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Religious Diversity, Education, and the “Crisis” in State Neutrality

Published online by Cambridge University Press:  22 November 2013

Benjamin L. Berger
Benjamin L. Berger*
Affiliation:
Osgoode Hall Law SchoolYork University
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Abstract

Education—and particularly public education—has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality.

Résumé

L’éducation—et tout particulièrement l’éducation publique—est devenue un creuset dans la relation entre l’état et la diversité religieuse, un site principal de débats contemporains à propos du sens de la laïcité et de la gestion des différences religieuses. Ceci est le cas à travers plusieurs traditions nationales, malgré les grandes différences qui existent au sein du patrimoine historique et émotionnel entourant la configuration du droit, des politiques et de la religion. En examinant les idées de Hannah Arendt sur la responsabilité et la liberté au sein de l’éducation, cet article cherche à mieux comprendre pourquoi l’éducation demeure, à l’heure actuelle, un domaine critique et tendu dans la rencontre entre la religion et le droit. Cet article se penche sur la jurisprudence récente de la Cour suprême du Canada afin de souligner les répercussions de ces idées et d’arriver à une conclusion sur la nature et les limites du concept de la neutralité étatique.

Keywords

religioneducationArendtsecularismlawneutralitytolerancereligionéducationArendtlaïcitédroitneutralitétolérance
Type
Articles
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 29 , Issue 1 , April 2014 , pp. 103 - 122
Copyright
Copyright © Canadian Law and Society Association / Association Canadienne Droit et Société 2013 

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References

1 The phrase “emotional inheritances” is borrowed from Talal Asad, “French Secularism and the ‘Islamic Veil Affair,’” The Hedgehog Review (2006): 93–106.

2 Lautsi and others v Italy, 19 March 2011, European Court of Human Rights (Grand Chamber), No 30814/06.

3 Talal Asad provides a rich and provocative discussion of the Stasi Commission and its place in recent debates about French secularism and national identity: “French Secularism and the ‘Islamic Veil Affair,’” supra note 1.

4 See Leila Şahin v Turkey, 10 November 2005, European Court of Human Rights (Grand Chamber), No 44774/98.

5 Tobias Lock offers a helpful account of the recent history of religious symbols in German schools: Tobias Lock, “Of Crucifixes and Headscarves: Religious Symbols in German Schools,” in Law, Relgious Freedoms, and Education in Europe, ed. Marie Hunter-Henin (London: Ashgate, 2012), 347–69.

6 R(E) v Governing Body of JFS, [2009] UKSC 15.

7 See, for example, Noar Kehalacha Association v Ministry of Education, (2009) IsrLR 84, HCJ 1067/08; Tebeka Advocacy for Equality & Justice for Ethiopian-Israelis v The Ministry of Education (2010), HCJ 7426/08.

8 Definitive Treaty of Peace, France, Great Britain, and Spain, 10 February 1763, 42 Cons TS 279.

9 Quebec Act, 1774 (UK), 14 Geo III, c 83.

10 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 (formerly British North America Act, 1867).

11 See Miller, J. R., Shingwauk’s Vision: A History of Native Residential Schools (Toronto: University of Toronto Press, 1996)Google Scholar. For a recent statement from the Supreme Court of Canada on the effects of this experience, see R v Ipeelee, [2012] 1 SCR 433.

12 McLaren, John P. S., “The Doukhobor Belief in Individual Faith and Conscience and the Demands of the Secular State,” in Religious Conscience, the State, and the Law: Historical Contexts and Contemporary Significance, eds. McLaren, John and Coward, Harold (Albany: State University of New York Press, 1999), 199.Google Scholar

13 For an account of some of the features that make religious accommodation and toleration particularly fraught and vexing in educational contexts, see Macleod, Colin, “Toleration, Children and Education,” Educational Philosophy and Theory 42, no. 1 (2010): 9–21.CrossRefGoogle Scholar

14 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

15 See Reference re Bill 30, An Act to Amend the Education Act (Ontario), [1987] 1 SCR 1148; Adler v Ontario, [1996] 3 SCR 609.

16 See Zylberberg v Sudbury Board of Education (1988), 65 OR (2d) 641 (CA).

17 See Chamberlain v Surrey School District No 36, [2002] 4 SCR 710.

18 See Hall v Powers (2002), 213 DLR (4th) 308.

19 See Trinity Western University v British Columbia College of Teachers, [2001] 1 SCR 772. See also Richard Moon, “Sexual Orientation, Equality, and Religious Freedom in the Public Schools: A Comment on Trinity Western University v. B.C. College of Teachers and Chamberlain v. Surrey School Board, District 36,” Review of Constitutional Studies 8, no. 2 (2003): 228.

20 Arendt, Hannah, “The Crisis in Education,” in Between Past and Future: Eight Exercises in Political Thought (London: Penguin Books, [1968] 2006), 170–93.Google Scholar

21 Ibid. at 186.

22 Ibid. at 193.

23 Ibid. at 189.

24 Ibid. at 193.

25 Ibid. at 182 (italics added).

26 Ibid. at 183.

27 Ibid. at 185.

28 Ibid. at 193. See Gordon, Mordechai, “Hannah Arendt on Authority: Conservatism in Education Reconsidered,” Educational Theory 49, no. 2 (1999): 161 at 172.Google Scholar

29 SL v Commission scolaire des Chênes, [2012] 1 SCR 235.

30 R v Big M Drug Mart, [1985] 1 SCR 295.

31 Ibid. at 337.

32 Supra note 16.

33 With its unique history of state-church relations, reflected in the historical sketch provided earlier in this article, Canada has never adopted the strict institutional separationism found in US constitutional law, nor has it endorsed the laïc approach found in France. Nevertheless, early in the Charter jurisprudence, Canadian courts recognized that freedom of religion implies freedom from religion, in the sense of freedom from coercion or compulsion in matters of religion.

34 See, e.g., Rosenberg v Outremont (City), [2001] RJQ 1556 (SC), concerning the eruv, or Syndicat Northcrest v Amselem [2004] 2 SCR 551, concerning the sukkah on a balcony.

35 See Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256.

36 Supra note 18.

37 Supra note 17.

38 Supra note 19.

39 SL, supra note 29 at para 34.

40 Ibid. at paras 13 and 14.

41 The case of Québec (Procureur general) c Loyola High School, 2012 QCCA 2139, raises an associated and potentially even more fraught issue—whether private religious schools must teach the ERC as prescribed by the ministry, or whether they can deliver a faith-inflected version of the course. At the time of publication, an appeal of this decision was scheduled to be heard by the Supreme Court of Canada.

42 SL, supra note 29 at para 37. The SL cases mirrors many of the issues in the US case of Mozert v Hawkins County Bd of Education, 827 F2d 1058 (6th Cir 1987), and the Court’s conclusion parallels the result in Mozert. Wisconsin v Yoder, 406 US 205 (1971) is, of course, another famous US case on religious objections to education, though it raises somewhat different issues. The Supreme Court of the United States ruled in favor of the Amish parents who objected to education beyond the 8th grade. For a defence of “Liberal Civic Education” based in a reaction to Mozert and Rawlsian political liberalism, see Macedo, Stephen, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?,” Ethics 105, no. 3 (1995): 468–96.Google Scholar

43 SL, supra note 29 at para 40.

44 See also Apple, Michael W., Ideology and Curriculum, 2nd ed. (New York: Routledge, 1990)Google Scholar; Bowles, Samuel and Gintis, Herbert, Schooling in Capitalist America: Educational Reform and the Contradictions of Economic Life (New York: Basic Books, 1976).Google Scholar

45 Adler, supra note 15.

46 Ibid. at para 86.

47 Recent literature has emphasized the broad range of configurations of religion, politics, and law that can subsist under the label “secular.” Some are moved to insist on the pluralisation of the term, referring to “secularisms”; others claim that there is something that links these various manifestations of the secular together. This piece does not directly join this debate about the meaning of the term “secular,” though debates about religion, education, and the nature of claims for state neutrality are part of wrestling with the concept and implications of secularism. For thoughtful discussions of the idea of secularism, see, e.g., Asad, “French Secularism and the ‘Islamic Veil Affair,’” supra note 1; Fernando, Mayanthi L., “Reconfiguring Freedom: Muslim Piety and the Limits of Secular Law and Public Discourse in France,” American Ethnologist 37, no. 1 (2010): 19–35 Google Scholar; Whitman, James Q., “Separating Church and State: The Atlantic Divide,” Historical Reflections 34, no. 3 (2008): 86 Google Scholar; Jakobsen, Janet R. and Pellegrini, Ann, eds., Secularisms (Durham and London: Duke University Press, 2008)Google Scholar; Warner, Michael, VanAntwerpen, Jonathan, and Calhoun, Crag, eds., Varieties of Secularism in a Secular Age (Cambridge and London: Harvard University Press, 2010).Google Scholar

48 Maclure, Jocelyn and Taylor, Charles, Secularism and Freedom of Conscience (Cambridge, MA and London: Harvard University Press, 2011), 47.Google Scholar

49 In Israel, society is facing a social crisis brought about by the failure to properly balance the needs of public education and claims of religious freedom. Substantial portions of the male ultra-Orthodox community are not being equipped with basic knowledge in fields such as English and math, creating tremendous barriers to employment and post-secondary education in this rapidly growing demographic. See Yoel Finkelman, “Ultra-Orthodox/Haredi Education,” in International Handbook of Jewish Education, eds. Miller, Helena, Grant, Lisa, and Pomson, Alex, International Handbooks of Religion and Education (Springer Netherlands, 2011): 1063–80Google Scholar; Berman, Eli, “Sect, Subsidy, and Sacrifice: An Economist’s View of Ultra-Orthodox Jews,” The Quarterly Journal of Economics 115, no. 3 (2000): 905–53Google Scholar; Lubell, Maayan, “Israeli Education: A State Divided,” Chicago Tribune, January 1, 2012 Google Scholar; Rubinstein, Amnon, “Give Haredi Children Tools for Life,” Jerusalem Post, September 5, 2007 Google Scholar. For a case addressing the challenge of imposing a “core curriculum” on ultra-Orthodox schools, see The Center for Jewish Pluralism v The Ministry of Education (2008), HCJ 4805/07.

50 Macleod, “Toleration, Children and Education,” supra note 13 at 17.

51 Maclure and Taylor, Secularism and Freedom of Conscience, supra note 48 at 16. See also Macleod, “Toleration, Children and Education,” supra note 13 at 13.

52 See Maclure and Taylor, Secularism and Freedom of Conscience, supra note 48 at 102–3.

53 Chamberlain, supra note 17.

54 Chamberlain, supra note 17 at para 33.

55 TWU, supra note 19 at para 13.

56 Arendt, supra note 20 at 185; see note 27 above.

57 The question of who is best equipped to actually teach the content in something like a religious cultures course—a point not addressed in SL—is a separate, but important, issue. It may well be that the wisest course of action, in terms of both expertise and buy-in, would be to involve the community in delivering this aspect of a curriculum. The Loyola case, supra note 41, poses the related question of whether there can be variation among religious and public schools in how the ERC is delivered. Although that issue would demand its own careful analysis, I would be skeptical of a position that would imply that there is only one way to effectively teach intercultural knowledge and respectful engagement across difference.

58 Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Can TS 1992 No 3, Article 29, section 1(d).

59 See Macleod, “Toleration, Children and Education,” supra note 13 at 16.

60 Reference to the UN Convention on the Rights of the Child, supra note 58, is instructive here. Article 29 states that education is to be directed toward the child’s self-fulfillment; respect for human rights, tolerance, equality, and the environment; and generally to “preparation of the child for responsible life in a free society” (section 1(a, b, d, e)). Yet section 1(c) also affirms a commitment to “the development of respect for the child’s parents, his or her own cultural identity, language and values” alongside “the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own.”

61 Maclure and Taylor, Secularism and Freedom of Conscience, supra note 48 at 103.

62 SL, supra note 29 at para 21.

63 Ibid. at para 54.

64 Ibid. at para 31. Arif A. Jamal and Farid Panjwani interestingly argue that a kind of objectification of religion—including the sort of propensity to relativism about which the parents in the SL case complained—is intrinsic to the curricularization of religion. “Having Faith in Our Schools: Struggling with Definitions of Religion,” in Law, Religious Freedoms, and Education in Europe, ed. Marie Hunter-Henin (London: Ashgate, 2012), 79.

65 For Canadian examples, see, e.g., Chamberlain, supra note 17 at para 21; Multani, supra note 35 at para 76.

66 Writing in 2005, Bruce Ryder notes that the concept of neutrality has historically played a less important role in Canada than is has in the United States: “State Neutrality and Freedom of Conscience and Religion,” Supreme Court Law Review (2d) 29 (2005): 170–71. Although the concept retains different connotations in the two constitutional histories, “neutrality” plays a much more prominent role in the Supreme Court of Canada’s recent religion jurisprudence. Research conducted by the author and Geneviève Murray (JD, NYU/Osgoode) reveals that, since 2004, the Court’s invocation of the concept of “toleration” has dropped off notably, with a suggestive increase in references to “neutrality” that spiked in 2012 with the SL decision.

67 SL, supra note 29 at para 10. For an insightful account of the analytic tensions that arise from this formal commitment to state neutrality, see Richard J. Moon, “Freedom of Religion under the Charter of Rights: The Limits of State Neutrality,” UBC Law Review 45 (2012): 495–549. Of particular importance to the themes of this article, Moon notes in his article that the jurisprudential commitment to the language of neutrality can create “unrealistic expectations on the part of religious adherents” such that “[w]hen the state rejects or disfavours the values of a particular religious group. . . it may be seen as failing in its duty to remain neutral in spiritual matters” (541).

68 Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton and Oxford: Princeton University Press, 2006).Google Scholar

69 Benjamin L. Berger, “The Cultural Limits of Legal Tolerance,” Can. J. L. & Jur. 21, no. 2 (2008): 245–77.

70 See Zagorin, Perez, How the Idea of Religious Toleration Came to the West (Princeton and Oxford: Princeton University Press, 2003).Google Scholar

71 Bender, Courtney and Klassen, Pamela E., eds., After Pluralism: Reimagining Religious Engagement (New York: Columbia University Press, 2010)Google Scholar; Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire, supra note 68. This was, of course, precisely Rawls’s ambition in his work on public reason and political liberalism: Rawls, John, Political Liberalism (New York: Columbia University Press, 1996).Google Scholar

72 Comaroff, Jean and Comaroff, John L., Theory from the South: Or, How Euro-America Is Evolving toward Africa (Boulder and London: Paradigm Publishers, 2012), 145.Google Scholar

73 Bruker v Marcovitz, [2007] 3 SCR 607 at para 102.

74 Ryder, commenting on Justice LeBel’s dissenting reasons in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), [2004] 2 SCR 650, draws a different distinction within the concept of neutrality, that of neutrality between religions as against neutrality about religion (supra note 66). Ryder argues that the Canadian tradition supports the state’s affirmative valuation of religion and that “[t]he state’s duty of neutrality between religions, in Canadian law. . . . permits the state to promote, in an even-handed manner, a religiously-positive pluralism” (“State Neutrality and Freedom of Conscience and Religion,” supra note 66 at 185). These claims echo Richard Moon’s conclusion in “Liberty, Neutrality, and Inclusion: Religious Freedom under the Canadian Charter of Rights and Freedoms,” Brandeis Law Journal 41, no. 3 (2003): 563–73 at 570, that “[t]here seems to be no question in Canada that the state can support different religious practices or religious schools, but it must do so in an even-handed way and it must ensure that non-religious alternatives are also supported.”

75 Maclure and Taylor, Secularism and Freedom of Conscience, supra note 48 at 11.