CLR’s Mark Movsesian will give a lecture on March 7 titled, “Equality for Christians in the Middle East: Yesterday and Today,” at 6:00 pm at the offices of the magazine, First Things. Details at the link.
Is government funding for distinctive and even religious schools plausible in America? Yes, under certain conditions.
American public education already includes a growing variety of non-uniform schools. Charters are the most obvious example. They are allowed to have a unique pedagogical mission; to be culturally focused (i.e., Hebrew or Turkish, but not Jewish or Muslim); and to govern without union contracts. Religious groups can even manage charters through non-denominational foundations, and although the schools may not be religious in content or tone, they may provide voluntary religious “wrap-around” services on either side of the school day.
Online learning such as Florida Virtual Schools provides another example. Internet courses offer kids access to academic subjects that their neighborhood schools may not provide and can cater to a variety of special needs and family preferences.
Some states allow vouchers or tax credits that parents can take to alternative schools– not only pedagogical, but also philosophical and religious in nature. This arrangement is less common, but it comes closest to the educational pluralism in other nations.
Other innovations affect the uniformity model, such as the teacher training offered by Teach for America. In contrast to the typical state licensure procedure, TFA places high achieving graduates of elite universities in classrooms after a summer training program – not an Education degree.
These innovations are small in scale compared to the scope of traditional public education. However, they exercise an outsized influence on our imaginations and offer concrete experiences of diversity in teacher training, funding, governance, delivery and even, in some cases, religious content. Taken together, they offer hope that “public education” might come to mean something quite different from the uniform, state-control model designed in the 19th century. Read more
Recent events have me thinking about the American sociologist Robert Nisbet’s old classic, Twilight of Authority (1975). Published in some sense in response to the Watergate disaster, the book’s thesis was that the distinction between the cultural or social and the political is vanishing, as the historical mediating institutions of authority — family, religion, and community, among others — all of which are hierarchical in nature, are being replaced by allegiance to the state, which in turn absorbs the functions previously performed by other private institutions. The thesis is not particularly unique, and certainly did not originate with Nisbet. But Nisbet gives it unique and elegant expression in this volume.
And here is an old essay of Nisbet’s, from the excellent but sadly now defunct journal, The Public Interest, entitled, Public Opinion vs. Popular Opinion. A bit from the essay, to give you a taste of Nisbet’s style:
A true public, as A. Lawrence Lowell stressed in his classic work on public opinion more than a half-century ago, is at bottom a community: built, like all forms of community, around certain ends held in common and also around acceptance of the means proper to achievement of these ends. Not the people in their numerical total, not a majority, nor any minority as such represents public opinion if the individuals involved do not form some kind of community, by virtue of possessing common ends, purposes, and rules of procedure. Public opinion is given its character by genuine consensus, by unifying tradition, and by what Edmund Burke called “constitutional spirit.”
Popular opinion is by contrast shallow of root, a creature of the mere aggregate or crowd, rooted in fashion or fad and subject to caprice and whim, easily if tenuously formed around a single issue or personage, and lacking the kind of cement that time, tradition, and convention alone can provide. Popular opinion is an emanation of what is scarcely more than the crowd or mass, of a sandheap given quick and passing shape by whatever winds may be blowing through the marketplace at any given time. It would be incorrect to say that popular and public opinion are totally unconnected. What proves to be public opinion in a community is commonly generated by popular opinion, whether in majority or minority form; but it is only through a process of adaptation or assimilation-by the habits, values, conventions, and codes which form the fabric of the political community-that popular opinion ever becomes what we are entitled to call public opinion, the opinion that is in fact more than opinion, that is at bottom a very reflection of national character.
CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional. Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion. Smith was about what the Constitution mandated, not what it permitted.
Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced. Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence.
And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services. Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.” And the Supreme Court, regrettably, denied cert. But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim.
If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship. The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.