Title

Is the Establishment Clause Asymmetrical?

Author(s)

Sam FoerFollow

Major

Political Science

Second Major

Philosophy

Advisor

Shanna Pearson-Merkowitz

Advisor Department

Political Science

Date

5-2020

Keywords

Constitution; Supreme Court; Indoctrination; Establishment Clause

Abstract

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto students are using State funds to invade the freedom of conscience that the Establishment Clause is designed to protect. The moral egregiousness and unconstitutionality of public educators advancing their religion in the classroom have been absorbed into the public consciousness.

The Court has found that the First Amendment, not just the Establishment Clause, is designed to protect the sphere of intellect and conscience, especially of K-12 public school students. However, the constitutional prohibitions on advancing beliefs and opinions in the classroom only cover the category of religion, due to the relevant cases’ Establishment Clause jurisdiction. But even if there are constitutional and perhaps policy differences, there seems to be no meaningful philosophical difference between the reasons why schools and teachers should not advance their religion or ideology in the classroom. When views stemming from either area are imposed on students, we say that someone is being instructed “what to think” rather than “how to think,” constituting an attempt at indoctrination, which the court system recognizes is inimical to the purposes of public education. Through analyzing the Court’s language this paper synthesizes a Court-created conceptual schema that demonstrates the Court’s recognition of the equivalence between advancing religious and ideological views in public school settings. Thus, the Court has created what this paper coins the ‘Problem of Asymmetry:’ “A constitution-based restriction or allowance of certain behavior in a certain area, which the court system does not extend to equivalent behaviors because they are not covered by the operable clause in the Constitution.”

In light of this particular asymmetry, this paper examines how the court system creates and recognizes this problem and what implications it has on legislatures and the court system. This paper also examines these implications in light of how the court system has opened up a path to resolve the problem.