I share some list members’ discomfort with Zorach, and with the
South Carolina law that gives favored treatment to religious studies classes,
rather than just releasing students to take a class at any other accredited
school or at any unaccredited school if the class is certified by an accredited
school. I’m sure I’m “hostile to separation” in Marci’s view, and though I’m
entirely irreligious myself I am indeed hostile to the separation that Marci
advocates. Yet I do think that this sort of discrimination in favor of
religion ought to be seen as constitutionally suspect, and I regret that Zorach
took a different view.
But the argument below seems to me to go too far, because of
the transfer student point raised by Rick and by the Fourth Circuit opinion.
Say that someone transfers to a public school in the 11th grade, and to be
entitled to so transfer he has to show some number of semester-hours of
schoolwork at his prior school; and say that the prior school had a pervasively
religious curriculum, so that many classes have a religious component. Is it
really the case that the public school is constitutionally barred from
accepting those semester-hours? I would think not, though I’d be happy to hear
Marci’s view on the subject.
Now perhaps there is some constitutional distinction between
pure theology classes and mixed religious/nonreligious classes – but when it
comes to funding programs, the Souter/Stevens/Brennan/Marshall wing has
generally insisted that there is no such distinction. So it seems to me that
the constitutional objection can’t be to schools accepting credit for religious
instruction from other schools; the objection must be to schools doing so under
programs that favor religious instruction.
Eugene
Marci Hamilton writes:
On the merits, I don't see why or how the public schools can take frankly
ecclesiastical courses from frankly religious schools for credit under existing
doctrine.
Now, if the argument is that the Court should and may abandon the Establishment
Clause, let's be honest about that. It is well known that those hostile to
separation are hoping this new Court will cut back on the Est Cl
Under existing doctrine, these credits are a violation of the separation of
church and state and the Memorial and Remonstrance.
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