Overcoming Obstacles to Religious Exercise in K-12 Education

Abstract

Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s 1990 decision in Employment Division v. Smith and (2) return Free Exercise protection to the level adherents enjoyed under the Court’s 1963 decision in Sherbert v. Verner, the high water mark for religious liberty in this country. By mining prior research, and by examining the outcomes of all United States Courts of Appeal decisions involving K-12 religious accommodation issued between 1963-and 2013, this article shows that RFRAs have failed to achieve their purpose because legislators: (1) incorporated legal standards which had previously failed to protect religious liberty; (2) passed religious liberty statutes of general application without specifically targeting education agencies; (3) did not consider specific activities which were more likely than others to result in conflict with persons wishing to exercise religious freedom; (4) did not distinguish state interests which merely served a governmental purpose, from those which were essential to fulfilling educational agencies’ core functions; and (5) focused on legal technicalities such as “substantial burdens” on religion and the “compelling state interest test,” which are largely bereft of meaning outside of particular agency interests.This article proposes solutions which address the principal religious conflict areas; specifically, the elements of a model statute directed at K-12 educational settings. Among the areas covered are: group meetings and religious exercise; curricular accommodations for objecting religionists; flag salutes and the Pledge of Allegiance; dress and grooming codes; class schedules and release-time programs; student health and safety; the rights of private and home-schooled students; and the rights of religiously committed public education employees over the education of their children.The proposal covers as well issues which are likely to arise in litigation, including: jurisdictional and notice of claim requirements, pleading, claims and defenses, statutes of limitations, and remedies available for violations of the Act, including fees and costs. This legislative proposal embodies principles which are intended to: (1) overcome, within Establishment Clause limits, the unfair burdens which religious believers have experienced; (2) allow educational agencies to perform their core pedagogical functions; (3) give express notice to educational agencies what they are required to do and what conduct of theirs is proscribed; and (4) encourage religious tolerance.