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Last June, I was in Ukraine advising civil society groups that are seeking to ensure that the new Ukrainian education law promotes religious and educational freedom, including the rights of parents. Ukrainian policy-makers are eager to align their country with the West, so a number of times I pointed to the protections that these rights enjoy in the United States as a reason to include similar protections.

I was too complacent! No sooner did I return to Boston than the Obergefell decision came down, with the ominous absence, pointed out by Chief Justice John Roberts in his dissent, of the key word “exercise” from the majority opinion. Shortly before that, President Obama’s Executive Order 13672 added sexual orientation and gender identity to the list of protected classes that federal law shields from employment discrimination. Believers are right to think the ruling makes it difficult to continue to live out the religious convictions that are central to the policies and curricula of their schools.

The legal threats are clear:

  • Schools could lose tax-exempt status, or donors to a school could be denied credit for a charitable contribution.
  • In states with voucher or tuition tax credit or educational savings plan programs, schools that resist the sexual orientation and gender identity (SOGI) agenda could be ruled ineligible.
  • Legal challenges could arise with respect to hiring or firing, if the basis is sexual behavior outside of traditional marriage, or advocacy or acceptance of such behavior, or a change in gender identity.
  • Schools could be denied participation in inter-scholastic sports and other activities with peer institutions.
  • Schools could lose their accreditation, leaving the diplomas their students earn unrecognized by other schools and colleges.
  • Schools could be required to incorporate units favorable to the sexual liberation agenda in their curricula.

  • Other hazards operate not so much as punishments as lost benefits. As Rick Garnett of Notre Dame Law School explains, “there is a difference between the kind of interferences that governments can legislate, or impose directly and those that will take the form of ‘strings’ . . . on vouchers, or on accreditation, or on loaned computers, or free lunches, or whatever. Everyone should be aware that, even if we are not forced, in our schools, to make certain identity-compromising changes, we will be strongly incentivized, financially, to do so.”

    In spite of these dangers and vulnerabilities, however, I believe there are good reasons for ­optimism about the future of faith-based schools.

    One is that recent research (including that of my team studying citizenship education in Islamic secondary schools nationwide) is providing more and more evidence that these schools have strongly positive effects on the development of qualities conducive to individual success and social welfare. For example, David Campbell has found that “students in Catholic schools perform better than students in assigned public schools on all three objectives of civic education—capacity for civic engagement, political knowledge, and political tolerance.” In another project, Patrick Wolf reviewed twenty-one studies of the effect that public and private schooling have on political tolerance. Of those studies, only one found that public-school students were more tolerant. Eleven studies found that private-school students were significantly more likely to be tolerant, and nine found no significant difference.

    Given that these results tally with religious and secular aims in the United States, we should anticipate that parents concerned about the direction that American culture is taking will regard faith-based schools as providing a positive environment for their children. In both Europe and North America, parents who do not themselves belong to the faith community supporting religious schools nonetheless enroll their children. In fact, about 17 percent of students in Catholic schools in the United States are non-Catholic (more than 300,000 students), and inner-city black Protestants account for a high proportion of that group. They tell researchers that they trust these schools. And, of course, the research refutes the charge that faith-based schools promote intolerance and divide society, so that parents of all faiths and of no faith are right to enroll their children in them.

    A second reason for optimism is that state legislators are increasingly willing to approve programs that provide public support to faith-based schools. The pace of change has become so rapid that it is hard to keep up with all the new developments, but as of July 2015 there were twenty-six states with at least one program to provide support to parents enrolling their children in private schools: fifteen states with education vouchers helping to educate more than 150,000 students, fifteen with tuition tax credit programs helping more than 200,000 students, and some with both. About three thousand students are already benefiting from the latest wrinkle in five states, “education savings accounts,” which provide even more flexibility to families by allowing those who withdraw their children from public schools to receive a deposit of public funds into government-authorized savings accounts that can be used to pay for private school tuition, online learning programs, private tutoring, educational therapies, or college costs.

    As more parents express concerns about the consumerist and hedonistic youth culture that their children are exposed to in mass media, they naturally favor schools that filter out its worst elements and focus young minds on worthier things. Many legislators realize that public schools lack the moral resources to offer a healthy alternative (including religious ones), so the odds are good that the political process will lead to policies that continue to make it easier for parents to access alternatives.

    Of course, there will be determined efforts to add strings to any form of support for faith-based schools, and Rick Garnett’s warning reminds us that these could take many different forms. Advocates of religious freedom in education will have to be prepared to do battle in legislatures and in the courts, and maintaining the independence of programs will be an ongoing task.

    The most significant reason for optimism is that the Supreme Court itself has made a number of decisions recently that protect religious freedom of institutions, not just of individuals, notably the 2012 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC judgment, which was unanimous.

    The Supreme Court may agree to consider the provision in many state constitutions that forbids the funding of schools with a religious character, the so-called Blaine Amendments. They are based upon nineteenth-century discrimination against Catholics. In recent cases in Colorado and New Hampshire (I provided expert testimony in both instances), those challenging the prohibition on state funding of religious schools drew attention to the discriminatory effect of such laws. The case was explicitly dismissed by the Colorado Supreme Court in striking down the voucher program established by the elected school board in Douglas County. Preparations are already underway to make the case before the Supreme Court that state Blaine Amendments violate the equal protection clause and the free exercise clause of the Bill of Rights.

    So, stormy weather ahead—but this is by no means grounds for despair. Firm and intelligent resistance to cultural trends has always been a hallmark of vital religious institutions; complacency is their worst enemy. Faith-based schools should be clear and unapologetic about their mission, and they should work together to ensure that neither peer accreditation nor state regulation force them into unacceptable compromise. Only by remaining clear about their mission can faith-based schools provide a sense of what matters in life. This clarity will allow them to compete with the consumerist youth culture to which public schools, whatever their academic quality, offer no credible alternative.

    Educators who believe deeply in the mission of faith-based schooling should become consistent in translating it into every detail of school life, and doing so without apology. This is how they can satisfy the deepest concern of parents, and at the same time offer a strong legal defense against efforts to force them into compromises with a culture of forced secularization and complacent self-gratification.   

    Charles L. Glenn is professor of educational leadership and policy studies at Boston University.

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