Columbia Public Law & Legal Theory Working Papers

Document Type



The constitutional paradox of religious learning is the problem of knowing that religion – including the teaching about religion – must be separated from liberal public education, and yet that religion cannot be entirely separated if the aims of liberal public education are to be realized. It is a paradox that has gone largely unexamined by courts, constitutional scholars and other legal theorists. Though the Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence and scholars frequently urge favored policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the paradox itself. As a result, discussion about religion’s place in public schools often exhibits a haphazard and under-theorized quality. Yet without a deeper understanding of the relationship between religious learning and liberal public education, no edifying policy solutions are likely in an area so fraught with constitutional complexity and high emotion.

This Article aims to fill that gap by giving the constitutional paradox of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It draws on that account to develop a unique model of religious learning within liberal learning that takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article’s comprehensive examination of the constitutional paradox of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest rapprochement.

Date of Authorship for this Version

February 2008