Constitutional conflicts are central to the Supreme Court’s jurisprudence. In reaffirming the principle of judicial review established in Marbury v. Madison, the Justices have consistently emphasized the need for principled decision-making to fulfill the Court’s Article III role as the ultimate interpreter of the Constitution in resolving such disputes. In line with these principles of resolution, the Court has traditionally exercised the avoidance doctrine as a form of judicial restraint, aiming to prevent decisions that escalate constitutional conflicts and to ease tensions caused by unelected judiciary overreach. Indeed, the Roberts Court has underscored that the purpose of judicial restraint is to seek harmony, not to create conflict. However, contrary to these ideals of reason, resolution, and restraint, the 2020s have seen the conservative supermajority of the current Court increasingly prioritize value judgments in its assessment of constitutional liberty in a broadly destructive manner. Coupled with a voracious intent to abandon stare decisis, this preferentialism has led to a range of deleterious consequences. The most insidious examples of the Court’s broad privileging of certain constitutional rights over others have arisen in cases that directly impact the essential situses for participation in American democracy—its public schools. In cases like Kennedy v. Bremerton School District, Mahmoud v. Taylor, and Mirabelli v. Bonta, the Court has weaponized adult free exercise rights and aggrandized parental substantive due process liberties in these “nurseries of democracy,” effectively erasing nearly any notion from Tinker that students have real First Amendment freedoms within schools. This unnecessary clash of constitutional rights is inculcating American schoolchildren with their own suppression. Here, the lessons of constitutional collisions are simple. When assessing students’ constitutional personhood in the context of broadly construed competing considerations, adults’ liberty is exhaustively subjugating. This has created a zero-sum jurisprudence in which students will always lose.

Over the last decade, there have been multiple occurrences of religious indoctrination and teacher-led prayer in public schools, despite 75 years of consistent Supreme Court precedent that has determined these school-sponsored exercises violate the Establishment Clause. These dogged attempts to install prayer in public schools have been spurred on by a judicial ideology that has advocated for the constitutionality of expansive religious practices within government based on the history of the United States being a religious nation. By embracing this ideology in its Establishment Clause analyses, the conservative majority of the Roberts Court has constructed a firm foundation upon which motivated interests can argue that school-sponsored prayer no longer transgresses the boundaries of the First Amendment when analyzed through an interpretive lens of history and tradition. The 2022 Kennedy v. Bremerton School District case has become the new high watermark for the Supreme Court’s embrace of this flawed decision-making approach through its series of insidious quiet encroachments upon the Court’s longstanding school prayer jurisprudence. As such, this Article uses a detailed analysis of the Kennedy majority’s jurisprudential errors as the paradigmatic example of how the Roberts Court views its role to correct the mistakes of previous Courts concerning constitutional religious liberty through the use of blurry factual narratives, inaccurate precedential claims, and faulty analytical conflations. This reaching into the past to settle disputes of the present goes back further than one might imagine. Overturning the Warren Court’s decisions would not seem out of step for the current conservative majority, but looking to reverse course on the nearly unanimous precedent of the Vinson Court of the 1940s demonstrates their radicalism. Consequently, this Article demands solidarity against the Robert Court’s intended abandonment of stare decisis with the Court’s longstanding religious exercises in public schools jurisprudence. This Kennedy version of constitutional interpretation runs counter to Madisonian neutrality which is the sine qua non of the Establishment Clause and should be rejected. This is the necessary bulwark to stem the tide of looming constitutionally violative harm, maintain the Court’s legitimacy as an institution of American government, and ensure that all of our country’s public schoolchildren are provided essential protections from the major encroachments that result from state-sponsored prayer in schools.

Public school board meeting prayer cases are intensely divisive and difficult. The federal circuit courts have struggled mightily with these Establishment Clause cases, and this struggle has resulted in a circuit split regarding these prayers’ constitutionality. At the core of this unresolved split is whether these cases are governed by the Supreme Court’s seventy-five-year school prayer jurisprudence or by its narrow Marsh-Town of Greece legislative prayer exception. This Article analyzes how these divergent decisions and the continued crafting of invocation policies by public school boards in the vacuum of direct Supreme Court guidance exemplify the complex constitutional issues that arise in all school law First Amendment cases. It then argues that public school board meeting prayers are a violation of the Establishment Clause because they are coercive, polarizing prayers that run contrary to the core of this religion clause of the First Amendment. They cannot be cured as constitutional violations by claiming that they are subject to the legislative prayer exception, by asserting that they are private student speech, by requiring students to absent themselves during their delivery, or by arguing that they are de minimis encroachments. Consequently, these prayers require invalidation as they infringe upon the conscientious liberties of the schoolchildren who are most impacted by this state-sponsored religious speech; they allow the state to transverse the boundaries of religious sanctity; and they give rise to majoritarian governmental orthodoxy. These are Establishment Clause violations, and principled judicial decision making from all federal courts, including the Supreme Court, is needed to end these significant constitutional abuses.

It seems almost impossible to find a coherent theory within the Supreme Court’s Establishment Clause jurisprudence. This case law has been called an incomprehensible thicket. Contrary to this perception, this Article asserts that a certain subset of this jurisprudence — the Court’s precedent on religious activities within public schools — is neither incoherent nor impenetrable. Instead, these decisions are unified by their fidelity to Madisonian neutrality, which was first articulated in the school law case that began the Court’s modern Establishment Clause doctrine. Through the identification of the Framer’s fidelity within this subset of school law, this Article reclaims the thicket theory pejoration as a constitutionally correct and significantly beneficial theory that embodies the original purposes of the First Amendment. In doing so, this Article demonstrates that the Court’s educational Establishment Clause jurisprudence has formed a protective thicket around American schoolchildren — a political minority that merits special constitutional shielding from the divisive forces of state-established religion. It is a positive thicket that safeguards the freedom of conscience of all American schoolchildren, no matter their beliefs, while balancing respect for their autonomy to engage in constitutionally protected religious practices. Finally, it is an instructional thicket that upholds democratic principles by preserving respect for church and state. These educative results align with the crucial importance of the public school as the preparatory situs for children’s participation in our constitutional democracy. Consequently, the Court should continue to use this approach to zealously defend the fundamental values of the First Amendment in America’s public schools.

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.

"[P]ublic education must prepare pupils for citizenship in the Republic. . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation."(1)

Across the country, K-12 schools, teachers, and administrators are inflicting shaming punishments upon students for noncompliance or suspicion of noncompliance with school or classroom administrative policies. These in-school shaming punishments are designed to punish behavior by making an example of the noncompliant student in front of his or her peers, teachers, or administrators. Rather than removing the child from school grounds, these shaming punishments shine a bright light upon the offending student and his or her conduct while keeping the student within the schoolhouse gate. While there has been a significant amount of legal scholarship dedicated to the clearly detrimental effects of exclusionary punishment and corporal punishment, there has been almost no critical analysis of shaming punishments in schools. The aim of this Article is to fill this void by outlining the inefficacy and harm of shaming punishments and by advocating for their cessation through a constitutional lens. It argues that punitive school shaming discipline results in constitutional violations of students’ First and Fourth Amendment rights, which should give rise to liability in 42 U.S.C. § 1983 lawsuits. Therefore, schools and their employees should no longer impose shaming punishments and should instead use more beneficial consequential alternatives to address student conduct that can restore respect, rather than exacerbate stigma, among all school constituencies.

Shaming has become a substantial phenomenon in K-12 schools. Educational shaming punishments stigmatize the targeted student by exposing him or her to the school community’s condemnation. Designed to penalize behavior through degradation, school shaming punishments include strip searches, forced apologies, dress code violation determinations, and transgender student restroom access denials. While there has been an extensive amount of legal scholarship that explores criminal shaming sanctions, there has been almost no critical assessment of shaming punishments in schools. This Article fills this gap by advocating for the invalidation of school shaming punishments through a legal theory lenses. Specifically, the article draws upon the analogous critical rejection of shaming punishments in the criminal law context by Professors Dan Markel, Martha Nussbaum, Stephen Garvey, Toni Massaro, and Eric Posner to argue for their removal from the educational context. This extrapolation concludes that schools should not utilize shaming punishments as they conflict with dignity, decency, and a moral-educative mission — the very pedagogical goals and civic aims of education of children in American public schools.

State legalization of marijuana is a divisive and polarizing issue that has resulted in fragmentation between governments and citizens. In contravention of federal law, voters in Colorado and Washington in 2012 and voters in Alaska and Oregon in 2014 approved ballot initiatives that legalized the state-regulated sale of marijuana to adults for their recreational use and possession. All of these measures continue to make marijuana unlawful for anyone under twenty-one, which is reflective of the shared understanding of the myriad harms that occur when non-adults access marijuana. Based on this understanding, this Article argues that any state that fully legalizes marijuana has a concomitant duty to amend its K-12 public school drug and alcohol instructional statutes to explicitly include marijuana education. Although none of these four states has enacted such legislation, this Article provides two, straightforward and necessary statutory alternatives to do so. These statutes would provide the predicate for the development of correlative marijuana-specific educational regulations and academic content standards in these states. This legislation is necessary as alternative current attempts to educate about marijuana in these states do not provide sufficient safeguards for their youth. Additionally, this legislation will help to ease the fracturing between federal and state governments as it would expressly comply with the federal funding conditions of the recent 2015 reauthorization of the Elementary and Secondary Education Act of 1965. Due to the Rawlsian overlapping consensus about the need to prohibit non-adult access to marijuana, this statutory amendment would not require a herculean political effort and could be a bridge between the partisan opponents on the issue of marijuana reforms. These legislative actions could also provide a model for future states that may legalize marijuana in the future. Finally, by enacting these statutes, these states will take strides to cure a significant legal deficiency that has the potential to cause irreparable harm to their children and greater populaces.

Student loan debt in the United States is now estimated to exceed one trillion dollars. However, in obtaining financial assistance, many postsecondary students do not contemplate the long-term implications of the legal obligations that they accept as conditions to obtain student loan funds. This mass failure to realize the requirements attached to signing promissory notes and entering into binding loan contracts has recently led to several rounds of reform by the federal government. Unfortunately, these reforms have done little to stem the tide of rising student loan debt, most of which is not dischargeable in bankruptcy. This Article examines how the student debt crisis showcases the newest front in the battle for access to higher education. It outlines the rapid escalation of university and college costs over the last thirty years and the potential harms that accompany those costs. These harms extend beyond the direct, financial impact on students to the civic community and economic growth of the country. To help to ameliorate these harms, amendments are needed to the statutory provisions of the Higher Education Act, and their implementing regulations, regarding the counseling that is attached to the disbursement of student loans for all institutions whose students receive Title IV aid. If adopted, these statutory and regulatory amendments would promote informed access without diminishing the quality of higher education or turning students’ investments in their futures into unsustainable burdens.

The Tinker dicta that students and teachers do not lose their constitutional rights at the schoolhouse gate is at the center of almost every case that examines the First or Fourth Amendment rights of these individuals. Yet, the clear trajectory of modern appellate decisions is to favor a highly controlled school environment over one that fosters freedoms of expression or privacy. This Article explores the paradox between the rhetoric and the actual outcomes in school cases — outcomes that consistently subordinate liberty to state control. Through Tinker and its progeny, the Court has vastly constricted student rights based on the need for administrators to maintain order in schools. Based on this constriction, lower federal courts now restrict the rights of teachers in ways that often go beyond the limits placed on the children with whose care they are entrusted. This is accomplished by incorrectly analogizing teachers to students or by superimposing standards for other governmental employees onto teachers without recognizing the special nature of the educative process. The effect of this judicial cabining of students and teachers’ rights has been a diminution in educational outcomes. Students do not learn the value of dissent or autonomy, accepting as the norm these infringements on their constitutional rights. Teachers must endure overly constrictive curtailments of their speech and privacy rights, which negatively impact the pedagogical dynamics of their professions. The significance of this trend is that it not only has a chilling effect on learning, but it also conditions the citizenry from youth to accept restrictions on speech and to acquiesce to government surveillance. Because schools are to serve as laboratories for democratic engagement, courts should renew their attention to the infringement creep in this area of jurisprudence and the negative effects it engenders.

Over the last century, higher education has undergone an expansive transformation. However, questions remain about students’ future access to postsecondary institutions in a political climate that increasingly seeks privatization over public investment. This is especially true for the recent growth of for-profit colleges and universities as the public takes on the risk of the student loans used to finance this industry while the stockholders receive all of the profits. Although some of these private, for-profit institutions work diligently to provide quality programs that give students an opportunity at better economic prospects, the industry, as a whole, has been plagued with problems involving student recruiting, student loan burdens, and gainful employment. These issues indicate that substantial reform of this industry is necessary as the majority of the harms of these practices affect marginalized populations. This Article provides a comprehensive legal analysis of the current state of for-profit higher education. After analyzing the spate of recent litigation and regulation related to for-profit postsecondary institutions, the Article argues for stronger controls for the industry, including increased federal and state oversight, accreditation association reforms, and self-regulation. These necessary measures will protect the students who attend these schools and the taxpayers who guarantee the student loans without which such institutions would struggle to function. In sum, the for-profit educational sector needs substantially more transparency through the implementation of these measures in order to address concerns, both real and imagined, of unscrupulous conduct.

This article explores the ways in which Internet and online service providers could contribute to the deterrence of online user-generated copyright infringement, and also proactively avoid future Digital Millennium Copyright Act safe harbor related litigation for infringing user conduct, via strengthened user agreements. This type of contractual deterrence strategy would require modifications to the status quo of transactional practices within the Internet industry. Fortunately, the Internet allows for relatively swift and easy changes on the part of service providers. Specifically, this approach could be accomplished through changes to the model of user agreements that would require more evidence of users’ assent to the agreements and increased security measures for identity verification. In addition to these model changes involving contract formation, this approach would require robust contractual drafting with the inclusion of remedies for users’ infringing conduct that are more stringent than the current provisions on termination of user accounts. Further, this approach would require actual enforcement of the user agreement when there is a breach by a user in posting infringing content. Finally, Internet and online service providers would need to adopt integrated marketing campaigns to increase the transparency of their efforts to curb cyber-harms that are perpetrated via their services.