On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.
Michels, Ard and Furman. The opinion of the court was delivered by Michels, P.J.A.D.
This is an appeal from a judgment of the Chancery Division which found that the "Policy on School Activities," adopted by defendant Board of Education of the Township of Teaneck (Board) was facially constitutional, yet unconstitutional as applied. At issue is whether the Board's policy, which effectively bans most extracurricular scholastic activities during times of traditional religious worship, namely Friday evenings, Saturday days and Sunday mornings, violates the Establishment Clauses of the Federal and State Constitutions.*fn1
The policy was adopted by the Board in an effort to implement State statutory and regulatory enactments which had, as their objective, the elimination of all discriminatory practices in the New Jersey public schools. In 1974, our Legislature enacted N.J.S.A. 18A:36-20 which provides that:
No pupil in a public school in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin.
The New Jersey State Board of Education (State Board) developed and adopted regulations to implement the legislative mandate set forth in N.J.S.A. 18A:36-20. These regulations
require each local school district to develop and adopt a policy of equal educational opportunity and two programs of affirmative action, the first relative to school and classroom practices and the second concerning employment and contract practices. N.J.A.C. 6:4-1.1 et seq. , (effective, May 20, 1975). N.J.A.C. 6:4-1.5(a) specifically provides:
No student shall be denied access to or benefit from any educational program or activity solely on the basis of race, color, creed, religion, sex, ancestry, national origin or social or economic status.
N.J.A.C. 6:4-1.2 defines "educational activities and programs" as "all activities and programs conducted or sponsored by the school either during the school day or after regular school hours."
On March 9, 1977, the Board, pursuant to N.J.S.A. 18A:36-20 and N.J.A.C. 6:4-1.1 et seq. , adopted a "Policy on School Activities." The Board, observing that the "scheduling of programs or activities on the Sabbath may result in a denial of equal opportunity based upon religion," passed a resolution which provided:
1. To the maximum feasible extent, school activities and programs will not be scheduled on a Friday night, Saturday day, or Sunday morning.
2. A reasonable accommodation to requests for an exception will be made on an individual program or activity basis. Such requests setting forth reasons for exceptions must be submitted, in writing, by the principal to the Superintendent of Schools who will decide on the matter.
Thereafter, on April 21, 1977, the Board modified its policy. The Board directed the Superintendent of Schools "to schedule all school activities to the maximum feasible extent" to "increase participation [in school activities] among all students." The Board also appointed an advisory committee to help develop guidelines to be considered by the Superintendent in the scheduling of after school activities. The objective of these guidelines was:
This matter arises as a result of the application of the Board's policy to the proposed scheduling of ...