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A divided appellate panel last week 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 Appellate Division, 3rd Department, split 4-1 over Establishment Clause applicability in Maine-Endwell Teachers’ Association v. Board of Education, 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 lawsuit on First Amendment grounds resulted. Supreme Court Justice Joseph P. Hester of Broome County declared the provision violated the Establishment Clause, but the 3rd Department 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’ Association, 268 AD2d 523 (2000). In that 2nd Department case, the Commissioner of Education had designated particular religious holidays considered acceptable for paid leave. The 2nd Department 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 denied leave. Justice 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.” Also in the majority were Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure and John A. Lahtinen. 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 so-called 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.” Over the last 30 years, many courts — including the U.S. Supreme Court — have had difficulty applying Lemon, and some justices have complained that it imposes an unworkable standard. Regardless, the Supreme Court has yet to devise a better test, and Lemon remains the standard. Justice Peters said the provision in this case “subtly coerces and pressures an employee to declare a religious belief. … Rather than simply affording employees an opportunity to worship, it encourages and financially rewards them for doing so.” Richard M. Aswad of Aswad & Ingraham in Binghamton appeared for the teachers’ union. James A. Gregory of Hogan & Sarzynski in Binghamton argued for the school district.

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