Mark Strasser


About sixty years ago the United States Supreme Court decided Everson v. Board of Education, a case marking the beginning of modern Establishment Clause jurisprudence. Since then, in cases ranging from challenges to programs providing on-site religious education during school hours to challenges of school refusals to permit after-school lectures from a religious perspective, the Court has had several opportunities to clarify the respects in which religious education may be associated with public schools without violating constitutional guarantees. The Court’s analysis of the implicated issues has been remarkably inconsistent, both in tone and in substance. Indeed, the reasoning most recently embraced by the Court not only invalidates much of what had seemed foundational just a short time ago, but sets the stage for a repudiation of one of the central tenets of the jurisprudence, namely, that certain kinds of religious activities have no place in the public schools while classes are in session. This Article traces the development of Establishment Clause jurisprudence with respect to religion in the public schools, noting how the Court’s analyses and justifications have changed over time, protestations to the contrary notwithstanding. The Article examines how the logic of the Court’s current approach would permit practices long thought to violate Establishment Clause guarantees, concluding that the current approach is radically misconceived as a matter of both constitutional law and good public policy.

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