The Most Important Right We Think We Have But Don't: Freedom from Religious Discrimination in Education

11 Pages Posted: 18 Apr 2007

See all articles by Kenneth L. Marcus

Kenneth L. Marcus

The Louis D. Brandeis Center for Human Rights Under Law

Abstract

Few civil rights are more central than our freedom from religious discrimination in education. Numerous authorities, including the Supreme Court, numerous lower courts, and at least one Executive Order, have described the prohibition on religious discrimination contained in Title VI of the Civil Rights Act of 1964. Yet no such prohibition exists. Title VI bans discrimination on the base of race, color or national origin in federally assisted programs, including public elementary and secondary schools and most public and private post-secondary institutions, but it does not bar religious discrimination. Moreover, while the list of prohibited classifications was later expanded to include sex, disability, age, and even membership in certain patriotic youth organizations such as the Boy Scouts, it was never enlarged to encompass discrimination on the basis of religion. Some aspects of religious discrimination are limited by such authorities as the Free Exercise Clause, the Establishment Clause, the Equal Access Act, various state and local ordinances, and the rules of some accreditation agencies. However, Congress has never statutorily barred religious discrimination in America in the same manner, and with the same enforcement structure, as in the case of other forms of discrimination. This omission is a conspicuous hole in the fabric of federal civil rights law, which should be corrected by federal legislation. It is important to correct this problem in order to effectuate the primary intent underlying Title VI: to ensure that federal funds will not be used to support activities prohibited under the Constitution. Moreover, religious discrimination has a peculiar dual quality: it not only stigmatizes historically disadvantaged groups but also burdens the exercise of activities which have a particular social value in our constitutional culture. Additionally, racially- or ethnically-motivated discriminators may avoid sanction while acting under the guise of religious bigotry.

Keywords: Religion, Civil Rights, Discrimination, Religious Discrimination, Education

JEL Classification: I28, J70, J71, J78

Suggested Citation

Marcus, Kenneth L., The Most Important Right We Think We Have But Don't: Freedom from Religious Discrimination in Education. Nevada Law Journal, Vol. 7, p. 171, 2006, Available at SSRN: https://ssrn.com/abstract=980931

Kenneth L. Marcus (Contact Author)

The Louis D. Brandeis Center for Human Rights Under Law ( email )

1717 Pennsylvania Avenue, NW, Suite 1025
Washington, DC DC 20006
United States

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