Getting Help with Their Homework: Schools, Lower Courts, and the Supreme Court Justices Look for Answers Under the Establishment Clause

Abstract:     
The Supreme Court has held that the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The Court has stated that it has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools, where students are impressionable and their attendance is involuntary. Yet, the Court's Establishment Clause jurisprudence, at least in the last two decades, has lacked clarity, certainty, and consistency. The Court's last decision of the century and the first three decisions of the new millennium illustrate this judicial dissension. An analysis of those four Supreme Court decisions, as well as the lower court decisions that have subsequently grappled with Establishment Clause issues in the school context reflect the Court's sometimes shifting, and usually divided, Establishment Clause jurisprudence. In looking at those cases, certain major questions or areas of uncertainty may be identified. Focusing on these questions highlights the areas of divisiveness among the various Justices and may help the lower courts to resolve the confusion spawned by the Supreme Court Establishment Clause opinions. This Article will examine those four Supreme Court decisions, the major questions remaining, and the efforts of the lower courts in addressing religious issues in the school context.

Number of Pages in PDF File: 55

Keywords: schools, establishment clause

JEL Classification: K30

Accepted Paper Series