A decision earlier this month by the San Francisco School Board to allow two days off this year for two Islamic holy days in April and June faced multiple new legal challenges this week as many parental, religious, and legal groups have fought back against what many see as an illegal action.
On August 9th, at the behest of many Muslim and Arab community groups, the School Board voted 5-1 to close all schools and offices on the Eid al-Fitr and Eid al-Adha holy days beginning during the 2023-2024 school year. According to the resolution, the measure will “foster an environment of diversity and tolerance,” make Muslim students feel more accepted, prevent Muslim students from missing class due to religious issues, and ensure that the schools will “maintain equal access to educational opportunities.”
The decision capped off a yearlong effort to have the school system take off those days, with San Francisco Arab Resource and Organizing Center (AROC) executive director Lara Kiswani noting, “This resolution demonstrates that racial justice is not just a value. But something that must be an everyday priority and practice in San Francisco Unified School District.”
However, the action was almost immediately called into question by many. While Eid days are observed as a day off for other school districts, many Christian and Jewish religious holidays are also called off in those districts, such as Yom Kippur and days around Christmas and Easter. San Francisco, besides a general Christmas break, does not. This lack of observance and singling out of Muslim holidays have brought many school and city leaders to question if adding religious holidays like the Muslim holidays is actually exclusivity rather than the claimed inclusivity. Other holidays observed by the board, such as Juneteenth, the Lunar New Year, and Cesar Chavez day, are geared more towards ethnic and racial groups rather than religious observances.
“We admire and respect the advocacy efforts of the San Francisco Muslim community, and Muslim students in the district in particular, working toward better representation and recognition in SFUSD schools,” said the Jewish Community Relations Council earlier this month. “We question whether adding district holidays for each minority community is the best way to foster greater inclusivity.”
Opposition against Muslim days off measure grows
With more and more in the city opposing the action by the Board, some have noticed that the boards’ actions may actually be illegal. On Thursday, lawyer Paul Scott, who led the charge via a lawsuit to stop the school board from renaming dozens of city schools last year, announced that he is giving the Board until August 31st to rescind the Eid days off measure or else he will sue. In particular, he noted that the measure violated the U.S. Constitution’s Establishment Clause, some provisions under the California Constitution, and the Brown Act. Specifically this includes not favoring one religious denomination over another and not having open meetings specifically over the measure.
“We will first evaluate the School Board’s response, but litigation is the logical next step if they fail to take corrective action,” Scott said on Thursday. “The board’s action violated the U.S. Constitution’s Establishment Clause, parallel provisions under the California Constitution, and the Brown Act.”
“The plain meaning of the term ‘observance’ thus does not make clear that the purpose of the resolution was to authorize religious holidays, i.e., days off from school for which public employees will necessarily be paid. Residents cannot be required ‘to guess’ as to whether they should attend a hearing or seek additional information from the Board. I think it was well-meaning. But it was mistaken. And contrary to law.”
AROC responded to the likely lawsuit on Friday, saying that they would “defend the gains” they made.
“I guess we shouldn’t be surprised that something as simple as representation and celebration of the cultures that make up the diverse communities of our city could come under attack in this political climate,” added Kiswani. “But we should definitely be concerned. Of course we know we’ll have to defend gains that we make, which is always the case when it comes to the fight for social justice.”
However, legal experts have said that Scott’s argument is solid, and that supporters of the new measure should be very worried about it surviving into 2023.
“This measure is blatantly breaking several laws,” explained John Horace, a New York lawyer who has been a part of several cases over religion in public schools. “This has nothing to do with social justice and nothing to do with representation. Anyone who says otherwise really doesn’t understand U.S. law, well, at all.”
“It’s true that religious days can be taken off, but they are usually done so in cities where there is a big impact. Here in New York, kids take off for three Jewish holidays, not because of inclusion, but because there are just so many Jewish students that schools would be largely empty in many areas. Christmas too, as few kids would come in. Likewise, Muslim holidays are generally given in areas where it would disrupt school, like parts of Michigan that have high numbers of Muslim students.”
“In San Francisco, which has a low number of Muslim people, this action doesn’t make much sense. And not only that, they came across the measure through multiple illegal means. Any judge worth their salt will see this for what it is and shut it down. I agree we need to be more inclusive as a society, but getting there by breaking multiple laws and clearly favoring one group over another is not how you get there.”
As of Friday, the school board has yet to respond to the likely lawsuit.
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