Judge Issues Written Opinion About Religious Days Off: Finds "Religious Test" Inappropriate

You may recall the "Holy Thursday" ambush last March in which the DOE reinterpreted Chancellor's Regulation C-606 to permit principals to apply a "religious test" to determine whether teachers could take, as a non-attendance day, time for religious observance. The reinterpretation of the Chancellor's Regulation was contained in a Principals' Weekly. The UFT filed a grievance with the DOE and, at the same time went to Court with a request for a temporary restraining order prohibiting the DOE from taking disciplinary action against any teacher who requested the day and granting the request so long as the needs of the school could be met.

A temporary restraining order was orally issued and the UFT reported the "victory."

It has only taken 9 months but the Judge just published her opinion. While her opinion reiterates her oral opinion and continues the stay until the matter can be resolved in arbitration the decision raises some interesting aspects of C-606 and days off for religious observation in general. Justice Edmead expressed her concern that despite her initial restraining order the Board was not in compliance. She wrote,

after the commencement of this petition, six teachers at P.S. 2 in Elmhurst, Queens, who were initially granted leave to observe Holy Thursday, were later denied leave after circulation of the 2008 Principals' Weekly Statement. The principal commented that no one was being allowed Holy Thursday as either a personal or religious day. The six teachers reported to work in fear of retaliation from the principal if they failed to appear. At I.S. 92 in St. Albans, three (of 49) teachers who had requested religious observance leave for Holy Thursday were called in by the principal, and asked questions pertaining to the purpose of the holiday, how participants observe it, and what the religious services entail. At P.S. 71 in Ridgewood, the principal originally denied requests for religious observance leave, but, after meeting with UFT representatives, granted some teachers such leave, and permitted others to use their personal days. The principal stated that she would not discipline teachers for taking the agreed-to leave unless directed to do so by the BOE. Yet, upon returning to school, nine teachers who had taken personal days were informed that they would be docked pay for taking leave and that the leave would be recorded as an unauthorized absence. The plight of these nine teachers is troubling because it violates both this Court's March 19,2008 Order and the agreement reached by the parties with the help of the First Department Court Attorney that "no adverse action will be taken with respect to absence on Holy Thursday pending resolution of' the motion to vacate the stay."

The DOE calendar is not consistent. Certain religious holidays are covered by recess days in some years and not covered in others. By allowing teachers (and other employees) the right to take days off for religious reasons the DOE is merely attempting to follow state and federal anti-discrimination laws…they are not providing us with a gift.

While the ultimate decision on whether the statement in the Principals' Weekly adequately amended the Chancellor's Regulations to provide a "religious test" to take a day off for religious observance will have to wait until the arbitrator rules. What is clear is that as our teaching staff becomes more religiously diverse we should see this issue continue to create controversy in our schools.

Weingarten v. Board of Education, New York Supreme Court, Edmead, J., December 15, 2008, Index No. 104080/2008