Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Javier Martínez Torrón, (Universidad Complutense), submitted the following reflection, which we are delighted to publish here:

Introductory note on conceptual issues: public and private education 

I. A frequent confusion 

When the issue of education is addressed in academic circles, in the political discourse, or even in the context of colloquial conversations, it is usual to make an essential distinction between public schools and private schools¹. Often, the dichotomy public and private schools is presented as implying that there is some sort of opposition between those two types of schools, not only with regard to their nature but also the goals and interests they pursue, as if they were different or even diverging.  

The terminology “public and private schools” may be confusing in a way that can affect the approach to the issue of public funding of schools, as well as some other aspects of the basic notions about education and the educational system. For that reason, I think it would be important to clarify some points about the nature of education and the State’s role in it.  

Two ideas — sometimes forgotten — seem particularly significant to me. First, the education offered by the national educational system is always public to some extent; irrespective of which schools provide it, education is a public service that concerns the entire society. Second, the term “public” should not be understood as synonymous with “State owned” or “State managed”; public implies the notion that something should be controlled by society, and society is not equivalent to the State or State authorities. 

For those reasons, it has been often suggested that a more precise terminology would be “schools managed by the State” and “schools managed by private institutions”. In my opinion, thereis no problem in using the usual terminology — public and private schools — provided that we know what we mean by those terms and we do not incur confusion. 

Let us see some of the consequences of the above remarks. 

II. Public funding of private schools: a matter of quality and equality 

Some of those consequences regard private schools. If we conceive education as a public service, the fact that a school is owned or run by a private institution — religious or not — does not give that school carte blanche to do whatever it wants. Private schools do not have an unrestricted right to teach anything, or to choose what not to teach, or to organize the school system and environment. They certainly have the right to their own ethos, and to have that ethos permeating the entire school system and practices; this will necessarily have an impact on issues such as the teaching program and textbooks, as well as the admission of students and the recruitment teachers. But private schools also have a responsibility towards society, and therefore they have accountability. Such responsibility and accountability are in connection with the role of State authorities, which are competent to regulate education and to design the educational system, both for public and private schools. This, however, does not give in turn State authorities a limitless power in the area of education. I will return to this point later. 

From this perspective, it is difficult to understand why there should be any constitutional or legal problem in allocating public funds for the maintenance and functioning of private schools, including those with a religious ethos. They provide the same public service as public schools; they just do it in a different way. The school ownership or management do not change the nature of the service provided. The purpose of public funding is to guarantee that the public service of education is provided with the quality that society expects from it, and that all citizens have equal access to such public service. Again: the notion of public money does not imply that the State is the owner of it; the State is just its administrator, an agent of society.  

Quality and equality should be the main points of reference in this area. Who is the owner or manager of a school should be secondary, or even irrelevant. Except for some extreme political positions, these notions are normally understood in European countries, most of which have a tradition of funding private schools (i.e., schools run by institutions other than the State) with public money, under certain conditions. In the US, the situation is less clear, due to some Supreme Court judgments declaring unconstitutional, as contrary to the establishment clause, the use of public money to support religious schools². Even though the trend in the Supreme Court has gone in the opposite direction for a few years, in some US legal and political circles there is still some belief — as a sort of dogma — in the unconstitutionality of devoting any public money to private schools, especially if they are religious. Such approach, in my view, goes against the rights of parents to decide on the religious and moral orientation of their children’s education, as well as against the principle of equality — why should religious schools be discriminated with regard to other schools (public or private) when they provide the same service and have been freely chosen by parents?  

One of the issues often raised when discussing the public funding of religious schools is that of the State’s religious neutrality — if the State is not supposed to support any particular religion, or even religion in general over non-religion, it should not give money to religious schools, as this would be a way to support religion. However, this argument forgets that the fact that the State itself is religiously neutral does not mean that neutrality has to be a characteristic of each and every institution providing a public service. Religious neutrality is a feature — and a duty — of the State but not of the public service itself, including education. What States must guarantee, as a consequence of their religious neutrality, is that no citizen is prevented from receiving such public service because of his religion or belief, and that no parent is obliged to accept for his children a type of education that is in violation of his religious or philosophical beliefs. 

III. The limited competences of governments on education, especially when values are concerned 

Some other consequences of my two initial statements relate to the conception of the State’s role in education. On the one hand, it is society, not just the State authorities, who is responsible for public schools. Therefore, it is important that, when managing public schools, State authorities act in consultation with the civil society, especially the students’ parents and other members of the school community. 

On the other hand, from a more general perspective, such consultation should be a characteristic of all government’s action in the area of education, once we assume that the State’s role in education is limited. As indicated above, State authorities do not have a limitless power over the educational system. Indeed, this point, in my opinion, has not been sufficiently addressed in international documents, which seem too deferent to the self-understanding that national States have of their role and competences in the realm of education. Thus, for example, the European Convention on Human Rights, when dealing with the right to education and parent’s rights with regard to their children’s education, refers to “any functions” that States assume “in relation to education and to teaching”; there is no indication that no one but the States themselves will define which those functions would be, and therefore the Convention does not provide clear guidance about any possible limitation on the States’ self-definition of their competences³. 

In my view, the conception of the State’s role in education must depart from an essential premise: the aim and raison d’être of the national system of education understood as a public service is to educate citizens — especially the youth — to live in community. This includes a general cultural education, professional education, and education on commonly shared civic values. The purpose of a national system of education should not be instructing about how to be a good person — but just a good citizen — or about what is the meaning of one’s life. Thisfundamental idea, so often forgotten, should be taken into account when designing school curricula for public and private schools, particularly in areas with a stronger moral profile or more ethical implications.  

In other words, governments do not have complete freedom to organize the national education system in whatever way they like or fits better their political or ideological agendas. They must be aware of their limitations, which include parents’ rights. And, even prior to that, governments must assume that their role in planning and implementing the education of youth is limited. It is important to keep this in mind, because it often happens that “enlightened” officials and experts tend to enlarge State’s competences on education, and feel entitled to teach members of society what is best for the education of their children as persons. 

Certainly, the education of youth has to do with values and not only with providing information and helping develop skills. The value side of education is precisely the one that most frequently raises concern in families, for it is closely linked to the realm of morals. In this area, it is legitimate for States — and perhaps necessary — to teach about values that are part ofpublic morals or about commonly shared values. Conversely, States do not have legitimacy to teach about ethical values concerning people’s choices strictly related to their destiny or the meaning of their lives. This is the role of families and, if that is the individual’s choice, religious or belief communities.  

Such limitations on the State’s function vis-à-vis education is in direct connection with its religious neutrality, which in turn is a consequence of the State’s incompetence to make judgments on the truth or falsity of religious and comparable doctrines⁴. The realm of the State is not the truth but the good, and this circumscribed to interpersonal relationships, i.e., to the living together of citizens under its jurisdiction. The State’s religious neutrality is also a relative moral neutrality, which compels governments to refrain from invading the sphere of strictly personal moral choices. This is the reason why teaching programs or courses designed by State officials cannot interfere with personal morals. The only morals that governments are entitled to transmit through the educational system are those embedded in the fundamental international human rights documents, the Constitution, and the legal system, as well as in commonly shared values. Nothing else. 

Such remarks are pertinent when we consider the recent proliferation of new courses in the school curricula of many countries: about sex education, and about citizenship, which often include contents concerning human emotions, affectivity, and moral choices in extremely delicate matters. Many of such courses generate social division and cause strong social reaction, which is a clear sign that the values they teach are not commonly shared⁵. 

IV. The State’s neutrality and how to address morally sensitive issues 

The State’s religious neutrality has also consequences with respect to the way certain morally sensitive issues are addressed at school, such as religion, the beginning and end of human life, sex, or sexual identity. The teaching about such subjects — which is no doubt difficult but is at the same time necessary — has created numerous controversies, and the question they bring up is: are controversies caused by the attitude of stubborn and reactionary parents or rather by invasive educational policies aimed at imposing a particular moral view on students? 

Such type of teaching raises issues not dissimilar from those derived from neutral teaching about religions or beliefs⁶. Teachers in charge of those courses need academic competence and moral integrity, so that sound scholarship goes hand in hand with impartiality and the endeavor not to cross the boundaries that separate legitimate school activity from the sphere reserved to private moral choices. And, as there is always the risk of abuse, a proper school system should have mechanisms of control — ex ante and ex post — that are efficient and agile.  

Both teachers and academic programs must recognize the moral dimension or profile of sensitive topics and be very honest about it. Indeed, ignoring such moral dimension implies a moral positioning, and presenting it as the only valid or objective view would be an unacceptable moral indoctrination of students. For the same reason, it is important to make the appropriatedistinctions. For example, adolescents can learn about the essentials of reproduction and contraception, but they should not be taught that those areas are morally irrelevant. Just the opposite, their moral dimension should be emphasized, noting that each person is entitled to take his own choices or sides, and it is not the school’s function to tell students anything in that regard. Moral choices in the area of sexuality are their problem, and this is something they should discuss with whomever they want, e.g., their families, their friends, or their religious communities. The same applies to sexual orientation or identity: teaching that all people have equal rights and equal dignity irrespective of their sexual identity or orientation does not entail denying that some sexual behaviors may be in conflict with some religious or moral choices. Such conflicts exist, and it does not mean that those religious or moral choices are illegitimate or bad, for the realm of law and personal ethics should not be confused, and we should be careful not to make them equivalent or transplant values from one to the other as if itwere inconsequential.  

Many of the difficulties that arise in the teaching of morally sensitive issues could be solved if the State authorities with competences on education engage in a proper dialoguing and cooperation process with the civil society⁷. The main stakeholders are families, but also religious and belief communities should be considered. Such dialogue requires empathy and a delicate combination of firmness in keeping some basic ethical values that structure society and flexibility to accommodate a diversity of beliefs as much as possible. In other words, holding on to the essential while negotiating everything else, and keeping in mind that sometimes the best is the enemy of the good; i.e., that pursuing the ideal educational system at the expense of ignoring the legitimate choices of families and religious communities is not a sensible policy because it is bound to create social division, and education should generate social harmony. 

This dialoguing process is not necessarily easy; indeed, it is often arduous and time-consuming. But the most valuable things are difficult to achieve. Guaranteeing freedom is complex.Authoritarianism is much simpler, but that fact does not make it better. 

1. There are, of course, further distinctions and terms. And as in some national contexts as the United Kingdom, the term “public school” has a meaning which is different from the one taken into account in this paper. ↩︎
2. See especially Lemon v. Kurtzman, 403 U.S. 602 (1971).. ↩︎
3. This is the text of article 2 of the Protocol to the European Convention: “Right to education. — No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. ↩︎
4. For a more developed explanation of my ideas in this regard, see J. Martínez-Torrón, “State Neutrality and Religious Plurality in Europe”, in W.C. Durham Jr. & D. Thayer (eds.), Religion, Pluralism, and Reconciling Difference, Routledge, 2018, pp. 159-176.  ↩︎
5. The fact that some teaching causes a strong social reaction in a particular national context is not necessarily a sign that it should be avoided or is not necessary. Sometimes it is just the opposite — think, for instance, of the fight against racism in the US in the 1960’s — but the government will need a solid legal and ethical justification to try to rectify some social tendencies through the education system.  ↩︎
6. See the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, OSCE/ODIHR, 2007. ↩︎
7. See ibid.., chapter V, pp. 63 ff. ↩︎

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Ariel J. Liberman (Auburn University) submitted the following reflection, which we are delighted to publish here. 

I. Introduction: ‘Hate’ Despite Inclusive Education Policy 

Recent years have seen great exertions from educational ministries across North America and Europe to emphasize inclusivity in the context of public school.  Expressly designed with an aim of combatting discrimination against religious, national, ethnic, and sexual minorities, legislation on inclusive education has been broad and targeted, and involved systemic redesign as well as substantive curricular reforms.  The project is noble and necessary in theory and in practice; there is an avowedly civic benefit to introducing such educational curricula in nations which prize pluralism and require collective engagement from a diverse citizenry. And yet, despite many visionary efforts, ‘inclusivity’ seems to effectively stop at the theoretical.  For instance, we have seen marked increases in incidents of expressed ‘hate’ on school grounds. As a focal point for this paper, we might direct our concern particularly at the rampant hate speech – or even physical violence – directed against religious minorities (as one example) that are taking a political visage. These incidents present a unique problem: more than just immature religious bullying, they exemplify emboldened student proclivities to ‘other,’ exclude, peers on the basis of identity. Worse, we are seeing these students excused for doing so on grounds of free expression, activism, or national values. Schools, in other words, are permitting the incubation of hate; inclusivity is relegated to theory and curricula, never practiced. 

The rising global tide of antisemitism in education offers an example. Such ‘hate’ against Jews often stems from a perceived political, historical dual-loyalty to their community, or, more contemporarily, connection to the State of Israel. Across the world, the denial of Jewish identity, the expression of antisemitic tropes disguised as political speech, and the marginalization of Jewish voices in educational spaces have become mainstay, legitimated by teachers in classrooms as anti-Zionism.  

Consider one example out of California. By 2022, dozens of states in America had championed ‘inclusive education’ policies, with California having served as a thought-leader championing the advent of mandatory ‘ethnic studies’ curricula across lower schools dedicating to educating students on “marginalized groups” and their contributions to America. The proposal raised expressly that “school curricula must not only provide content knowledge but must also equip students with the tools to promote understanding as community members in a changing democratic society.”  And, yet, by some accounts California boasted the highest percentage increase in antisemitic incidents across K-12 classroom spaces in the country. A great percentage are attributed to the equating of Jews with the entity of Israel at a time when hostilities in that region received international media attention.  More, teachers were supportive, excusing absences and touting their own positions on grounds of protecting democratic engagement and perceived political expression. To them students coalesce as young Americans exercising constitutional freedoms to stand with Palestinians. This is laudable and patriotic, deserving protection despite virulently hateful overtones.  

I seek to raise for discussion the problem of hate in schools – legitimized by teacher and administration in our primary and secondary education either affirmatively or by silence – and disguised as political expression or aligned with advocacy. I try to discuss it as a function of ‘inclusive education’ policy and ask: how can hate, as expressed by children – even in ‘inclusive’ environments– be protected, encouraged, and defended under the color of national values and in spite of ‘inclusive’ educational efforts? Is it a necessary evil to protect other important pillars in education, particularly academic freedom?  

There are a few normative arguments that I hope to raise in taking the above position. First, I argue that there exists a fundamental dissonance between the vision of inclusive education espoused at the highest legislative levels in many nations and the practical realities of implementation of ‘inclusive communities’ at local levels. It is this dissonance that allows ‘hate’ to remain in schools – even ensuring that ‘hate’ thrives. In addressing the issue, I argue in favor of top-level mandates that expand the of principle of ‘inclusive education’ at the primary and secondary level to contemplate ‘teach-not-to-hate’ curricula, representing a larger social and moral imperative to combat expressions of hate which justifies necessary limits on ‘academic freedom’ – or, in the case of K-12 schooling – local implementation and teacher discretion in content instruction.  

II. Teacher Responsibility in Incubating ‘Hate’ in Lower School Contexts 

Teachers are responsible for so much of a child’s identity and values formation. The public-school space uniquely checks lessons learned in the home, church, or community; at school, one learns to be a citizen in a broader sense. Research further affirms the relationship between teachers’ attitudes, self-efficacy, and the ultimate implementation of any top-level education policy.  They are responsible for teaching inclusively and cultivating inclusive environments. And, by extension, I posit they are responsible for excising hate in the classroom. This, I trust, is not too radical a view. 

But what does it really mean to be responsible for inclusivity? There are varied definitions of ‘teacher responsibility,’ and most carry both internal and external dimensions. Internally, to be ‘responsible’ is to believe (or at least buy-in) in the inclusive education project.  Externally, the teacher must be held accountable to it by some measure.  Turning back to the problem of permitting or justifying ‘hate’ in primary and secondary school spaces, we might analyze the phenomenon as a function of teacher responsibility. 

One explanation for administrators permitting ‘hatred’ – as speech, as physical violence, as intimidation – against selected students on the basis of their identity could always be that teachers simply do not really believe in the idea of ‘inclusion,’ or the policy project. But this, I would wager, is not the case.  When it comes to addressing incidents of hate, teachers must objectively respond as trained professionals. Yet, what constitutes ‘hate’ is adjudged by a highly individual measure. Qualitative research supports that “teachers [experience difficulty] distinguishing appropriate speech from hate speech, [or else] will not necessarily recognize subtle forms of hate speech or trivialize the phenomenon.” 

Their own prejudice emboldens them to engage – or, if not engage, then witness without intervening – in the ‘hate.’ In Ontario, Canada, for instance, “nearly 16% of reported incidents of antisemitism involved anti-Israel actions or activities supported or organized by teachers or school administrators.” In 2024, a major rights group in Berlin, Germany assessed the 20% of their caseload involved addressed incidents of Islamophobic expression by educational staff. Put another way, where teachers are the ultimate arbiters of what constitutes hate.   

Additionally, teachers’ own internal impression of what should constitute ‘hate’ is often colored by the endorsed positions of the teachers’ unions and local associations to which they belong.  it is these local associations and unions which often have a principal role in evaluating and engaging teachers, and, from a policy perspective, influencing the implementation of top-level inclusive education policy regimes (environmental and curricular). This thereby impacts the ‘external’ dimensions of the teacher responsibility calculus. In other words, teachers’ unions often provide the lenses by which teachers and administrators judge teachers’ reactions to ‘hate’, and even their determinations as to what is ‘hate.’  

In an American congressional hearing on antisemitism, one witness reported that “teachers’ unions have a significant role in spreading [hateful] ideologies” by encouraging and endorsing the “introduction of antisemitic and anti-Israel content into the classroom.” In California, particularly, one union encouraged teachers’ use of an unapproved ‘Teach Palestine’ curriculum which problematically characterized Zionism, touted Jewish global conspiracy tropes, and related these back to American experiences of settler-colonialism. The union actively combatted legislation aimed at blocking such antisemitic materials in classes required for students’ graduation, and upheld that, as a union, they “have the right to support Hamas as part of its political activism.” 

In these ways, both ‘belief’ in the project of inclusion and the ‘measures’ by which we can assess teachers’ activities have become compromised.  Teachers, in many ways, are preempted from appreciating certain manifestations of ‘hate’ on campus or reacting to it with appropriate severity. Further, they become unable to secure a classroom environment which allows for effective, inclusive engagement with “hate” so long as they engage such curricula which alienate Jewish students.  

This reality impacts the project of a truly inclusive education. I argue therefore that policy regimes which overly defer ‘responsibility’ to teachers, administrators and local boards in executing plans for ‘inclusive education’ projects is not only ineffective in actually assuring against the persistence of ‘hate’ in schools but potentially offers an invitation for fostering this hate. It is the position of this author that ‘responsibility’ in determining curricula in certain areas be subsumed back to higher levels. 

III. Measuring A Social and Moral Imperative in Lower Schools Against Teachers’ Academic Freedom 

What I propose is a top-down legislative mandate for a ‘no-hate curriculum,’ an affirmatively imposed obligation on teachers and local boards – under threat of financial sanction – to vet curricula which may nurture hate and exclusion, combat physical incidents of hate, and promote inclusivity in a broader sense. But is this appropriately contemplated as part of the broader inclusive education project? Let us first focus on one major concern: that such a mandate has repercussions on academic freedom.   

Recently, California has played host to a path-breaking attempt to legislatively combat the rising tide of ‘hate’ in their primary and secondary school spaces.  Assembly Bill 715 (AB 715), the Antisemitism and Civil Rights Bill, was passed by the legislature in September 2025, and signed by the Governor in October 2025.  A brief glimpse of AB 715 draws one’s focus to the bill’s outright prohibition of instructional materials which “would subject a pupil to unlawful discrimination,” expansion upon law that “afford[s] all persons in public schools . . . equal rights and opportunities in the educational institutions of the state,” assurance that teacher instruction be “factually accurate and align with the adopted curriculum,” and setting of broader guideposts which articulate the bounds of “discriminatory bias.” AB 715 represents an attempt at broadly proscribing the contours of ‘inclusive education;’ it is a statement that some ideas ought not be introduced in schools, and that certain principles ought be prioritized. 

I will outline those principles in a moment but first let us consider the chief opposition to AB 715. The California Teachers Association (CTA) offers one scathing rebuke: a failure to honor a full, robust interpretation of teachers’ academic freedom. CTA reads ‘academic freedom’ as meaning “the ability of educators to ensure that instruction includes perspectives and materials that reflect the cultural and ethnic diversity of all of California’s students,” and contemplating “the rights of educators to assist students in developing critical thinking skills by exploring and discussing divergent points of view.” The provisions of AB 715 which delimit instructional materials on the basis of “factual accuracy” introduces a subjective standard which inherently privileges some students’ points of view over others, they argue. Mara Harvey notes that a teacher’s work requires “trust, nuance and open dialogue. [AB 715] undermines a real fight against antisemitism by conflating legitimate political debate with hate speech.” 

Indeed, it is derivative to some extent of the discussions in the higher education sphere in the United States and Europe. Such restrictions, some argue, will simply discourage teachers and students from engaging in controversial discussion on Israel, reading materials, or having their beliefs on the subject challenged.  And, yet, unlike the case for higher education, the case for robust academic freedom at this schooling levels remains unconvincing.   

This position comes down, in many ways, to a question of balancing values.  The educational principles at play are myriad: instillment of factual, descriptive knowledge, prevention of discriminatory conduct, but also moral and civic objectives. Morally, such legislation posits that a priority in early school is to cull that impulse to hate, to teach with a mind toward connecting. Complimentarily, a civic goal is to empower freedom of religion and bolster freedom of expression, though without isolating, vilifying, demeaning fellow citizens.  It is in our civic interests to live harmoniously together, and to educate children toward coexistence.  Further, such initiatives maintain that educating for coexistence, preserving child’s safety and well-being, and fostering connection through learning, ought to be weighed more heavily than other values, like a teacher’s academic freedom. 

AB 715 has its flaws, but it is a guardrail against material and instruction which isolates fellow students.  They promote, implicitly, the value of co-existence citizen-to-citizen. Of course, this does not mean shying away from difficult conversations or engaging controversy in the classroom. Rather, students ought to learn about injustice, protest, resistance alongside values like honesty, respect, empathy, temperance, responsibility, and kindness. When the student is set to engage “sensitive geopolitical issues,” the goal shifts away from galvanizing them toward a position on an issue and toward facilitating conversation and understanding.  

In short, as the identities of future citizens are being forged, certain educational and civic values ought to take prescience over curricular protection. It belies the assumption that children need first be educating in how to navigate conflict as a part of a broader civic ecosystem with diverse citizens, without hate, before being invited to engage in taking sides in a controversial debate. School, ought to be foremost a place of safety; it ought to be a check modulating minds towards harmony as a civic virtue for the sake of peace coexistence in a democracy.  

IV. Conclusion: National Prescriptive Mandates and the Inclusive Education Project 

Taken together, these ideals – the reality of heightened incidents of hate in primary and secondary school spaces, the failures of teacher ‘responsibility’ in effectively ensuring inclusive environments, and a demand that primary and secondary school spaces primarily honor civic values of coexistence– counsel in favor of prescriptive mandates like California’s AB 715. AB 715 is also unique in its effort to allocate resources toward ensuring proper enforcement of this new view on ‘inclusive education’ at a higher level. it is geared to actively fight existing antisemitism on school grounds.  This bill, in particular, establishes a new Office of Civil Rights and funds an Antisemitism Prevention Coordinator. It also requires districts to investigate and take corrective action when discriminatory content is used in education. the power of this prescriptive mandate also lies in returning authority from local teachers and to statewide actors over those ‘external measures’ by which one responds to ‘hate.’ 

But perhaps we must go farther than AB 715 does. More than simply prohibiting certain cirricula (i.e., ensuring a ‘no-hate curriculum), legislative action ought to oblige affirmatively that teachers ‘teach not to hate;’ they ought to channel a clear social, moral and civic imperative to ‘teach not to hate’ in schools.  On this score, Germany’s legislative history on antisemitism offers interesting guidance.  

In 2021, Germany’s Standing Conference of the Ministers of Education and Cultural Affairs issued a joint recommendation which mobilized a clear definition of antisemitism  to provide “orientation for dealing with different forms of antisemitism, describes their effects and highlights prevention and intervention measures.” Directed at “classroom teachers and other educators at schools of all kinds and levels,” the recommendation is distinctive in its discursive tenor – bringing educators into conversation with legislators, rather than projecting a top-down mandate, but moored in a more concrete ideal of a hate-free school. “Open, free and democratic societies based on the rule of law,” the recommendation maintains, are seriously threatened by antisemitism, and indeed any form of hate, and the “schools’ mission [is to] instill maturity and a sense of responsibility in children and young people” to prevent and combat hate. 

The recommendation offers specific guidance on how administrators and teachers effectively combat antisemitism on the ground, prescriptions for fighting ‘hate’ by way of cultivating “civic courage and argumentative strategies” and emphasizing the essentiality of a “respectful and open learning environment.” 

While detractors of this recommendation and other pieces of legislation proffer similar counterarguments previously discussed, the profundity of Germany’s formally articulation hatred’s manifestations and affirmation of a democratic obligation to avoid it, is striking. Is this a model to which legislators should take heed? Or is this too much of an infringement on academic freedom? 

While the extent and definiteness of any prescriptive mandate is open to debate, the broader notion that such a ‘prescriptive mandate’ is needed, is clear, Obvious tensions will arise, but the position more satisfies the ultimate objectives of education for a plural democracy. and principally ensures a more accurate realization of the vision of ‘inclusive education.’ 

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Alessandra Lazzarini (University of Padua) submitted the following reflection, which we are delighted to publish here.

1. Introduction  

The contention over the dismissal of faculty members in U.S. religiously-affiliated universities suggest that the scholarship and the case law on academic and religious freedom do not seem to provide a roadmap to reconcile the claim of academic freedom of professors with the autonomy of religious institutions. Unlike the strong protection of religious freedom offered by the First Amendment, academic freedom is the offspring of the decades-long efforts of the AAUP (American Association of University Professors) and of the ambivalent case law of the Supreme Court of the United States. 

Academic freedom has two dimensions: individual academic freedom, which is the freedom of the individual faculty members; and institutional academic freedom, which is the freedom of the institution to pursue its mission and to be free from outside control. Thus, both the university and its professors possess (at least in theory) academic freedom as well as religious freedom; sometimes these protections overlap or align, but other times they clash. For example, in 2016 Wheaton College dismissed Professor Hawkins because she said publicly “I stand in religious solidarity with Muslims because they […] are people of the Book” and wore a headscarf as a symbol of solidarity. While this statement was perceived by many as inclusive, Wheaton College regarded it as raising significant theological concerns and as inconsistent with, if not contrary to, the institution’s mission and vision. Professor Hawkins and the College later reached an agreement outside of court. 

In this short piece, I consider what happens when such disputes are actually litigated by reflecting on the tensions between the institutional academic freedom through which religious universities preserve their mission and the individual academic freedom of professors in U.S. dismissal cases, with a focus on the so called “ministerial exception” doctrine.  

2. Individual and institutional academic freedom 

The most authoritative and consequential statement on academic freedom in the United States issued by a private institution is the 1940 Statement on Academic Freedom of the AAUP. The Statement does not mention the institutional dimension and reports the three principal aspects of the individual academic freedom of faculty members: “full freedom in research and in the publication of the results,” “freedom in the classroom in discussing their subject,” and freedom from “institutional censorship or discipline» when they «speak or write as citizens.” The 1940 Statement, however, did not require religious institutions to adopt this conception of academic freedom. In fact, the Statement simply reads: “Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.” Hence, the “Limitations Clause” allowed religious colleges and universities to implement autonomous principles and policies, provided that such restrictions were explicitly disclosed in advance.  

However, subsequent attempts by the AAUP to refine this position generated more tensions between individual and institutional academic freedom. In 1970 the AAUP added a footnote to the Limitations Clause of the 1940 Statement: “Most church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.” From this moment on, the distance between the position of the AAUP and the right of religious universities to uphold their faith has been widening. In 1988 a subcommittee of the AAUP stated that “an institution has no ‘right’ under the 1940 Statement simultaneously to invoke the Limitations Clause and to claim that it is an institution of learning to be classed with institutions that impose no such restriction.” Hence, the Limitations Clause works as a switch: universities relying on it lose the status of member of the higher education community. Furthermore, through the decades the AAUP has conducted numerous investigations of religious colleges and universities to ensure respect for the principles of academic freedom, and these institutions continue to be included in the “censure list,” often with no regard for the religious institution’s need to preserve its own identity. In a few words, the AAUP has progressively espoused an “all or nothing” view that sees individual and institutional academic freedom as alternatives. This view has exacerbated political controversies and criticism whenever a professor is dismissed by a religious higher education institution, as the AAUP has constantly sided with the former without advocating any real protection to the latter.  

The Supreme Court first recognized the principle of individual academic freedom during the McCarthy era when it affirmed that it “is a special concern of the First Amendment,” thus providing some protection to communist professors from unjustified dismissal and pressures. The Supreme Court’s decisions in the field have grounded academic freedom in freedom of expression, but they have been more rhetorical than practical, as they did have not provided a clear understanding of what this right actually guarantees to professors. Furthermore, because of the “state action” doctrine, the First Amendment can limit the internal authority of a university only if its administrators can be characterized as exercising state powers. Therefore, only faculty members of state universities enjoy substantial and procedural constitutional rights against their institutions. Since the 60% of higher education institutions in the United States is private and one in five U.S. colleges has ties to a religious organization, the First Amendment’s jurisprudence cannot afford a real protection for faculty members of private institutions, particularly in cases of dismissal from denominational universities.  

The Supreme Court has never pivoted around the concept of individual academic freedom. The Court has instead developed an institutional model of academic freedom. In the Court’s case law, institutional academic freedom guarantees “the exclusion of governmental intervention in the intellectual life of a university” and includes a university’s “four essential freedoms”: ‘to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'” Furthermore, the lower Courts have repeatedly echoed this approach and affirmed that the institutional dimension should prevail and that the individual one has never been endorsed by the Supreme Court: “The Supreme Court […] appears to have recognized only an institutional right of self-governance in academic affairs. […] It was not focusing on the individual rights of teachers.” Thus, the existing jurisprudence on academic freedom offers no meaningful protection in cases of dismissal, especially since it does not shield even faculty members at public universities. In order to warrant some protection to academics, the lower Courts have begun to apply the Supreme Court’s jurisprudence on the free speech rights on the workplace of public employees, with ambivalent results.  

3. The ministerial exception  

For the First Amendment, religious organizations, including those of higher education, must be free to pursue their mission. Put differently, through its Free Exercise and Establishment Clauses, the First Amendment guarantees the institutional academic freedom of religious colleges and universities. Yet, the very mechanism that protect this autonomy, i.e. the ministerial exception, overrides the individual academic freedom of professors. Furthermore, this legal doctrine was primarily developed by the Supreme Court in the context of K-12 education, where individual academic freedom is not a recognized value.  

The ministerial exception bars an individual from suing for employment-related discrimination if a religious institution employs the individual and deems him or her to be a “minister.” In 2012, the Supreme Court in Hosanna-Tabor Lutheran Church and School v. EEOC recognized for the first time the exception grounding it on both the Establishment and the Free Exercise Clauses. Eight years later, the Court reaffirmed and reinforced its approach in Our Lady of Guadalupe School v. Morrissey-Berru. Both cases concerned teachers dismissed by a religious elementary school and the central legal question was when the teacher could be considered a “minister.” In Hosanna-Tabor the Court did not adopt a “rigid formula” in order to decide if the plaintiff (whom the school considered as a ‘called’ teacher) was a minister. However, it took into account four factors: “(1) she had the title of “minister,” (2) her position had a significant degree of religious training, (3) she held herself out as a minister, and (4) her duties reflected the Church’s message.” The Court stated that because of her status of called teacher, she should be considered a minister and that «by imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions».  

In Our Lady of Guadalupe the Court reasoned that, while they did not have the title of “minister,” the teachers still served as ministers for purposes of the ministerial exception because they carried out certain teaching responsibilities that were within the scope of a “minister” and analogous to those employed by the teacher in Hosanna-Tabor. Furthermore, the Court stressed that “What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission.”  

In the years following Hosanna-Tabor and Our Lady of Guadalupe, lower courts have applied these decisions in numerous dismissal cases involving professors and their religious universities (see some examples here, here, and here). However, the outcomes have been quite divergent, highlighting the difficulty of applying jurisprudence originally developed for the K–12 education system to the context of higher education and the resulting discretion left to the courts. Amid this uncertainty, in 2022 the Supreme Court denied certiorari in Gordon College v. DeWeese-Boyd, a case litigated in the Massachusetts state courts which involved an affiliated religious higher education institution and its professor, who had been denied promotion to full professor. The Massachusetts Supreme Judicial Court stressed that the U.S. Supreme Court in Hosanna-Tabor and Our Lady of Guadalupe adopted a “functional analysis” for determining whether an employee is a minister within the meaning of the exception. And it stated that DeWeese-Boyd “was, first and foremost, a professor of social work. She taught classes on sustainability and general social work practice and oversaw practicums.”  Furthermore, unlike the Hosanna-Tabor and Our Lady of Guadalupe cases, DeWeese-Boyd had no obligation to engage in specifically religious duties. Finally, the Court noted that “a faculty member with DeWeese Boyd’s responsibilities at Gordon is significantly different from the ordained ministers or teachers of religion at primary or secondary schools in the cases that have come before the Supreme Court” and it concluded that “the significant expansion of the ministerial exception doctrine requested by Gordon is not dictated nor, do we believe, directed by existing Supreme Court precedent. It is our understanding that the ministerial exception has been carefully circumscribed to avoid any unnecessary conflict with civil law.”  

In 2022, the Supreme Court denied certiorari to the aforementioned ruling and, in a statement “Respecting the denial of certiorari”, Justice Alito, joined by Justices Thomas, Kavanaugh, and Barrett, commented on the merits of the case. In this statement the Court described as “troubling and narrow” the vision of religious education developed by the Massachusetts JSC. Furthermore, in the Court’s arguments there is an evident shift from a focus on the minister’s figure to the “autonomy” of the religious institution in defining the content and method of its religious instruction. Quoting Our Lady of Guadalupe the Court stated: “The Religion Clauses of the First Amendment sometimes forbid courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith.'” Thus, the Court’s criterion consists in the total deference to the higher education institution.  

4. Conclusions 

The individual academic freedom of professors emerges as an important value in legal scholarship but lacks support in the First Amendment’s jurisprudence. Conversely, the Supreme Court has repeatedly recognized the institutional academic and religious freedom of religious institutions. The AAUP’s emphasis on the individual freedom of faculty members overlooks the institutional perspective, while the ministerial exception’s jurisprudence does not consider the specificities of institutions of higher education. Indeed, if the Court’s reasoning prevails, faculty members at religious institutions would be left without meaningful legal protections. As employees of private institutions, they would not benefit even from the already weak guarantees of academic freedom. Nor could they seek protection under anti-discrimination laws, since the university has unilaterally classified them as “ministers”.  

Two significant steps seems to be available to safeguard both individual academic freedom and the institution’s confessional identity. First, the AAUP may reconsider their position and appreciate that the institutional dimension of academic freedom is an essential feature of the First Amendment. Second, courts could diversify the K-12 education system from the higher education context in their decisions. Indeed, college students are no lo longer children. They have the possibility to choose which university to enroll in, and even whether to attend university in the first place. Furthermore, mature students should be engaged in critical thinking. The Supreme Court has long acknowledged these positions in its broader academic freedom jurisprudence (for example here, here, and here); applying them to the dismissal cases in denominational universities could fundamentally transform how courts evaluate the rights of university faculty.  

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Weronika Kudła (Pontifical University of John Paul II) submitted the following reflection, which we are delighted to publish here.

I. Religious Education in Public Schools: Lessons from Poland

In most EU countries religious education is present in public schools, often organized in cooperation with religious authorities and financed by the state. Only in four Member States—France (outside Alsace–Moselle), Slovenia, Luxembourg, and Bulgaria—religious instruction takes place outside the public school system. Thus, religious education is part of the public school system in 23 EU Member States. In eight countries, it is formally compulsory, although students may usually opt out at their parents’ request (only in Greece and Cyprus are Orthodox pupils required to attend). In fifteen EU countries, including Poland, participation in religion classes is voluntary and depends on a written declaration by parents or older students.

Against a European backdrop increasingly defined by secularism and framed as religious neutrality, Poland stands out as a predominantly Christian country, though some experts note that  Poland seems to be the fastest secularizing country in the world. Recent social, political, and legal shifts make the Polish experience particularly noteworthy in discussions of religion in public education. While this post focuses on schooling, these debates unfold against a backdrop of broader cultural and religious changes in Poland, including declining engagement with the Catholic Church and shifting patterns of religiosity.

Religious education remains firmly embedded in the Polish public school system, yet it has become the focus of legal disputes, administrative interventions, and symbolic controversies. These conflicts reveal deeper constitutional tensions around religious freedom, state impartiality, and cooperation between public authorities and religious communities. Poland’s experience thus offers more than a national story: it functions as a test case, exposing how fragile carefully balanced legal arrangements can become amid political polarization and social anxiety.

II. Cooperation as a Cornerstone

Church–State relations in Poland are structured by four principles enshrined in Article 25 of the Constitution: 1) equality of churches and religious associations, 2) impartiality of public authorities, 3) mutual autonomy, and 4) cooperation for the good of the person and the common good. This model, often described as coordinated separation, rejects both hostility to religion on the one hand and confessional dominance of a single church recognized as the state church on the other. It is also common across Europe and shapes the model of religious education and the limits of freedom of religion or belief in schools.

Article 53 of the Constitution protects freedom of conscience and religion as a personal right rooted in human dignity and, in Article 53(4), explicitly permits churches and other recognized religious associations to provide religious instruction in public schools, provided that others’ freedom of religion or belief is not infringed.

Complementarily, the Preamble to the Education Law  defines education as a common good and stipulates that teaching and upbringing—while respecting the Christian system of values—shall be based on universal principles of ethics. Respect for Christian values in the preamble does not convert education into a confessional enterprise; rather, it guides teleological interpretation in a system that is axiology-aware but constitutionally impartial, not secularist.

These principles are further specified and implemented by ordinary statutes. Religion classes are organized at the request of parents or pupils (after reaching the age of majority), attendance is optional, and students may choose religion, ethics, both, or neither. Curricula and textbooks are developed by religious communities, while teachers—although employed by public schools—require denominational authorization. Beyond the classroom, the law allows voluntary prayer, religious symbols, and participation in religious practices, provided that no coercion occurs. Normatively, the framework is coherent and balanced: it reconciles religious freedom, pluralism, and state impartiality through cooperation rather than exclusion. However, the Polish case demonstrates that strong constitutional principles only produce effective protection when paired with faithful implementation and political consensus; without it, polarization can undermine the practical exercise of rights.

III. Executive Regulation and the Breakdown of Cooperation

Between 2024 and 2025, the Ministry of National Education adopted a series of executive regulations that significantly altered the organization of religious education in public schools. Mixed inter-grade and inter-stage groups are now explicitly permitted. Grades from religion and ethics no longer appear on the school certificate nor are they counted toward the final grade average, following the Regulation of 22 March 2024. The weekly load of religious instruction has been reduced from two lessons to one lesson per week, without the need for prior consent of church authorities. This change, introduced by the Regulation of 17 January 2025, has been particularly criticized for infringing the principle of cooperation, since it was not preceded by the required consultation with religious associations.

Religious communities challenged the Ministry before the Constitutional Tribunal, arguing that the regulations not only affected organizational matters but also interfered with constitutionally protected autonomy and the institutional dimension of freedom of religion. The reasoning of the Constitutional Tribunal in case U 10/24 —which was subsequently reiterated in judgments U 11/24  and U 2/25 —was grounded in a consistent constitutional logic. The Tribunal held that the challenged regulation was unconstitutional in its entirety because it violated the consensual model of regulating Church–State relations guaranteed by Article 25(3) of the Constitution. By adopting executive measures concerning religious education without the agreement required by statutory law, the Ministry breached not only the cooperation principle, but also the principles of legality and the rule of law.

Importantly, the Tribunal emphasized that the disputed provisions went beyond technical organization. By enabling extensive inter-grade and inter-level aggregation of religion classes, the regulation interfered with parents’ constitutional right to ensure the moral and religious upbringing of their children in a manner appropriate to the child’s age and maturity (Article 53(3) in conjunction with Article 48(1) of the Constitution). It also undermined pupils’ right to education adapted to their developmental capacities, making it impossible to tailor religious instruction to differentiated curricula and pedagogical methods.

The Tribunal further found that these organizational changes conflicted with Poland’s international obligations under the Concordat with the Holy See, which guarantees that religious education in public schools is to be conducted in accordance with approved curricula. Finally, the regulation was held to violate the principle of protection of legitimate expectations and the constitutional protection of work, as its abrupt entry into force—following only a one-month vacatio legis—created a real and foreseeable risk of sudden job losses among religion teachers without adequate transitional safeguards. Taken together, the Tribunal’s reasoning confirms that the executive regulations did not merely adjust the framework of religious education, but structurally altered it in a manner incompatible with constitutional guarantees of cooperation, parental rights, legal certainty, and institutional autonomy.

However, these judgments were never published in the Journal of Laws and therefore did not acquire formal legal force (in March 2024, the Polish Parliament adopted a resolution addressing the effects of the 2015–2023 constitutional crisis concerning the Constitutional Tribunal, in which it declared that appointments of several Tribunal judges made between 2015 and 2018 were unconstitutional, that the office of the President of the Tribunal was held without proper authorization, and that numerous judgments are legally defective, a view echoed by the European Commission, which has questioned the Tribunal’s independence under Article 19 TEU).

As a consequence, regulations found to be unconstitutional continue to be applied in practice. Schools, parents, and teachers are left navigating a landscape of conflicting norms, where constitutional guarantees formally remain in place but lack effective protection. This situation exposes a deeper systemic problem. The non-implementation of constitutional judgments transforms freedom of religion in public education from a constitutionally secured right into a matter contingent on current governmental policy. In this way, religious freedom—designed to be shielded from political fluctuation through the mechanism of cooperation—becomes politicized. The Polish case thus demonstrates that even a carefully balanced constitutional framework may lose its normative force when institutional checks fail and political polarization undermines respect for constitutional adjudication.

IV. Legal Instability and Its Social Consequences for Religious Education

Legal instability coincides with rising social anxiety surrounding religion in public schools. For instance, in December 2025, a teacher at a primary school in Kielno allegedly removed a classroom cross and threw it into a trash bin  after students refused to take it down themselves. The incident provoked immediate protests outside the school, involving local politicians, parents, and public figures, and attracted widespread media attention. Importantly, the prosecutor’s office opened an official investigation into the potential offense of offending students’ religious feelings, underscoring the legal significance of the act.

Authorities emphasized the sensitivity of the situation: the Minister of Education warned that religious symbols are being used politically, while local officials ensured psychological and pedagogical support for students and clarified the investigative process. The incident highlights the emotional weight of religious symbols in schools and illustrates how regulatory uncertainty can escalate localized classroom events into broader social and political conflict. It underscores the importance of clear legal guidance and faithful implementation of constitutional guarantees to reduce anxiety, prevent politicization of school life, and maintain trust in educational institutions.

Religion classes scheduled at marginal hours discourage participation and stigmatize both pupils and teachers, amounting to indirect discrimination. Inconsistent local decisions regarding religious symbols, prayers, or celebrations fragment constitutional standards and undermine equality. Polish education law remains largely silent on new educational spaces, such as online learning, where questions of religious expression and neutrality are increasingly pressing.

The lack of a specialized complaint mechanism leaves students, parents, and teachers dependent on general remedies, which are slow and ill-suited to resolve school-level disputes. In this environment, social anxiety magnifies conflicts, showing that constitutional guarantees require both legal clarity and practical mechanisms for their enforcement.

V. From Conflict to Constitutional Lessons

The Polish experience demonstrates that freedom of religion in education cannot be secured by legal text alone. Cooperation between the State and religious communities, faithful implementation of constitutional principles, and sensitivity to social and political dynamics are all essential. At its core, the current crisis is not about whether religion belongs in public schools. It is about how constitutional principles are implemented—and whether they are treated as binding norms or adjustable policy preferences. Poland’s Constitution provides clear answers: denominational teaching is lawful, voluntariness is essential, pluralism must be respected, and cooperation is obligatory. Experiences from recent controversies show that legal frameworks gain meaning only when embedded in a culture of dialogue, procedural transparency, and institutional accountability.

Poland’s experience offers a cautionary lesson for all societies committed to religious freedom: when constitutional guarantees are subject to political manipulation, even a majority faith can find itself under pressure, while minority perspectives can be leveraged to marginalize religion more broadly (see comparative analysis of religious expression in schools in Poland and the United States).

One constructive response would be the establishment of an independent ombudsman for religious freedom in education, tasked with promoting dialogue, fostering tolerance, and guiding administrators, teachers, and students in navigating religious diversity. By investing in education that respects both freedom of conscience and pluralism, societies can prevent the politicization of religious practice and cultivate inclusive, respectful learning environments.

What is at stake is constitutional culture. In the Polish constitutional order, neutrality is not equated with the exclusion of religion from the public sphere. Instead, it is conceived as positive impartiality: the state does not identify with any belief system, but it also does not suppress religious expression or treat it as inherently suspect. This distinction is central to understanding both the legal framework governing religious education in Poland and the controversies that have emerged around it. Neutrality achieved through exclusion breeds conflict, while neutrality grounded in cooperation fosters stability. These questions extend far beyond Poland. They go to the heart of democratic governance in pluralistic societies, reminding us that constitutional law ultimately lives not only in judgments and statutes, but in classrooms, school corridors, and everyday social practice.

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Richard W. Garnett (University of Notre Dame) submitted the following reflection, which we are delighted to publish here. 

In 1947, the Supreme Court of the United States constitutionalized a metaphor taken from a constituent-service letter authored by Thomas Jefferson. When Jefferson, in his 1801 Letter to the Danbury Baptists, professed his “sovereign reverence” for the decision of the American people to constitutionalize church-state “separation,” he supplied what is for many the “authoritative interpretation” of the First Amendment’s Religion Clauses. “No metaphor in American letters,” Prof. Daniel Dreisbach has observed, “has had a greater influence on law and policy than Thomas Jefferson’s ‘wall of separation between church and state.’” 

And yet, as then-Justice William Rehnquist observed in a prescient 1985 dissenting opinion, the “wall” metaphor is “based on bad history” and has “proved all but useless as a guide to sound constitutional adjudication.” The term “cooperation” points to a more promising path. The Constitution of the United States and the history, practices, and traditions of our political community, reveal and call for an appropriate “differentiation” between political and religious authority, that is, between “church” and “state.” They invite us not to search for a “wall” separating the two but instead for the appropriate terms of reasonable and productive cooperation in efforts to secure the common good and human flourishing. 

* * * * * 

The American law of church and state is, to a large extent, the product of political and other struggles over education and, in particular, over the funding of education in Catholic schools. For a long time, the relevant legal doctrines could not be understood apart from American anti-Catholicism, nativism, and nationalism. For several decades in the mid-to-late Twentieth Century, these doctrines were constructed around the “wall of separation” metaphor; more recently, though, the conversation has become one about permissible cooperation. 

During the first half of the nineteenth century, the development and rapid expansion of “common schools” coincided with – and was, in many respects, a reaction to – a dramatic increase in Catholic immigration. Catholic parents and leaders objected to the pervasive Protestant ethos of these schools and sought accommodations from curricular practices that they found burdensome on religious grounds, especially mandatory recitations from the King James Bible. While accommodation occurred in some places, elsewhere, Catholic children were punished when they refused to participate in these recitations. 

When Catholics’ efforts to exercise “voice” failed, they turned to “exit.” As the fiery bishop of New York, “Dagger John” Hughes, explained at the time, the common-school practice of putting Protestant material “into the hands of our own children, and that in part at our expense, was … unjust, unnatural, and at all events to us intolerable. Accordingly, through very great additional sacrifices, we have been obliged to provide schools … in which to educate our children as our conscientious duty required.”  

In the years that followed, equality-based demands for the public funding of Catholic schools increased; these demands also fueled new waves of nativism and conspiracy theories that Catholics were engaged in a concerted effort to destroy American democracy. In 1875, James G. Blaine, then Speaker of the U.S. House of Representatives, proposed an amendment to the U.S. Constitution prohibiting any public funds from flowing to “sectarian” schools. That anti-Catholic animus fueled this effort is widely accepted. While the federal Blaine Amendment narrowly failed to secure approval, Congress thereafter required several new states to adopt similar language in their state constitutions as a condition of statehood. Other states voluntarily amended their own constitutions and, eventually, thirty-seven states’ constitutions included “Baby Blaine” anti-aid Amendments. 

Nativist organizations, including the Ku Klux Klan, wanted to go further. The Klan and allied organizations, including the Masons, joined movements for obligatory public schooling in several states. These efforts were ultimately successful in Oregon, which enacted a law mandating instruction in public schools in 1922. Three years later, in Pierce v. Society of Sisters, the U.S. Supreme Court held that the law violated the due process rights of both parents and private schools: “The fundamental theory of liberty upon which all governments in this Union repose,” the justices said, “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” 

The Pierce decision did not address the question whether the Constitution had anything to say about government assistance to parents seeking to exercise this fundamental right. However, and despite the battles over the public funding of Catholic schools in the nineteenth century, it is clear that local governments, states, and the federal government had, from the time of the Founding, financially supported private religious schools for a variety of reasons and in a number of ways. 

For decades, these practices by and large flew under the federal constitutional radar. That changed with the Supreme Court’s decision in Everson. In that case, the Court considered an Establishment Clause challenge to a New Jersey law authorizing school boards to reimburse parents for the cost of transporting their children to private schools, including religious ones. Upholding the law, the Court made two significant moves that would shape future school-funding litigation: First, the Court “incorporated” the Establishment Clause, holding that it applied to state and local laws as well as federal ones. Second, employing the “wall of separation” metaphor, it held that the clause “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.” Two decades later, in Board of Education v. Allen, the Court relied on this neutrality principle to uphold a New York program that lent textbooks to students attending religious schools, reasoning that the beneficiaries of the program were students, not schools. 

While Everson and Allen took a relatively accommodationist approach to programs providing public benefits to children attending religious schools, the Supreme Court’s Establishment Clause doctrine took a strong “separationist” turn in the early 1970s. Importantly, in Lemon v. Kurtzman (1971), the Court established a three-part test to determine whether a law violated the Establishment Clause. In Lemon the Court concluded that the school-aid programs at issue violated the Establishment Clause due to the potential for excessive entanglement, and found that monitoring the secular content of instruction would require substantial, ongoing state oversight. Two years later, in Committee for Public Education & Religious Liberty v. Nyquist (1973), the Court used the Lemon test to invalidate a New York tuition reimbursement and tax benefit program for parents of private school students on the ground that the financial aid would “advance religion.”  

Thereafter, the Court repeatedly held that a variety of public-benefit programs violated the Lemon test. For example, in Meek v. Pittenger (1975), the Court struck down a Pennsylvania program that provided instructional materials and equipment to religious schools while upholding only loaned textbooks. The Court reasoned that items like maps, films, and projectors could be diverted to religious instruction, making state aid impermissible. The incongruence of the books-but-not-maps reasoning led the late Senator Daniel Patrick Moynihan to quip, “But what about atlases?” In Wolman v. Walter (1977), partially invalidated an Ohio program that provided standardized tests and diagnostic services to religious schools. And in Aguilar v. Felton (1984), the Court held that the Lemon test prohibited states from using federal education funds to pay teachers in religious schools to provide supplemental tutoring to disadvantaged students. 

Beginning in the 1980s, the Court gradually began to soften this this position, returning to the neutrality benchmark, especially when government aid reached religious schools indirectly through individual choice. In Mueller v. Allen (1983), the Court upheld a Minnesota tax deduction for educational expenses that benefited both public and private (including religious) school students. In Witters v. Washington (1986), the Court held that the Establishment Clause did not prohibit a state from permitting a blind student to use public funds to pursue a degree in ministry. In Zobrest v. Catalina Foothills School District (1993), it reached the same conclusion about a publicly funded sign language interpreter for a deaf child attending a Catholic school. And in Agostini v. Felton (1997), it allowed public school teachers to provide remedial instruction in religious schools under a federally funded program. 

In 1995, two important things happened in the history of the parental-choice effort. First, Wisconsin expanded eligibility to participate in the Wisconsin Parental Choice Program – the nation’s first modern voucher program – to include religious schools. Second, Ohio enacted the Cleveland Pilot Scholarship Program, a modest means-tested program that also enabled participants to attend religious schools. Both of these programs were challenged on Establishment Clause grounds, and the Court ultimately reviewed the Cleveland case. In 2002, in Zelman v. Simmons-Harris, the Court upheld the Cleveland program, rejecting an establishment for two reasons: the program was both neutral toward religion and  of “true private choice,” with public funds ultimately flowing to religious schools only as the result of parents’ independent choices. 

* * * * * 

The law of religious-school funding in the United States today is that governments and religious actors may, and increasingly do, cooperate in providing education to children and, therefore, in promoting authentic human flourishing and development. It is worth nothing, though, what has not happened: It is not – at least, not yet – the law that equal treatment of state and non-state schools and education providers is required. True, a recent line of cases, starting with Trinity Lutheran, prohibits states from invoking extra-strict understandings of “separation” as a justification for discriminating against otherwise eligible religious schools in the context of school-funding programs. Still, governments remain free to adopt policies that, in effect, impose a financial penalty on the exercise of that right. A next step in the repairing of American religious-freedom law must be remedying this defect. 

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Mario Ferrante (University of Palermo) submitted the following reflection, which we are delighted to publish here.

The public funding of religious schools is one of the most sensitive issues in contemporary constitutional law. It simultaneously engages three cornerstones of democratic coexistence: religious freedom, freedom of education, and the principle of equality – both formal and substantive. At the heart of current debates lies a simple yet demanding question: how can a legal system fund religious schools without undermining state neutrality or creating unjustified privileges?

Over the last few decades, the gradual transformation of European school systems has made it clear that state neutrality in education cannot be understood as indifference towards religion. Rather, it implies a commitment to ensuring equal dignity for different educational options within the framework of shared constitutional values. In this context, the balance between religious freedom and equality becomes crucial in determining whether – and under what conditions – public money can legitimately support religious schools.

In this perspective, the question of public funding for religious schools cannot be reduced to a technical issue of public–private relations. It must instead be situated within the broader framework of parents’ freedom of educational choice and the right to education. In the Italian case, these are guaranteed by Articles 30 and 34 of the Constitution. The implementation of these principles requires that educational pluralism should not result in new forms of inequality, nor that cooperation with religious institutions should degenerate into religious privilege.

The Italian experience is particularly interesting when viewed in comparative perspective. The United States has recently moved towards a form of “inclusive neutrality,” which allows religious schools to participate in generally available public programs, with religious freedom often prevailing over concerns about separation. France, by contrast, maintains a strict model of laïcité, centered on a sharp institutional separation between state and religion. Italy, for its part, seeks to define an intermediate model of “cooperative secularism,” in which collaboration between the state and religious communities in the protection of civil and religious rights operates within the limits set by substantive equality and the general interest.

This intervention takes that balancing problem as its central thread. It first sketches recent U.S. case law on the funding of religious schools, then presents the Italian model and its constitutional and legislative framework, and finally situates Italy in the broader European landscape. The underlying claim is that equality – understood in both its formal and substantive dimensions – can serve as the key to reconciling religious freedom and state secularism in the funding of religious schools, allowing for cooperation without privilege and genuine pluralism without discrimination.

1. The U.S. Trajectory: From Exclusion to “Inclusive Neutrality”

In the United States, the public funding of religious schools has been at the center of a significant evolution in Supreme Court case law, marked by ongoing tension between the Free Exercise Clause and the Establishment Clause of the First Amendment.

Carson v. Makin (2022) represents a turning point. By a six‑to‑three majority, the Supreme Court held unconstitutional the exclusion of religious schools from a tuition‑assistance program established by the State of Maine for families living in school districts without public secondary schools. Denying a public benefit solely by reason of the religious character of an institution, the Court held, violates the Free Exercise Clause and amounts to discrimination on grounds of religion.

Carson is consistent with a line of precedents increasingly favorable to the participation of religious institutions in generally applicable public programs, inaugurated by Trinity Lutheran Church v. Comer (2017) and developed further in Espinoza v. Montana Department of Revenue (2020). In these decisions, the Court reiterated that, once a state decides to fund private education, it may not discriminate between secular and religious schools purely on the basis of their religious status.

At the same time, scholars have underlined the risks of an expansive reading of the Free Exercise Clause that effectively narrows the scope of the Establishment Clause and, with it, the principle of state neutrality. Under this approach, the separation between state and religion is redefined in a more permissive direction, and neutrality risks being transformed into a form of mandatory inclusion of religious actors in public funding schemes.

Recent U.S. case law thus illustrates a model of secularism based on a logic of non‑exclusion: the state may not withhold public benefits from an entity solely because it is religious, except in situations where such support would amount to the state’s endorsement or coercive imposition of a particular faith. This is a delicate balance, in which religious freedom tends to prevail over strict separation, and the traditional idea of “benevolent neutrality” is recast in a more assertive and participatory form.

From a European and Italian perspective, this shift raises an important question: how far can a system go in the direction of “inclusive neutrality” without eroding the distinct role of the Establishment Clause (or its functional equivalents) as a safeguard of state neutrality and equal treatment among beliefs?

2. The Italian Framework: Secularism, Equality, and the “National Education System”

In Italy, the regulation of public funding for religious schools operates within a different constitutional framework, marked by the principle of secularism, which the Constitutional Court has recognized as a “supreme principle” of the legal order. Since the late 1980s, the Court has described secularism as a structural principle that requires both neutrality of public authorities towards different religious and non‑religious beliefs, and an active protection of religious freedom in its individual and collective dimensions (a key decision is judgment no. 203 of 1989, available on the Italian Constitutional Court website).

The freedom to establish schools and to provide education is guaranteed by Article 33(4) of the Constitution, which recognizes the right of individuals and entities to set up educational institutions “at their own expense,” traditionally paraphrased in Italian debate as “without cost to the State”. This wording, the result of a compromise between different political and ideological forces, has given rise to intense controversy. Constitutional case law has generally interpreted it as excluding full financial equivalence between private and state schools, rather than as an absolute ban on any form of public support to private – including religious – schools.

A major shift came with Law No. 62 of 2000, which defined a “national education system” composed of state schools and “state‑recognized” private schools (s.c. “scuole paritarie”). These private schools – including many religious schools – must comply with public standards on curricula, teacher qualifications, non‑discriminatory admissions, and the accessibility of fees. In return, they are integrated into the public system, their diplomas have the same legal value as those issued by state schools, and they may access certain forms of public funding. A brief description of this framework (in Italian) is available on the Ministry of Education website.

The inclusion of state‑recognized schools within the national system thus marked a transition from a model of rigid separation to one of functional integration, in which public and private providers cooperate to pursue constitutionally protected educational objectives. However, this reform has also generated new tensions. On the one hand, it affirms parents’ freedom of educational choice; on the other, it raises concerns about preventing public resources from turning into unjustified religious privileges.

These tensions were heightened during the Covid‑19 pandemic, when state‑recognized private schools – many of them religiously affiliated – complained of insufficient public support and alleged unequal treatment in comparison with state schools. This situation reignited the debate on the meaning of “without cost to the State” and on the scope of the principle of substantive equality.

More recently, Italy’s 2026 budget law introduced a private‑school bonus in the form of vouchers worth up to €1,500 per student, intended for families with an Equivalent Economic Situation Indicator (ISEE) not exceeding €30,000. The vouchers are designed to cover enrollment costs for private lower‑secondary schools and the first two years of upper‑secondary education, with higher amounts for lower ISEE brackets. This measure has reignited political debate on the appropriateness of allocating public funds to private schools.

If freedom of teaching and freedom of educational choice are to be effective, access to public benefits should not depend on the religious affiliation of an institution, but on its compliance with objective criteria of social usefulness and conformity with constitutional principles. From this perspective, public funding of religious schools does not necessarily amount to a privilege, but may represent a means of implementing educational pluralism, provided that equal treatment and non‑discrimination are ensured.

The balance between freedom and equality is thus central to a form of secularism that is not merely “passive” but cooperative: a model that can value the contribution of religious institutions without compromising state neutrality.

3. Catholic Religious Education and the Logic of Cooperation

Questions of cooperation between the state and religious institutions in education are particularly evident in the teaching of Catholic religion in public schools and in the presence of religious schools within the national education system.

Instruction in Catholic religion is one of the main expressions of collaboration between the Italian state and the Catholic Church under the 1984 Villa Madama Agreements, which revised the Lateran Concordat and were implemented by Law No. 121 of 1985. Article 9 of those Agreements governs instruction in Catholic religion in public schools as an optional subject: the content and teachers are approved by church authorities, while the subject is offered within the public-school timetable under the constitutional framework of state secularism and religious freedom. (An English translation of the 1984 Agreement is available on Concordat Watch).

Article 9 seeks to balance two requirements: on the one hand, the aim of school teaching that highlights principles (Catholic principles) considered to be “part of the historical heritage of the Italian people”; on the other, the “respect for freedom of conscience and for the educational responsibility of parents.” In line with the latter requirement, instruction in Catholic religion is an optional subject, and pupils (or their parents) may freely choose whether or not to attend. In accordance with the first requirement, and within the framework of cooperative secularism envisaged by the Agreements, certain confessional elements are maintained – even in the public-school context – such as the need for teachers to receive ecclesiastical approval and the determination of curricula by the competent church authority.

Some scholars argue that the evolution of the constitutional framework and the increasing religious diversity of Italian society require a rethinking of instruction in Catholic religion, transforming it into a cultural subject focused on knowledge of different spiritual traditions and on interreligious dialogue. Such a reform, they contend, would reconcile the historical role of Catholicism in shaping national identity with the need to promote genuine pluralism. Others reply that such a “cultural” subject would pursue objectives that are, if anything, additional to those envisaged by Article 9 of the Agreements, which refer to a specific function of religious instruction that is both of ecclesiastical interest and of public relevance.

From this perspective, the issue of public funding for religious schools must also be read in light of these considerations. Public support is justified only insofar as it serves to make the right to education and the freedom of educational choice effective, while reasonably reconciling these aims with the Constitution’s concern to recognize and protect specific religious identities. What must be avoided are a priori advantages granted to particular denominations, which would be inconsistent with the Italian model of secularism embodied in the Constitution.

4. The European Context and the Italian “Middle Way”

In Europe, the relationship between education, religion, and secularism has developed in different ways, reflecting the diverse constitutional traditions of the Member States.

The French model, rooted in the experience of the Revolution, is based on a strong principle of separation between state and church. Public education is strictly secular, and the exclusion of religious instruction from state schools is an integral feature of the republican order. This has produced a deliberately rigid model that leaves little room for religious actors within the school system and has generated growing tensions in the face of increasing cultural and religious diversity.

By contrast, in several Germanic and Scandinavian countries, religion is more openly recognized as a possible component of the educational process. Cooperation between public authorities and private providers often takes the form of equal participation by religious schools in the national education system, provided that they comply with state‑defined quality standards and with principles of non‑discrimination. The German case, in particular, offers a model of balance between religious freedom and the secular character of the state: religious schools, especially those linked to the main Christian traditions, may receive public funding commensurate with their educational functions, if they offer teaching consistent with constitutional values and guarantee equal access to pupils irrespective of their beliefs.

In this comparative context, Italy occupies an intermediate position. The principle of secularism, as developed by the Constitutional Court, does not entail passive neutrality, but rather an attitude of openness and cooperation. Educational pluralism is considered an integral part of the democratic system, and the legal recognition of state‑recognized religious schools is a direct expression of this approach.

However, significant difficulties remain at the level of practical implementation, largely due to the persistent ambiguity surrounding the constitutional formula that private schools must be established “without cost to the State.” The experience of other European democracies shows that public funding of religious schools is not, in itself, incompatible with secularism, provided that it is governed by transparent criteria and serves the general interest – in particular, the promotion of the right to education and the safeguarding of substantive equality.

5. Equality as the Key to Cooperative Secularism

The principle of equality, in both its formal and substantive dimensions, is the conceptual and practical pivot for balancing religious freedom with state neutrality.

Formal equality requires that no religious institution receive direct or indirect privileges in access to public funding. Substantive equality, however, demands that the state adopt appropriate measures to remove obstacles that effectively prevent families – especially those belonging to religious or cultural minorities – from exercising their freedom of educational choice. A combined reading of Articles 3, 8, 19, and 33 of the Constitution supports the conclusion that religious freedom and freedom of education cannot be meaningfully exercised under conditions of marked economic inequality.

The achievement of educational pluralism therefore requires public intervention that promotes equity, without compromising the secular character of the state. In practical terms, any public funding scheme that includes religious schools should be governed by general and non‑discriminatory criteria, such as compliance with national educational standards, openness of admissions, respect for fundamental rights, and effective oversight by public authorities. Funding should be proportionate to the public educational function performed and should not be tied to adherence to, or promotion of, a particular faith.

In this way, equality operates not only as a limit on privilege, but also as a positive requirement to design regulatory frameworks that enable families from different social and religious backgrounds to make genuine educational choices. The Constitutional Court has repeatedly stressed that secularism does not coincide with indifference towards religion, but translates into a positive commitment to safeguarding freedom in all its individual and collective dimensions. It follows that cooperation with religious institutions – including in the form of balanced and reasonable financial support – is legitimate when it serves to give effect to fundamental rights and to promote social cohesion.

Italy can thus put forward an original model of balance in which the principle of secularism takes the form of cooperative secularism: a state that does not privilege any faith, but recognizes and values the contribution of religions to the common good, while guaranteeing equal dignity and equal access to public benefits for all.

6. Concluding Remarks

The question of public funding for religious schools cannot be adequately addressed by simply opposing religious freedom and the principle of secularism. Both principles contribute to shaping a model of democratic coexistence grounded in the plurality of worldviews and in the equal dignity of all forms of education that comply with constitutional standards.

In comparative perspective, the recent U.S. trajectory towards “inclusive neutrality” highlights the potential of non‑exclusionary models, but also the risk of weakening institutional safeguards of neutrality. The French model of strict separation underlines the value of a clear public secular space, but struggles to accommodate growing religious diversity. The German and broader North‑European experiences suggest that regulated integration of religious schools into the public system, under strong equality‑based conditions, can reconcile religious freedom, secularism, and social cohesion.

Against this background, the Italian system, thanks to its distinctive balance between freedom, equality, and cooperation, offers an original model: a secular state that recognizes the educational value of religious institutions without renouncing its neutrality. Secularism, understood as a “space of freedom,” permits cooperation with religious denominations for purposes of general interest, while preventing any form of subordination or privilege.

Only such a balance can ensure that religious freedom and secularism do not conflict, but instead cooperate in building a genuinely pluralistic and inclusive school system.

Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Sylvie Bacquet (University of Westminster) submitted the following reflection, which we are delighted to publish here.

Public funding of religious schools depends largely on how religion is positioned within each state’s constitutional framework. While some countries such as the UK, Belgium or Canada accommodate faith schools within a state funded structure, others such as France and the US have constitutional restrictions linked to secularism models. There are different levels of funding but usually, higher levels of funding come with increased state regulation. Such regulation may limit the autonomy of faith schools to admit pupils solely on the basis of the school’s religious ethos. This paper examines the extent to which receiving public funding may limit a faith school’s freedom to filter the admission of students according to their religious affiliation. Particular attention is given to the specific examples of England and France given that their church-state relations systems are at polar opposites and affect school funding radically differently. I will argue that while state funding places limitations on the autonomy of the religious school, it also ensures a level of oversight which protects against discrimination, preserves children’s autonomy and protects the right to education.

The UK Context – state funding with relative autonomy

The UK education system is rooted in the establishment of the Church of England. As a result, one third of state-funded British schools have a religious character. While the majority are Christian, a growing number represent other denominations including Judaism, Islam, Sikhism and Hinduism. These schools benefit from certain exemptions in relation to admission of pupils and staff and when oversubscribed can use faith as an admission criterion, therefore prioritizing applicants of their own faith (s.11 of the Equality Act 2010). In England, admission criteria are dependent on the funding agreement of each school type. In practice, religious schools of minority faith are almost always oversubscribed given that they represent a smaller proportion of faith schools. In contrast, Church of England schools, are in greater number due to their association with the established church and therefore are more likely to have places available for all applicants not just those affiliated with their faith.  

There are broadly speaking three categories of faith schools: voluntary aided, voluntary controlled and faith academies. Each receives a different type of state funding.

Voluntary aided (VA) schools receive funding for their day to day running costs from the local authority and the Department for Education (DfE) provides capital grants for major building projects. This typically covers 90% of the costs of the school while the remaining 10% must be met by the schools’ governing body. Voluntary aided schools design their own admission policy and if they are oversubscribed can give priority to applicants of their own faith.

Voluntary controlled (VC) schools also receive funding from the local authority to cover their running costs and staff salaries. While the local authority employs staff and is the main admissions authority, the school’s land and buildings are usually owned by a charitable foundation, and the local authority may consult with this foundation on admissions policy. Unlike VA schools, VC schools do not have to contribute to the costs of the school. As a result, admission policies may not always prioritize religious applicants. The local authority typically gives priority to those who live close to the school (proximity), those who have a sibling at the school, children in care and those with an Education Health and Care Plan.

Faith academies were introduced in 2000. Unlike VA and VC schools, their funding comes from central government rather than local authorities. The academy trust is responsible for how the money is used and they are accountable to the government for performance and financial management. They have more autonomy in their governance and operations compared to community schools as described above. Admission criteria are set out in their funding agreement, but academies are generally responsible for setting their own admission criteria. Like other faith schools, they can discriminate on the basis of faith when they are oversubscribed. Since 2007 however there is a 50% cap on religion-based admission to protect inclusivity. As a result, those schools may only select up to 50% of pupils based on religion when they are oversubscribed. The cap only applies to entirely new academies and free schools.  

In 2024, under the Conservative government, there was an attempt to scrap the 50% cap so that faith academies were no longer restricted but this was later abandoned due to a lack of public support and concerns about equality and discrimination by organizations that campaign for the abolition of faith schools such as the Secular Society. The primary motivation behind the proposal was to support the expansion of free schools by addressing the restrictions imposed by the current 50% admissions cap, which some faith groups view as conflicting with their religious obligation to prioritize children of their own faith. Critics of the proposed reform were particularly worried about the impact this would have on children with disabilities and more disadvantaged children generally as there is evidence that faith schools are less inclusive in relation to those children.

Admission criteria and Case Law

The UK school admission code 2021 provides statutory guidance on religious selection by faith schools and stipulates that faith schools are required to consult with their respective religious authorities when designing their faith-based admission criteria.  This was initiated following persistent concerns about faith schools’ policies and a number of judicial interventions. It has been argued however that ‘this complex intertwinement of religious and state authorities has led to an unjustified intrusion of the secular into religious matters’ (Myriam Hunter-Henin, 2018).

In order to be considered a priority applicant for the purpose of the oversubscription criteria applicants are usually required to demonstrate their belonging to the faith through a supplementary information form (SIF). Depending on the schools those requirements may be more or less stringent and as a result may exclude certain groups within the communities. In the UK, this was the subject of a Supreme Court case in 2009. In the JFS case, the UKSC held that JFS school, a modern Jewish Orthodox school had discriminated against the applicant on the basis of ethnic origin when he was denied admission due to his mother’s ethnic origin which was not deemed halachically Jewish as she had undergone a process of conversion. In other words, the applicant did not satisfy the matrilineal test used by JFS at the time to determine his connection with Orthodox Judaism.  Following the ruling, JFS changed its admission criteria to a point system based on religious practice rather than matrilineal descent. Those point-based systems however remain controversial as they might exclude certain applicants. This was recently put to the test in a High Court decision.

In CKT v. OSA, High Court of England and Wales examined whether a Church of England school was ‘indirectly discriminatory’ in relation to the protected characteristic of race. Twyford school provided for the allocation of an extra point (‘Church of England Point’) in their admission criterion for certain applicants: One point is awarded to applicants whose family’s main place of worship is at a Church of England church or Churches in Communion with the Church of England.

While the claim failed on the basis of race discrimination, the court nonetheless acknowledged [para 194] that faith-based admission criteria are likely to cause indirect discrimination. On this occasion the extra point was found to be a proportionate mean of achieving the school legitimate aim, in this case preserving an Anglican ethos.

As mentioned above, those who campaign to end faith schools however have highlighted that faith-based criteria lead to discrimination not only based on race but also disability and lower socio-economic backgrounds.

The case of France – limited public funding with controlled autonomy

In France, where article 1 of the Constitution provides for strict separation between religion and the state, the situation is completely different due to the principle of laïcité and the law of 1905 which prevents the state from remunerating religion. As such, state schools which are publicly funded must not be associated with religion, this includes funding, teaching and the display of religious symbols (Law of 2004 on the wearing of religious symbols at school). Schools with a religion denomination exist but they are usually within the private sector and do not receive state funding, with the exception of private schools called ‘sous contract’. Those schools have an agreement with the state which imposes certain conditions in exchange for funding.

Private schools under contract (‘sous contrat’)

Private schools may enter into agreements with the state, becoming ‘sous contrat.’ These schools receive public funding in exchange for adherence to the national curriculum and non-discriminatory admissions. Teachers are employed and remunerated by the state, and religious instruction must take place outside official school hours. While these institutions may retain a confessional ethos, they are prohibited from selecting students based on religious affiliation. 96% of private schools under contract are Catholic while the remaining 4% is made up of Jewish, Muslim, Protestant and secular schools. This model integrates faith schools into the public system under strict regulatory control, ensuring both access and accountability.

By contrast, private schools deemed ‘hors contrat’ do not receive public funding but enjoy complete autonomy over curriculum and admission (Loi Debré 1959). They currently only represent 4.4% of the student population but are increasing in number. Concerns have arisen regarding inadequate oversight, particularly within ultra-conservative or extremist institutions, leading to closures by the Ministry of Education. The French model thus demonstrates the state’s preference for regulation through funding.

Discussion: state funding as a limitation or safeguard?

State funding inevitably restricts religious autonomy, but it also ensures adherence to equality norms and protects the right to education.  Critics of faith schools, including Humanists UK and the National Secular Society, argue that faith-based admissions undermine social cohesion and perpetuate segregation. Data from the UK suggest that faith schools are more socially selective than non-religious schools, with disparities in Free School Meal eligibility reflecting socio-economic stratification. Nevertheless, advocates assert that faith schools contribute positively to moral development, community engagement, and academic performance. There is also evidence to show that faith schools have better academic results although this has been debated as some have argued that it is mainly as a result of socio-economic factors.

While state funding may indeed impose limitations on the autonomy of faith schools and religious communities, they can also provide a level of scrutiny and accountability by acting as a safeguard against potential discrimination, segregation or indoctrination. There is evidence to suggest that this has been an issue especially with schools which fall outside of public funding.

Ultimately, the challenge is to balance the competing interests of parents to educate their children according to their religious convictions and the interests of the general public to be protected from discrimination in education. If there was no public funding available, it may marginalize religious communities which are poorer. Left unregulated however, faith-schools and schools in general may pose a threat to children. There have been reported cases of gender segregation, failure to provide core curriculum teaching, safeguarding risks and exposure to extremist ideology.

Conditional funding therefore not only ensures fair distribution of public resources but can also be seen as a proportionate mean of achieving the legitimate aim of protecting tolerance and equality in a pluralist society. As such, it cannot be found in breach of the right to religious freedom.

The English exemption of allowing schools to give preference to applicants of their own faith when the school is oversubscribed seems reasonable as this usually affects schools of minority faith which make up for a small proportion of all faith schools. The imposition of strict quota in this instance would be counterproductive but in a schooling system where a third of all schools are faith-schools, the imposition of a quota on certain types of schools is a reasonable intervention to ensure public values are respected.

Conclusion

The comparative analysis of England and France illustrates how the relationship between religion and the state fundamentally shapes the administration of faith schools. In England, state funding is compatible with a degree of religious autonomy, yet the 50% admissions cap and related equality frameworks reflect the government’s ongoing attempt to balance inclusivity with respect for faith identity. In France, by contrast, the principle of laïcité establishes a stricter divide between state and religion, with public funding conditional on the renunciation of religious selection. Both models demonstrate that state funding inevitably imposes limits on religious freedom, but these limits serve an essential function in safeguarding equality, protecting children’s rights, and ensuring public accountability.

Ultimately, public funding should not be viewed solely as a constraint on religious schools but as a mechanism that reinforces pluralism within a democratic society. Conditional funding provides a means to reconcile faith-based education with universal principles of non-discrimination and social cohesion. The challenge for policymakers lies in maintaining this delicate equilibrium ensuring that religious diversity enriches, rather than fragments, the public education landscape.