Religion & American Law

This article addresses a relatively recent change to a New York City education policy that will now allow preschools, both religious and nonreligious, to spread out the 6 hours and 20 minutes of instruction per day over 6 days, rather than 5 days. The main reason for this change is that it will now allow time for “non-program activities” during a short break that does not go towards the 6 hours and 20 minutes of secular schooling per day. The new policy also allows these schools to remain open on federal holidays, which may make it easier for the preschools run by religious organizations to close to observe their own religious holidays. It’s important to note that some of these preschool programs are tax funded and that Mayor Bill de Blasio enacted this policy in an attempt to encourage Orthodox Jewish organizations to open preschool programs.

This is a clear case of accommodation versus separation. Mayor de Blasio’s approach is to accommodate the religious views of organizations that may open preschool programs in order to increase overall enrollment in preschool. A separationist would argue that this action is clearly furthering religion by encouraging religious instruction during school and that it excessively entangles the government with religion.

Although many Supreme Court Justices have seemed to move away from using the Lemon test as a way to measure the constitutionality of laws such as this one, I do think it is a valuable tool in approaching these issues. It does, however, face many complications and interpretations in cases that have such competing interests. While some may say that this policy does not have a secular purpose (considering that it has been specifically enacted to further the participation of particular religious groups), it’d be hard to deny that increasing enrollment of preschool programs is not a secular goal. It has been proven that early childhood education can have a significant impact on later performance of students. This would clearly serve the state’s compelling interest of creating an educated population, which would help with reducing crime rate and improving the conditions of some neighborhoods. I think that this rule would pass the first prong of the Lemon test, even if it is religiously tainted, because early childhood education is part of a compelling state interest that leads into a predominantly secular purpose.

In regards to the second prong, it does seem as though this advances religion because it is blatantly encouraging religious organizations to open up preschool programs.  There’s no doubt in my mind that this new rule will further religion via religious education and prayer time. Not having this policy does not inhibit the religion either. Although it may present a slight burden, the religious organizations are still free to open up preschools even without this policy in place. But by implementing this policy, Mayor de Blasio is directly advancing the religious doctrines of Orthodox Jews by making it easier for them to create these programs.

Although the Supreme Court would usually stop once the policy violates one of the Lemon statements, analyzing this case with the third prong is still valuable. This case would certainly foster excessive entanglement between religion and government. This new rule essentially allows for prayer and religious activity during the school day with a loophole that would not count this as school time. Donna Lieberman, the executive director of the New York Civil Liberties Union, says that adding this policy ”add[s] up to a religious school funded with taxpayer money.” Even though the city does not directly run these preschools programs, it is still connected to the situation deeply enough that it does foster entanglement between the secular and the non-secular.

Unlike some of the cases we’ve most recently encountered, such as Church of the Lukumi Babalu Aye vs. the City of Hialeah, this policy does not present an issue that is intentionally stepping on the Establishment and Free Exercise Clauses. Rather, it’s a case where state interest has overridden constitutional concerns about government interaction with religion. Even though I believe the city is enacting this rule with secular purposes and interests in mind, it advances religion and creates entanglement that cannot sit justly with the previous Court rulings.