Download This PaperJusticiability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students
90 Pages Posted: 22 Apr 2019 Last revised: 17 May 2021
Date Written: March 30, 2019
Abstract
Since the seminal Santa Fe Independent School District v. Doe school prayer case, courts have been inundated with constitutional claims involving student religious speech at public schools. Courts have struggled mightily with the question of whether this speech is private speech, which is free of the constraints of the Establishment Clause, or government speech, which is subject to the bounds of that clause. In this struggle, some courts have gotten lost in the maze of Establishment Clause jurisprudence and forgotten the core principles of justiciability and hierarchical precedent. Instead, they have resorted to advisory opinions, ipse dixit, or judicial fiat, which has only served to make the fundamental Establishment Clause private speech and government speech dichotomy less clear. This Article provides a close examination of two of these most egregious recent examples as a vehicle to advocate against the use of advisory opinions and judicial fiat in this area of jurisprudence. It then provides a clear foundational framework, which consists of a justiciability requirement and a precedential requirement, for the judicial evaluation of religious student speech classification claims in school law establishment cases. This framework is offered to counteract extant harmful judicial practices. These harmful approaches contribute to the continued confusion of education law Establishment Clause jurisprudence; delegitimize constitutional interpretation in this area; allow possible end runs around the Establishment Clause; harm religious liberty and sanctity; hurt the administration of the judicial system; and teach anti-democratic principles to citizens and schoolchildren. To safeguard both sides of Jefferson’s wall, courts must ensure that they comply with justiciability requirements and the doctrine of hierarchical precedent when asked to classify religious student speech as school-sponsored government speech or as pure private speech in Establishment Clause cases. This Article’s framework will allow them to do so.
Keywords: Establishment Clause, school law, education law, justiciability, hierarchical precedent, religion, speech, students, schools
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