Maine-Endwell Teachers' Ass'n v. Board of Education

Crew III, J. Appeal from a judgment of the Supreme Court (Hester, Jr., J.), entered October 4, 2002 in Broome County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying a request by two teachers for paid leave pursuant to article XIX (D) of the parties’ collective bargaining agreement. Petitioner, a union of public school employees, and respondent entered into a collective bargaining agreement, which provided, inter alia, that upon written request, teachers could receive up to three paid days for religious observance. While respondent had heretofore adhered to the terms of the religious observance clause, on or about September 14, 2001, respondent refused a request by two teachers for paid leave for religious observance and directed the teachers to use personal days instead. As a consequence, petitioner commenced this CPLR article 78 proceeding seeking a judgment compelling respondent to comply with the religious observance clause of the collective bargaining agreement. Following service of a verified answer, Supreme Court determined that the clause in question was unconstitutional as it was in contravention of the Establishment Clause of the US Constitution (see US Const 1st Amend). Petitioner appeals from the judgment dismissing its application for review. We are of the view that the contractual provision at issue does not offend the Establishment Clause in that it does not impermissibly advance religion by coercing members of the union to profess a religious belief (see Lee v Weisman, 505 US 577 [1992]). As a matter of fact, the religious observance clause [686] imposes no requirements regarding which religious holidays may be invoked. As such, the clause is more properly viewed as a reasonable accommodation of the teachers’ religious beliefs, which is not violative of the Establishment Clause (see id. at 627 [Souter, J., concurring] [“The State may ‘accommodate’ the free exercise of religion by relieving people from generally applicable rules that interfere with their religious callings.”]; Lynch v Donnelly, 465 US 668, 673 [1984] [US Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions”]; McDaniel v Paty, 435 US 618, 639 [1978] [Brennan, J., concurring] [recognizing that in “limited situations . . . government may take cognizance of religion for purposes of accommodating our traditions of religious liberty”]). Indeed, this state, as well as the federal government, have enacted legislation mandating the reasonable accommodation of employees’ religious needs (see Executive Law § 296 [10] [b]; Civil Rights Act of 1964, 42 USC § 2000e [j]), and the US Supreme Court implicitly has held that such accommodation is constitutional (see Ansonia Bd. of Educ. v Philbrook, 479 US 60 [1986]; cf. Estate of Thornton v Caldor, Inc., 472 US 703 [1985]).* The religious observance clause here is readily distinguishable from that in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (268 AD2d 523 [2000], appeal dismissed 95 NY2d 790 [2000], lv denied 95 NY2d 761 [2000]) upon which Supreme Court relied. In Port Washington, the commissioner of education designated which religious holidays were acceptable for paid leave, thus creating the impermissible impression that the school district favored or preferred particular religions over others (see County of Allegheny v American Civ. Liberties Union Greater Pittsburgh Ch., 492 US 573, 593 [1989]). Further, we note that the clause at issue in Port Washington did not appear to limit the number of religious holidays that could be taken. Thus, that clause went beyond reasonable accommodation and instead rose to a level of “[glovernment pressure to participate in a religious activity!,] ... an obvious indication that the government [was] endorsing or promoting religion” (Matter of Griffin v Coughlin, 88 NY2d 674, 687-688 [1996], cert denied 519 US 1054 [1997], quoting Lee v Weisman, supra at 604 [Blackmun, J., concurring] [emphasis in original]). To the extent that Port Washington can be read to prohibit any religious observance clause as violative of the Establishment Clause, we decline to follow it. Accord [687] ingly, the petition must be reinstated and the matter remitted to Supreme Court for further proceedings. Cardona, P.J., Mercure and Lahtinen, JJ., concur. Footnotes [*] It is noteworthy that, as here, Ansonia dealt with a collective bargaining agreement that afforded teachers three days paid annual leave for observance of mandatory religious holidays.