author: Justice Powell Justice Marshall,

text:
    KELLY, CONNECTICUT CHIEF STATE’S ATTORNEY, et al. v. ROBINSON
    No. 86-1033.
    Argued October 8, 1986
    Decided November 12, 1986

      Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 53.

      Carl Schuman, Assistant States’ Attorney of Connecticut, argued the cause and filed briefs for petitioners.

      Francis X. Dineen argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Susan Crump and David Crump, and by the Attorneys General for their respective States as follows: Charles K. Graddick of Alabama, Harold M. Brown of Alaska, Robert K. Corbin of Arizona, John K. Van de Kamp of California, Duane Woodard of Colorado, Charles M. Oberly III of Delaware, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, James T. Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, Steven L. Beshear of Kentucky, William J. Guste, Jr., of Louisiana, Stephen Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Michael T. Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Irwin I. Kimmelman of New Jersey, Paul Bardacke of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, Michael C. Turpén of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Arlene Violet of Rhode Island, T. Travis Medlock of South Carolina, W. J. Michael Cody of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Mary Sue Terry of Virginia, Kenneth 0. Eikenberry of Washington, Bronson C. La Follette of Wisconsin, and A. G. McClintock of Wyoming; and for the National Governors’ Association et al. by Benna Ruth Solomon, Beate Bloch, Philip A. Lacovara, and Susan L. Thomer.

   Justice Powell

delivered the opinion of the Court.

We granted review in this case to decide whether restitution obligations, imposed as conditions of probation in state criminal proceedings, are dischargeable in proceedings under Chapter 7 of the Bankruptcy Code.

HH

In 1980, Carolyn Robinson pleaded guilty to larceny m the second degree. The charge was based on her wrongful receipt of $9,932.95 in welfare benefits from the Connecticut Department of Income Maintenance. On November 14, 1980, the Connecticut Superior Court sentenced Robinson to a prison term of not less than one year nor more than three years. The court suspended execution of the sentence and placed Robinson on probation for five years. As a condition of probation, the judge ordered Robinson to make restitution to the State of Connecticut Office of Adult Probation (Probation Office) at the rate of $100 per month, commencing January 16,1981, and continuing until the end of her probation.

On February 5, 1981, Robinson filed a voluntary petition under Chapter 7 of the Bankruptcy Code, 11 U. S. C. § 701 et seq., in the United States Bankruptcy Court for the District of Connecticut. That petition listed the restitution obligation as a debt. On February 20, 1981, the Bankruptcy Court notified both of the Connecticut agencies of Robinson’s petition and informed them that April 27, 1981, was the deadline for filing objections to discharge. The agencies did not file proofs of claim or objections to discharge, apparently because they took the position that the bankruptcy would not affect the conditions of Robinson’s probation. Thus, the agencies did not participate in the distribution of Robinson’s estate. On May 14, 1981, the Bankruptcy Court granted Robinson a discharge. See § 727.

At the time Robinson received her discharge in bankruptcy, she had paid $450 in restitution. On May 20, 1981, her attorney wrote the Probation Office that she believed the discharge had altered the conditions of Robinson’s probation, voiding the condition that she pay restitution. Robinson made no further payments.

The Connecticut Probation Office did not respond to this letter until February 1984, when it informed Robinson that it considered the obligation to pay restitution nondischargeable. Robinson responded by filing an adversary proceeding in the Bankruptcy Court, seeking a declaration that the restitution obligation had been discharged, as well as an injunction to prevent the State’s officials from forcing Robinson to pay.

After a trial, the Bankruptcy Court entered a memorandum and proposed order, concluding that the 1981 discharge in bankruptcy had not altered the conditions of Robinson’s probation. Robinson v. McGuigan, 45 B. R. 423 (1984). The court adopted the analysis it had applied in a similar case decided one month earlier, In re Pellegrino (Pellegrino v. Division of Criminal Justice), 42 B. R. 129 (1984). In Pellegrino, the court began with the Bankruptcy Code’s definitional sections. First, § 101(11) defines a “debt” as a “liability on a claim.” In turn, §101(4) defines a “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Finally, §101(9) defines a “creditor” as an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.”

The Pellegrino court then examined the statute under which the Connecticut judge had sentenced the debtor to pay restitution. Restitution appears as one of the conditions of probation enumerated in Conn. Gen. Stat. §53a-30 (1985). Under that section, restitution payments are sent to the Probation Office. The payments then are forwarded to the victim. Although the Connecticut penal code does not provide for enforcement of the probation conditions by the victim, it does authorize the trial court to issue a warrant for the arrest of a criminal defendant who has violated a condition of probation. § 53a-32.

Because the Connecticut statute does not allow the victim to enforce a right to receive payment, the court concluded that neither the victim nor the Probation Office had a “right to payment,” and hence neither was owed a “debt” under the Bankruptcy Code. It argued: “Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” 42 B. R., at 133. The court acknowledged the tension between its conclusion and the Code’s expansive definition of debt, but found an exception to the statutory definition in “the long-standing tradition of restraint by federal courts from interference with traditional functions of state governments.” Id., at 134. The court concluded that, even if the probation condition was a debt subject to bankruptcy jurisdiction, it was nondischargeable under § 523(a)(7) of the Code. That subsection provides that a discharge in bankruptcy does not affect any debt that “is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”

The court also concluded that the purpose of the restitution condition was “to promote the rehabilitation of the offender, not to compensate the victim.” 42 B. R., at 137. It specifically rejected the argument that the restitution must be deemed compensatory because the amount precisely matched the victim’s loss. It noted that the state statute allows an offender to “make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby,” Conn. Gen. Stat. § 53a-30(a)(4) (1985). In its view, the Connecticut statute focuses “upon the offender and not on the victim, and . . . restitution is part of the criminal penalty rather than compensation for a victim’s actual loss.” 42 B. R., at 137. Thus, the Bankruptcy Court held that the bankruptcy discharge had not affected the conditions of Pellegrino’s probation. The United States District Court for the District of Connecticut adopted the Bankruptcy Court’s proposed dispositions of Pellegrino and this case without alteration.

The Court of Appeals for the Second Circuit reversed. In re Robinson, 776 F. 2d 30 (1985). It first examined the Code’s definition of debt. Although it recognized that most courts had reached the opposite conclusion, the court decided that a restitution obligation imposed as a condition of probation is a debt. It relied on the legislative history of the Code that evinced Congress’ intent to broaden the definition of “debt” from the much narrower definition of the Bankruptcy Act of 1898. The court also noted that anomalies might result from a conclusion that such an obligation is not a debt. Most importantly, nondebt status would deprive a State of the opportunity to participate in the distribution of the debt- or’s estate.

Having concluded that restitution obligations are debts, the court turned to the question of dischargeability. The court stated that the appropriate Connecticut agency probably could have avoided discharge of the debt if it had objected under §§ 523(a)(2) or 523(a)(4) of the Code. As no objections to discharge were filed, the court concluded that the State could rely only on § 523(a)(7), the subsection that provides for automatic nondischargeability for certain debts. The court then looked to the text of the Connecticut statute to determine whether Robinson’s probation condition was “compensation for actual pecuniary loss” within the meaning of § 523(a)(7). But where the Bankruptcy Court had considered the entire state probation system, the Court of Appeals focused only on the language that allows a restitution order to be assessed “for the loss or damage caused [by the crime],” Conn. Gen. Stat. § 53a-30(a)(4) (1985). The court thought this language compelled the conclusion that the probation condition was “compensation for actual pecuniary loss.” It held, therefore, that this particular condition of Robinson’s probation was not protected from discharge by § 523(a)(7). Accordingly, it reversed the District Court.

We granted the State’s petition for a writ of certiorari. 475 U. S. 1009 (1986). We have jurisdiction to review the judgment of the Court of Appeals under 28 U. S. C. § 1254(1). We reverse.

II

The Court of Appeals’ decision focused primarily on the language of §§101 and 523 of the Code. Of course, the “starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). But the text is only the starting point. As Justice O’Connor explained last Term: “ ‘ “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”’” Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 221 (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 285 (1956) (in turn quoting United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849))). In this case, we must consider the language of §§ 101 and 523 in light of the history of bankruptcy court deference to criminal judgments and in light of the interests of the States in unfettered administration of their criminal justice systems.

A

Courts traditionally have been reluctant to interpret federal bankruptcy statutes to remit state criminal judgments. The present text of Title 11, commonly referred to as the Bankruptcy Code, was enacted in 1978 to replace the Bankruptcy Act of 1898, ch. 541, 30 Stat. 544. The treatment of criminal judgments under the Act of 1898 informs our understanding of the language of the Code.

First, § 57 of the Act established the category of “allowable” debts. See 3 Collier on Bankruptcy ¶ 57 (14th ed. 1977). Only if a debt was allowable could the creditor receive a share of the bankrupt’s assets. See § 65a. For this case, it is important to note that § 57j excluded from the class of allowable debts penalties owed to government entities. That section provided:

“Debts owing to the United States, a State, a county, a district, or a municipality as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose.” 30 Stat. 561.

Second, §63 established the separate category of “provable” debts. See 3A Collier on Bankruptcy ¶63 (14th ed. 1975). Section 17 provided that a discharge in bankruptcy “release[d] a bankrupt from all of his provable debts,” subject to several exceptions listed in later portions of §17. Although § 17 specifically excepted four types of debts from discharge, it did not mention criminal penalties of any kind. The most natural construction of the Act, therefore, would have allowed criminal penalties to be discharged in bankruptcy, even though the government was not entitled to a share of the bankrupt’s estate. Congress had considered criminal penalties when it passed the Act; it clearly made them nonallowable. The failure expressly to make them nondischargeable at the same time offered substantial support for the view that the Act discharged those penalties.

But the courts did not interpret the Act in this way. Despite the clear statutory language, most courts refused to allow a discharge in bankruptcy to affect the judgment of a state criminal court. In the leading case, the court reasoned:

“It might be admitted that sections 63 and 17 of the bankrupt act, if only the letter of those provisions be looked to, would embrace [criminal penalties]; but it is well settled that there may be cases in which such literal construction is not admissible. ... It may suffice to say that nothing but a ruling from a higher court would convince me that congress, by any provision of the bankrupt act, intended to permit the discharge, under its operations, of any judgment rendered by a state or federal court imposing a fine in the enforcement of criminal laws. . . . The provisions of the bankrupt act have reference alone to civil liabilities, as demands between debtor and creditors, as such, and not to punishment inflicted pro bono publico for crimes committed.” In re Moore, 111 F. 145, 148-149 (WD Ky. 1901).

This reasoning was so widely accepted by the time Congress enacted the new Code that a leading commentator could state flatly that “fines and penalties are not affected by a discharge.” See 1A Collier on Bankruptcy ¶17.13, pp. 1609-1610, and n. 10 (14th ed. 1978).

Moreover, those few courts faced with restitution obligations imposed as part of criminal sentences applied the same reasoning to prevent a discharge in bankruptcy from affecting such a condition of a criminal sentence. For instance, four years before Congress enacted the Code, a New York Supreme Court stated:

“A discharge in bankruptcy has no effect whatsoever upon a condition of restitution of a criminal sentence. A bankruptcy proceeding is civil in nature and is intended to relieve an honest and unfortunate debtor of his debts and to permit him to begin his financial life anew. A condition of restitution in a sentence of probation is a part of the judgment of conviction. It does not create a debt nor a debtor-creditor relationship between the persons making and receiving restitution. As with any other condition of a probationary sentence it is intended as a means to insure the defendant will lead a law-abiding life thereafter.” State v. Mosesson, 78 Misc. 2d 217, 218, 356 N. Y. S. 2d 483, 484 (1974) (citations omitted).

Thus, Congress enacted the Code in 1978 against the background of an established judicial exception to discharge for criminal sentences, including restitution orders, an exception created in the face of a statute drafted with considerable care and specificity.

Just last Term we declined to hold that the new Bankruptcy Code silently abrogated another exception created by courts construing the old Act. In Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494 (1986), a trustee in bankruptcy asked us to hold that the 1978 Code had implicitly repealed an exception to the trustee’s abandonment power. Courts had created that exception out of deference to state health and safety regulations, a consideration comparable to the States’ interests implicated by this case. We stated:

“The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. The Court has followed this rule with particular care in construing the scope of bankruptcy codifications. If Congress wishes to grant the trustee an extraordinary exemption from nonbankruptcy law, ‘the intention would be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt.’” Id., at 501 (quoting Swarts v. Hammer, 194 U. S. 441, 444 (1904)) (citations omitted).

B

Our interpretation of the Code also must reflect the basis for this judicial exception, a deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings. The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States. This Court has emphasized repeatedly “the fundamental policy against federal interference with state criminal prosecutions.” Younger v. Harris, 401 U. S. 37, 46 (1971). The Court of Appeals nevertheless found support for its holding in the fact that Connecticut officials probably could have ensured continued enforcement of their court’s criminal judgment against Robinson had they objected to discharge under § 523(c). Although this may be true in many cases, it hardly justifies an interpretation of the 1978 Act that is contrary to the long-prevailing view that “fines and penalties are not affected by a discharge,” 1A Collier on Bankruptcy ¶17.13, p. 1610 (14th ed. 1978).

Moreover, reliance on a right to appear and object to discharge would create uncertainties and impose undue burdens on state officials. In some cases it would require state prosecutors to defend particular state criminal judgments before federal bankruptcy courts. As Justice Brennan has noted, federal adjudication of matters already at issue in state criminal proceedings can be “an unwarranted and unseemly duplication of the State’s own adjudicative process.” Perez v. Ledesma, 401 U. S. 82, 121 (1971) (opinion concurring in part and dissenting in part).

Also, as Robinson’s attorney conceded at oral argument, some restitution orders would not be protected from discharge even if the State did appear and enter an objection to discharge. For example, a judge in a negligent homicide case might sentence the defendant to probation, conditioned on the defendant’s paying the victim’s husband compensation for the loss the husband sustained when the defendant killed his wife. It is not clear that such a restitution order would fit the terms of any of the exceptions to discharge listed in § 523 other than § 523(a)(7). Thus, this interpretation of the Code would do more than force state prosecutors to defend state criminal judgments in federal bankruptcy court. In some cases, it could lead to federal remission of judgments imposed by state criminal judges.

This prospect, in turn, would hamper the flexibility of state criminal judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems. We do not think Congress lightly would limit the rehabilitative and deterrent options available to state criminal judges.

In one of our cases interpreting the Act, Justice Douglas remarked: “[W]e do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.” Bank of Marin v. England, 385 U. S. 99, 103 (1966). This Court has recognized that the States’ interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief. See Younger v. Harris, supra, at 44-45. This reflection of our federalism also must influence our interpretation of the Bankruptcy Code in this case.

I — I l-H I — I

In light of the established state of the law — that bankruptcy courts could not discharge criminal judgments — we have serious doubts whether Congress intended to make criminal penalties “debts” within the meaning of §101(4). But we need not address that question in this case, because we hold that § 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence.

The relevant portion of § 523(a)(7) protects from discharge any debt

“to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”

This language is subject to interpretation. On its face, § 523(a)(7) certainly does not compel the conclusion reached by the Court of Appeals, that a discharge in bankruptcy voids restitution orders imposed as conditions of probation by state courts. Nowhere in the- House and Senate Reports is there any indication that this language should be read so intrusively. If Congress had intended, by § 523(a)(7) or by any other provision, to discharge state criminal sentences, “we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage,” TVA v. Hill, 437 U. S. 153, 209 (1978) (Powell, J., dissenting).

Our reading of § 523(a)(7) differs from that of the Second Circuit. On its face, it creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures. Congress included two qualifying phrases; the fines must be both “to and for the benefit of a governmental unit,” and “not compensation for actual pecuniary loss.” Section 523(a)(7) protects traditional criminal fines; it codifies the judicially created exception to discharge for fines. We must decide whether the result is altered by the two major differences between restitution and a traditional fine. Unlike traditional fines, restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused.

In our view, neither of the qualifying clauses of § 523(a)(7) allows the discharge of a criminal judgment that takes the form of restitution. The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of” the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. As the Bankruptcy Judge who decided this case noted in Pellegrino: “Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” 42 B. R., at 133.

This point is well illustrated by the Connecticut statute under which the restitution obligation was imposed. The statute authorizes a judge to impose any of eight specified conditions of probation, as well as “any other conditions reasonably related to his rehabilitation.” Conn. Gen. Stat. § 53a-30(a)(9) (1985). Clause (4) of that section authorizes a judge to require that the defendant

“make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance.”

This clause does not require imposition of restitution in the amount of the harm caused. Instead, it provides for a flexible remedy tailored to the defendant’s situation.

Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate “for the benefit of” the State. Similarly, they are not assessed “for . . . compensation” of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. Those interests are sufficient to place restitution orders within the meaning of § 523(a)(7).

In light of the strong interests of the States, the uniform construction of the old Act over three-quarters of a century, and the absence of any significant evidence that Congress intended to change the law in this area, we believe this result best effectuates the will of Congress. Accordingly, the decision of the Court of Appeals for the Second Circuit is

Reversed.

Justice Marshall,

with whom Justice Stevens joins, dissenting.

Petitioners failed to assert timely objections to the discharge of respondent Robinson’s restitution debt, and the majority goes to considerable lengths to excuse this default. Respondent concedes that the restitution obligation would not have been discharged had petitioners objected in a timely fashion. Tr. of Oral Arg. 30. When notified of respondent’s bankruptcy proceeding, however, petitioners did nothing. They were told that they could file an objection to Robinson’s discharge, but did not do so. Robinson’s counsel informed the Connecticut Office of Adult Probation (Probation Office) of Robinson’s discharge and of Robinson’s belief that she need make no further payments, but the Probation Office did not respond. Not until almost three years after Robinson’s discharge in bankruptcy did the Probation Office inform Robinson that it did not consider the debt discharged and that it intended to enforce the restitution order.

The Court charitably attributes petitioners’ inaction to the fact that from the start petitioners took the position they assert here. Ante, at 39. But their representations at oral argument suggest only that they failed to object because “state agencies were admittedly somewhat confused on how to handle it,” Tr. of Oral Arg. 9, and were “a little perplexed because this was the first time it happened.” Id., at 16. Petitioners seek a broad construction of the statute to excuse their confusion-induced waiver of the right to object and thereby guarantee that Robinson’s restitution obligation would not be discharged. In my opinion, however, the statute cannot fairly be read to arrive at the result the majority reaches today.

The Court concludes that a criminal restitution obligation is nondischargeable under 11 U. S. C. § 523(a)(7) because it is “a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss . . . Ibid. I find unconvincing the majority’s conclusion that the criminal restitution order at issue here is not “compensation for actual pecuniary loss.” While restitution imposed as a condition of probation under the Connecticut statute is in part a penal sanction, it is also intended to compensate victims for their injuries. The statute permits a court to require a defendant, as a condition of his probation, to “make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby . . . .” Conn. Gen. Stat. § 53a-30(a)(4) (1985) (emphasis added). Were the restitution order purely penal, the statute would not connect the amount of restitution to the damage imposed. Tying the amount of restitution to the amount of actual damage sustained by the victim strongly suggests that the payment is meant to compensate the victim. This comports with the theory underlying restitution sanctions. Restitution is not simply a punishment that incidentally compensates the victim. Indeed, compensation is an essential element of a restitution scheme, under which a wrong to the victim of a crime must be redressed not just by penalizing the offender but by restoring the victim, as far as possible, to “the position that [he] would have been in if the original criminal act had never occurred.” R. Barnett & J. Hagel, Assessing the Criminal: Restitution, Retribution, and the Legal Process, in Assessing the Criminal: Restitution, Retribution, and the Legal Process 1, 27 (1977); see also id., at 25-28. That the victim has no control over whether restitution will be imposed or in what sum does not mean that the restitution is not compensation for actual pecuniary loss.

Nor do I accept that we can avoid the consequences of respondent’s discharge in bankruptcy by finding that the restitution obligation was not a “debt.” First, the scope of debts under the Code is expansive. “Debt” is defined in 11 U. S. C. §101(11) as “liability on a claim,” and “claim” is defined in § 101(4) as a “right to payment.” The legislative history of the Code indicates that “claim” was to be given the “broadest possible definition.” H. R. Rep. No. 95-595, p. 309 (1977); S. Rep. No. 95-989, p. 22 (1978); see also Ohio v. Kovacs, 469 U. S. 274, 279 (1985) (“[I]t is apparent that Congress desired a broad definition of a ‘claim’ ”). In light of the broad scope of “debt” under the Code, I agree with the Court of Appeals that the Probation Office had a right to payment, notwithstanding “that the right is enforceable by the threat of revocation of probation and incarceration rather than by the threat of levy and execution on the debtor’s property. The right is not the less cognizable because the obligor must suffer loss of freedom rather than loss of property upon failure to pay.” In re Robinson, 776 F. 2d 30, 38 (CA2 1985).

The definition of “debt” is intentionally broad not only to ensure the debtor a meaningful discharge but also to guarantee as many creditors as possible the right to participate in the distribution of the property of the estate. See H. R. Rep. No. 95-595, swpra, at 180:

“[U]nder the liquidation chapters of the [1898] Bankruptcy Act, certain creditors are not permitted to share in the estate because of the non-provable nature of their claims, and the debtor is not discharged from those claims. Thus, relief for the debtor is incomplete, and those creditors are not given an opportunity to collect in the case on their claims. The proposed law will permit a complete settlement of the affairs of a bankrupt debtor, and a complete discharge and fresh start” (footnote omitted).

As the Court of Appeals observed, a conclusion that the restitution obligation was not a debt “would produce the anomalous result that no holder of a right to restitution could participate in the bankruptcy proceeding or receive any distributions of the debtor’s assets in liquidation. There is no evidence that Congress intended such a result.” In re Robinson, 776 F. 2d, at 35-36. On the contrary, Congress plainly intended that fines, penalties, and forfeitures be deemed debts eligible to participate in the distribution of the bankruptcy estate, and the statute provides explicitly for that participation. See 11 U. S. C. § 726(a)(4). The very fact that fines, penalties, and forfeitures are made nondis-chargeable under § 523(a)(7) indicates that they were deemed “debts”; if they were not debts, they would not be affected by discharge, see 11 U. S. C. §524, and there would be no need to make them nondischargeable.

While I am wholly in sympathy with the policy interests underlying the Court’s opinion, “in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’ Our Constitution vests such responsibilities in the political branches.” TVA v. Hill, 437 U. S. 153, 195 (1978). Congress might have amended the Code to achieve the result reached here had it confronted the question, but “[i]t is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated.” Id., at 185. I would affirm the judgment and permit Congress, if it were so inclined, to amend the Bankruptcy Code specifically to make criminal restitution obligations nondischargeable in bankruptcy. I respectfully dissent.

       Connecticut Gen. Stat. § 53a-30 (1985) sets out the conditions a trial court may impose on a sentence of probation. Clause 4 of that section authorizes a condition that the defendant “make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance.”

       There is some uncertainty about the total amount Robinson was ordered to pay. Although the judge imposed restitution in a total amount of $9,932.95, five years of payments at $100 a month total only $6,000.

       Section 523(a)(2)(A) protects from discharge debts “for obtaining money, property, services, or an extension, renewal, or refinance of credit, by . . . false pretenses, a false representation, or actual fraud.” Section 523(a)(4) protects from discharge debts “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Under § 523(c), debts that are protected from discharge only by § 523(a)(2) or § 523(a)(4) are discharged unless the creditor files an objection to discharge during the bankruptcy proceedings. Because Robinson was convicted of larceny, one of the debts listed in § 523(a)(4), it is quite likely that the Bankruptcy Court, if it had found the obligation to be a “debt,” would have found it non-dischargeable under that subsection.

       The requirement that creditors object to discharge is limited on its face to ¶¶ (2), (4), and (6) of § 523(a). Because ¶ 7 is not listed there, debts described in that paragraph are automatically nondischargeable, under the general rule prescribed in the opening clause of § 523(a) (providing that a “discharge under section 727 ... of this title does not discharge an individual debtor from any debt” listed in the paragraphs that follow).

       Congress amended the Bankruptcy Act several times between 1898 and 1978. Congress also made numerous technical changes to the Code in the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. 98-353, 98 Stat. 380. None of those changes are relevant to this decision.

       Although courts differed as to the boundaries of the exception, particularly in cases involving nonmonetary sanctions, or sanctions imposed in civil proceedings, the reasoning of Moore was widely accepted. See, e. g., Parker v. United States, 153 F. 2d 66, 71 (CA1 1946) (citing Moore and noting that “[i]t was not in the contemplation of Congress that the federal bankruptcy power should be employed to pardon a bankrupt from the consequences of a criminal offense”); Zwick v. Freeman, 373 F. 2d 110, 116 (CA2 1967) (citing Moore and stating that “governmental sanctions are not regarded as debts even when they require monetary payments”). We have found only one federal-court decision allowing a discharge under the Act to affect a sentence imposed by a criminal court. In re Alderson, 98 F. 588 (W. Va. 1899).

       For other decisions adopting this reasoning, see People v. Topping Bros., 79 Misc. 2d 260, 262, 359 N. Y. S. 2d 985, 987-988 (Crim. Ct. 1974); People v. Washburn, 97 Cal. App. 3d 621, 625-626, 158 Cal. Rptr. 822, 825 (1979).

       In many eases, of course, principles of issue preclusion would obviate the need for the bankruptcy court to reexamine factual questions, or interpret state law. But differences between the elements of crimes and the provisions of § 523 frequently might hinder the application of issue preclusion. Moreover, apart from the burden on state officials of following and participating in bankruptcy proceedings, it is unseemly to require state prosecutors to submit the judgments of their criminal courts to federal bankruptcy courts.

       Of course, federal courts often duplicate state adjudicative processes when they consider petitions for the writ of habeas corpus. But explicit reference in the Constitution, Art. I, § 9, cl. 2, as well as several federal statutes, testifies to the importance of the writ of habeas corpus. Here, the ease for relitigation in the federal courts rests only on the ambiguous words of the Bankruptcy Code.

       Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine. See Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 937-941 (1984).

       Justice Frankfurter advocated a similar approach to the interpretation of regulatory statutes that infringe upon important state interests:
      “The task is one of accommodation as between assertions of new federal authority and historic functions of the individual states. Federal legislation of this character cannot therefore be construed without regard to the implications of our dual system of government. . . . The underlying assumptions of our dual form of government, and the consequent presuppositions of legislative draftsmanship which are expressive of our history and habits, cut across what might otherwise be the implied range of legislation. The history of congressional legislation . . . justifies] the generalization that, when the Federal Government takes over such local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating are reasonably explicit.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539-540 (1947).

       We recognize, as the Court of Appeals emphasized, that the Code’s definition of “debt” is broadly drafted, and that the legislative history, as well as the Code’s various priority and dischargeability provisions, supports a broad reading of the definition. But nothing in the legislative history of these sections compels the conclusion that Congress intended to change the state of the law with respect to criminal judgments.

       For the section-by-section analysis in the legislative Reports, see H. R. Rep. No. 95-595, p. 363 (1977); S. Rep. No. 95-989, p. 79 (1978). For explanations of the section by commentators, see 3 Collier on Bankruptcy ¶ 523.17 (15th ed. 1986); 1W. Norton, Bankruptcy Law and Practice §27.37 (1982). In fact, both of these commentators expressly state that the language does not have the intrusive effect sought by Robinson. See Collier ¶ 523.17, at 523-123, n. 4; Norton §27.37, at 55, n. 2.
      It seems likely that the limitation of § 523(a)(7) to fines assessed “for the benefit of a governmental unit” was intended to prevent application of that subsection to wholly private penalties such as punitive damages. See H. R. Doc. No. 93-137, pt. 2, pp. 116, 141 (1973). As for the reference to “compensation for actual pecuniary loss,” the Senate Report indicates that the main purpose of this language was to prevent § 523(a)(7) from being applied to tax penalties. S. Rep. No. 95-989, supra, at 79.
      We acknowledge that a few comments in the hearings and the Bankruptcy Laws Commission Report may suggest that the language bears the interpretation adopted by the Second Circuit. But none of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports. We decline to accord any significance to these statements. See McCaughn v. Hershey Chocolate Co., 283 U. S. 488, 493-494 (1931); 2A N. Singer, Sutherland on Statutory Construction §48.10, pp. 319 and 321, n. 11 (4th ed. 1984).

       This is not the only context in which courts have been forced to evaluate the treatment of restitution orders by determining whether they are “compensatory” or “penal.” Several lower courts have addressed the constitutionality of the federal Victim and Witness Protection Act, 18 U. S. C. § 3579. Under that Act, defendants have no right to jury trial as to the amount of restitution, even though the Seventh Amendment would require such a trial if the issue were decided in a civil case. See Note, The Right to a Jury Trial to Determine Restitution Under the Victim and Witness Protection Act of 1982, 63 Texas L. Rev. 671 (1984). Every Federal Court of Appeals that has considered the question has concluded that criminal defendants contesting the assessment of restitution orders are not entitled to the protections of the Seventh Amendment. See id., at 672, n. 18 (citing eases).

       Robinson’s restitution debt would doubtless have come under 11 U. S. C. §§ 523(a)(2) or (4), which respectively provide that a discharge in bankruptcy will not affect a debt “for obtaining money . . . by . . . false pretenses, a false representation, or actual fraud,” or a debt “for fraud or defalcation . . . , embezzlement, or larceny.” To prevent discharge of such debts, however, the creditor must make a timely objection and the debtor must receive notice and a hearing. See 11 U. S. C. § 523(c); Bkrtcy. Rule 4007(c).

       Rather than argue solely that the restitution order fits precisely within the language of § 523(a)(7), the Court appears to rely in part on the fact that, prior to the enactment of the Bankruptcy Code, fines and penalties were rendered nondischargeable in bankruptcy under a judicially created exception to discharge. The majority contends that “Congress enacted the Code in 1978 against the background of an established judicial exception to discharge for criminal sentences,” ante, at 46, and that Congress should not be deemed to abrogate judicially created law unless it makes explicit the intent to do so. But, far from abrogating judicially created law making fines and penalties nondischargeable as a general matter, Congress has codified that law and added the requirements of § 523(a)(7). The historical basis of the exception does not negate the additional limitations expressed in the statute.

       The other qualification in § 523(a)(7), that the fine, penalty, or forfeiture must be “payable to and for the benefit of a governmental unit,” is not a consideration here because the restitution order in this case meets this requirement. It does so, however, only because the victim of Robinson’s larceny was a government agency. Where the victim is a private individual, it could not legitimately be said that restitution payments destined for that individual are made “for the benefit of a governmental unit.” Restitution intended to repay a private victim for the damage done to him is only “for the benefit of a governmental unit” in the sense that the State, which comes within the definition of “governmental unit,” see 11 U. S. C. § 101(21), is benefited every time justice is served. The Court appears to take this approach, stating: “The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole.” Ante, at 52. If the requirement is to be read so broadly, however, any fine, penalty, or forfeiture would be for the benefit of a governmental unit, making this qualification in § 523(a)(7) superfluous.

       Though Connecticut does not permit the victim to enforce the restitution order as a civil judgment, other jurisdictions do. See, e. g., 18 U. S. C. § 3579(h) (any order of restitution imposed by a federal court “may be enforced by the United States or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action”); Ga. Code Ann. § 17-14-13(a) (1982) (“A restitution order shall be enforceable as is a civil judgment by execution”). Under such statutes, it would be even more difficult to argue that a criminal restitution order does not create a “right to payment” and is consequently not a “debt.” Compare In re Pellegrino, 42 B. R. 129, 132 (Bkrtcy. Ct. Conn. 1984) (“Since a crime victim has no ‘right to payment,’ restitution is not a ‘debt’ under Bankruptcy Code § 101(11)”), with In re Newton, 15 B. R. 708, 710 (Bkrtcy. Ct. ND Ga. 1981) (holding that, since Georgia law provided for enforcement of restitution orders by the victim, “in Georgia, an order of restitution is a debt”).

       The estate is distributed in payment of “claims,” see 11 U. S. C. § 726. The legislative history makes clear that the terms “debt” and “claim” “are coextensive: a creditor has a ‘claim’ against the debtor; the debtor owes a ‘debt’ to the creditor.” H. R. Rep. No. 95-595, p. 310 (1977).

       The Court’s solution only postpones the problem: its holding that the restitution obligation is nondischargeable under § 523(a)(7) leaves open the possibility that such obligations will be dischargeable under Chapter 13. See 11 U. S. C. § 1328(a), 3 W. Norton, Bankruptcy Law and Practice §78.01 (1981); 5 Collier on Bankruptcy ¶ 1328.01[l][c] (15th ed. 1986) (broader discharge intended as incentive for debtors to complete performance under Chapter 13 plans); but see In re Newton, supra, at 710 (holding restitution order nondischargeable under § 1328). The Court’s opinion therefore does not lay to rest the difficulties the courts will have in coordinating the Bankruptcy Code with state criminal restitution statutes.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Marshall, Justice Stevens,

license: Public Domain

text:
    ANSONIA BOARD OF EDUCATION et al. v. PHILBROOK et al.
    No. 85-495.
    Argued October 14, 1986
    Decided November 17, 1986

      Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, O’Connor, and Scalia, JJ., joined. Marshall, J., post, p. 71, and Stevens, J., post, p. 75, filed opinions concurring in part and dissenting in part.

      Thomas N. Sullivan argued the cause for petitioners. With him on the briefs was Robert J. Murphy. Robert F. McWeeny argued the cause and filed a brief for Ansonia Federation of Teachers, respondent under this Court’s Rule 19.6, in support of petitioners.

      David N. Rosen argued the cause for respondent Philbrook. With him on the brief was Paul Gewirtz.

      Solicitor General Fried argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Assistant Attorneys General Reynolds and Willard, Deputy Solicitor General Carolyn B. Kuhl, Deputy Assistant Attorney General Carvin, Richard J. Lazarus, Brian K. Landsberg, Louise A. Lerner, and Johnny J. Butler.

      Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Michael H. Gottesman, David M. Silberman, and Laurence Gold; and for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, William S. Franklin, August W. Steinhilber, Gwendolyn H. Gregory, and Thomas A. Shannon.

      Briefs of amici curiae urging affirmance were filed for the State of Connecticut by Joseph I. Lieberman, Attorney General, Clarine Nardi Riddle, Deputy Attorney General, Henry S. Cohn and Robert B. Teitel-man, Assistant Attorneys General, and Philip A. Murphy, Jr.; for the American Jewish Congress et al. by Marc D. Stem and Ronald A. Krauss; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Council on Religious Freedom by Lee Boothby, James M. Parker, and Robert W. Nixon; for the General Conference of Seventh-day Adventists by Walter E. Carson; for the Presbyterian Church (USA) et al. by Douglas Laycock, Samuel E. Ericsson, Michael J. Woodruff, and Kimberlee Wood Colby; and for the Rutherford Institute et al. by W. Charles Bundren, Guy 0. Farley, Jr., Larry L. Crain, Thomas 0. Kotouc, Alfred Lindh, William B. Hollberg, and Wendell R. Bird.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner Ansonia Board of Education has employed respondent Ronald Philbrook since 1962 to teach high school business and typing classes in Ansonia, Connecticut. In 1968, Philbrook was baptized into the Worldwide Church of God. The tenets of the church require members to refrain from secular employment during designated holy days, a practice that has caused respondent to miss approximately six schooldays each year. We are asked to determine whether the employer’s efforts to adjust respondent’s work schedule in light of his belief fulfill its obligation under § 701 (j) of the Civil Rights Act of 1964, 86 Stat. 103, 42 U. S. C. § 2000e(j), to “reasonably accommodate to an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.”

Since the 1967-1968 school year, the school board’s collective-bargaining agreements with the Ansonia Federation of Teachers have granted to each teacher 18 days of leave per year for illness, cumulative to 150 and later to 180 days. Accumulated leave may be used for purposes other than illness as specified in the agreement. A teacher may accordingly use five days’ leave for a death in the immediate family, one day for attendance at a wedding, three days per year for attendance as an official delegate to a national veterans organization, and the like. See, e. g., App. 98-99. With the exception of the agreement covering the 1967-1968 school year, each contract has specifically provided three days’ annual leave for observance of mandatory religious holidays, as defined in the contract. Unlike other categories for which leave is permitted, absences for religious holidays are not charged against the teacher’s annual or accumulated leave.

The school board has also agreed that teachers may use up to three days of accumulated leave each school year for “necessary personal business.” Recent contracts limited permissible personal leave to those uses not otherwise specified in the contract. This limitation dictated, for example, that an employee who wanted more than three leave days to attend the convention of a national veterans organization could not use personal leave to gain extra days for that purpose. Likewise, an employee already absent three days for mandatory religious observances could not later use personal leave for “[a]ny religious activity,” id., at 80, 83, 86, 89, 92, or “[a]ny religious observance.” Id., at 96, 100. Since the 1978-1979 school year, teachers have been allowed to take one of the three personal days without prior approval; use of the remaining two days requires advance approval by the school principal.

The limitations on the use of personal business leave spawned this litigation. Until the 1976-1977 year, Philbrook observed mandatory holy days by using the three days granted in the contract and then taking unauthorized leave. His pay was reduced accordingly. In 1976, however, respondent stopped taking unauthorized leave for religious reasons, and began scheduling required hospital visits on church holy days. He also worked on several holy days. Dissatisfied with this arrangement, Philbrook repeatedly asked the school board to adopt one of two alternatives. His preferred alternative would allow use of personal business leave for religious observance, effectively giving him three additional days of paid leave for that purpose. Short of this arrangement, respondent suggested that he pay the cost of a substitute and receive full pay for additional days off for religious observances. Petitioner has consistently rejected both proposals.

In 1973 Philbrook filed a complaint with the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunity Commission against the school board and the Ansonia Federation of Teachers. After exhausting the available administrative avenues, he filed a complaint in the United States District Court for the District of Connecticut, alleging that the prohibition on the use of “necessary personal business” leave for religious observance violated §§ 703(a)(1), (2) of Title VII, 42 U. S. C. §§2000e-2(a)(l), (2), and seeking both damages and injunc-tive relief.

After a 2-day trial, the District Court concluded that Philbrook had failed to prove a case of religious discrimination because he had not been placed by the school board in a position of violating his religion or losing his job.

The Court of Appeals for the Second Circuit reversed and remanded for further proceedings. It held that a prima facie case of discrimination is established when an employee shows that

“ ‘(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment requirement.’ ” 757 F. 2d 476, 481 (1985), quoting Turpen v. Missouri-Kansas-Texas R. Co., 736 F. 2d 1022, 1026 (CA5 1984).

Philbrook established his case, the court held, by showing that he had a sincere religious belief that conflicted with the employer’s attendance requirements, that the employer was aware of the belief, and that he suffered a detriment— namely, a loss of pay — from the conflict. The court then assumed that the employer’s leave policy constituted a reasonable accommodation to Philbrook’s belief. It held, however, that “[w]here the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” 757 F. 2d, at 484. The Court of Appeals remanded for consideration of the hardship that would result from Philbrook’s suggestions.

We granted certiorari to consider the important questions of federal law presented by the decision of the Court of Appeals. 474 U. S. 1080 (1986). Specifically, we are asked to address whether the Court of Appeals erred in finding that Philbrook established a prima facie case of religious discrimination and in opining that an employer must accept the employee’s preferred accommodation absent proof of undue hardship. We find little support in the statute for the approach adopted by the Court of Appeals, but we agree that the ultimate issue of reasonable accommodation cannot be resolved without further factual inquiry. We accordingly affirm the judgment of the Court of Appeals remanding the case to the District Court for additional findings.

As we noted in our only previous consideration of § 701(j), its language was added to the 1972 amendments on the floor of the Senate with little discussion. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 74, n. 9 (1977). See 118 Cong. Rec. 705-706 (1972). In Hardison, supra, at 84, we determined that an accommodation causes “undue hardship” whenever that accommodation results in “more than a de minimis cost” to the employer. Hardison had been discharged because his religious beliefs would not allow him to work on Saturdays and claimed that this action violated the employer’s duty to effect a reasonable accommodation of his beliefs. Because we concluded that each of the suggested accommodations would impose on the employer an undue hardship, we had no occasion to consider the bounds of a prima facie case in the religious accommodation context or whether an employer is required to choose from available accommodations the alternative preferred by the employee. The employer in Hardison simply argued that all conceivable accommodations would result in undue hardship, and we agreed.

Petitioner asks us to establish for religious accommodation claims a proof scheme analogous to that developed in other Title VII contexts, delineating the plaintiff’s prima facie case and shifting production burdens. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). But the present case raises no such issue. As in United States Postal Service Board of Governors v. Aikens, 460 U. S. 711 (1983), the defendant here failed to persuade the District Court to dismiss the action for want of a prima facie case, and the case was fully tried on the merits. We held in Aikens that these circumstances place the ultimate Title VII question of discrimination vel non directly before the court. “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer-relevant.” Id., at 715. We may therefore proceed to the question whether the employer’s proposed accommodation of respondent’s religious practices comports with the statutory mandate of §701(j).

In addressing this question, the Court of Appeals assumed that the employer had offered a reasonable accommodation of Philbrook’s religious beliefs. This alone, however, was insufficient in that court’s view to allow resolution of the dispute. The court observed that the duty to accommodate “cannot be defined without reference to undue hardship.” 757 F. 2d, at 484. It accordingly determined that the accommodation obligation includes a duty to accept “the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” Ibid. Cf. American Postal Workers Union v. Postmaster General, 781 F. 2d 772, 776 (CA9 1986) (Title VII does not dictate that “an employer must accept any accommodation, short of ‘undue hardship,’ proposed by an employee . . .”). Because the District Court had not considered whether Philbrook’s proposals would impose undue hardship, the Court of Appeals remanded for further consideration of those proposals.

We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it “demonstrates that [it] is unable to reasonably accommodate ... an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U. S. C. §2000e(j). Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship. As Hardison illustrates, the extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship. Once the Court of Appeals assumed that the school board had offered to Philbrook a reasonable alternative, it erred by requiring the Board to nonetheless demonstrate the hardship of Phil-brook’s alternatives.

The legislative history of § 701(j), as we noted in Hardison, supra, at 74-75, and n. 9, is of little help in defining the employer’s accommodation obligation. To the extent it provides any indication of congressional intent, however, we think that the history supports our conclusion. Senator Randolph, the sponsor of the amendment that became §701(j), expressed his hope that accommodation would be made with “flexibility” and “a desire to achieve an adjustment.” 118 Cong. Rec. 706 (1972). Consistent with these goals, courts have noted that “bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.” Brener v. Diagnostic Center Hospital, 671 F. 2d 141, 145-146 (CA5 1982). See also American Postal Workers, supra, at 777. Under the approach articulated by the Court of Appeals, however, the employee is given every incentive to hold out for the most beneficial accommodation, despite the fact that an employer offers a reasonable resolution of the conflict. This approach, we think, conflicts with both the language of the statute and the views that led to its enactment. We accordingly hold that an employer has met its obligation under § 701(j) when it demonstrates that it has offered a reasonable accommodation to the employee.

The remaining issue in the case is whether the school board’s leave policy constitutes a reasonable accommodation of Philbrook’s religious beliefs. Because both the District Court and the Court of Appeals applied what we hold to be an erroneous view of the law, neither explicitly considered this question. We- think that there are insufficient factual findings as to the manner in which the collective-bargaining agreements have been interpreted in order for us to make that judgment initially. We think that the school board policy in this case, requiring respondent to take unpaid leave for holy day observance that exceeded the amount allowed by the collective-bargaining agreement, would generally be a reasonable one. In enacting § 701(j), Congress was understandably motivated by a desire to assure the individual additional opportunity to observe religious practices, but it did not impose a duty on the employer to accommodate at all costs. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977). The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, “[t]he direct effect of [unpaid leave] is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status.” Nashville Gas Co. v. Satty, 434 U. S. 136, 145 (1977).

But unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones. A provision for paid leave “that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all.” Hishon v. King & Spalding, 467 U. S. 69, 75 (1984). Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness. Whether the policy here violates this teaching turns on factual inquiry into past and present administration of the personal business leave provisions of the collective-bargaining agreement. The school board contends that the necessary personal business category in the agreement, like other leave provisions, defines a limited purpose leave. Philbrook, on the other hand, asserts that the necessary personal leave category is not so limited, operating as an open-ended leave provision that may be used for a wide range of secular purposes in addition to those specifically provided for in the contract, but not for similar religious purposes. We do not think that the record is sufficiently clear on this point for us to make the necessary factual findings, and we therefore affirm the judgment of the Court of Appeals remanding the case to the District Court. The latter court on remand should make the necessary findings as to past and existing practice in the administration of the collective-bargaining agreements.

It is so ordered.

Justice Marshall,

concurring in part and dissenting in part.

I agree with the Court’s conclusion that, if the school board provides paid leave “for all purposes except religious ones,” ante this page, its accommodation of Philbrook’s religious needs would be unreasonable and thus violate Title VII. But I do not find the specificity of the personal business leave, or the possibility that it may be used for activities similar to the religious activities Philbrook seeks leave to pursue, necessarily dispositive of whether the Board has satisfied its affirmative duty under § 701(j), 42 U. S. C. § 2000e(j), to reasonably accommodate Philbrook’s religious needs. Even if the District Court should find that the personal leave is restricted to specific secular uses having no similarity with Philbrook’s religious activities, Philbrook would still encounter a conflict between his religious needs and work requirements. In my view, the question would remain whether, without imposing an undue hardship on the conduct of its educational program, the school board could further reasonably accommodate Philbrook’s need for additional religious leave.

If, for example, the personal business leave were so limited that it allowed teachers paid leave for the sole purpose of meeting with their accountants to prepare their income tax returns (a purely secular activity), a proposal from Philbrook that he be allowed to prepare his tax return on his own time and use this paid leave for religious observance might be found imminently reasonable and lacking in undue hardship. The Board’s prior determination that the conduct of its educational program can withstand the paid absence of its teachers for up to six days each year for religious and personal reasons tends to indicate that granting Philbrook’s similar request in this case for a total of six days paid religious leave and no personal leave is reasonable, would cause the Board no undue hardship, and hence falls within the scope of the Board’s affirmative obligation under Title VII.

The Court suggests that requiring an employer to consider an employee’s proposals would enable the employee to hold his employer hostage in exchange for a particular accommodation. Ante, at 69. If the employer has offered a reasonable accommodation that fully resolves the conflict between the employee’s work and religious requirements, I agree that no further consideration of the employee’s proposals would normally be warranted. But if the accommodation offered by the employer does not completely resolve the employee’s conflict, I would hold that the employer remains under an obligation to consider whatever reasonable proposals the employee may submit.

I do not accept the Court’s conclusion that the statute, “[b]y its very terms,” reheves the Board from this continuing duty to accommodate the special religious practices of its employees where doing so is reasonable and causes no undue hardship. Ante, at 68. The statute simply creates an affirmative duty to accommodate; it does not specify who must respond to whom. Nor am I persuaded that the legislative history cited by the Court disposes of this issue. The statement of Senator Randolph, who sponsored the amendment, that he hoped the “accommodation would be made with ‘flexibility’ and ‘a desire to achieve an adjustment,’ ” lends at least as much support to the concept of the employer’s continuing duty as it does to the Court’s reading of the statute. Ante, at 69 (quoting 118 Cong. Rec. 706 (1972)).

The EEOC’s guidelines on religious discrimination support an interpretation of the statute placing this continuing duty to accommodate on the employer. Just last Term, in Meritor Savings Bank v. Vinson, 477 U. S. 57, 65 (1986), we expressly relied on an EEOC guideline in holding that sexual harassment charges could provide the basis for a Title VII claim. The Court’s reluctance to accord similar weight to the EEOC’s interpretation here rests on nothing more than a selective reading of the express provisions of Title VII and the guidelines. Ante, at 69-70, n. 6. Title VII prohibits discrimination not only with respect to employment opportunities, § 708(a)(2), 42 U. S. C. § 2000e-2(a)(2), but also with respect to “compensation, terms, conditions, or privileges of employment.” § 703(a)(1), 42 U. S. C. §2000e-2(a)(l) (emphasis added). The EEOC guidelines consider compensation encompassed within the concept of “employment opportunities.” 29 CFR § 1605.2(c) (1986). A forced reduction in compensation based on an employee’s religious beliefs can be as much a violation of Title VII as a refusal to hire or grant a promotion.

In this case, contrary to the Court’s conclusion, ante, at 70-71, the school board’s accommodation of Philbrook’s religious needs by merely allowing unpaid leave does not eliminate the conflict. Rather, the offer forces Philbrook to choose between following his religious precepts with a partial forfeiture of salary and violating these precepts for work with full pay. It is precisely this loss of compensation that entitles Philbrook to further accommodation, if reasonably possible without undue hardship to the school board’s educational program. It may be that unpaid leave will generally amount to a reasonable accommodation, but this does not mean that unpaid leave will always be the reasonable accommodation which best resolves the conflict between the needs of the employer and employee. In my view, then, an offer of unpaid leave does not end the inquiry: If an employee, in turn, offers another reasonable proposal that results in a more effective resolution without causing undue hardship, the employer should be required to implement it.

The Court’s analysis in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), is difficult to reconcile with its holding today. In Hardison, the Court held that the employer’s chosen work schedule was a reasonable accommodation but nonetheless went on to consider and reject each of the alternative suggested accommodations. The course followed in Hardison should have been adopted here as well. “Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is ... : Did [the employer] prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on [the employer’s] business?” Id., at 91 (Marshall, J., dissenting) (emphasis added).

Accordingly, I would remand this case for factual findings on both the intended scope of the school board’s leave provision and the reasonableness and expected hardship of Philbrook’s proposals.

Justice Stevens,

concurring in part and dissenting in part.

While I agree with the Court’s rejection of the rationale of the Court of Appeals’ opinion, I would simply reverse its judgment. Remanding for further proceedings in the District Court is both unnecessary and confusing. Whether respondent Philbrook’s complaint is analyzed as an outright claim that he is entitled to six paid days of leave for religious observance or as an argument that petitioner’s employment policies, while facially neutral, fail to accommodate his religious beliefs, the record before us plainly discloses that he cannot prevail.

I

The school board has a clear duty not to discriminate against Philbrook because of his religious faith. Section 703(a) of the Civil Rights Act of 1964 flatly prohibits an employer from discriminating against any individual by basing employment and workplace decisions on the employee’s or prospective employee’s religion. This stricture against disparate treatment based on religion is simultaneously extended and qualified by § 701, which defines religion for purposes of the Act. Congress defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” §701(j). The statute therefore imposes a duty on the employer to make reasonable accommodations, short of undue hardship, for the religious practices of his employees. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 74 (1977). The effect of § 703(a) is to impose a special duty upon the employer when— and only when — a conflict arises between an individual’s religious observance or practice and the employer’s policy.

The statute does not allow a plaintiff raising a claim under § 701(j) to charge immediately onto the field of undue hardship. Folded within § 701(j) are certain preliminary inquiries. First, the court must ask whether the employee’s job obligations are in conflict with his religious obligations. “The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee.” Hardison, supra, at 87 (Marshall, J., dissenting). Absent a conflict, it makes no sense to speak of a duty to accommodate; there is no competing claim on the employee for which the employer must make adjustments. If the duty does arise, the statute requires the employer to resolve the conflict if it can do so without undue hardship. As the Court correctly holds, the employer has no statutory duty to resolve the conflict in the way the employee requests as long as the solution that is adopted is reasonable. I find it equally clear that the employer has no statutory duty to do anything more than strictly necessary to resolve the conflict.

Because the existence and scope of the duty to accommodate depend solely on the nature of the conflict between the terms of the job and the requirements of the religion, it is essential to identify the alleged conflict as precisely as possible. In this case Philbrook’s faith prevents him from working on certain schooldays. The school board does not require him to work on any of those days; on three of those days each year it pays him even though he does not work, and on the other days it declines to pay him for the time that he spends discharging his religious obligations. The existence of a conflict is thus not immediately apparent.

Philbrook argues, however, that the contractual arrangement occasions two conflicts between his religious requirements and his employer’s job requirements. First, he argues that the employer’s practice of excluding religious observance as a permissible use of the three days of paid annual leave for “necessary personal business” is directly in conflict with his religious practice, because he needs to take those days as days of religious obligation. Second, during his unpaid absence from work on days of religious obligation, he is unable to do work and must later — or earlier — perform this work without separate compensation. In essence, he argues that the employer’s practice of requiring him to complete this work, which is an integral part of his job duties as a salaried employee, conflicts with his religious obligation to be absent on the days when he would otherwise have performed this work and been paid for it. An examination of these claims discloses that neither has merit.

H > — i

Philbrook has contended that the school board has discriminated on the basis of religion in the allocation of its paid annual leave, or more specifically, in the limitation it has placed on the use of three days of paid annual leave for necessary personal business. Properly viewed, the conflict Phil-brook alleges is one which is not cognizable under § 703 and therefore entitles him to no relief. He points to the conflict, by no means specific to the practice of religion, between the Board’s leave policy and the needs of an employee who wishes to use the three days of necessary personal business leave for any purpose not allowed by the contract. The Board allows all of its teachers three days of paid annual leave for “necessary personal business” but prohibits them from using any of those days for “[a]ny religious activity.” On its face, this prohibition might appear to discriminate against employees who need to take a day off to attend church in favor of those who need a day off for secular reasons. The argument fails, however, because it does not fully describe either the scope of the separate provision for paid leave for religious purposes or the restricted scope of the provision for leave for necessary personal business.

The collective-bargaining agreement between the school board and the teachers’ union contains generous provisions for paid leave for various specific purposes. After stating that 18 days of annual leave shall be granted “for personal illness and/or illness in the immediate family,” the contract specifies 11 additional categories of personal leave, including 5 days for a death in the immediate family, 1 day each for attendance at funerals, weddings, graduations, and immediate family religious services, and 3 days each for “[m]andated religious observances” and “[n]ecessary personal business.” The teacher is not required to identify the specific character of his personal business, but the contract limits the teacher’s discretion by stating:

“Necessary personal business shall not include (without limitations):
“1. Marriage attendance or participation;
“2. Day following marriage or wedding trip;
“3. Attendance or participation in a sporting or recreational event;
“4. Any religious observance;
“5. Travel associated with any provision of annual leave;
“6. Purposes set forth under annual leave or another leave provision of this contract.” App. 100.

Philbrook does not contend that the leave policy is discriminatory because he is eligible for, or has actually received, fewer days of paid leave than members of other religious faiths or than teachers who have no religious obligations on schooldays. The basis of his principal discrimination argument is that the total of six days for mandated religious observances and necessary personal business is not adequate to enable him to take care of “the personal business that is most important and pressing to him: religious activity and observance,” whereas this combination of six days of paid leave is adequate for some teachers who have different religious and ethical commitments. Quite clearly, however, this argument rests on the premise that Philbrook’s special, that is, religious, needs entitle him to extraordinary treatment. His “discrimination” argument states a grievance against equal treatment rather than a claim that he has been the recipient of unequal treatment.

This point comes into sharp focus when the contractual prohibition against using the three days of personal leave for “any religious observance” is seen for what it is, merely a part of the broader prohibition against using personal business leave for any of the purposes specifically authorized in the contract. The existing leave policy denies paid days to any teacher who proposes to take more paid days of personal business leave per year to fulfill his or her commitments than the contract allows. Philbrook’s wish to use his secular leave for religious purposes is thwarted by the same policy that denies an avid official delegate to a national veterans’ organization use of secular leave days for that activity in excess of the days specifically allotted for it under the contract. In fact, since three days are expressly authorized for mandated religious observances — events that recur each year— whereas most other categories of paid leave cover relatively infrequent contingencies such as a death in the family or attendance at a family wedding, it is highly probable that the leave policy as a whole tends to favor, rather than to disfavor, persons who must observe religious days during the school year. For example, an atheist who attends a wedding, a funeral, and a graduation on schooldays receives a total of three days of paid personal leave, but a religious person who attends the same three events on paid days also receives pay for three religious days.

I — I I — I

Philbrook’s second claim is that the board has a duty of reasonable accommodation “to mitigate the burden of the Board’s requirement that [he] work without pay in connection with his absence for religious observance.” Brief for Respondent Philbrook 24. This claim founders because it discloses no conflict between Philbrook’s religion and his employment. If he had been disciplined, or discharged, for taking too many days off for religious services, the result would be different, but the only inconvenience to which he is subjected is the necessity of doing work on paid days that he was unable to do during his days of religious observance. This inconvenience arises not because of any discrimination against religion, but because the employee’s missed day of work is unpaid. Every' employee who takes a day off from work for an unauthorized purpose suffers the same inconvenience as Philbrook; each loses a day of pay and must make up the work associated with that day. The obligation to perform the work carries over, not because the employee has exercised his religion in the one case or satisfied a secular business need in another, but for the generic and shared reason that the employee was not paid for a day on which he was hired to do work. Since no statutory conflict between Philbrook’s religion and his work duties occurred, the duty to accommodate his religious practices never arose.

> b — H

The present state of the record enables me to conclude that Philbrook states no claim of religious discrimination under § 703(a). In remanding the case, the Court apparently overlooks the plain fact that its rejection of the Court of Appeals’ view of the duty of reasonable accommodation eliminates the necessity for further factual findings. Under the Court of Appeals’ theory that the employer has a duty to accept any reasonable accommodation proposal made by the employee as long as it does not result in “undue hardship,” a remand to the District Court was appropriate to resolve the “undue hardship” issue. I do not understand why a remand is appropriate now. The Court of Appeals has already concluded that if no analysis of undue hardship is required, the Board’s policy of granting three days of paid leave and additional days of unpaid leave for religious observances complies with the statute. Neither that court nor the District Court saw any reason to make a special analysis of the “past and present administration of the personal business leave provisions of the collective-bargaining agreement.” Ante, at 71.

In view of the record, the factual analysis the Court calls for may satisfy the demands of the Court’s curious holding in Icicle Seafoods, Inc. v. Worthington, 475 U. S. 709, 714 (1986), but it cannot affect the outcome of this case. Whether the Board has administered the provisions for paid leave for secular purposes strictly or permissively has no bearing on Philbrook’s legally insufficient complaint that he has some but not enough leave for religious purposes. The employer has no duty to provide Philbrook with additional days of paid leave. Nor can the uses for which the board has historically allowed personal leave days possibly create a duty to pay Philbrook to perform the work he missed on days of religious obligation.

Accordingly, I respectfully dissent from the part of the Court’s judgment that remands the case for further proceedings.

       The reasonable accommodation duty was incorporated into the statute, somewhat awkwardly, in the definition of religion. Title VIPs central provisions make it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion ...,”§ 703(a)(1), 42 U. S. C. § 2000e-2(a)(l), or “to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . religion_” § 703(a)(2), 42 U. S. C. §2000e-2(a)(2). Section 701(j), 42 U. S. C. §2000e(j), was added in 1972 to illuminate the meaning of religious discrimination under the statute. It provides that “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

       Absence for reasons not contemplated by the contract resulted in a proportionate deduction from pay; since 1971, 1/180 of annual salary had been deducted for each day of unexcused absence. App. 84, 90, 93, 97, 101.

       The suggested accommodation would reduce the financial costs to Philbrook of unauthorized absences. In 1984, for example, a substitute cost $30 per day, and respondent’s loss in pay from an unauthorized absence was over $130.

       Philbrook’s complaint also alleged that petitioner Board’s policies and practices violated his free exercise rights under the First Amendment. Because the Court of Appeals remanded the Title VII claim for further proceedings, it did not address Philbrook’s First Amendment claims, and we have no occasion to consider them here.

       Judge Pollack, Senior District Judge of the Southern District of New York sitting by designation, dissented. He agreed with the District Court that “[t]he School Board’s policy neither deprives the plaintiff of employment opportunities nor adversely affects his employment status.” 757 F. 2d, at 489. Accordingly, he found that the policy did not “ ‘discriminate’ within Title VH’s use and meaning of that term . . . .” Ibid.

       The Court of Appeals found support for its decision in the EEOC’s guidelines on religious discrimination. 757 F. 2d, at 485, and n. 7. Specifically, the guidelines provide that “when there is more than one means of accommodation which would not cause undue hardship, the employer . . . must offer the alternative which least disadvantages the individual with re-speet to his or her employment opportunities.” 29 CFR § 1605.2(c)(2)(ii) (1986). Though superficially consistent with the burden imposed by the Court of Appeals, this guideline, by requiring the employer to choose the option that least disadvantages an individual’s employment opportunities, contains a significant limitation not found in the court’s standard. To the extent that the guideline, like the approach of the Court of Appeals, requires the employer to accept any alternative favored by the employee short of undue hardship, we find the guideline simply inconsistent with the plain meaning of the statute. We have, of course, noted that EEOC guidelines are properly accorded less weight than administrative regulations declared by Congress to have the force of law. General Electric Co. v. Gilbert, 429 U. S. 125, 141 (1976); Skidmore v. Swift & Co., 323 U. S. 134, 139-140 (1944). See also Trans World Airlines, Inc. v. Hardison 432 U. S. 63, 76, n. 11. (1977).

      EEOC Guideline § 1605.2(c) states:
      “(2) When there is more than one method of accommodation available which would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining:
      “(i) The alternatives for accommodation considered by the employer or labor organization; and
      “(ii) The alternatives for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to his or her employment opportunities, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.” 29 CFR § 1605.2(c) (1986).

       “On the other hand, after Philbrook uses up his three days for religious leave, Ansonia’s personal leave policy does not allow him to use the remaining three days of personal leave for the personal business that is most important and pressing to him: religious activity and observance. Unlike the Jewish teacher, Philbrook is a member of a faith that requires more than three days away from work for religious observance. His important and necessary personal business, involving fulfilling his need to gain understanding of the world around him, to serve the highest interests of his community, and to provide guidance and stability for his family, are all served by performing his religious obligation and attending his church. Solely because these needs are fulfilled for him through religious observance rather than secular activity, he is prohibited from using his personal leave to meet them.” Brief for Respondent Philbrook 16.

       Denying the use of personal business days for religious purposes is no more discriminatory against religion than if the personal business leave category were entirely absent from the contract. Neither a decision to refuse personal business leave days altogether nor a decision to provide these days for specific purposes not otherwise provided for in the contract represents a discrimination against religion.

       As he explains:
      “His job has at least three parts: For every class he must first prepare the lesson plan; then teach the class; and finally review his students’ classwork. On the days he is absent for religious holy days, he prepares the lesson plans for his classes and reviews them with his substitute. He then receives and corrects the assignments his students have completed in his absence. [App. 68-70.] Although his pay is docked, he is still required to perform a substantial fraction of the duties for which his pay was intended to compensate him.” Id.. at 24-25.

       “The school board argues that we should find that its longstanding accommodation of three days of paid leave and additional days of unpaid leave for religious observance constitutes a reasonable accommodation and thus satisfies its duty to accommodate, citing the Tenth Circuit’s decision in Pinsker v. Joint District No. 28J, 735 P. 2d 388, 391 (10th Cir. 1984). The Pinsker court held that a policy allowing two days of paid leave for religious reasons and additional days of unpaid leave satisfied the duty to accommodate. We presume that Ansonia’s leave policy is ‘reasonable.’ And if Title VIPs duty to accommodate were to be defined without reference to undue hardship, we would hold that the school board has satisfied its burden. The duty to accommodate, however, cannot be defined without reference to undue hardship. In many circumstances, more than one accommodation could be called ‘reasonable.’ Where the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” 757 F. 2d 476, 484 (CA2 1985) (emphasis added).

       Though it is not necessary to my conclusion, the teachers’ modest use of personal business days indicates that they are not treated as general leave days. In the 1982-1983 school year, for example, only 2 of the 131 teachers in the school system used all three days; 80 used none. Plaintiff’s Exhibit 18.
      In addition, the Board has strictly administered the use of necessary personal business days, limiting their use to the purposes not enumerated in the contract. The School Superintendent testified that the use of these three days’ leave is closely monitored. Teachers may take one of these days in their discretion, without giving a reason for their absence, but must notify the principal or their superior of their absence 48 hours in advance. The Superintendent testified that he insures that teachers do not use that one discretionary day with pay for any of the reasons specifically enumerated in the contract:
      “Q: If, in fact, you find that a teacher has utilized that one day for one of the reasons specifically listed in the contract for which days are separately allotted, what action, if any, would you take?
      “A: If I found out, they would be deducted a day’s salary for that one day.” App. 65.
      The other two days of necessary personal leave must be approved by the Superintendent with 48 hours’ notice. The Superintendent reviews the request for leave, denying it if he does not consider it to be a necessary personal day. If the employee takes the day nonetheless, he or she is docked a day’s pay. Id., at 54.


author: Per Curiam.

text:
    CERBONE, JUSTICE OF THE VILLAGE COURT, VILLAGE OF MT. KISCO, NEW YORK, et al. v. CONWAY
    No. 84-1947.
    Argued November 5, 1986
    Decided November 17, 1986

      Michael F. Close argued the cause for petitioners. With him on the brief was George J. Calcagnini.

      George Russell Miller argued the cause and filed a brief for respondent.

        Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, Charles A. Rothfeld, Barbara L. Herwig, and John F. Daly filed a brief for the United States as amicus curiae urging reversal.

        Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.