Are certain implications of religious freedom at odds with the principle of equality before the law for everyone?
February 23, 2012 4:36 PM   Subscribe

Recently I entered a discussion about the following scenario: If a college student at a state university says they can't take a test on Friday, because of their religious beliefs, should their professor be required to honor that and reschedule the test for that student? I am talking about some sort of a formal requirement, as opposed to the professor being an accommodating sport. Read below for details.

I don't even know where the premise came from, I think a friend of mine may have mentioned a student who couldn't take a test on Friday. I don't remember whether it was a particular Friday or every Friday. I don't think this makes that big of a difference to the general question.

My thoughts about the question were that a formal requirement would interfere with the professor's ability to conduct their class, and that it should be up to them whether to honor the request. And that this should be treated as any other request, independent of it having to do with the student's religion. Not being a religious person myself, I have an intellectual understanding that religious beliefs are very important to some people. However, in this particular case, I don't think the student could make a strong argument, because they already make an exception by going to class on Friday. To me, the difference between going to class and taking a test is arbitrary, and so, it seems like the student's religious freedom isn't sacrificed if there is no formal rule about the matter.

I discussed this with someone, let's call them A, who thought not requiring the professor to make allowances would be infringing on the student's freedom of religion. And that institutions should require their employees to make *reasonable* effort to respect such requests. For example, it would be unreasonable to not be able to have tests on all Fridays, but it would be reasonable to require the professor to make allowances for a few days during the semester.

During the discussion, one particular point made by A was that if the law would treat everyone equally that could clash with religious freedom for some. And that not allowing someone such allowances at a state school would mean that they would very likely have to go to a private school where this is handled more to their liking. And that this is discrimination and a slippery slope that can lead to oppressing the religious.

My thoughts on the matter are that even if a religious person goes to a state school and their professor doesn't honor a request, that would be rare, it will not make a critical difference to the student's education, and that over their career they wouldn't be harmed. This is more of an empirical question I suppose.

More generally, I thought that this clashes with the principle of treating all people equally before the law. I can see A's point, but I still think it clashes with that principle.

I don't have much of a legal background, so I would like to see what the mainstream thought about this kind of issue is. I am particularly interested in the US, but responses from other countries are welcome.
posted by josefk to Religion & Philosophy (31 answers total) 1 user marked this as a favorite
I know at my school (University of Kansas) students could submit a letter with religious holidays they wished exceptions made for at the beginning of the semester and accomadations could be made. This generally resulted in students taking the tests earlier rather than later. This only happened once in a class that I TA'd for, I just proctored the test for the student a day early.
posted by julie_of_the_jungle at 4:46 PM on February 23, 2012 [1 favorite]

In my days of teaching at a state university, we were all required in our faculty handbook to provide reasonable accommodation for students who had to miss tests because of conflicts with religious observances.
posted by Sidhedevil at 4:47 PM on February 23, 2012

Seconding the "tests were given to the students with religious observance conflicts prior to the test being given to the rest of the class" as a best-practice.
posted by Sidhedevil at 4:47 PM on February 23, 2012

This is the law in California (from here) -- I'm not exactly sure who it applies to, probably just the public schools, but unless there is a pressing reason not to, you have to accommodate people's religion.
posted by brainmouse at 4:48 PM on February 23, 2012

It's not clear to me where you are. If you're in the US, then state universities typically require professors to make reasonable accommodations for religious observance, because of the first amendment.
posted by craichead at 4:48 PM on February 23, 2012 [1 favorite]

Here is more details about what constitutes an "undue hardship".
posted by brainmouse at 4:50 PM on February 23, 2012

Prof at state U here. Yes, I would absolutely be required to accommodate that student.
posted by thomas j wise at 4:51 PM on February 23, 2012

Well, as anecdata, it appears that many universities have a formal process for requesting accommodation on religious grounds (1, 2, 3, 4) while others have a formal process for requesting it but say it is at the Dean (1) or professor/instructor's discretion (1).
posted by arnicae at 4:53 PM on February 23, 2012

I went to a city university (Brooklyn College) with a large amount of Orthodox Jews and, yeah, these sorts of concessions were legally mandated. They generally wouldn't take classes that took place past sundown on Fridays, but because exam blocking was different every year, they'd have to take tests either earlier or later -- usually later, as it would be unfair to make them test earlier -- if they were blocked for past-sundown on Friday.
posted by griphus at 4:53 PM on February 23, 2012

@craichead: Yes, I am in the US and we also have similar guidelines as those described by other posters.

I was wondering about the rationale behind these, and whether it's a no-brainer first amendment issue or whether there are some nuances. At this point, I am simply interested in knowing more about the issue and getting some pointers to read about it.
posted by josefk at 4:55 PM on February 23, 2012

I think it's kind of a no-brainer.

Think about it this way. My university shuts down on Christmas. I can't come in to work even if I want to. We have some classes on Saturdays but none on Sundays. Mainstream Christians never have to request accommodations, because their religion is automatically accommodated.

If you deny people the right to accommodate religious observance, in practice you punish members of religious minorities. Members of the dominant religion have the privilege of having their observance accommodated automatically, and the rest of us have to choose between our religion and our grades. A state university isn't allowed to favor one religion, and therefore they have to accommodate members of minority religions in the same way that they do the majority.
posted by craichead at 5:00 PM on February 23, 2012 [21 favorites]

Also, I was an English major and having a paper due on Friday at midnight was a pretty common occurrence. Most professors would specifically point out that students observing Shabbos would have until Saturday at midnight.
posted by griphus at 5:00 PM on February 23, 2012

Since the largest religious group in the US is Christian, trying looking at it from their point of view. Would you think it reasonable for a test to be scheduled on Christmas or Easter (sorry, I can never remember which day of the Easter weekend it supposed to be the most important)?
posted by saucysault at 5:01 PM on February 23, 2012

I was wondering about the rationale behind these, and whether it's a no-brainer first amendment issue or whether there are some nuances.

It's also kind of a "don't be a jerk" rationale. When someone has a serious religious belief and the cost of accommodation isn't huge then you do it.
posted by Jahaza at 5:02 PM on February 23, 2012 [3 favorites]

More generally, I thought that this clashes with the principle of treating all people equally before the law.

It doesn't clash, because everyone's religious beliefs and practices are protected by these laws. That's the American thinking anyways. Other countries have different attitudes towards this kind of accommodation.
posted by Jahaza at 5:04 PM on February 23, 2012 [1 favorite]

Seconding the "tests were given to the students with religious observance conflicts prior to the test being given to the rest of the class" as a best-practice.

IANAL, but that sounds like it would open the door for claims of religious discrimination as it would deprive students of study time allotted for the rest of the class.
posted by griphus at 5:05 PM on February 23, 2012

When I was in the school system (in a very multi-faith area in Canada) it was a complete no-brainer to look up all the upcoming major holidays and incorporate them into my yearly planning. You aren't "treating all people equally before the law" when the tradition already privileges a group to the extent that they don't have to request the already provided accommodation.
posted by saucysault at 5:07 PM on February 23, 2012 [1 favorite]

IANAL, but that sounds like it would open the door for claims of religious discrimination as it would deprive students of study time allotted for the rest of the class.

IANAL, either, but IWA teacher at the university level, and the "earlier" was usually a matter of a day or so, and I never heard of any such challenge being mounted anywhere.

I mean, you might as well say that if the test was given to the (say) Jewish students later because of a conflict with (say) Yom Kippur, then the Christian and Hindu and Muslim and non-religious students had less time to study.
posted by Sidhedevil at 5:11 PM on February 23, 2012

Where I am, accommodations are available for the students for various reasons, but advance planning is required. Students are aware of this.

Students are expected to obtain the accommodation at the beginning of the semester, and then present it to the instructor at the start of semester as well. Accommodations are not retrospective - so a student can't say something like "I'm sorry I've missed so much class and failed a test, but I have an accommodation, so please fix it." However once the accommodation is presented, then it should be respected, and both the instructor and student can plan ahead. I think that's fair enough. It's annoying to have students pull this stuff at short notice, and it can take a lot of time to fix.

Also, a minority of students will abuse accommodations, so that has to be planned for as well.
posted by carter at 5:13 PM on February 23, 2012 [1 favorite]

Where I've gone to school, the only concern is that the student not talk to other students about the test before he/she or they have taken it. So, if such a request was made the school would consider the character of the student making the request.
posted by michaelh at 5:38 PM on February 23, 2012

Reigious holidays are observed on the academic because a large number of the students observe them, along with the faculty, and it would be ridiculous to continue class and schedule exams when most everyone would be out (eg, Christmas). Not everyone observes the same holidays, and it is generally a given that some people are going to request accommodations for their own holidays. Generally, it falls under the "don't be a dick" category of teaching, along with an expectation of academic honesty. More importantly, the US prioritizes the free practice of religion if accommodation is "reasonable." And in most cases, taking an exam the day before or the day after is considered "reasonable." it is the professor that has to make the "reasonable" accommodation for the student for his religion. It is not the student who has to make the reasonable accommodation of his religion for the professor.

On the other hand, I was faced with this when a major exam was scheduled on a major religious holiday of mine, and the professors were not accommodating and came up with a very burdensome workaround to the point where I just showed up for the exam on a holiday that I would have otherwise taken off, entirely. I figured it was because they sort of realized that they had screwed up scheduling the exam on a major international (though not American) religious holiday and were trying to cover up for their mistake by setting up a ridiculous number of hoops to jump through as part of their "accommodation."
posted by deanc at 6:44 PM on February 23, 2012

I work at a branch of the University of California, and we'd be required to accommodate the student. As long as students tell us at the start of the semester, it's policy to also make accommodations for school-sponsored sports events or other school sponsored events. There are always students who take exams at different times for a variety of reasons (disabled students often need extra time or a quieter room, ill students may need to make up an exam, students might have two finals scheduled at the same time, etc.), so I don't think it's an extra accommodation for religious students so much as a general policy to work with students when they have a legitimate reason to need to reschedule an exam. Because this is all handled by graduate students rather than professors, at least at large schools like the one I work at, there's no reason it needs to really disrupt the professor or his/her method of teaching, and for grad students it's part of the job to proctor exams - you know that going in.
posted by cupcakemuffin at 6:48 PM on February 23, 2012

I don't remember whether it was a particular Friday or every Friday. I don't think this makes that big of a difference to the general question.....they already make an exception by going to class on Friday.

If they are asking for an exception for a single Friday, then they haven't already attended class on that day so your reasoning doesn't apply.
posted by jacalata at 6:59 PM on February 23, 2012

I believe university policy says I must include notice on the syllabus that students can request accommodations for religious holidays.

I have had someone request to hand homework in late due to Eid, which is the only time it has happened. I have no idea whether people usually miss class for Eid (I vaguely recall friends missing some of a schoolday) but I'm generally amenable to the occasional late homework if it's arranged in advance, so I said yes.

It is worth noting that, say, missing class on Good Friday is to be excused, but missing the Thursday (Holy Thursday?) to travel to your family home for Good Friday isn't because it's not necessary for the religious observance. (Good Friday's a weird one (like Ash Wednesday), since you can probably go to mass outside of class time.)

This exception was once invoked en mass in my friend's Yiddish class when the official final slot was on a Saturday. Most people wanted an alternate time, so ultimately they all agreed to take the exam at an alternate time and save the trouble of having to give the final twice.
posted by hoyland at 7:23 PM on February 23, 2012

So, it would never occur to me to even worry about accommodating students if it's a one-off thing---so I don't know if I would be officially required to or not.

But it's more problematic if the student couldn't attend class, say, every Friday, and the class was MWF. Then it would be problematic. (actually, it would probably just mean the student fails the course, because you just can't miss that much class. And I'm not going to be happy about having to make accommodations for every single quiz. )
posted by leahwrenn at 7:25 PM on February 23, 2012

I could be wrong, but I think that any college, public or private, that receives federal dollars is required to make reasonable accommodations for religious beliefs in order to comply with the Civil Rights Act (and Title IX, and other regulations). Schools that don't comply are at risk of losing their federal funding, which can amount to a half to three-quarters of their budget (NIH and NSF grants, for example).

So regardless of what the professor thinks or wants, it would be in the school's interest for the professor to make the accommodations. I think the definition of "reasonable" is more fluid, however.
posted by elizeh at 7:34 PM on February 23, 2012

I'm a lawyer, and I know a bit about this area.

First of all, this is not a First Amendment problem. The Supreme Court has said that a generally applicable law (that is, a law that is not targeted to a specific religion or religious practice, but which applies generally regardless of religion) that burdens a person's exercise of religion does not violate the Free Exercise Clause of the First Amendment. This is the holding of Employment Division v. Smith.

However, that's not the end of it. In response to the Smith case, Congress passed the Religious Freedom Restoration Act, or RFRA. Under this federal statute, if a federal law or entity puts a substantial burden on a person's exercise of religion, then the government must justify the law/practice by showing that it is necessary to further a compelling government interest, and that there is no less restrictive alternative. That's a pretty tough test for the government to pass, and I would expect your test-taking hypothetical to be found to violate RFRA, because there's certainly a less-restrictive alternative -- administering the test on a later date.

Now, RFRA only applies to federal laws and entities. However, many states have passed their own state law versions of RFRA. If the student is in such a state, and the school refused to accommodate them, I would expect that the student would win a lawsuit brought under RFRA, assuming they could prove that being forced to take the test that day comprised a "substantial burden" on their exercise of religion.
posted by mikeand1 at 7:55 PM on February 23, 2012 [4 favorites]

[Nothing personal but no "related questions" not really okay, just ask your own question please, thanks.]
posted by jessamyn (staff) at 8:44 PM on February 23, 2012

On the broader question of equality before the law vs. religious discrimination, I am reminded of the remark by Anatole France:

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Now, I'm not equating religion with wealth (or its lack), but just pointing out that formal equality (the law treats everyone the same) does not necessarily result in equitable outcomes, because circumstances differ. That is the idea behind making reasonable accommodations.

The basic issue, as was pointed out by Julie Ringelheim at a seminar I attended last month, is that equality or non-discrimination has several forms:

1. The idea that the laws should treat everyone equally, with background and circumstances not taken into account.

2. The idea that laws should provide equality of opportunity, which might require taking background and circumstances into account.

3. The idea that laws should affirm the rights of minorities to be recognized as having distinctive cultures, beliefs, languages, etc. and that the state should not discriminate against them on those grounds.

The first of these is not concerned with outcomes, only formal equality; the second, as it has been developed in various 20th- and 21st-century legal systems, is largely concerned with economic outcomes; while the third is concerned with non-economic outcomes.
posted by brianogilvie at 3:11 AM on February 24, 2012 [2 favorites]

Those who are not lawyers probably consider it a "no-brainer", in part because colleges and other institutions tend to bend over backward to accommodate people of different beliefs. But because a particular institution does something does not mean that it is mandated by law.

As mikeand1 points out, the issue is more nuanced. There is a whole line of cases discussing the issue of whether the First Amendment requires exceptions from otherwise generally-applicable and neutral requirements of law. Should the U.S. Army require Jewish soldiers to muster, train, or fight on Saturdays? Should a group that incorporates animal sacrifice in its religious activities be subject to local anti-cruelty laws? Should another which uses hallucinogens in its activities be exempt from state and Federal laws on controlled substances?

The U.S. Supreme Court has actually addressed the latter two issues.

Should a Catholic pharmacist be required to dispense the morning-after pill to a customer over his objection? Should a Catholic OB-GYN resident be excused from participating abortions in the course of the training program? Should a Catholic hospital be required to provide coverage for contraceptives to its non-Catholic employees?

Does this sound familiar?
posted by yclipse at 5:14 AM on February 24, 2012

I think you are bringing slippery slope arguments to a discussion of a specific topic, religious accommodation in academia. There is a contract, between the student (customer) and the institution where the school agrees to provide the student with education in return for money, that is not present in your examples. Your examples are instead focusing on contracts in the area of employment, society, and health care. In each of your examples their is the possibility of someone else (other soldiers, animals, society, or patients) being harmed by the accommodations. Is moving a test date a day or two for one student a harm to other students?

When the student accepts the contract to pay for an education the student also accepts they have to meet academic standards that are applied to all students equally. The student who meets the academic standards will be granted a degree. The question then becomes should academic standards be completely rigid or should there be flexibility? Historically, they have been somewhat flexible if the requested accommodation is reasonable. So a student may request a change in the timing of a scheduled test due to circumstances beyond their control such as a death in family or severe illness, or attendance at a school-related conference. It would not be reasonable to grant them the same request if they wanted to leave school a day early in order to take a trip or did a wb and couldn't get out of bed.

Which I guess brings up the question of whether someone's religious high holidays are out of their control. I would argue they are, however again the request must be reasonable. If there are multiple courses available and a student chooses the course that occurs at a time that consistently, week after week, conflicts with their religious schedule then the accommodation should be to move them to a course time that does not conflict. If the course has only one or two days that conflict with the religion over the course of a hundred or so classes, the dates are known in advance, and shared with the teaching staff around the very first class, then that it is reasonable to expect the student and teacher to meet and work out a plan around those occasions that both sides can be happy with. The onus must be on the student however, to be proactive as the teacher will not know what religious dates are important in any given class. An awareness by the teacher of the major, re-occuring ones and making small changes is very much appreciated. Because I assigned projects/assignments of various intensities to create variety in my course, I had the flexibility to assign the easier assignments during the later part of Ramadan because a significant number of my students observed it (although not once was I approached with a request to accommodate it). I have seen the same type of easy assignments from other teachers around Christmas because they felt time off should be used as a chance to recharge the student's batteries and they knew the quality of work would not reflect the student's true ability.

It comes back to the academic standards, is making a few accommodations affecting the academic standard that are fairly applied to all or does it give the student an advantage? Most students, religious or not, will at some point request an accommodation, so the reason for the accommodation (illness, death, high holiday) is not as important as the number of times the accommodation must be used by one student. If a student struggles with ADHD a reasonable accommodation would be to allow them to give them different resources to meet the academic standards such as taking the test in a quiet, supervised space where they will not disturb other students and they won't be disturbed by others, not a reduction in the academic standards.

I think accommodations are an excellent way to bring out the best in your students and show a respect for our differences while also showing respect for the fact we can all achieve the same goals if equally given the opportunity.
posted by saucysault at 6:39 AM on February 24, 2012 [1 favorite]

« Older I hear you, but I also hear the cat licking its...   |   How long is too long? Newer »
This thread is closed to new comments.