Maine Bar Journal
Fall 2003 #6.
A Constitutional Quandary: Closing School on Days with Religious Significance
Maine Bar JournalFall 2003A Constitutional Quandary: Closing School on Days with Religious Significanceby Maureen A. MacFarlaneHistorically, in many parts of the United States, the days the setting of the school calendar, the determination of the days school was in or out of session, was dependent upon the harvest schedule. As the country became more industrialized, other factors influenced the days that school districts scheduled to close. Currently, as school districts focus on meeting time and learning requirements set by state departments of education and enter into debates about extending the school year or the school day in order to close the achievement gap, debates can arise when school districts make a decision to close in order to allow for the celebration of holidays, particularly when those holidays are recognized as being religious in nature. As a result, the school calendar has become fodder for on-going constitutional debate regarding what constitutes a violation of the Establishment Clause of the First Amendment to the Constitution.
The Lemon decision and its progeny
The First Amendment to the Constitution states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const., amend. I. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court articulated a three-part test for determining whether government action violates the Establishment Clause of the Constitution: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." Id. at 612 - 13. If any one prong of the test is not met, then the government action is unconstitutional.
As Hartenstein explained in his article, "A Christmas Issue: Christian Holiday Celebration in the Public Elementary Schools Is an Establishment of Religion":
The test may be stated as follows: what are the purposes and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.
J. Hartenstein, "A Christmas Issue: Christian Holiday Celebration in the Public Elementary Schools Is an Establishment of Religion," 80
Calif. L. Rev. 981, 1007 (1992). Thus, when looking at the issue of scheduling days off in a school calendar, the question becomes: Is the school not in session because the day is recognized as having solely secular purposes, duly recognized secular and religious purposes, or purely religious purposes?
Following the Lemon case, the Supreme Court took up the issue of holiday celebrations two more times. The first was in Lynch v. Donnelly, 465 U.S. 668 (1984), and the second was in County of Allegheny v. ACLU, 492 U.S. 573 (1989). In the Lynch case, the Supreme Court concluded that there was an adequate secular purpose for the display of a crèche and found it no different than permissible practices of state aid to religious schools and universities, Sunday closing laws, and legislative prayer. Id. at 681 - 82. In the County of Allegheny case, the Supreme Court concluded that the display of a crèche and a menorah did not violate the First Amendment and that when one looked at the context of the displays, it was evident that there was no endorsement of religion by the government with the displays. Id. at 601 - 02. These decisions, which focus on whether a reasonable person would believe that there had been an endorsement of religion by the government, are viewed by a number of courts to be a refinement or a clarification of either the first or the second prong of the Lemon test. See, e.g., Koenick v. Felton, 190 F.3d 259, 264 - 65 (4th Cir. 1999) (collecting cases); Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir. 1999) (collecting cases); Cammack v. Waihee, 932 F.2d 765, 774 - 75 (9th Cir.), rehearing denied, 944 F.2d 466 (9th Cir. 1991), cert. denied, 505 U.S. 1219 (1992); Metzl v. Leininger, 850 F. Supp. 740, 743 (N.D. Ill. 1994). Thus, when considering whether it is unconstitutional for a school district to develop a school calendar that gives a school holiday on a day that is also a religious holiday, one must analyze the issue under the Lemon test as well as under the endorsement test refinement that was articulated by the Supreme Court in Lynch and County of Allegheny.
A Brief Survey of Religious Holiday Cases
Four circuits courts of appeal have considered the question of whether the creation of holiday around a day otherwise recognized as a religious holiday violates the Establishment Clause.1 In Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999), the Fourth Circuit considered a challenge brought by a public school teacher against a school board for providing public school holidays on the Friday before Easter through the Monday after Easter. After noting that in determining whether a statute retains a secular purpose, that the courts look to the contemporary purpose of the statute and not the purpose that was articulate when the statute was enacted, the Koenick court concluded that the articulated reason of closing the school on these days to "economize scarce educational resources" id. at 266, on days with high rates of absenteeism and decreased instructional effectiveness was "a pragmatic, legitimate secular purpose." Id. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999), the Sixth Circuit considered whether the closing of county courts and administrative buildings on Good Friday violated the Establishment Clause. In this case, the court concluded that the holiday was not unconstitutional because it was enacted for legitimate secular purpose of giving county employees a spring holiday on a low traffic day. Id. at 574 - 75. The Seventh Circuit has considered the issue of whether Good Friday violates the Establishment Clause on two occasions. The first case was Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995). In this case, the court considered whether an Illinios state statute making Good Friday a legal holiday in public schools violated the Establishment Clause. Noting that the articulated reason in the governor's proclamation had been to "commemorate the crucifixion of Jesus Christ," id. at 623, and that Illinois had failed to come forward with evidence to support its proffered secular justification that the closing was to save school districts from incurring expenses on days when very few teachers and students are expected to attend, the Seventh Circuit found the statute to violate the Establishment Clause. The second case was Bridenbaugh v. O'Bannon, 185 F.3d 796 (7th Cir. 1999). In the Bridenbaugh case, the court considered whether declaring Good Friday as a paid holiday for Indiana state employees violated the Establishment Clause. Again, after considering the secular purposes for the holiday that were advanced by Indiana, the Seventh Circuit concluded that none of the reasons had the effect of advancing religion and that the state statute was constitutional. Id. at 800 - 802. In Cammack v. Waihee, 932 F.2d 765 (9th Cir.), rehearing denied, 944 F.2d 466 (9th Cir. 1991), cert. denied, 505 U.S. 1219 (1992), the Ninth Circuit also considered whether the statutory holiday of Good Friday violated the Establishment Clause. Looking at the store sales and other various uses people made of this day off, the court concluded that Good Friday had become secularized in Hawaii and that therefore the state declaring the day a holiday did not violate the Establishment Clause. Id. at 769.
In addition to the circuit court of appeals decisions, there is one case involving a challenge to a state statute establishing Good Friday as a state holiday that did not advance past the district court level, and there are two state...