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Bacquet on Public Funding and the Autonomy of Faith Schools

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.

Posted on by Marc O. DeGirolami

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here’s the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

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Call for Papers: State Neutrality, Religion, and Private Enterprises

The Université Catholique de Louvain is soliciting papers for its upcoming conference “State Neutrality, Religion, and Private Enterprises.”  A description of the conference follows:

Debates on the social responsibility of businesses raise the question of the universalist or particularist nature of the ethics upheld by private legal institutions, ethics which may be legitimized or delegitimized by social practices, but also validated and invalidated by constitutional laws or anti-discriminatory legislations. Indeed, if secular States have separated themselves from Churches and cannot be directly involved in religious affairs, it is also because they are secular, and the necessity to protect fundamental rights imposes itself on them so that they become, in turn, involved with the religious sphere, of which they will appoint themselves as interpreters, and that, with respect to the values which are present, often in opposition, in a society. In this thematic session we will question how the sphere of the social responsibility of enterprises confront secular States and their institutions, in particular tribunals, to new ethical and religious resources, thus renewing the question of their interpretation. This reflection on the confrontation of tribunals to particularist ethics in the sphere of private enterprise management will be laid out on the basis of theoretical and empirical research so as to facilitate dialogue between legal constraints and the critical resources of the field of the sociology of religion and social ethics. A re-evaluation of the doctrinal and theological tenets of the evoked ethical referents will permit not only a critical assessment of the data submitted to tribunals in cases of litigation, but will also provide an opening to more efficient modes of interaction, within the boundaries of common law, and of more relevant approaches to mediation, with the contextual data.

Paper proposals should be submitted no later than December 15, 2014 and should be submitted via the online form provided here.  Any questions can be directed to Louis-Léon Christians (Université Catholique de Louvain) at louis-leon.christians@uclouvain.be or to David Koussens (Université de Sherbrooke) at david.koussens@usherbrooke.ca.

Posted on by Mark Movsesian

Adhar on Secularism

Rex Adhar (University of Otago, New Zealand) has published an article, “Is Secularism Neutral?”, in this month’s edition of Ratio Juris (subscription required). The abstract follows:

This article argues that secularism is not neutral. Secularization is a process, the secular state is a structure, whereas secularism is a political philosophy. Secularism takes two main forms: first, a “benevolent” secularism that endeavours to treat all religious and nonreligious belief systems even-handedly, and, second, a “hostile” kind that privileges unbelief and excludes religion from the public sphere. I analyze the European Court of Human Rights decision in Lautsi v Italy, which illustrates these types. The article concludes that secularism as a political philosophy cannot be neutral, and the secular state is not neutral in its effects, standpoint, governing assumptions or treatment of religious truth claims.

Posted on by Mark Movsesian · 2 Comments

State Religious Neutrality and the Point of Departure

A quick followup on Claudia’s very interesting post on state religious neutrality. As Claudia suggests, pretty much every Western democracy nowadays accepts the notion that the state must be “neutral” with respect to religion. But, as Claudia points out, the fact that everyone uses the same word obscures underlying disagreements. In the US, for example, neutrality means that the state may not display sectarian symbols, at least in a manner that seems to endorse the sectarian message. Not so in Europe. There, the ECtHR has made plain, a state may display sectarian symbols as long as the state does not engage in active proselytizing. Thus, according to the recent Lautsi decision, European states may display crucifixes in public school classrooms, conduct that would be unthinkable in the US under current Supreme Court jurisprudence.

In trying to understand the different meanings the same word has in different systems, it’s useful to consider what Tocqueville referred to as a nation’s “point of departure.” Every legal system is embedded in a particular culture with a particular history. In Europe, where links between church and state are traditionally very strong, certain state actions, like placing sectarian symbols in the public space, are simply part of the background, something most people take for granted. In the US, however, a society with a much stronger separationist tradition, such actions are not seen as neutral and innocuous. I explain this all in more depth in a recent article on the Italian crucifix case, “Crosses and Culture: State-Sponsored Religious Displays in the US and Europe,” in the Oxford Journal of Law and Religion. Interested readers can find the article on the journal’s website, here.

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Bradley, “Essays on Law, Religion, and Morality”

This month, St. Augustine’s Press will publish Essays on Law, Religion, and Morality by Gerard V. Bradley (University of Notre Dame Law School). The publisher’s description follows.

The most controversial foundational issue today in both legal philosophy and constitutional law is the relationship between objective moral norms and the positive law. Is it possible for the state to be morally “neutral” about such matters as marriage, the family, religion, religious liberty, and – as the Supreme Court once famously phrased it – “the meaning of life”? If such neutrality is possible, is it desirable? Read more

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Ledewitz on Neutrality

Bruce Ledewitz (Duquesne University – School of Law) has posted Toward a Meaning – Full Establishment Clause Neutrality. The abstract follows.

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating theEstablishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.

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The Dis-integration of Neutrality

Neutrality has been the central theme in the modern jurisprudence and literature of religious freedom.  Government is supposed to be religiously neutral, neither favoring nor opposing (coercively, materially, or expressively) any particular religion or religion in general.

The ideal has also been subjected to severe criticism.  One criticism asserts that neutrality is impossible: governments will inevitably adopt some religious (or anti-religious) positions and reject others.  Indeed, since religious views differ as to the acceptability of governmental neutrality, the very endorsement of neutrality is already a departure from neutrality.

One response to this sort of criticism is to “spread out”– or to multiply versions of neutrality.  Like the sorcerer’s hapless apprentice, the critic applies the hatchet to what he takes to be the mischievous broom of neutrality only to find that, far from having dispatched the mischief, he is now faced with two– or several, or many– more vigorous instantiations.

Thus, in a recent illuminating article called “Crosses and Culture” (I would provide a link if I knew how), Mark Movsesian discerns in American jurisprudence three versions of neutrality, which he calls “neutrality as non-proselytism,” “neutrality as non- Read more

Posted on by Marc O. DeGirolami

Movsesian on State-Sponsored Religious Displays in the US and Europe

Mark’s new piece is up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe.  Comparativists and students of religious liberty will enjoy and learn a lot from the piece.  The abstract follows.

This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.

Because issues of methodology are of special interest to me, here are some of Mark’s reflections on that question — and in particular about the function of comparative scholarship — in the conclusion to the piece (I have omitted the footnotes, which you can chase down in the piece):

My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’.  Nonetheless, such conversations are essential.  For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’.  The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship. 

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Wright on Neutrality in Religion Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Can We Make Sense of ‘Neutrality’ in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative. The abstract follows.

This Article addresses the controversial question of ‘neutrality’ as a crucial test in a number of important Religion Clause cases. The idea of ‘neutrality’ in the Religion Clause context turns out to be popular, but unavoidably incoherent.

The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.

What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.