Religion, Schools, and Judicial Decision Making: An Empirical Perspective

28 Pages Posted: 30 Jul 2011 Last revised: 17 May 2012

See all articles by Michael Heise

Michael Heise

Cornell Law School

Gregory C. Sisk

University of St. Thomas School of Law (Minnesota)

Date Written: 2012


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 of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence.

Keywords: Courts, Judges, Judicial Decision Making, Religion, Constitution

Suggested Citation

Heise, Michael and Sisk, Gregory C., Religion, Schools, and Judicial Decision Making: An Empirical Perspective (2012). 79 University of Chicago Law Review 187(2012), U of St. Thomas Legal Studies Research Paper No. 11-19 , Cornell Legal Studies Research Paper No. 11-28, Available at SSRN: or

Michael Heise (Contact Author)

Cornell Law School ( email )

308 Myron Taylor Hall
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United States
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Gregory C. Sisk

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

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