Federal Court Upholds Lower Court Ruling That School Board Can’t Limit Number of ‘excused Days’ off

A federal appeals court, in what was termed today an unprecedented decision, sustained Tuesday a lower federal court ruling which held unconstitutional an arbitrary decision by a Texas public school board which had limited to two days a year “excused absences” by students for religious reasons.

The description of the ruling as unprecedented was given by Howard Zuckerman, president of the National Jewish Commission on Law and Public Affairs (COLPA). A COLPA attorney took part in the litigation.

Specifically, the Court of Appeals for the Fifth Circuit, sitting in New Orleans, struck down the Amarillo school board policy on “excused absences” for students for religious reasons, in accordance with the lower court ruling.

Twelve students, citing religious reasons, had absented themselves for eight days. When, under the school board’s policy, they were penalized, they filed suit in the federal district court February 8, 1980. Faced with the threat of a request by the student plaintiffs for an injunction, as part of their suit, the school board voluntarily then suspended the two-day maximum absence policy, pending outcome of the lower court hearing.

When the lower court banned the school board policy as unconstitutional, one effect was to permanently void that policy, an action sustained by the appeals court in its Tuesday ruling, according to Dennis Rapps, COLPA executive director.

CASE IS SIGNIFICANT FOR THE JEWISH COMMUNITY

Zuckerman said the first ruling was made by Federal District Court Judge Marylou Robinson, when she held in April, 1981 in favor of the students’ claim for excused absences for all their religious holiday requirements. The school board appealed the lower court ruling to the appeals court.

Zuckerman said that because the case involved the issue of allowable limits on the right to accomodation by school boards to students to be absent for religious reasons, the case is significant for the Jewish community.

He noted that the 12 plaintiff students are members of the World Wide Church of God and that student adherents absent themselves from school from eight to 10 days each school year because of the sect’s religious requirements. He pointed out that Judaism has substantially more than two “no-work” holidays each year.

Zuckerman said Michael Kusin, a member of COLPA’s Houston chapter, argued before the courts for the plaintiffs after filing a friend-of-the-court brief which contended that the Amarillo school board had a constitutional obligation to permit religious absences without penalty. Penalties under the court-voided school board policy had included imposition of lower grades and a ban on making up missed examinations. Zuckerman said Kusin’s brief was joined in by major national Orthodox Jewish organizations.

The school board had maintained throughout the litigation that it could not permit some students to be absent, without penalty, “far in excess” of the two days of absence permitted to the majority of students. The board contended that permitting more than two absences for student members of a particular faith would be an impermissible preference, in violation of the religious clauses of the First Amendment.

The board also contended that since the policy had been uniformly applied to students of all religions, an exception for student members of the World Wide Church would be, in effect, a grant of official board “recognition” of that church, in violation of the established clause of the First Amendment.

Kusin argued that absence from school for religious reasons was “clearly” a protected right under the “free exercise” of religion clause of the First Amendment, which could be overriden only by “a compelling state interest.”

Noting that the two-day limited absence policy was adopted by the Amarillo school board in March, 1979, Kusin told the court that no problems resulted from the pre-March 1979 policy of unlimited absence of students for religious observance. He argued that, therefore, there had been no “substantial countervailing interest” to support the board’s subsequent refusal to accommodate the religious interests of the 12 plaintiff students.

Zuckerman said he understood the Am-arillo board was considering an appeal to the U.S. Supreme Court, adding that COLPA would welcome such an appeal to get a definitive ruling on the issue.