The Most Important Right We Think We Have But Don't: Freedom from Religious Discrimination in Education

Few civil rights are more central than our freedom from religious discrimination. By this I mean not only the free exercise of religion and the freedom from an established church protected under the First Amendment, but also the freedom from discrimination on the basis of religious affiliation protected under the Equal Protection Clause of the Fourteenth Amendment. Congress recognized the fundamental importance of this latter right in 1964, when it acted to prohibit discrimination on the basis of race, color, national origin, or religion in programs and activities that receive federal financial assistance, including both public and private post-secondary institutions. The way the President and Congress acted to overcome our nation’s legacy of religious discrimination, like our tragic legacy of racial and ethnic discrimination, is one of the great stories of America’s Second Reconstruction. We know this, as we know the basic protections that we as Americans have from invidious discrimination. The growing litany of grounds on which we and our children may not be discriminated grows with each generation, but the first and fundamental protections established during the Civil Rights Era were the freedoms from discrimination on the basis of race, color, national origin, sex, and religion. Under the leadership of President Johnson, Congress acted decisively in 1964 to ensure that federal funds would not be used to support religious discrimination in America’s schools. If only this were true. How could this not be true? Senator Sam Ervin explained at the time that “the discrimination condemned by [Title VI] occurs . . . when an individual is treated unequally or unfairly because of his . . . religion . . . .” The Supreme Court noted in Cannon v. University of Chicago that, “victims of discrimination on the basis of . . . religion . . . have had private Title VI remedies available . . . since 1965 . . . .” Over the years, court after court has recognized that