WASHINGTON, February 10, 2014 – Newly elected New York City Mayor Bill de Blasio recently announced his intention to have New York Public Schools closed for the Islamic holidays of Eid al-Fitr and Eid al-Adha, igniting significant interest from various pro-Muslim and anti-Muslim groups.
The announcement came on the heels of a popular White House petition asking the President to close schools for children in honor of the two Islamic holidays. Mayor de Blasio made his announcement shortly after the petition failed to gather the necessary signatures for the White House to make a comment on the matter.
TheBlaze.com reports “Cities with large Muslim populations have already added days to the school calendar for Muslim students. Dearborn, Mich., is one example where this has unfolded and, according to CBN News, districts in Vermont and Massachusetts have followed suit.”
Above the maelstrom of the arguments on the topic, an interesting constitutional debate has emerged, with an unexpected participant. Farhan Memon, co-founder of the Muslim Bar Association of New York and a Board Member of Al Madany Islamic Center of Norwalk, wrote an article entitled “NYC’s Holidays for Muslims Could Be Unconstitutional,” questioning the legality of the newly proposed school holidays.
Memon writes, “The Department of Education doesn’t track the religious affiliation of teachers, but given New York’s large Jewish population and its historic involvement in the teaching professions its [sic] safe to say that there are thousands of Jewish professionals employed in schools. The cost of hiring substitute teachers and para-professionals would be so prohibitive that it’s less expensive to keep schools closed for those days. Such a secular purpose however does not exist when it comes to Muslims.”
Memon, however, fails to consider that the decision to close schools is not solely based upon the number of teachers who observe a particular holiday; the more important number is student absenteeism. Of course, Memon’s speculation that teachers in New York are less likely to be Muslim is not based upon any factual study, statistics or analysis. He bases his assumption solely upon guesswork and conjecture.
According to the New York Daily News, there were 1,086,300 Jewish individuals living in New York City as of 2011. Of this population, 561,000 were estimated to be living in Brooklyn. The same article quotes Jacob Ukeles, from the United Jewish Appeal Federation of New York, as stating that the increased population is a result of a surge in secular Jewish families.
The online magazine, “A Journey through NYC religions” says that some estimates count the number of Muslims in New York City at one million individuals, as well.
“The diversity of the Muslim community of New York City is unique in the United States. In the city there are large numbers of Muslims from Albania, Bangladesh, Bosnia, India, Pakistan, Palestine, Turkey (and Kurdistan), Yemen and elsewhere. African Americans make up a significant portion of the city’s Muslims, and there are a few Spanish-language mosques … One New York Muslim leader jokes, “We have become tabouli!” (a mixed salad of chopped onions, tomatoes and parsley).”
Courts throughout the United States have regularly upheld the constitutionality of religious holidays, as long as there is some “secular rationale.” In this case, the term “secular rationale” means that there is a practical or logical reason, unrelated to promoting a religious cause, for performing some activity.
In 1995, Judge Posner ruled that “A law that promotes religion may […] be upheld either because of the secular purposes that the law also serves or because the effect in promoting religion is too attenuated to worry about.”
Judge Posner also recognized that significant absenteeism could be a secular rationale to close schools on religious holidays, and seemingly predicted the situation at hand. His comments seem to address Memon’s article directly:
“Maybe someone someday will bring a suit charging that a school district which closes its schools on a religious holiday is thereby promoting religion in violation of the establishment clause. Presumably the defense would be that in the particular school district the holding open of the schools on the particular religious holiday would be a waste of educational resources because so few students or teachers would show up for work. The defense might succeed, if factually supported.”
Judge Posner’s ruling is not binding in New York, as he sits on the United States Court of Appeals for the Seventh Circuit in Chicago, but The Journal of Legal Studies has ranked Posner as the number one cited legal scholar of the twentieth century, making his opinions highly influential.
A district court in Washington joined the growing cacophony of voices in support of the constitutionality of government recognized religious holidays. The court held that government recognition of religious holidays does not necessarily promote the religion behind the holiday, instead “the government is doing no more than recognizing the cultural significance of the holiday.”
The United States Court of Appeals, Sixth Circuit held in 1999 that “A reasonable person who knew that many people in private and other public employment in the community had the day off and made plans to travel, would not think that the closing was an endorsement of religion absent an explicit endorsement… Because Defendants have been enjoined from future explicit endorsements, future closings will not make a reasonable person think that Defendants were endorsing religion.”
In New York, the Jewish and Muslim communities appear to be similar to one another in terms of population size, and Jewish holidays are observed – not to promote Judaism, but for the secular purpose of maintaining sufficient student attendance. The same rationale logically applies to the equivalently sized Muslim community.
While the Supreme Court has not directly ruled on this specific issue, and neither have New York courts, the numerous cases here seem to underscore that the closing of schools for Islamic holidays has significant constitutional support.