Religious privilege is an ongoing reality in America, and nowhere is this more true than in courtrooms across the country. (Just look to the Supreme Court’s recent decisions to allow religious schools to benefit from taxpayer funding earlier this month.) Simply by claiming a religious motivation, faith-based educational institutions are able to escape being held accountable for their actions.
But the protection intended by this standard has been twisted to protect the wrong people.
The EAD has been recast as a dangerous legal precedent that allows faith-based educational institutions to avoid being held accountable for failing to keep children safe — or for committing an act that harms a child.
In the last few years, courts in Texas have used the EAD to create loopholes that shield religious educational institutions from secular oversight in situations that are far removed from the original intent of upholding church/state separation. In John Doe vs. Episcopal School of Dallas (ESD), which was decided by the 5th Circuit Court of Appeals in 2018, a student was caught smoking marijuana off-campus and was subsequently expelled, even though a school-administered drug test came back negative. The student’s parents sued for, among other claims, a breach of contract, arguing that the school could not prove that their child had violated its terms of admission and study. Both the district and appellate courts said the case required the judges to “decide a matter of religious doctrine by looking into the inner decision-making of the school and dismissed all of the claims.”
That same year, the 405th District Court in Galveston applied the doctrine in Maureen Beans, et al. v. Trinity Episcopal School. A Black student was the victim of repeated, racist bullying, including the placement of origami KKK hoods in the student’s locker. The student’s parents sued the faith-based school for negligence and for intentionally inflicting emotional distress when the administration failed to appropriately punish the admitted bullies. But the court dismissed the case on the basis that the school’s disciplinary measures were too intertwined with its religious teachings to allow any secular judgment from outside observers. This premise is preposterous at best and horrific at worst.
The legal precedent set by these two cases massively expanded the scope of the EAD. Prior to these instances, the EAD had only been applied to “churches and those institutions operated directly by churches.” But neither of the schools described in these examples are linked to a house of worship — they they merely claim some religious affiliation. This expansion allows the doctrine to apply to countless children across the country. During the 2015-2016 school year, 67% of private schools, enrolling more than 78% of private school students, had a “religious orientation or purpose.” If the state will not hold these institutions accountable, a significant portion of American students are at risk of having their rights jeopardized with few options for recourse.
With the Religious Right’s hold on the American judicial system, and the Trump administration’s repeated nomination of judges who fail to respect the basic principle of constitutional separation of church and state, it’s tempting to believe there’s no way to fight back. But there are actionable steps we can take.
Please note the last quote. The tRump administration has given the religious right a really strong , almost stranglehold on the US court system. This is what the evangelicals have been working for since Reagan and the reason why they support tRump so strongly. It is their way as a clear minority to enforce their faith and bigotry on the rest of the country for decades. It is something we really have to address. The US secular democracy has been almost totally over taken by two minority parties, the fanatic religious and the authoritarian racist cult of tRump. There is more at the link above. Hugs