Document Type

Article

Disciplines

International Law

Abstract

In numerous democracies today, religious freedom claims are unsettling previously stabilized equilibria. In U.S. constitutional law, the issues of the public funding and educational standards of private religious schools are increasingly salient. This Article contends that private schools are a highly relevant, yet unexplored site of constitutional analysis and makes three major contributions. The first is to present the concept of "exemption," which is central to antidiscrimination theory (especially with respect to religion) as too broad and in need of refinement and qualification. The second is to offer a typology of regimes of exemption from antidiscrimination law for religious schools grounded in a comparative law analysis. The third is to show that the specific case of religious schools should be taken seriously to further our understanding of the broader constitutional regime of state neutrality.

Religious schools are readily presented in literature as spaces that enjoy full or partial exemption from antidiscrimination law. Because of their commitment to religious freedom, liberal democracies generally deem it legitimate for religious schools to exist and affirm a distinct character. However, the exact scope and nature of this regime of exemption are woefully understudied. This Article fills this important gap by identifying and unpacking the regime of exemption enjoyed by religious schools. In doing so, it addresses a twofold question-are religious schools free to base their employment and student admissions decisions on religion?

The Article answers this question via a comparative analysis of American, English, and French law, delineating three models of exemption of religious schools from antidiscrimination requirements. In the first, the American model, the regime of exemption is governed by a logic of separation; religious schools are arguably located beyond the scope of antidiscrimination law. State neutrality effectively allows religious schools to operate as enclaves within the American polity. The second, the English model, allows religious schools to derogate from antidiscrimination law to an extent and under explicitly defined conditions. English law simultaneously expresses the State's commitment to the normative project of antidiscrimination and grants limited leeway to religious schools in the name of the autonomy of religious organizations. In the third, the French model, the exemption operates by preterition. While antidiscrimination law does not carve out exceptions for religious schools, their specificity is largely accommodated by the adaptation of broader constitutional principles. State neutrality here entails important accommodations for religious schools, which is a highly revisionist approach to the French constitutional regime of secularism and, indeed, a very innovative one.

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