CUNY, ACADEMIC CALENDAR and RELIGIOUS OBSERVANCES

An argument against the current practice

and for observance of the Law and for Equity.

Prepared by Philip Pecorino, Ph.D.

QCC, CUNY

CUNY has a traditional practice of not scheduling classes at CUNY on a select number of religious Holy Days of one or two denominations of two major religious traditions out of six while the university itself remains open for business other than classes. This is demonstrably unfair, arguably based on bias and an obvious demonstration of cultural hegemony. Offered herein is an argument against this practice. What the argument against the traditional practice is intended to do is to stop the practice of selecting groups for favor or disfavor, for convenience or for inconvenience. It is an argument for equal treatment where it is warranted and opposed to favoritism and prejudicial treatment of any group. It is an argument for diversity, multi-cultural respect and pluralism and an argument against intolerance, disrespect and cultural hegemony.

Three possible positions:

Regarding the traditional practice (T) of CUNY in not scheduling classes on the Holy Days of certain religions to permit teaching faculty and students to participate in those observances it must be noted at the start that it is a practice and not a policy. A publicly appointed Board of Trustees of a public institution would be barred by the federal and state constitutions from instituting a policy involving recognition or favoritism of religious practices.

With regard to what to do about religious observances of students and faculty there are three possible CUNY positions with regard to NOT scheduling classes on days that require religious observances by one or more religions:

A .Do so for ALL religions that are observed by the faculty of CUNY

B. Do so for SOME religions that are observed by the faculty of CUNY

C. Do so for NONE of the religions that are observed by the faculty of CUNY

An argument for position C is provided because the other two are untenable based on law, morality and even practical considerations.

Position B is instantiated in the current tradition. Position B has a number of quite negative features: it results in interruptions of the instructional program, harm to students due to the conversion days and violations of tenets of law and morality with regard to prejudicial treatment of religious groups.

Opposing Position A (No classes on any and all religious Holy Days):

Position A is to be rejected because to NOT schedule classes on days that require religious observances of any religion is not possible for there are so many religions and their days of observance are so many that there would not be a sufficient number of days to permit the instructional program. (See, e.g., the UNICEF calendar that lists all such days or http://www.uno.edu/~cdac/calendar.html )   CUNY currently does not schedule classes on a select number of religious Holy Days of one or two denominations of two major religious traditions out of six. Only three of the six High Holy Days of Orthodox Judaism (the three also observed by the Conservative and Reformed traditions within Judaism) and three of the six Holy Days of Obligation for Roman Catholics (the three that are also observed by other Christian denominations), two of which are national holidays. CUNY does not schedule around (reschedule classes) the holy days of Greek Orthodox, Russian Orthodox, Eastern Rite or Coptic Christians nor any of the holy days of Islam or of Hinduism or of Sikhism or Buddhism or the traditions of Shinto, Confucian, Tao or Baha'i or any other religions.

Further, position A is to be rejected because to NOT schedule classes on days that require religious observances of any religion would be to formally institute recognition of religious practice by a public institution. The current laws permit individuals to absent themselves from the classroom and the workplace for reason of religious observances. They do not permit public institutions to close or to observe such practices or to grant privilege to one religion over another. Public institutions must observe the separation of church from state concept.

Opposing Position B (No classes on the religious Holy Days of some few religions):

Position B is the current tradition and it is to NOT schedule classes on days that require religious observances by one or more religions. Position B is itself untenable for the following reasons:

i.                     it is itself impractical

ii.                   it violates the principle of equal treatment for all groups

iii.               it involves a public institution determining its practices and policies for religious reasons (to permit or facilitate religious observances for members of some but not other religions)

To reschedule classes so as to permit the observance of religious ritual for SOME religions but not others is what the current CUNY practice amounts to and it is the traditional practice (T) although it is not official policy. This option is advocated by some based on practicality and instantiated through the practice of setting an academic calendar for CUNY through administrative actions. The calendar schedule for classes is not set through a formal vote of the publicly appointed Board of Trustees nor set as a policy of CUNY, so as to avoid the charges of religious bias and favoritism or conflicts with the constitutional provision for a separation of state institutions from religious practices.

Thus for the reasons cited above and below the current practice is just that, a practice, and not a CUNY policy. It survives as a tradition in an institution that is changing. It survives as a practice that is a bit anachronistic in a public institution that serves a multicultural, pluralistic and democratic society with egalitarian ideals. It survives from a time when the students and faculty were not as heterogeneous as they are now in terms of their ethnicity and religious backgrounds.

Below are some of the difficulties in even considering making the traditional practice (T) into an actual policy (P)

If (T) were to be a policy (P) CUNY would need to clearly enunciate what (P) would be.

It (P) would need to be something like this:

Whenever the number of teaching faculty belonging to a particular religion (R) which requires religious observances on particular days reaches a critical percentage of the teaching faculty (C) then there will be no scheduling of classes on those days which require religious observances by (R).

It would need to be non-specific to particular religions else the outright unfairness and religious prejudice and intolerance would be obvious along with the violation of law.

For this to be CUNY policy someone would need to answer and defend a number of questions including these:

1. Would this P go into effect college-wide when C was reached by the teaching faculty of just a single department of a college or a few departments but all departments (current practice) or by all the teaching faculty of the college?

2. Would this P go into effect CUNY wide when it is reached by the teaching faculty of just one college of CUNY or by a few colleges but not all colleges (current practice) or by all the teaching faculty of CUNY?

3. Would the teaching faculty of (R) lose the privilege when their number drops below (C)?

4. Would the privilege be lost by all at the college who are members of (R) when the percentage of teaching faculty who belong to (R) drops below (C) in a few departments but not all or even most departments?

5. Would the privilege be lost by all at CUNY who are members of (R) when the percentage of teaching faculty who belong to (R) drops below (C) in a few colleges but not all or even most colleges?

6. Would the teaching faculty of another religion (R2) gain the privilege when their number drops reaches or exceeds (C)?

7. Will CUNY units conduct a census of the teaching faculty for their religious affiliations on a periodic basis? How often?

8. How will CUNY defend itself against a charge that it has a policy that considers religious affiliation in determining its practices? That CUNY has policies concerning how it delivers its services that are based in part on observance of or facilitation of the observance of religious rituals?

Position B which seeks to continue (T) is defended because it is claimed to be the only practical solution to the problem of teaching faculty needing to participate in religious rituals on days that they have a teaching responsibility.

The claims that it (T) is the only practical solution is not true and that the basic claim that it (T) is practical at all are not true.

a.    Teaching faculty who are members of religions other than those that are currently favored manage to provide for alternate means of instruction. They are not asking that an entire college or all of CUNY not schedule classes on their days of religious observance for their convenience. They provide an example of a practical approach other than to continue (T).

b.   The colleges are open on those days but there are no classes scheduled

c.       There is the impracticality of performing the rescheduling of the days closed to classes by introducing conversion days which inconveniences adjunct faculty with other responsibilities and students who have jobs and many who have children and other responsibilities at the times that classes are rescheduled..

d.    Other public colleges and universities function quite well without (T )

Supporting Position C (No non scheduling of classes on any and all religious Holy Days and Observe The Public Education Law (Section 224-A)):

Having demonstrated that position A and B are untenable for different reasons would leave only position C as both legally and morally defensible and practical as well. Position C is to stop the traditional practice (T) and have all faculty and students absent themselves as they need to for religious observances and to provide for alternate educational experiences for them.   This is consistent with law.

Only position C is consonant with the principles of equality of treatment and opportunity and mutual respect and the separation of public from religious institutions.

The Public Education Law (Section 224-A) and the collective bargaining agreement with the Professional Staff Congress provides for the individual observance of religious holy days by faculty and students and for alternative instruction. This is what should be observed.

The future for CUNY is to move toward position C and treat all groups who work for and attend CUNY and who are served by CUNY equally.

1. There have been no critiques of the formal argument against continuing the traditional practice (T) where CUNY reschedules classes to facilitate the observance of religious ritual for certain groups of teaching faculty.

2. There have been no actual defenses offered for the continuance of T.    Apparently, no one can defend the position that says that because of religion, certain faculty and students, who would otherwise want to participate in classes, cannot have instruction on certain days in CUNY colleges although those colleges are open for other purposes. This is position T (the traditional practice).

There has been no rational argument offered for (T). Instead, some prefer to question the motives of those who argue against (T) but don't respond to the argument against (T) and for position C. People state (without evidence) that it is impractical to do otherwise than (T) when the physical record shows that CUNY does otherwise every semester of every year for the religions not privileged by the current practice of providing the convenience of rescheduling classes for faculty who are members of denominations of one or two religions.

What is wrong with the formal argument against continuing the traditional practice (T) ?

Do people favor traditional practice (T) being continued because it is traditional? Because it conveniences people they favor? What of those it inconveniences? What of those not permitted to have classes on those days? What of those inconvenienced by conversion days need to accommodate the rescheduling?

Those who wish to preserve the traditional practice (T) due to its practicality based on the number of faculty who need to participate in religious rituals on certain Holy Days base their claims on the claim of the number of faculty involved and how difficult it would be to offer classes on those days or alternatively for the religious observants to offer alternative and equivalent educational experiences on other days.

To enunciate this position as a CUNY policy would require that it be clearly expressed and then there would need to be some form of survey the faculty (CUNY-wide), and when the number of observant faculty of any religion reaches a percentage (CUNY-wide), say 25%, of all faculty (CUNY-wide) then you would have CUNY not schedule classes on those days and reschedule them at another time.

If so, it would be to facilitate religious observances of a percentage of the faculty (25%) while the colleges would remain open (as is the case now) and the other faculty and students would not be permitted to have classes on those days (as is the case now).

If this were to become the actual policy of CUNY it would not survive a federal court review.   It would be a clear act of religious discrimination (for those below the 25% cutoff). It would involve a public institution in actions based upon religious considerations. CUNY traditional practice survives because it has never been based on a clearly enunciated policy. To do so would run afoul of the US Constitution and the Constitution of New York State. It survives as practice ONLY.

If we were to forget the legal restrictions and the idea were to become the policy it is not likely that the percentage would be as high as 25% because there would be many groups that would not be included and would want to be. If the number were to be even discussed (again barring all legal considerations) the orthodox of all faiths would lobby and act to have the percentage set low enough to include them. To even continue the present practice the percentage (CUNY-wide) would need to be set under 20%. Then there would be so many groups, Eastern and Western rites, that the result would be too few days left to permit the academic calendar to continue as two semesters between September and June.

One respondent to a discussion of this matter on CUNY�s Senate Forum has written:

�Obviously there can be disagreements as to when the number of people in a particular group is so large that their absence for religious reasons would have an impact that makes it advisable to cancel classes, but that can be handled on a common-sense basis without formal rules.�

What is the likelihood of a common sense consensus ever obtaining in CUNY? Why are not all the High Holy Days of Judaism being observed by CUNY with the rescheduling of classes? Why are not all six religious days of obligation (requiring attendance at religious rituals) being observed for Roman Catholics ?   Why are such days for the Greek, Russian and Eastern Rite not being so observed? No days at all for the Islamic community (there are 6 such days)? None for the Buddhists or Hindus, Confucians etc.?

What common sense agreement exists in CUNY that permits this to continue?

If the basis for the common sense agreement being possible is some percentage of the teaching faculty who are observant members of some religion being reached, what might that mean?

Would it mean such a percentage (a) in a department, (b) in a college, or (c) CUNY-wide ??

Would we reschedule classes by department? by college? or CUNY-wide?

Common sense would seem to indicate that you would not reschedule classes throughout the entire CUNY system simply because in several colleges there are several departments where there is a large percentage of faculty who wish to fulfill their religious obligations and not be inconvenienced by having to provide for alternative and equivalent forms of instruction. Yet, apparently some think it is perfectly all right to restrict very large numbers of faculty and students who are not members of their religion from going to classes on certain days because of their own convenience. How would such thinking be involved in any common sense problem solving some think possible on this matter?

Conclusion

The apparent desire of many people not to have formal rules with regard to the scheduling of the academic calendar allows for the possibility that small groups with members in position of power arranging matters so that their requests for such rescheduling around their preferred Holy Days are honored CUNY- wide while other groups of equal or greater numbers would not be so favored. It is not warranted for anyone to go reading anything into that last sentence to make it out as prejudicial or singling out any one group. What the argument against the traditional practice is clearly intended to do is to stop the practice of selecting groups for favor or disfavor, for convenience or for inconvenience. It is an argument for equal treatment where it is warranted and opposed to favoritism and prejudicial treatment of any group. It is an argument for diversity, multi-cultural respect and pluralism and an argument against intolerance, disrespect and cultural hegemony.

NOTES:
New York State Education Law Section 224-A

Students unable because of religious beliefs to register or attend classes on certain days:

No person shall be expelled from or be refused admission as a student to an institution of higher education for the reason that he is unable, because of his religious beliefs, to register or attend classes or to participate in any examination, study, or work requirements on a particular day or days.

Any student in an institution of higher education who is unable, because of his religious beliefs, to attend classes on a particular day or days shall, because of such absence on the particular day or days, be excused from any examination or any study or work requirements.

It shall be the responsibility of the faculty and of the administrative officials of each institution of higher education to make available to each student who is absent from school, because of his religious beliefs, an equivalent opportunity to register for classes or make up any examination, study, or work requirements which he may have missed because of such absence on any particular day or days. No fees of any kind shall be charged by the institution for making available to the said student such equivalent opportunity.

If registration, classes, examinations, study, or work requirements are held on Friday after four o'clock post meridian or on Saturday, similar or makeup classes, examinations, study, work requirements, or opportunities shall be made available on other days, where it is possible and practicable to do so. No special fees shall be charged to the student for these classes, examinations, study, or work requirements, or registration held on other days.

In effectuating the provisions of this section, it shall be the duty of the faculty and of the administrative officials of each institution of higher education to exercise the fullest measure of good faith. No adverse or prejudicial effects shall result to any student because of his availing himself of the provisions of this section.

Any student, who is aggrieved by the alleged failure of any faculty or administrative officials to comply in good faith with the provisions of this section, shall be entitled to maintain an action or proceeding in the Supreme Court of the county in which such institution of higher education is located for the enforcement of his rights under this section.