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Privileging and Protecting Schoolhouse Religion

Journal of Law and Education, 2008

53 Pages Posted: 15 Oct 2008 Last revised: 23 Oct 2008

Kenneth L. Marcus

The Louis D. Brandeis Center for Human Rights Under Law

Date Written: October 14, 2008


To what extent does federal law protect public school students from religious discrimination? Intuitively, one would expect children victimized by religious hate, bias, and other discrimination to enjoy the apex of protections afforded under our constitutional system. Structurally, they are victimized at the convergence of the First and Fourteenth Amendments, denied not only the Constitution's "first freedom" but also the very interest in equal educational opportunity that has been constitutionally preeminent since Brown v. Board of Education. Moreover, school-age children may be peculiarly vulnerable to the sting of hate and bias incidents, so it is especially important to provide them with the full extent of constitutional support. Nevertheless, students of faith have not always received a level of protection commensurate to the importance of the interests at stake. This Article demonstrates that equal opportunity for religious minority students requires, in practical terms, administratively enforced, statutory anti-discrimination protections and reasonable accommodations for student religious needs. This Article further argues that this reform is preferable to an alternative potential legislative reform, which would ensure judicially enforced strict scrutiny for school-based conduct that burdens religious exercise. Finally, this Article anticipates and responds to a number of potential criticisms, including the competing model developed in recent work by Christopher Eisgruber and Lawrence Sager. This Article is based upon a paper presented at the AALS Annual Meeting before a joint session of the Law and Religion Section and the Education Law Section.

Keywords: Religious Liberty, Religion, First Amendment, Schools, Discrimination, Education, Equality, Children, Accommodation, Free Exercise, Establishment, Clause

JEL Classification: I2, I128, J7, J78, J70, J7, J71

Suggested Citation

Marcus, Kenneth L., Privileging and Protecting Schoolhouse Religion (October 14, 2008). Journal of Law and Education, 2008. Available at SSRN:

Kenneth L. Marcus (Contact Author)

The Louis D. Brandeis Center for Human Rights Under Law ( email )

1776 I Street, N.W., Suite 900
Washington, DC 20006
United States

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