The Breakdown of the Distinction Between the Public, Secular Private, and Religious Spheres in Education Law and Policy

Abstract

Background: Over the past decade, courts increasingly have considered cases that involve clashes between public, secular private, and religious institutions in education. Such clashes appear to have intensified as recently as the 2019–2020 Supreme Court term, and the confirmation of Associate Justice Amy Coney Barrett to the Court in 2020 suggests that issues centered on these institutions will continue to receive significant judicial attention. While these recent cases have focused on a range of education law and policy issues, some have focused on arguably the most fundamental legal issues applicable to such schools—the instances in which the legal distinctions between public, secular private, and religious schools are strong or weak. Purpose: This study examines three recent, major federal cases as both historical and legal cases to highlight the restructuring of the distinctions among public, secular private, and religions schools in the institutional setting of the courts. I examine how the courts have historically structured these distinctions; how these three recent cases have restructured these distinctions; and the education law and policy implications moving forward. Research Design: This article is a legal analysis and historical case study. Findings: Three recent and high-profile education cases reflect a spectrum of how the highest courts have restructured distinctions between public, secular private, and religious schools in a short period. In some instances, courts have blurred the legal distinctions between these types of schools by allowing religious schools to receive governmental support even in situations in which states have directly attempted to exclude institutions like them from receiving such support. In other instances, courts have strengthened these distinctions by differentiating how public, secular private, and religious schools are treated with respect to their abilities to discriminate. Conclusion: Taken together, the three cases underscore the intensifying attention of the courts to restructuring the distinctions between the public, secular private, and religious spheres in education. These distinctions reflect judicial engagement with major educational and political goals, such as pluralism, communality, and discrimination, and are grounded in a long history of courts’ involvement in this field. Especially in a field characterized by highly politicized debates, attention to the distinction between the public, secular private, and religious spheres in education is critical for understanding how and why fundamental educational policy decisions have been and continue to be made.