Religious schools and church-state relations

church and stateAs is well known, the First Amendment to the U.S. Constitution provides, among other things, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. This is usually understood to mean, in Jefferson’s words, that there should be a “wall of separation” between the church and the state. Of course, Jefferson meant that the wall would only apply to the national government and not state government, who did have established religions (for example Massachusetts, Connecticut, New Hampshire, and Maryland). However, the practice of having state established religions discontinued, and definitely died out with the passage of the Fourteenth Amendment.

Today, however, it can’t be said that there is a “wall of separation” between religion and government.  The Supreme Court has allowed a few cracks in that wall. Here are just three examples. In Everson v. Board of Education, the Court held that reimbursements for transportation even to students of private religious schools do not violate the Establishment Clause. And in Simmons v. Zelman-Harris the Court ruled that disbursement of federal funds to local educational agencies which lent educational materials and equipment to public and private schools to implement secular, neutral and non-ideological programs, even though some of them are given to Catholic schools is constitutional as well.  Finally, in Agostini v. Felton, the Court held that public school teachers can instruct at religious schools so long as material is secular in nature.

In all these cases the Court has insisted that there be no excessive entanglement government and religion, and, as long as this condition was kept (along with other requirements), then the allocation of funds and resources to religious schools is constitutional. The flip side of this separation, of course,  is that government doesn’t have a say over the management of these schools.

Of course, this doesn’t have to be the case. One can ask the question why isn’t it the case that as long as federal (or state) funds are given to religious schools, government shouldn’t have more of a say in how these schools are run. If, as Greta suggested, education should be considered a basic right, perhaps we should be more inclined to increase state regulation on private religious schools. The problem here is that this type of involvement can create exactly the difficulties the Framers sought to avoid.

Consider this recent British Case. A 12 year old boy, son to a Jewish father and a Jewish convert mother, applied to the Jewish Free School. The school, like other parochial institutions, is partially funded by the British government. And yet, British law allows the school to decide on admissions based on criteria decided by a designated religious authority. Those criteria have denied the boy admission, since, per the school, the mother did not undergo an orthodox Jewish conversion, but a progressive one. Thus, per orthodox rules, the boy is not considered a Jew and thus was not admitted.

The parents sued, and though they lost, the appeals court reversed and held that the test of whether someone is Jewish — whether one’s mother is Jewish — was discriminatory, no matter what the rationale was. Further, the court held that the school did not use a religious distinction because its decision rested on the status of the child’s mother and hence it was an ethnic test, which is illegal. The court said that “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act”. It concluded by saying that the admissions criteria must depend not on family ties on “faith. However defined”.

The ruling, which has been appealed to the Supreme Court, has rattled the Jewish community in Britain. The case is problematic on many grounds. We can talk about the usual problem of judicial overreach, but more importantly, there is the problem of a secular authority attempting to determine something which is clearly the purview of religious doctrine. Of course, the rationale for intervening is the fact of public financing. If public monies are used, why shouldn’t the larger community have a say on who gets admitted?

The problem, I think, lies with this dichotomy, this either-or thinking that once there is some state involvement then everything is up for grabs and is fair game. To be sure, I don’t know what the appropriate balance is, though my sense is that, at least politically, it would have been better for the court not to intervene and let this vexing issue be resolved inside the Jewish community. Legally, it’s hard for me to see why this is an “ethnic” issue and not also, or mainly, a “religious” one.

Be that as it may, my point is that the U.S. model is not the only one available to us. At present, there is very little regulation over the management and content being taught at religious schools. But with the increased allocation of funds, more regulation might be expected. And that might lead us to grapple with far more complicated questions than books and busing. Increased regulation necessarily means, then, making decisions on religious dogma in the name of constitutional principles. Currently, this opens up more problems than it purports to solve.

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