when they please, or not, as long as they show up for the tests. I'm calling it Holiday High. A radical idea, perhaps, but I think it'll fly.

- cvillekid

July 10, 2009 at 5:10pm

dhauck,

I remember zoning out during vocab and algebra lessons, imagining all the things I could do without said topics and feeling immense jealousy at my peers who seemed to be alert and attentive to the lesson at hand.  Frankly, I felt that I wasn't like anyone else in the class, that I wasn't needed, and that I could walk out of class at that moment and still turn out to be a very important, successful ________ (whatever it was that day).  Unlikely as it seemed then, however, it turned out a good set of my peers also were not making sense of the teacher's rambling neverending note-heavy lessons, and that they too had their ambitions directed in other places.  

The only difference was that I was too expressive of my boredom: squeamish and fidgety.  Most of us missed or flunked assignments, and we were told that we could make them up.  My point is that teachers already expect students to make work up, so they are prepared for it.  

- dylanposer

July 10, 2009 at 5:18pm

I'd like to raise one other problem about additional - and existing - religious holidays.  My kids attend school in Montgomery County, a suburb of Washington D.C.  They get Christmas, Yom Kippur and Rosh Hashana off.  In order to "make up" for the two holidays that don't fall on federal holidays, all kids have to go to school on two fed holidays, when I and most other local parents are off (I think it's Veteran's Day and Columbus Day).  That means that I don't get to spend those days with my kids, AND I have to pay for child care on  the days they get off for religious purposes.  I can afford it -- but it must be difficult for many families (we have a large low income immigrant community -- no doubt many kids are left home alone those days).   The problem would be compounded by additional religious holidays.  

I think having a set number of days when people could chose to take off would be better -- then all families could spend more time together.  I'd be willing to include Christmas in that number, but I doubt you could get even non-Christian teachers to work that day, so it might have to be included because of its status as a federal holiday.

- idetwiler

July 11, 2009 at 9:05am

There is a false premise that has been articulated here:  that public schools and government bodies have "recognized" the major Christian holidays based solely on the practical reality that large numbers of people don't want to go to school or work on those days.  The implication of that premise is that the state's accommodation of those holidays does not implicate the religion clauses of the First Amendment.  That is sophistry.  The recognition of Christian holidays clearly has been, if not an endorsement of, certainly an accommodation of the practice of the Christian religion.  Arguing that it has been motivated by purely secular considerations is an Orwellian rationale for continuing to favor the dominant religion.  To me, that is as self-evident as that the earth revolves around the sun.  

That said, there is nothing unconsitutional about accommodating the exercise of religion -- as opposed to establishing or endorsing it.  Indeed, it might be argued that the Free Exercise Clause requires it.  Imagine if the government did not permit days off for the Christian holidays, and dictated that anyone taking those days off would not be paid for it and would suffer whatever additional consequences there would be for an unexcused absence.  You can bet that there would be lawsuits under the Free Exercise Clause, which potentially would have merit.

However, if the government is going to accommodate religious observance, then it must do so even-handedly in order to avoid running up against the Establishment Clause and/or, as Jhildner suggests, the Equal Protection Clause.  "Practical impossiblity" might be a compelling interest under the Equal Protection Clause for accommodating some religions and not others, but there would have to be a "strong basis in evidence" that "practical impossiblity" is the real reason for the discrimination rather than the intent to favor the dominant religion(s).  I am doubtful that the "practical impossibility" rationale could survive strict scrutiny.  

But even if the discriminatory accommodation of religious exercise could survive an equal protection challenge, it also would have to survive a challenge under the religion clauses.  It is not clear to me that favoring some religions over others in terms of accommodation could be saved from the Establishment Clause even it the discrimination is based solely on secular considerations.  To say, for example, that the government will favor one religion because it is the majority religion (and therefore the schools and government agencies will perforce be shut down in any event) comes perilously close to recognizing a national religion.  

- dhurtado

July 11, 2009 at 5:38pm

Okay, duhrtado, I'm actually a bear about the establishment clause and regard many things to be plain violations that are generally tolerated, including the pledge, the motto, and Christmas or Chanukah decorations in public spaces.  I'm easier on the holiday thing for the reason I mentioned -- practicality -- which doesn't strike me as a phony rationale for continuing the practice and is, it seems to me, a very plausible secular reason.  Maybe I'm wrong.  One thing that struck me when the controversial pledge decision came down is the thunderous reaction of those demanding the phrase's continued inclusion, which had the effect of proving the point -- people want their religious beliefs officially endorsed and cry foul when others propose removing that endorsement, which is exactly what it is and what's wrong with it.  So, I suppose that if someone proposed removing Christmas's status as an official holiday, and everyone was outraged, yelling about, say, the "contribution of Christian culture to America" -- instead of noting the practical points -- I might change my mind.  *That* reaction would prove *your* point.  Anyway, the pledge and the motto are pure government expression and have no plausible purpose other than endorsement.  This does, I would say.  If free exercise would require allowing even half the students, teachers, and government employees off for the day -- and the proportion of people who want the day off for Christmas-related activities is greater than that -- you face a real practical impossibility of carrying on the business of the day.  You teach a lesson for which half the students are absent, necessitating re-teaching it.  You have to find substitutes -- most of whom will also want the day off -- for half the teachers.  Half the staff want the day off, making it difficult even to open and close the building, provide security, staff the offices, etc.  All that strikes me as a compelling reason just to close that ought to satisfy constitutional concerns.  You don't agree?

- jhildner

July 12, 2009 at 12:26am

Jhildner, I have no doubt that if Christmas' status as a national holiday were rescinded, not only would there be an outcry based on the "contribution of Christian culture to America," or something like that, but an outcry that Christianity itself was being assaulted.  I can't prove that, but it seems to me facially implausible that the only, or even primary, reason for recognizing Christmas as a national holiday is the recognition that the majority of Americans don't want to work on that day.  Indeed, the fact that half or more of the teachers and staff want the day off for a particular holiday does not, independent any constitutoinal requirements, mean that the government must give them the day off.  The government could make them work on pain of losing pay or even losing their jobs. Unless there were mass defiance, there would be no problem providing security, staffing the offices, etc.  So it is my sense that the government acquiesces in the mass desire to have the day off in least in large part because of respect for religious observance.

But let's agree to disagree about that, and let's suppose that the government's sole reason for recognizing Christmas as a national holiday is the recognition that most people will not work on that day, even if offically required to do so.  I would nevertheless argue that the religion clauses do not permit the state to discriminate among religions simply because the majority religion has the numerical power to force the government to close down for its holidays.  That strikes me as quite noxious.  Though the recognition that there will be mass absences may be a compelling reason to close the government down on Christmas, I don't see how it is s compelling reason to discriminate.  

I agree with Chemerinsky.  There is no practical possibility that the government will stop recognizing Christmas and other Christian holidays as national holidays.  So, the government should recognize non-Christian holidays, either by closing down where the holiday is of a religion that has a major presence in the relevant community, or by permiting excused absences for the obervance of religious holidays by small minorities.

- dhurtado

July 12, 2009 at 1:58am

Doesn't your solution do precisely what you find "noxious"?  That is, discriminate among religions based on numbers -- whether the religion has a "major presence" in the community?  Seems to me that you're saying, Well, since there's no real chance of avoiding some discrimination, we should have more of it!  (Remember, closing the school and excused absences are different.  The latter impose the burden of missing class.  Moreover, the former more closely resembles the endorsement you want to avoid.)

I think we're actually not that far apart.  I start with the idea that everyone should get the day off for religious observance without significant penalty, so long as it doesn't get ridiculous.  That may not be constitutionally required, but it is constitutionally permissible and in the spirit of the free exercise clause as well as the spirit of not being a jerk.  If you buy that, then it seems to me that there will be some days where respecting that wish creates the practical problems I mentioned before, justifying closing for the day, because some days are more popular than others as a matter of fact.  I gather that that's the sort of thing that New York faced when it came to Jewish holidays that don't fall during a regularly scheduled break.  In that case, New York isn't honoring Judaism, but rather reconciling its legitimate aims of (a) permitting its students and employees to engage in their preferred religious observance, whatever it may be, and (b) the practical problems associated with large-scale absences.  Yes, schools and governments *could* force everyone to show up or else face a penalty, but they don't want to and shouldn't have to.

So, we basically agree, I think, that you ought to get the day off for religious observance.  Your solution implies as much.  The difference we have is, I think, as follows:  You think that religious equality requires closing whenever a religion has a "significant presence," and members of that religion want the day off.  If we do it for one or two religions, you reason, we should do it for all.  I insist, rather, on "practical impossibility," and suggest that a "significant presence" (say, ten percent of students) is not good enough.  The reason I do that is because I find noxious a regime under which religious groups go to the government seeking their measure of special solicitude.  In my mind, that goes to the core of what the establishment clause is about: preventing members of politically favored religious groups from getting official stamps of approval from City Hall.  You argue that that ship has already sailed, and that we should therefore at least tend to our concerns about equality.  But, it seems to me that both of our solutions have two things in common: First, they both have the effect of treating religions differently.  (Your different treatment is based on "significant presence," whereas mine is based on "practical impossibility."  Either way, some religious minorities are burdened.)  Second, they both justify that different treatment by setting up an acknowledgement of the practicality of the situation that is meant to work equally regardless of religion.  (In other words, if you can make the practicality argument we both require -- though to different degrees -- you get the benefit, whether your religion is Christianity or Oogy-Boogy-ism.)  I just think that my solution does a more rigorous job on the second point, and thus does a better job of justifying the first.  Because, if you can't show practical impossibility -- a really compelling secular reason to close -- the whole thing looks to me like citizens lining up to ask their government to shower their religious group not with equal accommodation but rather official approval -- a favor that inevitably will be denied slimmer minority groups.  If that's what the situation looks like, then it seems to me that your solution doesn't solve the establishment clause problem but rather exacerbates it.

Now, I'm willing to go with "practical impossibility" and stick to it.  If you can't actually show that even for Christian holidays or Jewish holidays in New York, then forget it -- no closure -- and that's fine with me.  (Keep in mind, I'm adhering to the initial idea -- that people should get the day off for religious observance -- and that the "practical impossibility" we're talking about is the impossibility of both staying open *and* serving that goal.)  I'm also wondering whether there is a distinction to be drawn between official holidays on the one hand and practically required closure on the other.  I *am* uncomfortable with the government declaring Christmas a national holiday.  That strikes me as close to the sort of government expression of an endorsement -- like the pledge or motto -- that I have got a problem with.  Perhaps a middle ground is to remove that official designation but allow government offices to close anyway if they meet the practical impossibility threshold.  It's something like the difference between the following two signs on the doors to City Hall:  "Closed in observance of Christmas" or "Holiday Hours:  Dec. 24 -- 8:30 a.m. to 2:30 p.m.; Dec. 25 -- closed."  Christmas Eve is not a national holiday, but I would find perfectly acceptable a decision to let government employees go home early!

- jhildner

July 13, 2009 at 2:53am

As I recently mentioned to a friend, healthcare recognizes to holidays (at least in a large, urban, teaching hospital).  So the non-Jews work on the Christian/Muslim/etc holidays, the Jews work on the Christian/Muslim/etc holidays, the Muslims work on the Jewish/Christian/etc holidays and people keep getting treated.  As a condition of employment, you AGREE to work your 1 or 2 winter and 1 or 2 summer holidays and you sign up.  You grumble, you alternate, you switch shifts, whatever, but you do it and life goes on (or you get a different job).  Someone else puts the turkey in the oven for you (or you eat early and work later).  No favoritism, no discrimination.  Now granted, it's probably different in small hospitals and in clinics, but that's up to them and they do have on call personnel for emergencies.  Chinese food places are open on Christmas to feed the Jews and Muslims and Pagans, etc (yes, it's an old joke) and you get carry out elsewhere when they close for their holidays.  If schools have so many missing teachers and/or students (and let's make sure that people are "cross  holiday-ing"), well, those dates don't come as a surprise.  They are on the calendar well ahead of time and provisions can be made, as many posters suggested.  Heck, it can be, "let's all go to the gymnamsium/auditorium and watch 7 episodes of Roots today and we'll discuss it in class next week" (time for others to get filled in out it).  Or something like that.  Or maybe it's Field Day or Field Trip day.  Take 'em someplace where there ARE people to educate them.  Doubtful that those who miss that day or 2 are really going to be intellectually crippled from then on in.

- ericad

July 13, 2009 at 11:32am

Well, first of all, Jhildner, I understood you to be advancing "practical impossibility" as a rationale for recognizing the holidays of the majority religion(s), or at minimum for closing the schools on the holidays of the majority religion(s), to the EXCLUSION of any accommodation for minority religions (i.e., those the absence of whose members would not make it impracticable to keep a school open).  Now you are suggesting that "everyone should get the day off for religious observance without significant penalty, so long as it doesn't get ridiculous."  But you nevertheless suggest that the Constitution does not require giving everyone time off for religious observance, and that "practical impossibility" would be a constitutionally sufficient justification for discriminating among religions in that regard.

My point, perhaps not well articulated, is that if anyone gets time off for religious observance, then the Religion Clauses require that all people get time off for religious observance.  If that means in the case of the majority religion that so many teachers and students would be absent as to cause the de facto closing of the school, then so be it, the school will be closed.  Otherwise, if there is, for example, a single Jehovah's Witness in the school who wants a day off to celebrate the memorial of Christ's death, then, I submit, the Constitution would require that he or she be excused without penalty.  

What I  mean by "significant presence" is that the population of a religion's adherents is sufficienty large that its absence from the school would cause its de facto closing.  It would be a matter of counting heads, and would no more involve religions lining up for special solicitude than determining "practical impossibility" would.  (Indeed, it is very similar to your "practical impossiblity" standard, except that it would require only that sufficient numbers of people would be absent, if permitted to be absent, to cause a de facto closing, not that it would be "practically impossible" to keep the school open if the school decided not to accommodate religious oberservance.)

So I think you and I differ in that you appear to believe that the "practical impossibility" of keeping schools (or government offices) open during the majority religion's holidays is sufficient reason under the Religion Clauses for accommodating the majority religion and not accommodating minority religions.  You suggest that schools might nevertheless accommodate minority religions in order not to be jerks, but they would not be required under the Constitution to do so.  My view, on the other hand, is that even if "practical impossibility" is a sufficiently compelling reason to close schools and government offices during majority holidays and not close them during minority holidays, it would not be a sufficiently compelling reason for refusing to make any accommodation at all for the religoius observance of the minority religions.

I recognize that my analysis still permits some discrimination in that the schools will actually be closed for some religious holidays and not for others.  But the discrimination is no more than necessary to accommodate practical realities, i.e., under my analysis, minority religions must still be accommodated to the fullest extent possible.  Your analysis would permit some religions to be accommodated by the closing of schools and some to be not accommodated at all.  If you are willing to concede that the Constitjution would require ALL religions to be accommodated to the extent possible, then I think we would be close to being on the same page.

But there is a deeper issue here.  Even if we were to agree that the government can discriminate among religions where the discrimination is based on the purely secular consideration of "practical impossibliity," it is simply not the case that "practical impossiblitity" is the reason for the discrimination.  First, it is far from clear that it would be a "practicable impossibility" to keep schools and government offices open on Christmas, for example.  Surely, there are many non-Christians, non-religious Christians, and even religious Christians who would be willing to work on Christmas day.  And as ericad illustrates, even if students stayed home from school in droves, school could nevertheless stay open without causing massive disruption.  Second, unless school admiinstrators and government officials would be willing to perjure themselves, it could not be shown that the only reason for closing schools on mainstream holidays is the "practical impossiblity" of keeping the schools open, rather than solicitude for the religiouis observance itself.  I simply do not believe that is true.  You are supplying a secular pretext for favoring mainstream religions over non-mainstream religions, one that I think is post hoc and not the real reason.  

- dhurtado

July 14, 2009 at 2:01am