Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools

56 Pages Posted: 18 Mar 2016 Last revised: 12 Aug 2017

See all articles by Stuart Chinn

Stuart Chinn

University of Oregon School of Law

Date Written: March 16, 2016

Abstract

This article opens with a brief discussion of the recent controversies over race, inclusion, and community on American college campuses, focusing on the events at Yale University this past fall. The case of Yale is fascinating as one of the most recent, high-profile events to broach a deep and persistent issue in American society: how do we construct and maintain a stable political community characterized by intractable difference? I use the Yale example as my jumping-off point for interrogating this question in the context of Supreme Court cases on race-and-public education and religion/ideology-and-public education.

My focus on judicial opinions dealing with public education is motivated by several considerations: elementary and secondary public schools, in particular, constitute perhaps the most direct point of contact between most American children and the state. Thus, these institutions have great opportunity for shaping future participants in the American political community and for imparting the particular values that will help constitute that community. Relatedly, my focus on judicial conceptions of political community in the public school context provides the key attraction of hearing discussion of these themes by major national political actors within the illuminating format of principle-based judicial opinions. Given this, and given the centrality of public education, racial identity, and religious identity, I am presuming that the dynamics illuminated by these judicial opinions will at least partially illuminate the dynamics present within other types of community in America as well.

In the article, I make three primary claims. The first is a point of similarity across the racial and religious/ideological contexts. Within the judicial opinions that grapple with racial and religious/ideological difference in the context of public education, one might glean a set of judicial beliefs common to both contexts on the adhesive force of public education in creating and maintaining political community. Public schools are seen by judges as a unifying force across both types of plurality. More precisely, I will claim that judges have seen public schools as a cultural adhesive force. That is, the precise manner in which public schools bind students together is by virtue of the physical proximity of students to one another, and their observation in, participation in, and creation of a common culture.

However, this doctrinal comparison yields a key difference too, and this constitutes my second claim: in the race-and-public education context, the central problem that has appeared in the doctrine — and the main problem that has animated judicial conceptions of community in that context — has been the problem of community creation. That is, judges have largely pondered the justifications and limits upon the state’s authority to create racial plurality in public schools. Such arguments proceed from background assumptions of minimal racial plurality absent the contemplated state actions. In contrast, in the religion/ideology-and-public education context, the major cases and judicial arguments on plurality within public schools are preoccupied with the problems of community maintenance. That is, judges have pondered the justifications and limits upon state actions toward maintaining stable communities in public schools in the face of individual claims of religious freedom and competing state claims favoring uniformity. In contrast to the racial context, the background presumption here is one of inevitable religious/ideological plurality in public schools, even absent the contemplated state actions.

Finally, I offer a third and final claim: for community-builders, maintenance problems are easier than creation problems. This point, in turn, suggests that while plurality may be inevitable, plurality within a communal structure holds greater hope for lines of division to be overcome. This is due to the potential for the culture intrinsic to a community to serve as an adhesive across lines of division. Thus to the extent that one finds the goals of community and unity to be worthwhile, at least some of the time, this observation implies that mechanisms that situate plurality within community are often preferable to letting plurality persist between distinct communities.

Keywords: Race, Religion, Public Schools, Diversity, Education, Inclusion

Suggested Citation

Chinn, Stuart, Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools (March 16, 2016). 2017 Utah Law Review 531. Available at SSRN: https://ssrn.com/abstract=2748834

Stuart Chinn (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States

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