28 Pages Posted: 30 Jul 2011 Last revised: 17 May 2012
Date Written: 2012
We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence.
Keywords: Courts, Judges, Judicial Decision Making, Religion, Constitution
Suggested Citation: Suggested Citation
Heise, Michael and Sisk, Gregory C., Religion, Schools, and Judicial Decision Making: An Empirical Perspective (2012). 79 University of Chicago Law Review 187(2012); U of St. Thomas Legal Studies Research Paper No. 11-19 ; Cornell Legal Studies Research Paper No. 11-28. Available at SSRN: https://ssrn.com/abstract=1898693 or http://dx.doi.org/10.2139/ssrn.1898693