Religion Law Commons^™

Why School Choice Is Necessary For Religious Liberty And Freedom Of Belief, Richard F. Duncan

Nebraska College of Law: Faculty Publications

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 …

Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain

Faculty Scholarship

In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times of democratic discord and …

The Impact Of Edwards V. Aguillard On Science Education In Louisiana Public Schools, Abigail Mcdonough

Senior Honors Theses

The landmark Louisiana case Edwards v. Aguillard ushered in a new era of legislation in which certain ideas are discriminated against because of their religious basis. Due to the Court’s misinterpretation of evidence and employment of a faulty test for a secular purpose, the Court is responsible for disastrous and far-reaching implications. This thesis will examine how the 1987 Supreme Court case Aguillard shifted American science education away from the exploration of multiple competing theories of man’s origins in the classroom. Although America was founded on principles such as freedom of religion and thought which should be protected, the Aguillard …

Peril And Possibility: Strikes, Rights, And Legal Change In The Era Of Trump, Kate Andrias

Faculty Scholarship

Thank you, I am delighted to be here. When Professor Fisk and the editors of the Journal asked if I would be willing to give the Feller Lecture this year, I did not hesitate for a moment. It goes without saying that, for a labor law professor, to give a lecture that commemorates David Feller is truly a special honor. While I never had the chance to meet him, his work as an advocate and scholar serves as an example for everyone in the field. I am grateful to the Journal and to the Feller family for the opportunity to …

Lost & Found: Order In The Court -- The Party Game, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The second game in the series, Lost & Found: Order in the Court …

Religious Schooling And Homeschooling Before And After Hobby Lobby, James G. Dwyer

Faculty Publications

The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. This Article examines the potential effect of the Court’s Hobby Lobby decision on interpreting the Religious Freedom Restoration Act (“RFRA”) on both federal and state levels, detailing why the Court’s decision is irrelevant to addressing the incursions on liberty experienced by children subject to religious and home schooling.

Ultimately, the Article finds that home schools and private schools are unfazed by the Hobby Lobby decision in their capacities as employers and educators …

Religious Freedom In Faith-Based Educational Institutions In The Wake Of 'Obergefell V. Hodges': Believers Beware, Charles J. Russo

Educational Leadership Faculty Publications

Solicitor General Donald Verrilli’s fateful words, uttered in response to a question posed by Justice Samuel Alito during oral arguments in Obergefell v. Hodges,² likely sent chills up the spines of leaders in faith-based educational institutions, from pre-schools to universities. In Obergefell, a bare majority of the Supreme Court legalized same-sex unions in the United States. Verrilli’s words, combined with the outcome in Obergefell, have a potentially chilling effect on religious freedom. The decision does not only impact educational institutions—the primary focus of this article—but also a wide array of houses of worship. Other religiously affiliated …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

Scholarly Works

Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

The Law Of Public Education, Charles J. Russo

Educational Leadership Faculty Publications

This textbook-casebook incorporates recent developments in education law into its conceptual framework by offering updated analysis of major topics in education law. With new material in all of its sixteen chapters, the book includes significant updates on church-state relations, employee rights, and student rights. There are now two chapters on student rights. The author also includes Supreme Court opinions on strip searches of students, teacher bargaining and free speech rights.

Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo

Educational Leadership Faculty Publications

A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools¹ to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,² a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,³ the Court struck down the Defense …

Charter Schools, The Establishment Clause, And The Neoliberal Turn In Public Education, Aaron J. Saiger

Faculty Scholarship

Regardless whether the American charter school can improve academic performance and provide effective alternatives to traditional public schools, its steady entrenchment as an institution portends significant, destabilizing changes across education law. In no area will its impact be more profound than the law of religion and schooling. Despite the general view that charter schools are public schools, charters’ neoliberal character — they are privately created and managed, and chosen by consumers in a marketplace — makes them private schools for Establishment Clause purposes, notwithstanding their public subsidy. This conclusion, which rests in substantial part on the Zelman v. Simmons-Harris vouchers …

The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen

All Faculty Scholarship

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With …

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

Reutter’S The Law Of Public Education, Charles J. Russo

Educational Leadership Faculty Publications

This textbook-casebook incorporates recent developments in education law into its conceptual framework by offering updated analysis of major topics in education law. With new material in all of its sixteen chapters, the book includes significant updates on church-state relations, employee rights, and student rights.

Religion: How To Stay Out Of Court, Kenneth Akers, Sara Rotramel, Jorge Wellmann

Parameters of Law in Student Affairs and Higher Education (CNS 670)

In the First Amendment to the Constitution of the United States of America, it reads that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This single sentence, the Establishment Clause, is the backbone of religious freedom in the United States, and with its several annotations it has given shape and breadth to the concept of religion in America, more specifically our topic, i.e. …

Intelligent Design And Judicial Minimalism: Further Thoughts On The 'Is It Science?' Question, Jay D. Wexler

Faculty Scholarship

A few years ago, at a conference on religion in the public schools sponsored by the First Amendment Law Review at the University of North Carolina, I argued that although I thought Judge Jones' opinion in Kitzmiller' was mostly correct, the judge erred by deciding that Intelligent Design (ID) is not science. Although I continue to believe that teaching ID in public schools is unconstitutional-I have argued this point for a dozen years and will not reiterate my reasoning here -I also continue to agree with my original assessment of the judge's treatment of the so-called "is it science?" question. …

The Problem Of Religious Learning, Marc O. Degirolami

Faculty Publications

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to …

Undressing Difference: The Hijab In The West, Anita L. Allen

All Faculty Scholarship

On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country’s education statute, banning the wearing of "conspicuous" signs of religious affiliation in public schools. Prohibited items included "a large cross, a veil, or skullcap." The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, "du principe de laïcité." Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Cornell Law Faculty Publications

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Religious Liberty And The Law, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler

Faculty Scholarship

The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …

Affirmative Action And Admissions At A Jesuit Law School, Alan Raphael

Faculty Publications & Other Works

No abstract provided.

Training For Justice: The Global Reach Of Clinical Legal Education, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Supreme Court And Pledge Of Allegiance: Does God Still Have A Place In American Schools?, Charles J. Russo

Educational Leadership Faculty Publications

The dearth of statistical or anecdotal evidence aside, combined with the relative lack of reported litigation, it appears that most students and teachers regularly participate in perhaps the most common daily school ritual by joining in the patriotic recitation of the Pledge of Allegiance (Pledge) and the salute to the American Flag. Yet, as discussed throughout this article, this daily practice has had a history of controversy, whether in schools or political settings.

Turning specifically to schools, in Newdow v. United States Congress (Newdow), the Ninth Circuit set off a firestorm of controversy when, in a case from California, it …

The Theology Of The Blaine Amendments, Richard W. Garnett

Journal Articles

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the federalism defense of the provisions. …

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Faculty Scholarship

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …

An Unconstitutional Stereotype: Catholic Schools As Pervasively Sectarian, Gerard V. Bradley

Journal Articles

The Supreme Court first held public assistance to religious schools unconstitutional in 1971 in Lemon v. Kurtzman. From then until now the concept of “pervasively sectarian” has played a central role in “parochaid” jurisprudence; every holding against “direct” aid has rested upon it as a necessary premise. “Pervasively sectarian” refers to the assertedly religious (“sectarian”) character of the entire curriculum at parochial schools. Religion, it is said, so permeates the whole educational program that “direct aid” to any aspect of that program inescapably aids religion itself. And that, it is said, violates the Establishment Clause. Because aid statutes typically aim …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

School Vouchers And Religious Liberty: Seven Questions From Madison's Memorial And Remonstrance, Vincent A. Blasi

Faculty Scholarship

In the immediate aftermath of the Revolutionary War, many upstanding citizens of the fledgling state of Virginia were not pleased. They were, in fact, appalled by the decline they perceived in the state of public morals. Newspaper editorials, sermons, and speeches in public assemblies resounded with references to the recent upsurge in gambling, whoring, cockfighting, and public drunkenness. That such departures from the straight and narrow are not uncommon in postwar periods, following all the social dislocations of military mobilization, was no consolation to Virginians eager to show a doubting world that government by the people could work.

The root …

Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler

Faculty Scholarship

Although law and religion scholars have long argued about whether American culture marginalizes religious belief, many important indicators suggest that religion indeed plays a prominent role in contemporary American life. America is an extremely religious nation. Polls consistently show that about ninety percent of Americans continue to believe in God, and both church attendance and membership remain at high levels. This religiosity, moreover, spills out into the public square. A great many Americans rely on religious reasons when thinking and talking about public issues. Ninety percent of the members of Congress, by one report, consult their religious beliefs when voting …