Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.
In both cases, despite a long-established
rule of deference to public employers’ need to control their own operations –
and despite mighty efforts to accommodate difficult employees - public schools
lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that
would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the
religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing
interest. The language of privacy and
autonomy was deployed to enable the religious to wield state authority and harm
their students.
These are only two cases. But they come from high federal courts, one
from the Supreme Court, and their similarity of approach, and resemblance to
other recent treatments of religious liberty by the Court, is a reasonable
basis for alarm.
I develop this argument in an article, “The Emerging First Amendment Right to Mistreat Students,” newly published in the Case Western Law Review.