Privileging and Protecting Schoolhouse Religion

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Description: To be sure, Congress and the courts have privileged student religious activities which may be characterized as expressive.5 In various contexts, the Court has held that public schools may not discriminate against religious expression by public school students or student groups.6 The Equal Access Act generally requires federally assisted public schools that maintain a "limited open forum" to provide religiously oriented clubs with equal access to meeting spaces and school publications.7 Indeed, some school districts have promoted school-run religious activities in a manner that exceeds the limitations of the Establishment Clause.8 However, these selective efforts to privilege certain forms of religious expression have, however, masked a broader failure to protect the equal rights of religious students.9 Elsewhere, I have discussed the failure of our federal educational equity structure: despite our sincerest misunderstandings,10 Congress has never acted to prohibit religious discrimination in federally assisted pro- grams and activities, such as public schools and colleges.11 Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of "race, color, or national origin" in federally assisted programs or activi- ties, including public schools.12 Over the years, this set of prohibited classifications was expanded by legislation intended to eliminate dis- crimination on the basis of sex,13 disability,14 age,15 and even membership in certain patriotic youth activities.16 While federally-enforced statutes bar schoolhouse discrimination on the basis of race, color, national ori- gin, age, disability, or membership in the Boy Scouts of America, they are silent as to religion.17 As a result, the federal administrative civil rights apparatus lacks jurisdiction to investigate religious discrimination claims in the public schools for cases involving teacher-on-student harassment, student-on-student harassment, disparate treatment of minority religious studen
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