September 16, 2002
Editor’s note: The following section on religious holidays contains consensus guidelines drafted and endorsed by a broad range of 17 religious and educational groups. These guidelines are intended to reflect current law in this area, though on some questions there may be no controlling Supreme Court opinion and the lower courts may be divided. While understanding the legal framework is essential in considering the role of religion in public schools, the law will not supply answers to every question. These consensus guidelines are intended to provide direction to school boards, parents, community members, administrators, teachers and students as they work together to address issues and draft policies concerning religious holidays.
Since 1776 the United States has grown from a nation of relatively few religious differences to one of countless religious groups. This expanding pluralism challenges the public schools to deal creatively and sensitively with students professing many religions and none.
Religious holidays and public education is a subject often marked by confusion and conflict. Teachers and school officials, as well as parents and students, should approach this discussion as an opportunity to work cooperatively for the sake of good education rather than at cross-purposes.
School districts developing guidelines about religious holidays will want to base their policies in the shared commitment of respect for individual religious beliefs expressed in the constitutional guarantee of religious liberty. This means that public schools may neither promote nor inhibit religious belief or nonbelief. Drafters of such guidelines also will want to take account of the role of religion in history and culture.
Brief legal analysis of the issues
While awareness of legal issues is essential in considering religion and public education, the law does not supply answers to every question. Within the current legal framework, schools — their boards, administrators, teachers, parents and students — must make many practical decisions regarding religious holidays. This work can be done only by showing sensitivity to the needs of every student and indicating a willingness to steer between avoidance of all references to religion on the one hand and promotion of religion on the other.
Although many controversies have arisen over religious holidays in public schools, the case law is scant. Because the Supreme Court has not ruled on the issue, there are no final or definitive answers.
The high court has ruled, however, that the government may not erect an explicitly religious symbol (such as a creche or menorah) unless it is part of a larger “secular” holiday display (see Lynch v. Donnelly, 1984, and County of Allegheny v. American Civil Liberties Union, 1989). Many have criticized the Court’s ruling, describing it as the “plastic reindeer test” — referring to the nonreligious symbols that must accompany the display. Interestingly, a majority of the justices has stated that Christmas trees, unlike creches and menorahs, have attained a secular status in our society and can be displayed standing alone. This does not mean that schools should erect Christmas trees during the holiday season, but only that they probably can. Many Americans continue to view Christmas trees as religious symbols, and for this reason schools may wish to be more sensitive than the law requires. The Court also has acknowledged approvingly that Christmas carols are frequently sung in public schools.
One federal appeals court has addressed the recognition of religious holidays by public schools. The decision, Florey v. Sioux Falls School District, upheld the school district’s policy and was allowed to stand by the U.S. Supreme Court. It is frequently cited as the controlling case on this controversial issue. 1 The relevant portions of the policy were as follows:
“It is accepted that no religious belief or nonbelief should be promoted by the school district or its employees, and none should be disparaged. Instead, the school district should encourage all students and staff members to appreciate and be tolerant of each other’s religious views … . In that spirit of tolerance, students and staff members should be excused from participating in practices which are contrary to their religious beliefs unless there are clear issues of overriding concern that would prevent it.
“The Sioux Falls School District recognizes that one of its educational goals is to advance the students’ knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization … .
“The practice of the District shall be as follows:
“1. The several holidays throughout the year which have a religious and a secular basis may be observed in the public schools.
2. The historical and contemporary values and the origin of religious holidays may be explained in an unbiased and objective manner without sectarian indoctrination.
3. Music, art, literature and drama having religious themes or bases are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.
4. The use of religious symbols such as a cross, menorah, crescent, Star of David, creche, symbols of Native American religions or other symbols that are a part of a religious holiday is permitted as a teaching aid or resource, provided such symbols are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hanukkah, St. Valentine’s Day, St. Patrick’s Day, Thanksgiving and Halloween.
5. The school district’s calendar should be prepared so as to minimize conflicts with religious holidays of all faiths.” 2
It is important to note that the Sioux Falls policy was permissible, not required. A better policy might have included more non-Christian holidays such as Rosh Hashana, Ramadan and Yom Kippur. Moreover, particular practices and activities under such a policy, such as Nativity pageants and reenactments of the Hanukkah miracle, might still be unconstitutional.
Any teacher or administrator should ask herself the following questions as she plans holiday activities:
A common misconception is that it is permissible to promote Christianity at Christmas, provided that other religions receive similar treatment at other times. For example, some teachers may try to justify celebrating Christmas by celebrating Hanukkah. This approach is wrong. First, Hanukkah is not a major Jewish holiday and should not be equated with Christmas, one of the two most important holidays in the Christian year. Second, one violation of the First Amendment does not justify another. If it is wrong to promote religion in the public schools at Christmas, it is wrong every other day of the year. Instead of “balancing” Christmas with Hanukkah, teachers should work to ensure that all holiday activities focus on objective study about religion, not indoctrination.
We have discussed what schools should and shouldn’t do regarding religious holidays, but what about the school’s duty to accommodate students and teachers who wish to observe religious holidays on their own time? What obligation do schools have to accommodate these concerns?
Schools are not required to close on a particular religious holiday but may choose to do so as a matter of administrative convenience as, for example, when large numbers of students are likely to be absent. When schools choose not to close on particular holidays, conflicts may arise. Most states have laws permitting a certain number of excused absences for religious holidays. Where no statutory exemption exists, the First Amendment’s Free Exercise clause would seem to require a reasonable number of excused absences for such religious observance (see, e.g., Church of God v. Amarillo Independent School District, 1981). In no event should a student be penalized for being absent from school to observe religious holidays.
A slightly different rule applies to teachers who wish to be absent to observe religious holidays. Title VII of the Civil Rights Act of 1964 requires school boards to make “reasonable accommodation” of their employees’ religious needs. School boards may offer any accommodation that is reasonable, however, and are not required to accept the accommodation proposed by the employee (Ansonia Board of Education v. Philbrook, 1986). Moreover, schools are not required to accommodate an employee’s religious needs if doing so would cause “undue hardship” on the employer, such as disturbing the board’s collective-bargaining agreement with the teachers’ union or imposing more than de minimis costs on the employer (T.W.A. v. Hardison,1977, and Estate of Thornton v. Caldor, 1985). Courts have split over whether schools may provide teachers with extra days off with pay in order to observe religious holidays. Schools that provide employees with paid “personal” days, however, should not be allowed to deny their use for religious observances.
1 See, e.g., Johnson v. Shiverman, 658 S.W. 2d. 910 (Mo.App. 1983)
2 619 F.2d. 1311 (8th Cir. 1980)
Note: This article sponsored jointly by:
American Academy of Religion
American Association of School Administrators
American Federation of Teachers
American Jewish Committee
American Jewish Congress
Americans United Research Foundation
Association for Supervision and Curriculum Development
Baptist Joint Committee on Public Affairs
Christian Legal Society
First Amendment Center (www.firstamendmentcenter.org)
Islamic Society of North America
National Association of Evangelicals
National Conference for Community and Justice
National Council of Churches of Christ in the USA
National Council for the Social Studies
National Education Association
National School Boards Association