41 Pages Posted: 3 Apr 2007
My thesis is that members of what might be called minority faiths that hold sincere but "divisive views" are likely to be placed at risk by language that reifies society's "progressive" interest in suppression through conciliation. This process is likely to expand when school hierarchs transmute judicial language and goals into operational dogma while raising the putatively omnipresent specter of division when they confront adherents to deeply-held religious faiths and diverse practices.
I consider the recently decided Baldwinsville case as well as the split among the United States Courts of Appeal. Although I provide some analysis of the facts, the District Court case and the Second Circuit Court of Appeals' holding, the primary purpose of this examination is not to provide extensive legal analysis, but to discover and set forth the terms of the debate particularly in the school setting itself. This investigation includes an excursion into the notion of evaluative neutrality, metaphysics, epistemology and the nature of liberal society. Regardless of the actual outcome of Baldwinsville or any similar case, I conclude it is highly doubtful that the prevailing terms of the debate can be seen to favor religious expression that reflects deeply held, as opposed to shallow, beliefs.
Keywords: first amendment, schools, freedom of expression
JEL Classification: K30
Suggested Citation: Suggested Citation
Hutchison, Harry G., Shaming Kindergarteners? Channeling Dred Scott? Freedom of Expression Rights in Public Schools. Catholic University Law Review, Vol. 56, No. 2, pp. 361-400, Winter 2007; George Mason Law & Economics Research Paper No. 07-15. Available at SSRN: https://ssrn.com/abstract=977327