For God’s Sake, Don’t Segregate! Two Kinds of Religious Schools and Equality in Education

Abstract

Legal and philosophical scholarship on religious education typically focuses on religious schools that challenge core liberal values. Religious schools that offer their students quality secular education, and whose religious character is mild, do not raise these concerns and have therefore evaded scrutiny thus far. This chapter argues that the latter kind of religious schools, which I call “creaming religious schools,” may have a negative effect on educational equality and should therefore be subject to restrictive legal regulation. The negative effect on equality is caused by the fact that when successful, these schools appeal not only to members of the religious community but also to non-member high-achieving students who leave the public schools (a process called creaming) thus weakening them. The chapter argues that the harm caused to public schools cannot be redeemed by alluding to the right to religious education because the religious justification for creaming religious schools is relatively weak. The chapter then examines several potential legal measures for contending with creaming religious schools: the antidiscrimination doctrine, which the chapter rejects, showing that it actually aggravates creaming, locating schools in disadvantaged neighborhoods, restricting tuition, reflective enrollment policy, and finally, the total prohibition of establishing creaming religious schools.