Religious Freedom in Education:

A Fundamental, yet Elusive Right


Charles J. Russo

Since time immemorial, whether as evidenced by the cave paintings from prehistoric France, the polytheistic religions of ancient Egypt, Greece, and Rome, or the animistic belief systems and totems erected in much of the rest of the pre-Judeo-Christian, non-Western world, humans all over the globe have recognized the need to call on a higher being while engaging in what today might be described as freedom of religion. However, while millions – even billions – of people throughout the world today continue to acknowledge the need to honor the deities of their choices, growing restrictions in some nations limit the ability of many to hand down their beliefs to their children as part of their formal in-school education.

As important as religious freedom is as a fundamental human right, tension persists in its interaction with a right equally as essential: education. While both education and religious belief are widely accepted as fundamental human rights, religious freedom, particularly in education, rarely finds sufficient protection in public or state-funded elementary and secondary schools in many nations across the globe.

In reviewing the status of religious freedom, a 2019 study by the Pew Research Center places government restrictions in four categories: low, moderate, high, and very high.1Pew Research Center: Religion and Public Life, A Closer Look at How Religious Restrictions Have Risen Around the World, Tenth annual report dives deeper into the ways government restrictions on religion and social hostilities involving religion have changed, from 2007 to 2017, July 15, 2019, https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/. The Complete Report is available at this website. The United States is ranked in the second category as having moderate, rather than low, restrictions on religious freedom. Although the Pew Study does not fully explain why the United States is in this category, it is likely that the Supreme Court’s reliance on the “Wall of Separation,” espoused by proponents of separation of church and state, contributes to this classification. Largely the position of the Supreme Court for the better part of the past seventy-five years, the “wall” metaphor has been used to deny aid to parents who could not afford tuition to send their children to the school of their choice.2 The author delivered what developed into this article as a virtual keynote presentation at “Religious Freedom in Education: A Fundamental Human Right,” International Interdisciplinary Conference on Religious Freedom and Education, Institute of Justice, Polish Ministry of Justice, Toruń, Poland, on October 9, 2020. The talk and this paper expanded on and updated concepts from Charles J. Russo (2015). “Religious Freedom in Education: A Fundamental Human Right.” 47 Religion & Education 17 (2015). The “Wall of Separation” metaphor was coined by Roger Williams in the mid-seventeenth century, Roger Williams, Mr. Cotton’s Letter Lately Printed, Examined and Answered (1644), reprinted in 1 The Complete Writings of Roger Williams 392 (1963) (“and when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world. . . . ”). The term was popularized by its use in Thomas Jefferson’s letter to the Danbury Baptist Convention in 1802 (16 Writings of Thomas Jefferson 281 (Andrew Adgate Lipscomb & Albert Ellery Bergh, eds. 1903). The term entered the American legal lexicon in educational disputes in Justice Black’s opinion for the Supreme Court in Everson v. Board of Education, 330 U.S. 1, 16 (1947), reh’g denied, 330 U.S. 855 (1947) (upholding a statue from New Jersey permitting local school boards to reimburse parents for the cost of transporting their children to non-public schools).

As important as religious freedom is as a fundamental human right, tension persists in its interaction with a right equally as essential: education.

On the higher end of the spectrum given by the Pew Research Center, in many parts of the world3For a graphic representation of the nations imposing such limitations, see the map from the most recent Pew Report, infra note 4. there are policies that refuse to honor the rights to religious freedom of their peoples. Leaders in many nations are unwilling to protect the right to religious freedom in education even as their laws and policies are consonant with international instruments that increasingly make formal schooling available for children. While most nations subscribe to an array of international documents proclaiming both education and religious freedom as fundamental human rights, religious freedom – especially in schooling – is often ignored, or receives lip service at best.

As evidence of the significant limitations present in the world as to whether people can exercise their rights to religious freedom in public, state-funded, or, in some instances, private schools, another recent Pew Center Report of 198 nations is informative. This report reveals that since 2007, increasing numbers of countries have had high or very high levels of government restrictions on religion, as opposed to low or moderate limits.4Id. at Full Report, p. 1. More specifically, the Pew Study reveals that 52 governments impose either “high” or “very high” levels of restrictions on religion, up from 40 in 2007. At the same time, the number of countries where people experience the highest levels of social hostilities involving religion rose from 39 to 56 since 2007.5Id. at Full Report, p. 5. See also the map, Government Restrictions on Religious Freedom Around the World, Level of Government Restrictions as of 2017, https://www.pewforum.org/2019/07/15/middle-east-still-home-to-highest-levels-of-restrictions-on-religion-although-levels-have-declined-since-2016/

Further revealing the existence of the limits placed on religious freedom in education, the Pew Center’s 2017 study of 199 nations6Pew Research Center: Religion and Public Life, Many Countries Favor Specific Religions, Officially or Unofficially Islam is the most common state religion, but many governments give privileges to Christianity, https://www.pewforum.org/2017/10/03/many-countries-favor-specific-religions-officially-or-unofficially/ show that more than 80 countries favor one specific religion over others. These preferences ranged from official, government-endorsed religions to the adoption of policies and practices that afford one religion preferential treatment over other faiths. The preferences were enacted through mechanisms such as increasing funding for certain kinds of religious education and/or schools while placing restrictions on the activities of other faiths, particularly when leaders of minority religions tried to open schools of their own.

This article is not suggesting that nations have a duty to subsidize faith-based schools, or that citizens have a direct right to these schools. However, this article encourages national leaders to at least consider lifting some of the restrictions on religious freedom in education to afford parents greater control over the schooling of their children. To this end, the study points out that the global average score for nations placing restrictions on some or all religions increased more than 20% between 2007 and 2017. This oversight continues, even though all but a few of the nations involved are signatories to the international instruments highlighted below safeguarding both education and religion as fundamental human rights.7The Complete Report, supra note 3, at 9.

In light of the trends and accompanying data about restrictions on religious freedom in education that treat it as a fundamental, yet elusive, right, the remainder of this commentary is divided into three parts. The next two sections highlight key representative provisions in international, rather than national, instruments – principles that arguably are also rooted in natural law. The principles behind these instruments purportedly are to safeguard education and religious freedom as fundamental human rights, despite the fact that officials in many nations refuse to protect the access to religious education that would allow parents to provide their children with the education of their choice. The third part offers policy suggestions and food for thought about what leaders and policymakers should do to safeguard religious freedom in education.

Education as a Fundamental Right

a) Generally

Throughout the world, compulsory education laws, in greater or lesser degrees, operate in conjunction with various international covenants that require children of specified ages to attend school. While not all nations automatically enter international treaties into domestic legislation,8 See, e.g., For a report on 12 countries (Australia, Belgium, Canada, Denmark, Germany, Iceland, Ireland, New Zealand, Norway, South Africa, Spain, and Sweden) that have worked to imbed the rights of children into domestic law, see Laura Lundy, Ursula Kilkelly, Bronagh Byrne, and Jason Kang, The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12 Countries available at https://resourcecentre.savethechildren.net/library/un-convention-rights-child-study-legal-implementation-12-countries. See also the Constitution of the Republic of South Africa, https://justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf. 231(3) International agreements: Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. 233 Application of international law: When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. the principles enunciated in these instruments reflect the long-standing view held by many nations that the right to education for children – indeed, for everyone – is of utmost importance.

b) Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR),9https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. enacted in 1948, was the first internationally-accepted document to identify education – along with other rights, such as freedom of religion – as basic human rights:

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. …

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

c) Declaration on the Rights of the Child10https://archive.crin.org/en/library/legal-database/un-declaration-rights-child-1959.html

In 1959, Principle 7 reiterated the right to an education:

The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgement, and his sense of moral and social responsibility, and to become a useful member of society.

The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents.

Religious Freedom in Education as a Fundamental Right

a) Universal Declaration on Human Rights

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status….

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

b) Declaration on the Rights of the Child

Pursuant to Principle 10 of The 1959 Declaration on the Rights of the Child,11https://archive.crin.org/en/library/legal-database/un-declaration-rights-child-1959.html “The child shall be protected from practices which may foster racial, religious and any other form of discrimination.”

c) The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities12https://www.ohchr.org/EN/ProfessionalInterest/Pages/Minorities.aspx

Promulgated in 1992, according to Article 2:

1. Persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.

d) The International Covenant on Civil and Political Rights13https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

Adopted in 1976, pursuant to Article 18,

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion
2. or belief in worship, observance, practice and teaching.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Discussion

Consistent with the preceding internationally accepted norms, it is imperative that leaders at all levels take steps to develop policies and practices respecting and protecting religious freedom. Leaders must extend these safeguards by explicitly recognizing religious education as a fundamental human right for all children, regardless of their faiths or socioeconomic status. Yet when discussing these rights, it is important to bear in mind that the limitations on religious freedom in education are on a continuum. While the United States is the second category of moderate restrictions, the Pew Study identifies a variety of nations – including, most notably, Australia, Brazil, Canada, New Zealand, and South Africa – as having the lowest levels of restriction of religious freedom.14See the map at supra note 4, Government Restrictions on Religious Freedom Around the World, Level of Government Restrictions as of 2017. For the full list of nations in all categories, including those with the lowest restrictions, see the Complete Report, supra note 3 at 86.

As noted, over the past seventy-five years, American courts have generally relied on the “wall of separation” metaphor to limit the religious freedom in education rights of parents who were financially unable to send their children to faith-based schools. In fairness, though, American courts have otherwise protected the rights of faith-based and other non-public schools to operate,15The Supreme Court acknowledged both the right of non-public schools to exist and the rights of parents to direct the upbringing of their children in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925) (“[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”). albeit with limited amounts of financial assistance to parents and their children. However, the Supreme Court has apparently begun to dismantle the “wall” metaphor in favor of school choice programs designed to assist parents to pay tuition to send their children to the faith-based and other non-public schools they wish, thereby helping to remedy inequalities that strict separation has created, albeit unintentionally.16Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). For a commentary on this case, see Charles J. Russo & William E. Thro (2020, June 14). “Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice.”Emory University, Canopy on the Interactions of Law and Religion. https://canopyforum.org/2020/07/14/born-of-bigotry-died-in-religious-liberty/ Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012, 2025 (2017) (“the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”). This is an issue in the United States that certainly warrants close and continued observation.

There is a pressing need to protect religious freedom in education in those nations ranked as placing “high” or “very high” restrictions on religious freedom. The governments of the countries ranked as “high” remain slow to extend full rights to members of religious minorities. The group of nations ranked as “very high” have adopted policies that neither respect nor protect17See the map at supra note 4 as well as the Full Report for a list of the nations in this category.religious freedom in education, or generally. Given this critical situation in many parts of the world, the remainder of this paper offers recommendations or points to ponder for all interested in religious freedom both in education and in daily life.

First, leaders dedicated to providing religious freedom in education must provide adequate funding to create public or state-funded schools capable of providing children of all faiths, or the increasing phenomenon of those whose parents profess no faiths,18See, e.g., In U.S., Decline of Christianity Continues at Rapid Pace: An update on America’s changing religious landscape, Pew Center, Religion and Public Life, Oct. 17, 2019, https://www.pewforum.org/2019/10/17/in-u-s-decline-of-christianity-continues-at-rapid-pace/?utm_source=Pew+Research+Center&utm_campaign=d8dae17adc-EMAIL_CAMPAIGN_ 2019_10_17_01_06&utm_medium=email&utm_term=0_3e953b9b70-d8dae17adc-400258905 (reporting that in the U.S. “the religiously unaffiliated share of the population, consisting of people who describe their religious identity as atheist, agnostic or “nothing in particular,” now stands at 26%, up from 17% in 2009).” Moreover, “Self-described atheists now account for 4% of U.S. adults, up modestly but significantly from 2% in 2009; agnostics make up 5% of U.S. adults, up from 3% a decade ago; and 17% of Americans now describe their religion as “nothing in particular,” up from 12% in 2009.”). with world-class education along with an awareness, understanding, and respect of and for the beliefs of their peers. As reflected in language from the instruments cited above, it is especially important to safeguard religious freedom in schooling in light of what must be described as a time of growing cynicism about the need for education to help promote diversity and understanding of others, whether of religion or various interconnected matters such as the ethnic, cultural, and linguistic differences between and among peoples. The funding that leaders provide must also cover costs associated with facilities, instructional materials, and salaries to entice ‘‘the best and brightest’’ to enter education to work with young, and not so young, students at all levels of schooling.

At the same time that they provide funding for educational institutions, leaders must treat education, secular and religious, as an integrative force that helps prepare all students, especially the youngest, to become productive members of their societies, rather than sets them apart from one another based on religion. If acceptance of diversity of religious beliefs is neither encouraged in schools nor imbued throughout curricula, via such courses as world and/or comparative religions, then one cannot expect to find such virtues present throughout the rest of society as children grow into adulthood.

In a related matter, educational leaders must be open to meeting the schooling needs of all children, regardless of their backgrounds, by creating educational programs in which they are taught respect for religious pluralism alongside cross-cultural principles demonstrating understandings of and support for internationally accepted norms, and national laws. In other words, reconceptualized educational systems at all levels must be inclusive, not exclusive. Before such inclusive, equitable schools can operate by addressing diverse religious (and other) perspectives, though, it is imperative for national leaders, in conjunction with legislative bodies, to enact laws and policies designed to meet the educational needs of religious minorities. Concomitantly, members of minority faiths must respect the laws of host nations by being mindful of the rights and freedoms of others as dictated in internationally-accepted instruments discussed above as well as national laws19See, e.g., Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities at Article 4.2:States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.” (emphasis added). https://www.ohchr.org/EN/ProfessionalInterest/Pages/Minorities.aspx; International Covenant on Civil and Political Rights, at Article 18.3: Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx about the treatment of individuals outside of their own communities.

It is especially important to safeguard religious freedom in schooling in light of what must be described as a time of growing cynicism about the need for education to help promote diversity and understanding of others.

A necessary corollary to creating inclusive, intellectually diverse schools requires that leaders in institutions of higher learning engage in three ways. First, educational leaders must enhance teacher, administrator, and counselor preparation programs by including instruction about religious issues, including the study of different faiths, so they can better educate children.

Second, educational leaders must help create shared values among all groups in the development of curricular standards for teaching about religions by ensuring that schools offer courses such as comparative religions – while avoiding the sectarian teaching of singular religious perspectives in public schools. Further, as opposed to the United States, which has fifty separate state systems with some oversight provided by the federal department of education, nations with centralized ministries of education must maintain proactive leadership roles in developing curricular content about religion to ensure uniformity in all state-funded schools.

Third, educational leaders must develop curricular content and instructional materials about religion that are drafted by educational professionals in cooperation with outside content experts. Individuals from governmental and educational ministries, as well as from the university sector, should provide leadership on such projects. Even as educational leaders work to develop religious curricular materials with an eye toward primarily ensuring religious freedom, classroom instruction must challenge students to develop critical thinking skills rather than accept what they are taught premised on “blind faith.”

Educational leaders should implement religious-based curricula for use in public or state funded schools that can be widely accepted by most, if not all, people of good faith. In doing so, leaders should provide some consideration for permitting groups to preserve their independent religious heritages in the schools, such as by celebrating key religious holy days within the boundaries of domestic law and internationally-accepted covenants.

Similarly, particularly for elementary and secondary schools, when educational leaders put together committees to develop or review proposed curricular materials about religion, they should include a broad representation of stakeholders. Members of such committees should include, but be not necessarily limited to, parents, teachers, school administrators, and perhaps an upper-level student in secondary school to obtain their perspective on how their peers might react, as well as civil and religious leaders, committed to ensuring equal educational opportunities for all children regardless of faith.

In light of the rapid pace at which changes occur, educational leaders should regularly re-evaluate and update their religious education curricula and educational goals to keep them current. Moreover, in order to maintain a sense of balance, such reviews should occur during longer breaks from school, such as during summer months, so that any controversies that arise can be addressed.

Finally, educational leaders in higher education, in conjunction with officials in the appropriate governmental agencies, should schedule conferences, open to professionals and the general public, that address the significance of religious freedom in education. Offering such public sessions is an excellent way to inform the public about the need for preserving religious freedom in education as well as to gain input from all parties, again including, but not limited to, parents, students, and teachers as well as religious and civil leaders who are interested in helping to ensure equal educational opportunities for all children.

Conclusion

As the world continues to shrink amid growing interdependence between and among nations as well as their peoples, a major challenge facing the global community is how to ensure the educational and religious freedom in schooling rights for all, especially young children due to their potential vulnerabilities. With this in mind, inclusive teaching about religion holds the key to achieving greater tolerance of individuals whose beliefs differ so that all may live in harmony in their societies. As daunting and expansive as safeguarding these twin rights of education and religious freedom appears to be, meeting this challenge should be a priority for educational leaders, lawmakers, and policy makers because today’s children will grow up to be the next generation of leaders with the potential to strive to ensure a better tomorrow for all. ♦


Charles J. Russo is Panzer Chair in Education & Director, Ph.D. Program in Educational Leadership, School of Education and Health Sciences, Research Professor of Law, School of Law, University of Dayton, USA. Russo is also an Adjunct Professor in the Law School of the Sydney campus of Notre Dame University of Australia.