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Albany, N.Y.-A divided New York appellate panel has upheld the constitutionality of a clause in a teachers’ contract that allows educators to take up to three days of paid leave for a religious observance. The state intermediate-level Appellate Division, 3d Department, split 4-1 over establishment clause applicability in Maine-Endwell Teachers’ Ass’n v. Board of Educ., No. 93831. It concluded that the contractual provision is more an accommodation of a teacher’s religious beliefs than a coercive force. But one judge strongly disagreed. The dispute began when the Maine-Endwell Central School District rejected a request by two teachers seeking to take advantage of the religious leave policy and instead insisted that they use personal days. A trial court judge declared that the provision violated the establishment clause, but the appellate court reversed. Writing for the majority, Justice D. Bruce Crew III distinguished this case from Matter of Port Washington Union Free School District v. Port Washington Teachers’ Ass’n, 268 A.D.2d 523 (2000). In that Appellate Division case, the commissioner of education had designated particular religious holidays considered acceptable for paid leave. The Appellate Division found that the provision created an impression that the district preferred certain religions and shot it down on establishment clause grounds. The Court of Appeals, New York’s high court, denied leave. Crew said the key difference between Maine-Endwell and Port Washington is that the provision in the former merely amounted to a “reasonable accommodation.” The court stressed that “to the extent Port Washington can be read to prohibit any religious observance clause as violative of the Establishment Clause, we decline to follow it.” Justice Karen K. Peters dissented, contending that the provision at issue violated “each and every prong of the quintessential tripartite test” articulated by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test says that a governmental action involving religion survives constitutional scrutiny only when the action has a secular purpose, the goal of the action does not have a primary effect that advances or inhibits religion and the action does not foster excessive “governmental entanglement with religion.”

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