From the 1980s to the Present
Nearly a third of religious liberty cases decided by the U.S. Supreme Court addressed religion and education. Numbers that high, the problem definitely deserves consideration of international public. What were the main forces that shaped religious liberty in public education in one of its most formative periods? Did the introduction of religious liberty legal framework in public schools advance religious liberty of students as independent autonomous actors? The author discusses this cultural problem from a broad and complex perspective: both internationally recognized theory of a child’s religious freedom rights and the American models of religious liberty. To cover a wide spectrum of viewpoints, she analyses a broad selection of documents, from state and NGO publications to media coverage.
Chapter 1 The Legal Basis for Religious Liberty
The legal framework of religious liberty in the American system of education at all levels is determined by the First Amendment to the American Constitution, and more specifically by the Establishment Clause and Free Exercise Religious Clause that read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Formally, the system of education became subjected to the constitutional provisions when they became federal law in 1791, as the Bill of Rights was ratified by the state of Virginia and thus applied to the states. However, the ratification had no tangible effect on education until the 1940s, when economic and political developments—the Depression, World War II, and the first signs of the Cold War—caused the federal courts to assume control over religious liberty issues.45 The actual assumption, known as “incorporation theory,” took place in two cases, Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947).46
Incorporation had a profound effect on the shaping of religious freedom in public education. Each state could no longer regulate religious practices according to their own rules and preferences, but school-religion cases decided in either federal or state courts had to be adjudicated in accordance with the First Amendment religious clauses. What is more, no matter which court decides on the case, the ruling can be appealed to the U.S. Supreme Court. And the Supreme Court’s decisions are binding to all educational institutions on a national level.47 Using Sewell’s terminology,...
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