Justiciability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students

911

ARTICLES

JUSTICIABILITY AND JUDICIAL FIAT IN ESTABLISHMENT CLAUSE

CASES INVOLVING RELIGIOUS SPEECH OF STUDENTS

Amanda Harmon Cooley

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 Establishment Clause

constraints, 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 government speech and private speech dichotomy less

clear. This Article provides a close examination of two of the 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 school 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.

TABLE OF CONTENTS

INTRODUCTION ....................................................................................... 913

I. THE COMPLEXITY OF ESTABLISHMENT CLAUSE JURISPRUDENCE .... 918

II. CLARITY IN ESTABLISHMENT CLAUSE JURISPRUDENCE:

JUSTICIABILITY REQUIREMENTS, THE HIERARCHICAL

PRECEDENT DOCTRINE, AND THE GOVERNMENT

SPEECH/PRIVATE SPEECH DICHOTOMY ..................................... 922

A. Justiciability Requirements .............................................................. 922

Wayne Fisher Research Professor of Law, South Texas College of Law Houston. The author would

like to thank her school for its research support, her colleagues for their helpful feedback, and her

family for its gracious understanding.

912  JOURNAL OF CONSTITUTIONAL LAW  [Vol. 22:4 
 
 
 
 
B.  The Hierarchical Precedent Doctrine ................................................ 928 
C.  The Establishment Clause Government Speech/Private  
Speech Dichotomy .......................................................................... 930 
III. CONTINUED CONFUSION IN SCHOOL LAW ESTABLISHMENT  
CLAUSE JURISPRUDENCE .............................................................. 940 
A.  The Establishment Clause and Student-Created Religious Messages  
at School Sporting Events: The Justiciability Saga of Matthews v. 
Kountze Independent School District ..................................... 941 
1.  The Trial Court Proceedings ..................................................... 941 
2.  The First Texas Court of Appeals Decision ................................. 949 
3.  The Texas Supreme Court Decision ........................................... 950 
4.  The Second Texas Court of Appeals Decision .............................. 953 
5.  Subsequent Requests for Review to the Texas Supreme Court ......... 957 
6.  Lessons to be Learned from the Confusion of this Case .................. 960 
B.  The Establishment Clause and Student-Led Graduation Invocations:  
The Judicial Fiat Dilemma of Schultz v. Medina Valley 
Independent School District ..................................................... 963 
1.  The Trial Court Proceedings ..................................................... 964 
2.  The Interlocutory Appeal to the Fifth Circuit ............................... 966 
3.  The Aftermath of the Fifth Circuit Decision ................................ 970 
4.  Lessons to be Learned from the Lack of Clarity of this Case ........... 974 
IV. A JURISPRUDENTIAL FRAMEWORK THAT REQUIRES  
JUSTICIABILITY AND AVOIDS JUDICIAL FIAT IN  
ESTABLISHMENT CLAUSE CASES INVOLVING RELIGIOUS  
SPEECH OF STUDENTS .................................................................. 977 
A.  The Requirements of Justiciability in Establishment Clause Cases  
Involving Religious Speech of Students .............................................. 980 
B.  The Avoidance of Judicial Fiat in Establishment Clause Cases  
Involving Religious Student Speech ................................................... 986 
CONCLUSION ........................................................................................... 998   

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 913

“A Court of Justice acting as such . . . does not declare the law eo nomine and in the

abstract, but waits until a case . . . is brought before it judicially involving the point

in dispute: . . . [it] decides only as much of the question at a time as is required by

the case before it, and its decision . . . is drawn from it by the duty which it cannot

refuse to fulfil, of dispensing justice impartially between adverse litigants.”

—John Stuart Mill

“It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by

the ipse dixit. But one must grieve for the Constitution.”

—Justice Antonin Scalia

INTRODUCTION

At the start of the public Kountze High School football games, the players

run through large, school-colored banners made by the school’s cheerleaders

with Christian biblical scripture emblazoned upon them.

The school district

superintendent had once banned these banners due to Establishment Clause

concerns, and the cheerleaders sued claiming violations of their free speech

and free exercise of religion rights notwithstanding the district’s rescission of

the ban.

In a 2013, nine-sentence order, a Texas trial court found that the

Establishment Clause did not prohibit the display of the religious banners

without identifying the justiciability of this issue, without making any explicit

reference to the First Amendment of the United States Constitution, and

without referencing any case law.

What followed was five years of confusing,

protracted, and contentious litigation, centering around core disputes as to

whether the banners were private speech or government speech and to what

extent the Establishment Clause might apply.

JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, CONSIDERATIONS ON REPRESENTATIVE

GOVERNMENT 403 (H.B. Acton ed., 1972).

Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting).

See Samuel Smith, School District Appeals Texas Cheerleaders’ Bible Verse Case to State Supreme Court,

CHRISTIAN POST (Jan. 18, 2018), https://www.christianpost.com/news/school-district-appeals-

texas-cheerleaders-bible-verse-case-to-state-supreme-court.html (showing one banner).

Jim Forsyth, Texas Judge Rules That Cheerleaders May Display Bible Banners, REUTERS (May 8, 2013,

6:55 PM), https://www.reuters.com/article/us-usa-texas-cheerleaders/texas-judge-rules-that-

cheerleaders-may-display-bible-banners-idUSBRE94718W20130508.

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796 (Tex. Dist. Ct. May 8, 2013)

(order granting summary judgment).

See Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (labeling this speech

classification issue a central case dispute).

914 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

In Castroville, Texas, a public high school valedictorian gave a

graduation speech on the school football field in which she prayed in Jesus’s

name and thanked God for his blessings and for the support of the entire

community throughout the week.

In that week in 2011, a federal district

judge had granted a motion filed by another graduating senior based on the

Establishment Clause—a motion for a temporary restraining order (“TRO”)

and preliminary injunction directing the school district to instruct all student

graduation speakers “not to present a prayer” that would “encourage[ ]

others who may not believe in the concept of prayer to join in and believe

the same concept.”

In an emergency appeal of the order, the Fifth Circuit

dissolved the TRO and injunction with an eight-sentence opinion that stated

the court was “not persuaded that plaintiffs have shown that they are

substantially likely to prevail on the merits, particularly on the issue that the

individual prayers or other remarks to be given by students at graduation are,

in fact, school-sponsored” speech,

rather than private speech that is not

governed by the Establishment Clause.

The Fifth Circuit’s order cited

neither the Constitution nor any case law,

despite the inherent difficulty of

this area of constitutional law.

During the demagogued and heated

litigation that followed,

death threats were made against the federal district

judge and his staff.

Close scrutiny of these two cases yields at least one inarguable precept:

Establishment Clause school law, like all Establishment Clause law, is

Sonja Harris, Medina Valley HS Class of 2011 and Angela Hildenbrand a Fighting Valedictorian!, TEXAS

GOP VOTE (June 6, 2011, 10:00 AM), https://www.texasgopvote.com/angela-

hildenbrand/medina-valley-hs-class-2011-and-angela-hildenbrand-fighting-valedictorian-002939.

Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, 2011 WL 13234770, at *2

(W.D. Tex. June 1, 2011).

Schultz v. Medina Valley Indep. Sch. Dist., No. 11-50486 (5th Cir. June 3, 2011), available at

https://www.clearinghouse.net/chDocs/public/FA-TX-0001-0005.pdf.

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (noting that the Establishment

Clause applies only to government speech and not private speech).

Schultz, No. 11-50486, at *1–2.

See Richard H. Fallon Jr., Tiers for the Establishment Clause, 166 U. PA. L. REV. 59, 72 (2017) (discussing

the complexity of the Establishment Clause doctrine).

See Andrew Cohen, The Misplaced Indignation of the Judge Who Criticized Obama, ATLANTIC (Apr. 5,

2012), https://www.theatlantic.com/politics/archive/2012/04/the-misplaced-indignation-of-the-

judge-who-criticized-obama/255474/ (describing the litigation).

See Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, at *3 (W.D. Tex. Feb. 9,

2012), available at https://www.clearinghouse.net/chDocs/public/FA-TX-0001-0001.pdf

(discussing threats).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 915

complex.

Establishment Clause jurisprudence is thicket theory at its very

essence.

And we should not be surprised by this.

Establishment Clause

cases are difficult,

because they involve the core question of the role of

religion in American public life and the essential “meaning of America.”

The Supreme Court has always acknowledged the close relationship

between religion and American history.

Yet, it has also established “that

governmental intervention in religious matters can itself endanger religious

freedom.”

The Court has framed these acknowledgments with a Janusian

discourse, stating in Van Orden v. Perry, that “[o]ne face looks to the past in

acknowledgment of our Nation’s heritage, while the other looks to the

present in demanding a separation between church and state.”

The

dualities that are inherent in the constitutional religion clauses have led the

Court to develop an Establishment Clause doctrine of twists, turns, and so

many tests.

Despite the division and confusion within Establishment Clause

jurisprudence, three foundational premises are clear. First, justiciability

See Lynch v. Donnelly, 465 U.S. 668, 677–78 (1984) (emphasizing the complexity of Establishment

Clause interpretation); Yaseen Eldik & Monica C. Bell, The Establishment Clause and Public Education

in an Islamophobic Era, 8 STAN. J. C.R. & C.L. 245, 257 (2012) (discussing the difficulties of school

law Establishment Clause analysis).

See MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION

OF RELIGIOUS EQUALITY 227–28 (2008) (describing Establishment Clause jurisprudence as almost

incomprehensible); Thomas C. Berg, Religion Clause Anti-Theories, 72 NOTRE DAME L. REV. 693,

693–94 (1997) (highlighting the divisions among scholars and jurists regarding the proper approach

to Establishment Clause analysis).

See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (“The language of the Religion Clauses of

the First Amendment is at best opaque . . . .”); Aaron R. Petty, Accommodating “Religion,” 83 TENN.

L. REV. 529 (2016) (discussing the complexity of religion).

See Gregory C. Sisk & Michael Heise, Ideology “All the Way Down”? An Empirical Study of Establishment

Clause Decisions in the Federal Courts, 110 MICH. L. REV. 1201, 1230 (2012) (discussing the persistent

tensions that result from Establishment Clause litigation).

Carl H. Esbeck, The Establishment Clause as Structural Restraint on Governmental Power, 84 IOWA L. REV.

1, 32 (1998).

See Abington Sch. Dist. v. Schempp, 374 U.S. 203, 212 (1963) (noting the close identifications

between religion and American history); Engel v. Vitale, 370 U.S. 421, 434 (1962) (“The history of

man is inseparable from the history of religion.”).

Van Orden v. Perry, 545 U.S. 677, 683 (2005).

Id.

See Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980) (admitting that

the difficulty of Establishment Clause cases has resulted in a “course [that] sacrifices clarity and

predictability for flexibility”).

916 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

requirements prohibit advisory opinions.

So, to make an Establishment

Clause decision, a court must have a live Establishment Clause case or

controversy between adverse parties with genuinely adverse legal interests.

Second, lower courts are bound by relevant higher-court precedent.

So, in

Establishment Clause cases, federal circuit courts, federal district courts, and

all state courts are bound by controlling Supreme Court case law. Third, the

Establishment Clause does not apply to private speech; it only applies to

government speech.

So, if the challenged conduct is private speech, the

Establishment Clause analysis must end.

The question of what has been considered private speech as opposed to

government speech has found significant resonance in school law cases.

the 2000 Santa Fe Independent School District v. Doe decision, the Court

determined that a pre-football game prayer by a student, which resulted from

mechanisms initiated by the school and was delivered with extensive indicia

of state support, was subject to Establishment Clause analysis as it was school-

sponsored speech, making it government speech and not private speech.

the twenty years since Santa Fe, this pivotal question of how to define allegedly

unconstitutional religious speech as a matter of Establishment Clause

jurisprudence has figured prominently in other areas in the school law milieu,

as courts have been tasked with determining potential establishment

violations that attend the display of student-created religious messages on

run-through banners at school sporting events and student-led graduation

invocations.

See Flast v. Cohen, 392 U.S. 83, 96 (1968) (labeling the prohibition on advisory opinions as

fundamental to justiciability requirements). But see infra note 103 and accompanying text

(explaining that certain states continue to allow advisory opinions).

See Hubbard v. United States, 514 U.S. 695, 713 n.13 (1995) (articulating this binding-precedent

rule).

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of Educ. v. Mergens,

496 U.S. 226, 250 (1990) (plurality opinion)) (establishing this fundamental speech dichotomy for

school law Establishment Clause jurisprudence).

See Luke Meier, Using Agency Law to Determine the Boundaries of the Free Speech and Establishment Clauses,

40 IND. L. REV. 519, 526–27 (2007) (discussing how school law has focused on the perplexing

constitutionality of the religious speech of students under the Free Speech Clause and the

Establishment Clause); Anton Sorkin, Graduation Ceremonies: A Prayer for Balancing Sponsorship and

Censorship, 41 S. ILL. U. L.J. 345, 348–49 (2017) (discussing the continued constitutional debate

between “school sponsorship of religion and school censorship of private speech”).

Santa Fe Indep. Sch. Dist., 530 U.S. at 309–10.

See, e.g., supra text accompanying notes 3–14.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 917

These recent school law cases present cautionary tales regarding the

particular and pernicious jurisprudential problems that can occur in the

evaluation of claims that students’ religious speech is private speech, which

takes the dispute out of the ambit of Establishment Clause analysis. Courts

have struggled mightily with these classification issues.

In this struggle,

some courts have gotten lost in the maze of Establishment Clause

jurisprudence and forgotten the core principles of justiciability and binding

precedent.

Instead, they have resorted to advisory opinions or ipse dixit,

which has only served to make the fundamental Establishment Clause

private speech/government speech dichotomy less clear.

This Article provides an extended discussion of two of the most egregious

recent examples of these judicial approaches as a vehicle to advocate against

the use of advisory opinions and judicial fiat in student religious-speech

jurisprudence. It then offers a clear foundational framework for the judicial

evaluation of private religious-speech classification claims in school law

establishment cases. This dual-pronged framework consists of a justiciability

requirement and a precedential requirement. First, it requires courts to

ensure the Establishment Clause issue is properly justiciable, which requires

an actual Establishment Clause case or controversy between actually adverse

parties. If the justiciability prerequisite is met, the framework next requires

courts to issue decisions regarding the classification of religious student

speech as private speech or government speech through an express, reasoned

application of the United States Constitution and binding precedent rather

than through mere ipse dixit. A proper application of this framework will

preserve the clarity of the uncontroverted student speech dichotomy in

Establishment Clause jurisprudence. And the preservation of any clarity in

Establishment Clause jurisprudence is beneficial.

See generally Michael Coenen, Rules Against Rulification, 124 YALE L.J. 644, 657–58 (2014) (discussing

the environment that might contribute to the lower courts’ struggles in applying the Supreme

Court’s constitutional precedents).

See Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting) (deeming the

Establishment Clause “a maze”).

See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L.

REV. 605, 607 (2008) (“When a private person speaks, the establishment clause plays no role, but

the free speech clause does. When the government speaks, it is just the reverse: The establishment

clause, but not the free speech clause, applies.”); Richard F. Duncan, Public Schools and the Inevitability

of Religious Inequality, 1996 B.Y.U. L. REV. 569, 573 (1996) (discussing judicial confusion as to what

constitutes private student speech versus school-sponsored government speech).

918 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

I. THE COMPLEXITY OF ESTABLISHMENT CLAUSE JURISPRUDENCE

The First Amendment of the Constitution provides that “Congress shall

make no law respecting an establishment of religion.”

The Supreme Court

has incorporated the Establishment Clause as operative against the states

through the Fourteenth Amendment’s Due Process Clause.

The

Establishment Clause is not limited to legislation; it extends to all

governmental action.

Consequently, all forms of federal or state

governmental conduct,

including prayer and other religious speech,

have

the potential to give rise to an Establishment Clause violation.

Due in part to claims of a deficient rationale for incorporation,

and in

part to the Supreme Court’s disordered development of this area of First

U.S. CONST. amend. I.

See Abington Sch. Dist. v. Schempp, 374 U.S. 203, 215 (1963) (reaffirming the incorporation

established in Everson v. Bd. of Educ.); Everson v. Bd. of Educ., 330 U.S. 1, 15–16 (1947)

(incorporating the Establishment Clause against the states via the Fourteenth Amendment’s Due

Process Clause); Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause

Interpretation, 2011 UTAH L. REV. 489, 596 (2011) (“[T]here is no chance that Everson’s incorporation

of the clause will be reversed.”); Frederick Mark Gedicks, Incorporation of the Establishment Clause

Against the States: A Logical, Textual, and Historical Account, 88 IND. L.J. 669, 670 (2013) (discussing the

Due Process Clause’s personal liberty protections as the basis for Everson’s incorporation).

See Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must

comport with the Establishment Clause.”); Lynch v. Donnelly, 465 U.S. 668, 678 (1984) (noting

the Establishment Clause’s application to “legislation or official conduct to determine whether . . .

it establishes a religion or religious faith, or tends to do so”).

See Kent Greenawalt, Common Sense About Original and Subsequent Understandings of the Religion Clauses, 8

U. PA. J. CONST. L. 479, 507 (2006) (identifying how both federal and state governmental action

can implicate the Establishment Clause).

See McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 875 (2005) (“The prohibition on establishment

covers a variety of issues from prayer in widely varying government settings, to financial aid for

religious individuals and institutions, to comment on religious questions.”).

See B. Jessie Hill, (Dis)owning Religious Speech, 20 GEO. MASON L. REV. 361, 376 (2013) (detailing

how government speech can violate the Establishment Clause); Andy G. Olree, Identifying Government

Speech, 42 CONN. L. REV. 365, 368–69 (2009) (stating government speech that approves or

disapproves of religion can violate the Establishment Clause).

See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 678–80 (2002) (Thomas, J., concurring)

(criticizing the incorporation of the Establishment Clause); EDWARD S. CORWIN, A

CONSTITUTION OF POWERS IN A SECULAR STATE 114 (1951) (arguing states actually “are entirely

free to establish religions, provided they do not deprive anybody of religious liberty”); William P.

Gray, Jr., The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama,

49 ALA. L. REV. 509, 530 (1998) (arguing that incorporation contravenes the federalist purpose of

the Establishment Clause).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 919

Amendment jurisprudence,

Establishment Clause doctrine is “under

perpetual clouds of instability, illegitimacy, and controversy.”

The Court

has acknowledged the complexity of this area of constitutional interpretation,

emphasizing that the Establishment Clause “is not a precise, detailed

provision in a legal code capable of ready application.”

Consequently, the

Court has justified its divergent Establishment Clause doctrine by noting that

this analysis cannot be reduced “to a single verbal formulation.”

The result

of these variances has been that the Court’s approach to analyzing the

Establishment Clause is consistently inconsistent.

So many tests have been applied when making Establishment Clause

decisions.

In addition to the infamous Lemon v. Kurtzman test,

the Supreme

Court, or a portion of it, has applied or called for “almost every plausible

textual, historical, and policy argument” in these cases.

Adding to the

confusion of this divergent doctrine has been “the bog of concurring and

dissenting opinions, and the opinions that concur in the judgment only, that

See Fallon, supra note 12, at 60 (“Establishment Clause doctrine is notoriously confused and

disarrayed . . . .”).

Gedicks, supra note 34, at 676; see also Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2080

(2019) (plurality opinion) (describing the interpretation of the Establishment Clause as a “vexing

problem”).

Lynch v. Donnelly, 465 U.S. 668, 678 (1984).

Cty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 591 (1989).

See John H. Mansfield, Peremptory Challenges to Jurors Based Upon or Affecting Religion, 34 SETON HALL

L. REV. 435, 460 (2004) (arguing it is difficult to find consistency in the Court’s Establishment

Clause jurisprudence); William P. Marshall, “We Know It When We See It” The Supreme Court And

Establishment, 59 S. CAL. L. REV. 495, 495 (1986) (“[S]ince Everson, the Court has reached results in

establishment cases that are legendary in their inconsistencies.”); Thomas R. McCoy, A Coherent

Methodology for First Amendment Speech and Religion Clause Cases, 48 VAND. L. REV. 1335, 1336 (1995)

(arguing that the Court has failed to articulate a “discernible distinction” between government

actions that do and do not violate the Establishment Clause); Paul E. McGreal, Social Capital in

Constitutional Law: The Case of Religious Norm Enforcement Through Prayer at Public Occasions, 40 ARIZ. ST.

L.J. 585, 587 (2008) (labeling the “Court’s Establishment Clause holdings . . . ‘inconsistent’”).

See Khaled A. Beydoun, Bisecting American Islam? Divide, Conquer, and Counter-Radicalization, 69

HASTINGS L.J. 429, 486–88 (2018) (discussing the variety of Establishment Clause tests applied by

federal courts).

Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (citations omitted) (quoting Walz v. Tax

Comm’n, 397 U.S. 664, 674 (1970)) (“First, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that neither advances nor inhibits religion[; and]

finally, the statute must not foster ‘an excessive government entanglement with religion.’”); see also

Michael J. Frank, The Evolving Establishment Clause Jurisprudence and School Vouchers, 51 DEPAUL L.

REV. 997, 1009 (2002) (labeling the Lemon test as “infamous”).

Comment, The Supreme Court, the First Amendment, and Religion in the Public Schools, 63 COLUM. L. REV.

73, 88 (1963).

920 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

leave[s one] with the sense [of] walking on unsettled earth.”

These analyses

and arguments have included the coercion test, the historical approach, the

separation approach, the accommodation perspective, the endorsement test,

the reasonable observer test, the neutrality principle, the non-preferentialist

approach, the non-incorporation approach, a divisiveness analysis, and an

ad hoc approach.

As a result, Establishment Clause jurisprudence has

unfolded in a scattershot and prolonged way.

Part of the reason for this uneven development is the divergency of

Establishment Clause cases the Court has reviewed.

The Court has

decided cases involving religious expression in public schools and other

public environments;

cases involving the provision of public financial aid

to religious entities;

and “‘accommodation’ cases in which the government

exempts religious institutions or religiously motivated actors from legal

regulations that otherwise would forbid religiously required or compel

religiously forbidden action.”

In creating a taxonomy of these cases,

Professor Douglas Laycock has concluded there are “three major lines of

religious liberty cases: funding of religious organizations, regulation of

religious practice, and sponsorship and regulation of religious speech.”

Kondrat’yev v. City of Pensacola, 903 F.3d 1169, 1184 (11th Cir. 2018) (Royal, J., concurring).

See John M. Bickers, False Facts and Holy War: How the Supreme Court’s Establishment Clause Cases Fuel

Religious Conflict, 51 IND. L. REV. 305, 307 (2018) (discussing the “troublesome tests” the Court has

employed in developing its Establishment Clause doctrine); William J. Dobosh, Jr., Coercion in the

Ranks: The Establishment Clause Implications of Chaplain-Led Prayers at Mandatory Army Events, 2006 WIS.

L. REV. 1493, 1499 (2006) (highlighting the Court’s “convoluted” approach in analyzing the

Establishment Clause); Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses, 8 U.

PA. J. CONST. L. 725, 761 (2006) (discussing the nonpreferentialist, nonincorporation, divisiveness,

and ad hoc analyses); Kent Greenawalt, Quo Vadis: The Status and Prospects of “Tests” Under the Religion

Clauses, 1995 SUP. CT. REV. 323, 361 (1995) (listing the various Establishment Clause tests).

See Van Orden v. Perry, 545 U.S. 677, 685 (2005) (discussing the varied approaches in the Court’s

Establishment Clause jurisprudence); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 222 (1963)

(noting that the Court had only directly considered the extent of the Establishment Clause eight

times prior to 1963).

See Bd. of Educ. v. Grumet, 512 U.S. 687, 720 (1994) (O’Connor, J., concurring) (highlighting how

different types of Establishment Clause cases require different approaches); Fallon, supra note 12, at

72 (discussing “the existence of distinctive rights or interests to which the Establishment Clause

affords protection, or at least solicitude, of varying degrees”).

DANIEL O. CONKLE, RELIGION, LAW, AND THE CONSTITUTION 191 (2016).

Id.

Fallon, supra note 12, at 71.

Douglas Laycock, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes

but Missing the Liberty, 118 HARV. L. REV. 155, 156 (2004).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 921

School law has been a fulcrum point within each of these lines of the

Supreme Court’s Establishment Clause jurisprudence.

The Court

provided its first extended examination of the Establishment Clause in the

1947 school law case of Everson v. Board of Education,

which first incorporated

the clause against the states.

A year later, the first invalidation of a state

governmental practice took place in another school law case, Illinois ex rel.

McCollum v. Board of Education.

Both of these cases cemented their

establishment analysis in Thomas Jefferson’s interpretation that “the clause

against establishment of religion by law was intended to erect ‘a wall of

separation between church and State.’”

Despite this initial uniform application of the Jeffersonian separationist

principle,

the Court’s subsequent school law Establishment Clause doctrine

has become a legal leviathan in terms of its complexity and its varied analyses

to the multitude of contexts in the special school environment.

Within all

of this variety, the Court has stated that school law Establishment Clause

jurisprudence consists of “line-drawing, of determining at what point a

dissenter’s rights of religious freedom are infringed by the State.”

Yet, the

Court has candidly acknowledged that it “can only dimly perceive the lines

See Martha McCarthy, Religion and Education: Whither the Establishment Clause?, 75 IND. L.J. 123, 125

(2000) (“Schools have provided the battleground for some of the most notable Establishment Clause

disputes, which is not surprising, given the special concern for protecting children from religious

establishments.”).

Everson v. Bd. of Educ., 330 U.S. 1, 3 (1947); see also Daniel O. Conkle, Toward A General Theory of

the Establishment Clause, 82 NW. U. L. REV. 1113, 1124 (1988) (discussing the Court’s first extended

examination of the Establishment Clause in Everson).

Everson, 330 U.S. at 15–16.

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).

Everson, 330 U.S. at 16 (citing Reynolds v. United States, 98 U.S. 145, 164 (1878) (quoting 8

THOMAS JEFFERSON, THE WORKS OF THOMAS JEFFERSON 113 (Ford ed. 1904–1905))); see also

McCollum, 333 U.S. at 211 (finding an Establishment Clause violation based on an impermissible

intertwinement of state and religion that did not comply with the “wall of separation between

church and State”).

See McCollum, 333 U.S. at 212 (“[A]s we said in . . . Everson . . . the First Amendment has erected a

wall between church and State which must be kept high and impregnable.”).

See Jonathan C. Drimmer, Hear No Evil, Speak No Evil: The Duty of Public Schools to Limit Student-Proposed

Graduation Prayers, 74 NEB. L. REV. 411, 418 (1995) (discussing numerous Establishment Clause

controversies the Court has examined “in myriad educational settings”); Preston C. Green III et

al., Parents Involved, School Assignment Plans, and the Equal Protection Clause: The Case for Special

Constitutional Rules, 76 BROOK. L. REV. 503, 538 (2011) (discussing the intricacies of school law

Establishment Clause doctrine).

Lee v. Weisman, 505 U.S. 577, 598 (1992).

922 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

of demarcation in this extraordinarily sensitive area of constitutional law.”

And so, most school law Establishment Clause cases exist within a space of

controversy as to their proper mode and method of analysis.

II. CLARITY IN ESTABLISHMENT CLAUSE JURISPRUDENCE:

JUSTICIABILITY REQUIREMENTS, THE HIERARCHICAL PRECEDENT

DOCTRINE, AND THE GOVERNMENT SPEECH/PRIVATE SPEECH

DICHOTOMY

A. Justiciability Requirements

What is not at controversy in federal Establishment Clause jurisprudence

is the requirement of justiciability.

The Supreme Court has stated that

“[c]oncerns of justiciability go to the power of the federal courts to entertain

disputes, and to the wisdom of their doing so.”

It is well-settled

constitutional law that federal trial and appellate courts only have the power

to act on justiciable cases or controversies.

Although they are easy to conflate,

federal jurisdiction and justiciability

are distinct,

“in that a court can have jurisdiction to decide a case that turns

Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

See Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 872 (7th Cir. 2012) (Posner, J., dissenting)

(“The case law that the Supreme Court has heaped on the defenseless text of the establishment

clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored,

subjective and provide no guidance.”); Mark W. Cordes, Prayer in Public Schools After Santa Fe

Independent School District, 90 KY. L.J. 1, 1 (2002) (“Religion in public schools has long been a

subject of intense controversy in our country and from all appearances will remain so for a long

time to come.”); Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV.

477, 478 (1991) (characterizing the Court’s Establishment Clause jurisprudence as “unprincipled,

incoherent, and unworkable”).

See Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (explaining the basic requirements of a

justiciable controversy); Flast v. Cohen, 392 U.S. 83, 95–97 (1968) (discussing justiciability

requirements in an Establishment Clause school law case).

Renne v. Geary, 501 U.S. 312, 316 (1991).

See Benton v. Maryland, 395 U.S. 784, 788 (1969); see also Chafin v. Chafin, 568 U.S. 165, 172

(2013) (discussing the applicability of the case or controversy requirement to federal trial and

appellate courts).

See Katherine Mims Crocker, Justifying A Prudential Solution to the Williamson County Ripeness Puzzle,

49 GA. L. REV. 163, 201 (2014) (“Courts often treat justiciability as part and parcel of subject-

matter jurisdiction . . . .”).

See Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 WASH. & LEE L.

REV. 493, 529 (2006) (noting the judiciary considers jurisdiction and justiciability as distinct

concepts).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 923

on nonjusticiability.”

Article III of the Constitution limits federal court

subject matter jurisdiction to particular types of cases and controversies.

Because causes are presumed to be outside this limited jurisdiction,

it is the

role of the complainant to clearly and affirmatively allege facts that properly

invoke federal court jurisdiction.

Subject matter jurisdiction “can never be

forfeited or waived.”

Federal appellate courts must consider the question

of proper subject matter jurisdiction sua sponte even if the lower court did not

address it or the parties do not raise it on appeal.

Justiciability is a “threshold question in every federal case, determining

the power of the court to entertain the suit.”

Justiciability doctrines are

derived from both the Article III case-or-controversy requirement and from

prudential considerations of judicial administration.

These doctrines

include standing, prohibition against advisory opinions, mootness, ripeness,

and the political question doctrine.

With respect to the constitutionally derived limits of justiciability, Article

III requires a live case or controversy between adverse parties that is extant

John Harrison, The Political Question Doctrines, 67 AM. U. L. REV. 457, 496 (2017).

See U.S. CONST. art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States, and Treaties made, or which shall

be made, under their Authority; —to all Cases affecting Ambassadors, other public Ministers and

Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the

United States shall be a Party;—to Controversies between two or more States;—between a State

and Citizens of another State,—between Citizens of different States,—between Citizens of the same

State claiming Lands under Grants of different States, and between a State, or the Citizens thereof,

and foreign States, Citizens or Subjects.”).

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); William M. Janssen, Remands by

Deception, 81 MO. L. REV. 75, 87 (2016) (discussing limited federal subject matter jurisdiction).

See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 n.8 (1986) (stating federal courts will

presume they lack jurisdiction unless the complainant alleges facts that affirmatively show that

jurisdiction).

United States v. Cotton, 535 U.S. 625, 630 (2002).

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“Subject-matter limitations on

federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the

Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be

policed by the courts on their own initiative even at the highest level.”).

Warth v. Seldin, 422 U.S. 490, 498 (1975).

See Tommy Tobin, Deciding Not to Decide: Federal Courts’ Discretion to Decline Review and Miller v. City of

Wickliffe, 46 HOFSTRA L. REV. 709, 713 (2017) (discussing the constitutional and prudential

sources for justiciability).

Lisa A. Kloppenberg, Measured Constitutional Steps, 71 IND. L.J. 297, 304 (1996) (listing the

justiciability requirements).

924 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

at the time of the federal judicial decision.

A live case or controversy is an

actual one.

The adverse party requirement requires parties with adverse

legal interests, and not necessarily adverse legal arguments.

These adverse

legal interests must be genuinely adverse.

An absence of a live controversy

between adverse parties with adverse legal interests should result in a finding

of nonjusticiability, and the court should not make a judicial determination

on, and, instead, should dismiss, that issue.

Appellate courts should vacate and remand for dismissal any trial court

decisions on nonjusticiable issues.

“No matter how vehemently the parties

continue to dispute the lawfulness of the conduct that precipitated the

lawsuit,” these judicial actions are required when the dispute “‘is no longer

embedded in any actual controversy about the plaintiffs’ particular legal

rights.’”

Justiciability cannot be based merely on the parties’ agreement.

See Burke v. Barnes, 479 U.S. 361, 363 (1987) (“Article III of the Constitution requires that there

be a live case or controversy at the time that a federal court decides the case . . . .”); James E.

Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious

Jurisdiction, 124 YALE L.J. 1346, 1359 (2015) (“Scholars and jurists widely accept the proposition

that the federal judicial power can be exercised only when a court is presented with a concrete

dispute between parties possessed of adverse legal interests.”).

See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk,

422 U.S. 395, 401 (1975)) (“To qualify as a case fit for federal-court adjudication, ‘an actual

controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”);

United States v. Salerno, 481 U.S. 739, 758 (1987) (Marshall, J., dissenting) (explaining the live

controversy requirement is an actual controversy requirement).

See Ann Woolhandler, Adverse Interests and Article III, 111 NW. U. L. REV. 1025, 1032–33 (2017)

(discussing this justiciability requirement).

See United States v. Johnson, 319 U.S. 302, 304 (1943) (per curiam) (finding “the absence of a

genuine adversary issue between the parties” makes an issue nonjusticiable and “a court may not

safely proceed to judgment” when there is a lack of genuine adversity); Martin H. Redish &

Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the

Adjudicatory Process, 73 U. CHI. L. REV. 545, 548 (2006) (“Supreme Court decisions could not be

more certain that Article III is satisfied only when the parties are truly ‘adverse’ to one another

. . . .”).

See Renne v. Geary, 501 U.S. 312, 315 (1991) (stating there is no justiciability when there is an

absence of a live controversy).

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 594 (1984) (Blackmun, J., dissenting)

(providing the appropriate appellate remedy for trial court decisions on nonjusticiable issues); see

also Renne, 501 U.S. at 315 (vacating an appellate court’s judgment and remanding with instructions

to dismiss a nonjusticiable cause of action filed in the trial court).

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 93

(2009)).

Int’l Ass’n of Machinists & Aerospace Workers, Local Lodge 964 v. BF Goodrich Aerospace

Aerostructures Grp., 387 F.3d 1046, 1049 (9th Cir. 2004).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 925

If there is no justiciable case or controversy, which means an actual

controversy between actually adverse parties, “the courts have no business

deciding [a dispute], or expounding the law in the course of doing so.”

This principle reflects Article III limits imposed upon the federal courts

and the “‘oldest and most consistent thread in the federal law of justiciability

. . . that the federal courts will not give advisory opinions.’”

An advisory

opinion is an opinion on a matter that does not involve “an actual dispute

between adverse litigants” or an opinion that does not have “a substantial

likelihood that [it] will bring about some change or have some effect.”

Consequently, a request for an advisory opinion is a request for a judicial

ruling on a nonjusticiable issue.

Federal cases must retain their “‘character

as a present, live controversy’” between adverse parties in order for courts

“‘to avoid [improper] advisory opinions on abstract questions of law.’”

The prohibitions on advisory opinions apply to declaratory judgment

actions in constitutional adjudication as well, in that they require “concrete

legal issues, presented in actual cases, not abstractions.”

For declaratory

judgment actions, this requires that the alleged facts “show that there is a

substantial controversy, between parties having adverse legal interests, of

sufficient immediacy.”

The justiciability rules that prohibit advisory

opinions reflect that such claims “are not pressed before the Court with that

clear concreteness provided when a question emerges precisely framed and

necessary for decision from a clash of adversary argument exploring every

aspect of a multifaced situation embracing conflicting and demanding

interests.”

Therefore, there is no justiciable controversy when parties

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).

See Jeffrey L. Rensberger, Of Hats and Robes: Judicial Review of Nonadjudicative Article III Functions, 53 U.

RICH. L. REV. 623, 628 (2019) (placing the prohibition on advisory opinions within the justiciability

requirements that reflect the limitations of Article III).

Flast v. Cohen, 392 U.S. 83, 96 (1968) (quoting CHARLES ALAN WRIGHT, HANDBOOK OF THE

LAW OF FEDERAL COURTS 34 (1963)).

ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.2 (7th ed. 2016).

See Flast, 392 U.S. at 95 (stating “no justiciable controversy is presented . . . when the parties are

asking for an advisory opinion”).

Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per curiam) (quoting Hall v. Beals, 396 U.S.

45, 48 (1969) (per curiam)).

Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting United Pub. Workers of Am. (C.I.O.) v.

Mitchell, 330 U.S. 75, 89 (1947)).

Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).

Flast, 392 U.S. at 96–97 (quoting United States v. Fruehauf, 365 U.S. 146, 157 (1961)).

926 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

request an advisory opinion.

Because courts are duty bound to not make

decisions on nonjusticiable matters, appellate courts must consider the

question of whether a lower court issued an impermissible advisory opinion,

like all justiciability questions, sua sponte.

State courts are not bound by the federal Constitution’s jurisdictional or

Article III case-or-controversy requirements; they are bound by their own

state’s jurisdictional or justiciability requirements,

“even when they address

issues of federal law.”

100

For example, the Texas Supreme Court has

expressly affirmed this for its state courts, finding that Texas law should

determine justiciability issues “as long as applying state law does not defeat

. . . ‘the uncertainly defined obligation of state courts to provide a remedy for

federal wrongs.’”

101

In Texas, the state constitution’s Separation of Power

and Open Courts provisions are the bases for the state’s justiciability

doctrine.

102

Some states, like Texas, have a prohibition on advisory opinions,

which parallels the federal justiciability doctrine; other states do not have

those prohibitions.

103

Id. at 95 (“[N]o justiciable controversy is presented when the parties . . . are asking for an advisory

opinion . . . .”).

See United States v. Ramos, 695 F.3d 1035, 1046 (10th Cir. 2012) (stating courts have an

independent duty to examine questions of justiciability “(sua sponte if necessary)”); Canez v.

Guerrero, 707 F.2d 443, 446 (9th Cir. 1983) (stating courts have “a duty to consider [justiciability]

sua sponte”); Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the USA: The Striking

Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why

We Need to Fix It, 85 B.U. L. REV. 53, 110 (2005) (“Courts are required to

address justiciability questions sua sponte regardless of whether the parties do so, and the importance

of these issues increases dramatically when major constitutional issues arise.”); Madeline Fleisher,

Judicial Decision Making Under the Microscope: Moving Beyond Politics Versus Precedent, 60 RUTGERS U. L.

REV. 919, 943 (2008) (“[J]usticiability issues . . . can be brought up sua sponte by judges themselves

even if they are not raised by the parties.”).

See Doremus v. Bd. of Educ., 342 U.S. 429, 434 (1952) (“We do not undertake to say that a state

court may not render an opinion on a federal constitutional question even under such

circumstances that it can be regarded only as advisory.”).

100

ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).

101

Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex. 2001) (quoting 16B CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 4023, at 353 (2d ed. 1996)). Texas’s justiciability

requirements must be discussed to establish the foundations for this Article’s Matthews v. Kountze

Independent School District discussion. See infra Part III.A.

102

See Heckman v. Williamson Cty., 369 S.W.3d 137, 147 (Tex. 2012) (citations omitted) (describing

justiciability as “a doctrine rooted in the Separation of Powers provision and the Open Courts

provision of the Texas Constitution”).

103

See Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 HARV. L.

REV. 1833, 1844–46 (2001) (discussing different provisions on state courts and advisory opinions);

Robert M. O’Neil, The Separation of Powers in a Federal System, 37 EMORY L.J. 539, 540 (1988) (“States

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 927

In Texas state courts, like federal courts, “[s]ubject matter jurisdiction is

essential to the authority of a court to decide a case.”

104

Unlike the federal

judicial system, Texas subject matter jurisdiction requires that the case be

justiciable.

105

Texas courts must have proper subject matter jurisdiction to

make an adjudication on a matter, and such “jurisdiction is never presumed

and cannot be waived.”

106

Also, the question of proper subject matter

jurisdiction must be considered by Texas courts sua sponte.

107

Like federal justiciability, Texas justiciability requires that there be a live

controversy between genuinely adverse parties.

108

A live controversy is an

actual and real controversy.

109

Adverse parties are parties with adverse legal

interests.

110

Like federal justiciability doctrine, it is well-settled Texas

justiciability doctrine that there “be a justiciable controversy between the

parties before a declaratory judgment action will lie.”

111

So, for a declaratory

judgment action to be justiciable, there must be a “substantial controversy

involving [a] genuine conflict of tangible interests.”

112

Consequently, the

Texas Supreme Court has stated that the state Declaratory Judgments Act

such as Alabama, Massachusetts, and New Hampshire empower their courts to render advisory

opinions to the other two branches in circumstances where federal judges clearly would lack a

justiciable case or controversy.”).

104

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

105

State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (citation omitted) (“Subject matter

jurisdiction requires . . . that the case be justiciable.”).

106

Tex. Ass’n of Bus., 852 S.W.2d at 443–44.

107

See State v. Naylor, 466 S.W.3d 783, 805 (Tex. 2015) (Willett, J., dissenting) (acknowledging “the

judiciary’s sua sponte duty to ensure subject-matter jurisdiction”); Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 379 (Tex. 2006) (Brister, J., concurring) (“Subject-matter jurisdiction . . .

must be considered by a court sua sponte[.]”); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d

504, 517 n.15 (Tex. 1995) (stating issues related to subject matter jurisdiction “may be raised by an

appellate court sua sponte”).

108

See Gomez, 891 S.W.2d at 245 (citations omitted) (“Subject matter jurisdiction requires that the party

bringing the suit have standing, that there be a live controversy between the parties, and that the

case be justiciable.”).

109

See Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005)

(“Standing to assert a constitutional violation depends on whether the claimant asserts a

particularized, concrete injury.”).

110

In re Guardianship of DeLuna, 286 S.W.3d 379, 383 (Tex. App. 2008) (citations omitted) (“A

justiciable controversy is one that is definite and concrete and impacts the legal relations of parties

having adverse legal interests.”).

111

Cal. Prods., Inc. v. Puretex Lemon Juice, Inc., 334 S.W.2d 780, 781 (Tex. 1960).

112

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (quoting Bexar-Medina-Atascosa

Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Prot. Ass’n, 640 S.W.2d 778,

779–80 (Tex. App. 1982)).

928 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

“does not license litigants to fish in judicial ponds for legal advice.”

113

Nonjusticiable issues should be dismissed by Texas trial courts.

114

When an

appellate court finds that there was a decision made on a nonjusticiable issue

in the trial court, the remedy is to vacate any previously issued orders or

judgments and dismiss the case.

115

If a Texas district court decides a matter without the justiciable

requirement of a live controversy, “then its decision would not bind the

parties.”

116

Such a decision is a prohibited advisory opinion that violates the

state’s constitutional separation of powers doctrine that allocates the issuance

of advisory opinions to “the executive rather than the judicial

department.”

117

Like in federal jurisprudence, Texas courts are barred from

issuing advisory opinions in all cases, including in response to requests for

declaratory judgment.

118

Finally, like federal courts, because Texas courts

are duty bound to not make decisions on nonjusticiable matters, state

appellate courts must consider the question of whether a lower court issued

an impermissible advisory opinion, like all justiciability questions, sua

sponte.

119

B. The Hierarchical Precedent Doctrine

What is not at controversy in Establishment Clause jurisprudence is that

lower courts are bound by relevant precedent from controlling higher

113

Cal. Prods., Inc., 334 S.W.2d at 781 (quoting WALTER H. ANDERSON, 1 DECLARATORY

JUDGMENTS 47 (2d ed. 1951)).

114

See Am. K-9 Detection Servs., LLC v. Freeman, 556 S.W.3d 246, 250 (Tex. 2018) (holding that the

trial court properly dismissed a nonjusticiable claim), cert. denied, 139 S. Ct. 1344 (2019).

115

See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012) (“If a case is or becomes moot,

the court must vacate any order or judgment previously issued and dismiss the case for want of

jurisdiction.”).

116

State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (citation omitted).

117

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (citing TEX. CONST.

art. II, § 1).

118

See id. (citations omitted) (interpreting the state Declaratory Judgment Act “to be merely a

procedural device for deciding cases already within a court’s jurisdiction rather than a legislative

enlargement of a court’s power, permitting the rendition of advisory opinions”).

119

See Am. K-9 Detection Servs., LLC, 556 S.W.3d at 260 (“[J]usticiability [is] a jurisdictional matter.

Thus, it may be raised at any time or by the court sua sponte.”); see also Farmers Tex. Cty. Mut. Ins.

Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997) (per curiam) (stating that justiciability issues must be

raised sua sponte); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 302 n.63 (Tex. App. 2018)

(discussing an “obligat[ion] to consider these justiciability issues sua sponte”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 929

courts.

120

Consequently, when a higher court has already decided an issue,

a lower court has no discretion to ignore that precedent.

121

This has been

deemed the “the doctrine of hierarchical precedent,” “the binding precedent

rule,” or “vertical stare decisis.”

122

This is a foundational principle of the

American judicial system.

123

Under the rule of hierarchical precedent and the Supremacy Clause’s

provision that the “Constitution . . . shall be the supreme Law of the

Land,”

124

all lower federal courts and all state courts are bound by the

Supreme Court’s constitutional decisions.

125

Although state courts are not

bound by federal rules of justiciability, they are bound by the Supreme

Court’s constitutional precedent when they adjudicate federal constitutional

issues.

126

Consequently, all courts must follow the constitutional precedents

established by the Supreme Court “until [the Court] sees fit to reexamine

120

See Johnson v. DeSoto Cty. Bd. of Comm’rs, 72 F.3d 1556, 1559 n.2 (11th Cir. 1996) (discussing

the requirements of the binding precedent rule); see also Ashutosh Bhagwat, Separate but Equal?: The

Supreme Court, the Lower Federal Courts, and the Nature of the “Judicial Power,” 80 B.U. L. REV. 967, 969

(2000) (discussing the Court’s insistence that lower courts apply direct precedent even where it

seems like it may be overruled); Mark Alan Thurmon, When the Court Divides: Reconsidering the

Precedential Value of Supreme Court Plurality Decisions, 42 DUKE L.J. 419, 422 (1992) (“Few would dispute

that lower courts must follow the decisions of the Supreme Court.”).

121

See Johnson, 72 F.3d at 1559 n.2 (“The binding precedent rule affords a court no such discretion

where a higher court has already decided the issue before it.”).

122

See id. (using the term “binding precedent rule”); see also Evan H. Caminker, Why Must Inferior Courts

Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 819 (1994) (using the label “the doctrine of

hierarchical precedent”); Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy

and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1609 (1995) (footnote omitted) (stating

federal courts “adhere to . . . strict vertical precedent”); Kurt T. Lash, Originalism, Popular Sovereignty,

and Reverse Stare Decisis, 93 VA. L. REV. 1437, 1454 (2007) (“Vertical stare decisis refers to the binding

effect of precedent on lower courts.”); Joseph W. Mead, Stare Decisis in the Inferior Courts of the United

States, 12 NEV. L.J. 787, 790 (2012) (using the term “vertical stare decisis”); Frederick Schauer, Has

Precedent Ever Really Mattered in the Supreme Court?, 24 GA. ST. U. L. REV. 381, 385 (2007) (employing

the term “vertical precedent”).

123

See Caminker, supra note 122, at 818 (discussing the “longstanding doctrine” of hierarchical

precedent in the American judicial system); see also Amy J. Griffin, Dethroning the Hierarchy of Authority,

97 OR. L. REV. 51, 59–60 (2018) (labeling vertical precedent as “the strongest form of judicial

authority”).

124

U.S. CONST. art. VI, cl. 2.

125

See Hubbard v. United States, 514 U.S. 695, 713 n.13 (1995) (stating all lower courts must adhere

to Supreme Court precedent).

126

See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We have recognized often that the

constraints of Article III do not apply to state courts, and accordingly the state courts are not bound

by the limitations of a case or controversy or other federal rules of justiciability even when they

address issues of federal law, as when they are called upon to interpret the Constitution[.]”).

930 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

[them].”

127

This hierarchical precedent rule of American constitutional law

“is indefeasible and absolute.”

128

C. The Establishment Clause Government Speech/Private Speech Dichotomy

Finally, what is not at controversy in Establishment Clause jurisprudence

is that the clause only applies to government speech;

129

it does not apply to

private speech.

130

In Santa Fe Independent School District v. Doe, the Supreme

Court cemented this fundamental dichotomy into its school law doctrine.

131

Here, the Court determined at the outset of the opinion that “there is a

crucial difference between government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing religion, which

the Free Speech and Free Exercise Clauses protect.”

132

All of the Justices,

even the dissenters, agreed with this principle.

133

Because this Santa Fe

crucial-difference principle is a core “remarkable consistency” in case law

regarding religious speech in public schools, it merits close discussion.

134

The Supreme Court examined the Establishment Clause and student

prayers at public high school football games in Santa Fe.

135

In this case, a

127

1B JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE ¶ 0.402[1], at I–10 (2d ed. 1996).

128

Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 TEX. L. REV.

1843, 1850 (2013).

129

See Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (providing that a key restraint on

government speech, but not private speech, is that it “must comport with the Establishment

Clause”).

130

See Perry O. Chrisman, Confessions of a Baptist Lawyer, 27 TEX. TECH L. REV. 1041, 1045 (1996)

(stating there is no Establishment Clause application to “purely private speech”); see also Steven G.

Gey, When is Religious Speech not “Free Speech”?, 2000 U. ILL. L. REV. 379, 383 (2000) (discussing the

Supreme Court’s repeated acknowledgments that the Establishment Clause does not apply to

private speech); Claudia E. Haupt, Mixed Public-Private Speech and the Establishment Clause, 85 TUL. L.

REV. 571, 577 (2011) (“[P]rivate speech by itself does not present any Establishment Clause

concerns.”).

131

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 317 (2000) (invalidating a public school’s policy

of allowing a student-led prayer over the public address system on the grounds that it “establishes

an improper majoritarian election on religion”).

132

Id. at 302 (emphasis in original) (quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990)

(plurality opinion)).

133

See id. at 324 (Rehnquist, C.J., dissenting) (emphasizing the difference between how the Constitution

treats government speech and private speech endorsing religion).

134

Laycock, supra note 55, at 218.

135

Santa Fe, 530 U.S. at 317 (reasoning that by incorporating prayer into a “school-related procedure,

which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a

constitutional violation has occurred”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 931

Mormon student and a Catholic student, with their mothers, claimed their

public school district violated the Establishment Clause by “allow[ing]

students to read Christian invocations and benedictions from the stage at

graduation ceremonies, and to deliver overtly Christian prayers over the

public address system at home football games.”

136

The Court granted review

only as to the football game prayer policy.

137

This left the question of

whether state policies and practices regarding student invocations at public

school graduations were violative of the Establishment Clause open for future

judicial resolution.

138

In Santa Fe, the Court determined the school’s pre-game invocation policy

violated the Establishment Clause.

139

In doing so, the Court first highlighted

the important role of public worship and prayer in many American

communities.

140

The Court stressed that the religion clauses of the First

Amendment do not prohibit all religious activities in American public schools

as the clauses’ purposes were the security of religious liberty.

141

However,

the Court emphasized that “religious activity in public schools, as elsewhere,

must comport with the First Amendment”

142

and that this policy did not do

so.

143

The policy at issue provided:

The board has chosen to permit students to deliver a brief invocation

and/or message to be delivered during the pre-game ceremonies of home

136

Id. at 295.

137

See id. at 301 (limiting the grant of certiorari to the question of student-led and student-initiated

prayer at football games).

138

This has not been resolved. See Steven K. Green, All Things Not Being Equal: Reconciling Student Religious

Expression in the Public Schools, 42 U.C. DAVIS L. REV. 843, 873 (2009) (discussing the inconsistences

in the federal courts’ treatment of student prayers at school graduations); see also Bruce Ledewitz,

Toward a Meaning-Full Establishment Clause Neutrality, 87 CHI.-KENT L. REV. 725, 764 (2012)

(discussing multiple controversies regarding student prayers at public school graduations); Myron

Schreck, Balancing the Right to Pray at Graduation and the Responsibility of Disestablishment, 68 TEMP. L.

REV. 1869, 1869 (1995) (discussing “the battle over [student] prayer at public school graduation

ceremonies”).

139

See Santa Fe, 530 U.S. at 316 (reasoning that the policy created the perception of school endorsement

of a religious practice).

140

See id. at 307 (“We recognize the important role that public worship plays in many communities, as

well as the sincere desire to include public prayer as a part of various occasions so as to mark those

occasions’ significance.”).

141

See id. at 313 (quoting Engel v. Vitale, 370 U.S. 421, 430 (1962) (stating that “the common purpose

of the Religion Clauses ‘is to secure religious liberty.’”).

142

Id. at 307.

143

See id. at 316 (explaining that the school’s policy was unconstitutional because “it impermissibly

impose[d] upon the student body a majoritarian election on the issue of prayer”).

932 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

varsity football games to solemnize the event, to promote good

sportsmanship and student safety, and to establish the appropriate

environment for the competition. Upon advice and direction of the high

school principal, each spring, the high school student council shall conduct

an election, by the high school student body, by secret ballot, to determine

whether such a statement or invocation will be a part of the pre-game

ceremonies and if so, shall elect a student, from a list of student volunteers,

to deliver the statement or invocation. The student volunteer who is selected

by his or her classmates may decide what message and/or invocation to

deliver, consistent with the goals and purposes of this policy. If the District

is enjoined by a court order from the enforcement of this policy, then and

only then will the following policy automatically become the applicable

policy of the school district. The board has chosen to permit students to

deliver a brief invocation and/or message to be delivered during the pre-

game ceremonies of home varsity football games to solemnize the event, to

promote good sportsmanship and student safety, and to establish the

appropriate environment for the competition. Upon advice and direction of

the high school principal, each spring, the high school student council shall

conduct an election, by the high school student body, by secret ballot, to

determine whether such a message or invocation will be a part of the pre-

game ceremonies and if so, shall elect a student, from a list of student

volunteers, to deliver the statement or invocation. The student volunteer

who is selected by his or her classmates may decide what statement or

invocation to deliver, consistent with the goals and purposes of this policy.

Any message and/or invocation delivered by a student must be nonsectarian

and nonproselytizing.

144

This final reviewed policy was a slight modification of a previous school

district policy that was “titled ‘Prayer at Football Games’” and that originally

used only the term “invocations,” rather than the terms “invocation,”

“messages,” and “statements.”

145

In conducting its review of this policy, the Court first dismissed the state’s

claims that the invocations were “private student speech” that was not

subject to the constraints of the Establishment Clause.

146

Here, the Court

rejected the state’s argument that the dual student elections for approval of

the invocations at the games and for the invocation student speaker turned

the public speech into private speech, which would insulate the school from

a finding of unconstitutional coercion.

147

In doing so, the Court made clear

144

Id. at 298–99 n.6 (citation omitted).

145

Id. at 298, 309.

146

Id. at 302.

147

See id. at 305, 310 (reasoning that despite the school’s assertion that it employed a “hands-off”

approach to the pregame prayer, the policy reveals both perceived and actual endorsement of

religion).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 933

that the Establishment Clause does not apply to private student speech,

explicitly agreeing with a previous equal access decision that only

government speech is constrained by the Establishment Clause.

148

The clarity of the Santa Fe crucial distinction between government speech

and private speech in school law jurisprudence was mere prologue to a rather

complex framework for the constitutional classification of the students’

religious speech, as being subject to the Establishment Clause. The jumping-

off point in this analysis was the finding that the invocations were “authorized

by a government policy . . . .”

149

The students’ prayers were delivered “on

government property at government-sponsored school-related events . . .

over the school’s public address system, by a speaker representing the student

body, under the supervision of school faculty . . . .”

150

These factors all

supported the Court’s conclusion these invocations could not be classified as

private speech.

Additionally, the Court found these prayers did not take place within a

government-created limited public forum that would allow them to be

considered private speech, as there was no policy or practice evidence that

the school officials had “any intent to open the [pregame ceremony] to

‘indiscriminate use,’ . . . by the student body generally.”

151

Instead, the

school engaged in a selective access process, where the same student each

football season delivered the invocation.

152

The resulting invocation was

“subject to particular regulations that confine[d] the content and topic of the

student’s message.”

153

The Court determined this selective access approach

and regulated student messaging countervailed the governmental claims of

the creation of a protected public forum that would create a private speech

zone for the student’s invocation.

154

Also determinative to the Court’s conclusion that the pre-game student

prayer was not private speech was the finding that the selection of the student

invocation giver was the result of a state-initiated process.

155

Here, the Court

148

See id. at 302 (citing Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion)).

149

Id.

150

Id. at 302, 310.

151

Id. at 303 (alterations in original) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270

(1988)).

152

Id.

153

Id.

154

Id. (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983)).

155

See id. at 303–04 (referring to Santa Fe’s student election system).

934 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

rejected the state’s arguments that it had taken a “‘hands-off’ approach to

the pregame invocation” and that the “individual student [was] the ‘circuit-

breaker’ in the process,” which transformed the invocation into private

speech.

156

Essentially, the Court found that the state created the circuit; it

created the invocation and student selection process by initiating the dual

elections with its policy.

157

The school’s initiation of and extensive

entanglement in this process revealed “the ‘degree of school involvement’

[that made] it clear that the pregame prayers [bore] ‘the imprint of the State

and thus put school-age children who objected in an untenable position.’”

158

Another basis for the Court’s determination that the invocations were not

private speech was that the state-initiated selection mechanism was a

majoritarian one, which “ensure[d] that only those messages deemed

‘appropriate’ under the District’s policy may be delivered.”

159

Consequently,

the state could no longer claim that these invocations were pure private

speech. Further, the state-initiated majoritarian mechanisms made access to

the forum dependent upon majoritarian consent.

160

Because “‘[a]ccess to a

public forum . . . does not depend upon majoritarian consent,’”

161

there was

no such public forum for private speech during this pregame ceremony.

162

These majoritarian-controlled systems were constitutionally problematic

because they provided insufficient safeguards for minority speakers and for

diversity of speech.

163

The Court found that “the majoritarian process

implemented by the District guarantees, by definition, that minority

candidates will never prevail and that their views will be effectively

silenced.”

164

These student elections did “nothing to protect minority views

but rather place[d] the students who hold such views at the mercy of the

156

Id. at 305 (footnote omitted).

157

See id. at 305–06 (supporting the conclusion that the student prayer was not private speech).

158

Id. at 305 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992)).

159

Id. at 304.

160

See id. (“[T]his student election does nothing to protect minority views but rather places the students

who hold such views at the mercy of the majority.”).

161

Id. (quoting Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000)).

162

Id. at 304–05.

163

Id. Protection of the minority was especially relevant to the case. One month into these

constitutional proceedings, the district court had to enter an all-caps-inclusive protective order

allowing the student plaintiffs to proceed anonymously as a measure to keep them safe “from

intimidation or harassment.” Id. at 294, 294 n.1.

164

Id. at 304.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 935

majority.”

165

All of these findings regarding the majoritarian-controlled

aspects of the state-initiated student invocation supported the Court’s

conclusion that the invocations were not subject to protection from the

requirements of the Establishment Clause as private speech.

166

In addition to the school’s involvement in the speaker selection process,

the Court also found the express and implied terms of the school district

policy, its history, and its actual purpose “invite[d] and encourage[d]

religious messages” of the students in order to classify these invocations as

non-private speech.

167

The Court emphasized the only expressly endorsed

message in the policy was “an ‘invocation’—a term that primarily describes

an appeal for divine assistance.”

168

In the history of the high school, an

invocation had always been “a focused religious message.”

169

As a result, the

Court concluded that “the expressed purposes of the policy encourage[d] the

selection of a religious message [specifically prayer], and that is precisely how

the students underst[ood] the policy.”

170

It also found that the express policy

purpose, “to solemnize the event,” was most obviously accomplished through

a religious message.

171

Therefore, the express and implied terms, the history,

and the purpose of the policy indicated state support of the student

invocations, which contributed to the Court’s rejection of the state’s claim

that these invocations were private speech.

Beyond the student speaker selection process and the policy’s text,

additional factual factors established “[t]he actual or perceived endorsement

of the message” by the school, which supported the Court’s conclusion that

the invocations were not private speech.

172

These factors included:

Once the student speaker is selected and the message composed, the

invocation is then delivered to a large audience assembled as part of a

regularly scheduled, school-sponsored function conducted on school

property. The message is broadcast over the school’s public address system,

which remains subject to the control of school officials. It is fair to assume

that the pregame ceremony is clothed in the traditional indicia of school

sporting events, which generally include not just the team, but also

165

Id.

166

See id. at 304–06.

167

Id. at 306.

168

Id. at 306–07.

169

Id. at 307.

170

Id.

171

Id. at 306.

172

Id. at 307.

936 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

cheerleaders and band members dressed in uniforms sporting the school

name and mascot. The school’s name is likely written in large print across

the field and on banners and flags. The crowd will certainly include many

who display the school colors and insignia on their school T-shirts, jackets,

or hats and who may also be waving signs displaying the school name.

173

The Court found the combination of these factors would lead an objective

high school student to “unquestionably perceive the inevitable pregame

prayer as stamped with [the] school’s seal of approval.”

174

This objective student’s perception that the school encouraged the prayer

was reinforced by the history, text, and actual purposes of the policy.

175

The

Court found that, while there is some judicial deference owed to a state’s

characterization of the purpose for a religious policy, “it is nonetheless the

duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere

one.’”

176

Here, the Court refused to give deference to the state’s asserted

secular purposes of the policy—to “foste[r] free expression of private

persons[,] . . . to solemniz[e] the event, to promot[e] good sportsmanship

and student safety, and to establis[h] the appropriate environment for the

competition,”

177

because these purposes were not furthered when only one

student was “permitted to give a content-limited message” and the message

was “prayer sponsored by the school.”

178

The Court also emphasized that

the name of the original policy, “Prayer at Football Games,” demonstrated

that the specific purpose of the policy was not a secular purpose; it “was to

preserve a popular ‘state-sponsored religious practice.’”

179

This school-

sponsored religious speech was not permissible under the Establishment

Clause because it created a schism between schoolchildren, “send[ing] the

ancillary message to members of the audience who are non-adherents ‘that

they are outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders, favored members

of the political community.’”

180

173

Id. at 307–08.

174

Id. at 308.

175

See id. (“In this context the members of the listening audience must perceive the pregame message

as a public expression of the views of the majority of the student body delivered with the approval

of the school administration.”).

176

Id. (alteration in original) (quoting Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O’Connor, J.

concurring)).

177

Id. at 306, 309 (alterations in original) (citation omitted).

178

Id. at 309.

179

Id. (quoting Lee v. Weisman, 505 U.S. 577, 596 (1992)).

180

Id. at 309–10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring)).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 937

As a result of these extensive findings, the Court concluded the student

invocations under the policy were not private speech.

181

In summarizing this

conclusion, the Court stated that “[t]he delivery of such a message—over the

school’s public address system, by a speaker representing the student body,

under the supervision of school faculty, and pursuant to a school policy that

explicitly and implicitly encourages public prayer—is not properly

characterized as ‘private’ speech.”

182

The dissent disagreed with this private-speech conclusion.

183

Its analysis

was brief.

184

It consisted of two sentences: “Here, by contrast, the potential

speech at issue, if the policy had been allowed to proceed, would be a message

or invocation selected or created by a student. That is, if there were speech

at issue here, it would be private speech.”

185

After determining the student prayer was not private speech, the Court’s

majority opinion applied a substantive coercion analysis to determine the

invocation policy violated the Establishment Clause.

186

The Court first

found unconstitutional governmental coercion because the district policy

created elections to determine if the pre-football game ceremony would

feature religious messages, which “encourage[d] divisiveness along religious

lines in a public school setting.”

187

Next, the Court dismissed the state’s

argument of the absence of coercion because attendance at an

extracurricular football game is voluntary based on the compulsory football

game attendance requirements for certain students and the social conformity

pressures on all high school students.

188

Here, the Court stated that “the

State cannot [constitutionally] require one of its citizens to forfeit his or her

rights and benefits as the price of resisting conformance to state-sponsored

religious practice.”

189

Based on these findings, the Court concluded “that the

delivery of a pregame prayer has the improper effect of coercing those

181

Id. at 310.

182

Id.

183

See id. at 324 (Rehnquist, C.J., dissenting) (arguing that the speech at issue would have been private

speech rather than government speech).

184

See id. (disposing of whether the potential speech was private in a short paragraph).

185

Id. (emphasis in original).

186

Id. at 310 (majority opinion).

187

Id. at 311.

188

See id. at 311–12 (“For many . . . the choice between attending these games and avoiding personally

offensive religious rituals is in no practical sense an easy one.”)

189

Id. at 312 (quoting Lee v. Weisman, 505 U.S. 577, 596 (1992)).

938 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

present to participate in an act of religious worship,”

190

especially in a

community that included non-adherent children who merit vigilant

constitutional protection.

191

Therefore, the Court found an Establishment

Clause violation by this policy and the coercion that resulted from it because

“the religious liberty protected by the Constitution is abridged when the State

affirmatively sponsors the particular religious practice of prayer.”

192

The final portion of the opinion dealt with the school district’s claim that

the plaintiffs had made a premature facial challenge to the policy that must

fail, because no student had delivered an invocation under that policy and

there was “no certainty that any of the statements or invocations [under the

policy] will be religious.”

193

The Court dismissed this argument, stating that

it was not just concerned with the constitutional injury that would result from

“a student [being] forced to participate in an act of religious worship because

she chooses to attend a school event.”

194

It was also concerned with the two

constitutional injuries that were presented in this facial challenge: 1) “the

mere passage by the District of a policy that has the purpose and perception

of government establishment of religion” and 2) “the implementation of a

governmental electoral process that subjects the issue of prayer to a

majoritarian vote.”

195

With respect to this first issue, the Court reiterated

that the text of the policy revealed its “unconstitutional purpose,” which

required its invalidation under the “secular legislative purpose” requirement

of the first prong of the Lemon test.

196

Beyond the text of the policy, the Court

found the context in which that policy was implemented clearly

demonstrated “the purpose of endorsing school prayer.”

197

As a result, the

Court concluded that “the simple enactment of this policy, with the purpose

and perception of school endorsement of student prayer, was a constitutional

violation.”

198

With respect to the second issue, the Court found “[t]his policy likewise

[did] not survive a facial challenge because it impermissibly impose[d] upon

190

Id.

191

Id.

192

Id. at 313.

193

Id.

194

Id. at 313–14.

195

Id. at 314.

196

Id. at 315 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).

197

Id.

198

Id. at 316.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 939

the student body a majoritarian election on the issue of prayer.”

199

The

policy’s empowerment of the “student body majority with the authority to

subject students of minority views to constitutionally improper messages” in

the form of school-sponsored prayer was a violation of the Establishment

Clause.

200

Therefore, being mindful of “the myriad, subtle ways in which

Establishment Clause values can be eroded,” the Supreme Court concluded

that the policy was an impermissible violation of that clause.

201

Santa Fe is the seminal case on the classification of student religious speech

within Establishment Clause jurisprudence.

202

It makes clear the crucial

difference in school law between private speech, which is not governed by

the Establishment Clause, and government speech, which is constrained by

that clause.

203

Yet, in its extended analysis of this principle, the Court does

not provide a complete, concise articulation of the precise method for this

type of religious-speech classification.

Courts have struggled to accomplish this classification task in

Establishment Clause cases that have been litigated since Santa Fe,

204

demonstrating that “[n]o matter how clearly stated a distinction is in theory,

it will become complex and tangled in practice.”

205

This area has become a

particular point of contention in litigation involving student religious

speech.

206

Therefore, despite the clarity of the Santa Fe speech dichotomy,

confusion persists within school law Establishment Clause jurisprudence

199

Id.

200

Id.

201

Id. at 314, 316 (quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring)).

202

See Meier, supra note 27, at 521 (identifying Santa Fe as the key case for distinguishing private speech

versus government speech for religious student speech).

203

See Kathleen A. Brady, The Push to Private Religious Expression: Are We Missing Something?, 70 FORDHAM

L. REV. 1147, 1148 (2002) (characterizing the Santa Fe private speech/government speech

dichotomy as an uncontroverted principle at the core of the Court’s school law jurisprudence).

204

See generally Hillel Y. Levin et al., To Accommodate or Not to Accommodate: (When) Should the State Regulate

Religion to Protect the Rights of Children and Third Parties?, 73 WASH. & LEE L. REV. 915, 992 (2016)

(discussing how courts and the country are still trying to resolve “a difficult question: When a

religious practice imposes costs and risks on third parties, how can we tell whether tolerance of that

practice violates the Establishment Clause?”).

205

Edward L. Rubin, Sex, Politics, and Morality, 47 WM. & MARY L. REV. 1, 38 (2005).

206

See Patrick M. Garry, Inequality Among Equals: Disparities in the Judicial Treatment of Free Speech and

Religious Exercise Claims, 39 WAKE FOREST L. REV. 361, 386–87 (2004) (discussing divergent judicial

approaches to the classification of religious student speech in Establishment Clause and free exercise

cases).

940 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

regarding the proper way to classify student religious speech as either

government speech or private speech.

207

III. CONTINUED CONFUSION IN SCHOOL LAW ESTABLISHMENT CLAUSE

JURISPRUDENCE

In the twenty years since the Santa Fe decision, the classification of student

religious speech has become an analytical battlefield in school law

Establishment Clause cases. When addressed with this precise issue, courts

have been inconsistent in their modes and methods of analysis.

208

This

continued confusion has been particularly apparent in constitutional

litigation involving the display of students’ religious messages at school

sporting events and student-led graduation invocations. Two of these cases,

Matthews v. Kountze Independent School District and Schultz v. Medina Valley

Independent School District, are paradigmatic examples of the problems of

nonjusticiability and judicial fiat in this area of First Amendment school law.

Like Santa Fe, both cases centered around students’ religious speech on Texas

high school football fields.

209

207

See Steven G. Gey, The Procedural Annihilation of Structural Rights, 61 HASTINGS L.J. 1, 30 (2009)

(discussing the confusion in school law in classifying religious student speech); see also Brady, supra

note 203, at 1152 (stating that most disputed Establishment Clause school law cases involve the

“grey area” of student religious speech).

208

This tracks with other areas of Establishment Clause jurisprudence. See Michael J. Gerhardt, The

Role of Precedent in Constitutional Decisionmaking and Theory, 60 GEO. WASH. L. REV. 68, 104 n.151

(1991) (referencing the inconsistencies of the Supreme Court’s Establishment Clause jurisprudence);

Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, 48 B.C. L. REV. 781, 790

n.55 (2007) (mentioning the inconsistency of the Supreme Court’s Establishment Clause

jurisprudence); David M. Smolin, The Religious Root and Branch of Anti-Abortion Lawlessness, 47 BAYLOR

L. REV. 119, 142 (1995) (“The specific holdings of the Court interpreting the Establishment Clause

have been so inconsistent that most commentators long ago stopped trying to reconcile the cases.”).

209

See Joe Dryden, The Religious Viewpoint Antidiscrimination Act: Using Students as Surrogates to Subjugate the

Establishment Clause, 82 MISS. L.J. 127, 135 (2013) (“Texas . . . is no stranger to Establishment Clause

litigation . . . .”). Indeed, “[e]verything is bigger in Texas,” including, apparently, litigation

involving the application of the Establishment Clause to student religious speech. Hall v. McRaven,

508 S.W.3d 232, 245 (Tex. 2017) (Willett, J., concurring).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 941

A. The Establishment Clause and Student-Created Religious Messages at School

Sporting Events: The Justiciability Saga of Matthews v. Kountze Independent

School District

Although the Supreme Court’s Santa Fe decision established a strong

precedent regarding the classification of school-sponsored student

invocations at high school football games as government speech that violates

the Establishment Clause,

210

an ancillary issue has arisen regarding the

display of student-created religious messages at public school sporting events.

One such dispute originated at a public high school in Kountze, Texas,

which is about 100 miles away from Santa Fe, Texas.

211

However, unlike

Santa Fe, this case was litigated in the state courts; it involved cheerleader-

created religious displays on the run-through banners at football games; it

was brought by students against the school district not for sponsoring the

religious speech, but for restricting it; and its petition alleged violations of the

cheerleaders’ First Amendment rights of free speech and free exercise of

religion, rather than a claimed Establishment Clause violation.

212

And yet,

the trial court’s impermissible advisory opinion—that the Establishment

Clause did not prohibit the display of the religious banners without making

any express determination as to whether the banners constituted government

speech or private speech—initiated six years of intense and protracted

litigation.

213

1. The Trial Court Proceedings

In Matthews v. Kountze Independent School District, the parents of student

cheerleaders brought suit on behalf of their children against the school

district and its superintendent after the superintendent “prohibited the

Cheerleaders from including religious messages on run-through banners

used at the beginning of high school football games” during the 2012 football

210

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302, 316 (2000).

211

Emma Green, Cheerleaders for Christ, ATLANTIC (Apr. 5, 2016), https://www.theatlantic.com/

politics/archive/2016/04/kountze-cheerleaders-free-speech-religion-banners-football/476892/

(discussing the Matthews litigation); Driving Directions from Santa Fe, TX to Kountze, TX,

GOOGLE MAPS, http://maps.google.com (follow “Directions” hyperlink; then search starting point

field for “Santa Fe, TX” and search destination field for “Kountze, TX”).

212

Kountze Indep. Sch. Dist. v. Matthews ex. rel. Matthews, 482 S.W.3d 120, 124–26 (Tex. App.

2014).

213

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796, at 2 (Tex. Dist. Ct. May 8,

2013).

942 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

season.

214

These run-through banners had been made for a number of years

by the high school cheerleading squad for varsity football games.

215

The

large banners were displayed by the squad on the school field for the football

team to charge through at the start of each game.

216

The content of the

banners was decided by the entire squad.

217

To make sure the banners were

appropriate for the game and did not have poor sportsmanship, they were

reviewed and approved by the squad’s school sponsors.

218

For the 2012

football season, the cheerleading squad used biblical scripture and Christian

symbols on the run-through banners.

219

On September 18, 2012, one day after receiving complaints from the

Freedom From Religion Foundation (“FFRF”) that the banners violated the

Establishment Clause and then seeking legal advice, the district

superintendent informed the district principals that the banners could no

longer include religious messages.

220

On that same day, the new policy was

announced on the high school’s intercom by a campus administrator.

221

The

superintendent instituted this new policy without first consulting the district’s

Board of Trustees.

222

On September 20, 2012, some of the high school cheerleaders, some

middle school cheerleaders, and their families filed suit in Texas state court,

alleging this policy violated the students’ constitutional rights to free speech

and free exercise.

223

The plaintiffs filed an application for a TRO and a

request for injunctive relief with their petition.

224

The state trial court

granted the plaintiffs’ TRO request and ordered the school district and

214

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, No. 09-13-00251-CV, 2017 WL 4319908,

at *1, *1 n.1 (Tex. App. Sept. 28, 2017). Hereinafter, the plaintiffs in this action will be referred to

as “the cheerleaders” for the sake of brevity.

215

Matthews, 482 S.W.3d at 124.

216

Id.

217

Id.

218

Id.

219

Id.

220

Id. at 125. The court explained that “FFRF identifies itself as a ‘watchdog organization’ and

appears to regularly send letters to federal, state, and local government officials objecting to

activities that they believe violate the Establishment Clause.” Id. at 125 n.3.

221

Id. at 125.

222

Id.

223

Id. at 123, 124 n.2, 125 (describing the high school litigants and discussing the similar middle school

run-through banners practice); Matthews ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d

416, 417 (Tex. 2016) (referencing the middle school litigants).

224

Matthews, 482 S.W.3d at 125.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 943

superintendent “to cease and desist from preventing the cheerleaders of

Kountze Independent School District (“KISD”) from displaying banners or

run throughs at sporting events and/or censoring the sentiments expressed

thereon.”

225

Thereafter, the school district filed a plea to the district court’s

jurisdiction based on governmental immunity and lack of standing.

226

A plea

to the jurisdiction in Texas is a challenge to the trial court’s “authority to

decide a case on the merits.”

227

For a court to have authority to decide a

case against a government entity on the merits, the plaintiff must prove a

valid waiver of immunity from suit because governmental immunity deprives

trial courts of subject matter jurisdiction over the lawsuit.

228

On October 16, 2012, Texas Attorney General Greg Abbott filed a

petition to intervene in the case in support of the cheerleaders.

229

On that

same day, the school district conducted community legislative proceedings

regarding the superintendent’s banners policy.

230

The next day, Abbott and

Governor Rick Perry gave a press conference expressing their complete

support for the cheerleaders.

231

In this press conference, Abbott

characterized the banners as “student-led expression . . . that’s perfectly

constitutional.”

232

He continued, “We will not allow atheist groups from

outside the state of Texas to come into the state to use menacing and

misleading and intimidating tactics to try to bully schools to bow down to the

altar of secular beliefs.”

233

Governor Perry stated, “We’re a nation built on

the concept of free expression of ideas. We’re also a culture built on the

225

Matthews ex rel. Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2012 WL 5269957, at 3 (Tex.

Dist. Ct. Oct. 18, 2012).

226

Matthews, 484 S.W.3d at 417.

227

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, No. 09-13-00251-CV, 2017 WL 4319908,

at *2 (Tex. App. Sept. 28, 2017) (citation omitted).

228

Id.

229

Amy Moore, Cheerleaders Have Texas AG, Governor in Their Corner for Today’s Hearing, BEAUMONT

ENTER. (Oct. 18, 2012, 8:21 AM), https://www.beaumontenterprise.com/news/article/

Cheerleaders-have-Texas-AG-Governor-in-their-3956566.php.

230

Kountze Indep. Sch. Dist. v. Matthews ex. rel. Matthews, 482 S.W.3d 120, 127 (Tex. App. 2014).

231

Chris Tomlinson, Texas AG Intervenes in Cheerleader Banner Dispute, SPOKESMAN-REVIEW (Oct. 17,

2012, 5:34 PM), http://www.spokesman.com/stories/2012/oct/17/texas-ag-intervenes-in-cheer

leader-banner-dispute/.

232

Id.

233

Id.

944 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

concept that the original law is God’s law, outlined in the Ten

Commandments.”

234

One day after the press conference, on October 18, 2012, the trial court

determined that the plaintiffs were entitled to a temporary injunction.”

235

this order, the court found the constitutional claims presented a substantial

threat of irreparable injury in the absence of injunctive relief.

236

Specifically,

the court found that, without injunctive relief, “the Defendants’ unlawful

policy prohibiting private religious expression will remain in effect and the

Plaintiffs will be prohibited from exercising their constitutional . . . rights at

football games and other school sporting events.”

237

This language, with the

express inclusion of the terms “private religious expression,” would later be

claimed by the cheerleaders to be the trial court’s classification of the student

speech as “private speech, not government speech.”

238

The injunction

permitted the cheerleaders to display their religious run-through banners at

the school football games for the remainder of the 2012 season.

239

On April 8, 2013, the school district’s Board of Trustees adopted a new

policy that allowed the cheerleaders to display the religious run-through

banners.

240

This new formal district policy provided “that school personnel

are not required to prohibit messages on school banners, including run-

through banners, that display fleeting expressions of community sentiment

solely because the source or origin of such messages is religious.”

241

Thereafter, the school district supplemented its plea to the trial court’s

jurisdiction to assert mootness based on the adoption of the new policy.

242

After this supplemented plea and throughout the cheerleaders’ free

speech and free exercise litigation, the school district urged the court for a

determination as to the applicability of the Establishment Clause on the

school district’s policy. The school district made multiple judicial admissions

234

Id.

235

Matthews ex rel. Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2012 WL 5269957, at 3 (Tex.

Dist. Ct. Oct. 18, 2012).

236

Id. at 4.

237

Id.

238

Reply Brief of Petitioners at 20, Matthews ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d

416 (Tex. 2016) (No. 14-0453), 2015 WL 10321932, at *20.

239

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796, at 1 (Tex. Dist. Ct. May 8,

2013).

240

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 482 S.W.3d 120, 127 (Tex. App. 2014).

241

Id. (quoting the resolution adopted by the Kountze ISD Board of Trustees).

242

Matthews ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 417 (Tex. 2016).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 945

that it affirmed the April 8 policy and that it had no current or future

intentions to ban religious messages on the run-through banners,

243

so long

as the Establishment Clause did not prohibit the school district from doing

so.

244

From the time of the filing of its first amended answer and through its

filings in support of its request for declaratory relief, the school district

repeatedly requested the court issue a ruling that the district’s allowance of

the cheerleaders’ religiously themed run-through banners at the football

games did not violate the Establishment Clause.

245

For example, in its October 12, 2012, motion for preliminary declaratory

relief, the school district sought a judicial determination “that the

Establishment Clause should not be interpreted so as to require Defendants

to bar the religious banners at issue in this case.”

246

It offered three

arguments in support of this requested relief:

1. There is evidence in the record that the application of Santa Fe

Independent School District v. Doe, 530 U.S. 290 (2000), to the

religiously themed run-through banners at Kountze High School

has created the impression that Defendants are hostile to religion;

2. Establishment Clause decisions requiring the exclusion of religion

from public life should be narrowly construed or reconsidered

because they originated in anti-religious sentiment and depart from

the original understanding of the Establishment Clause; and

3. The Kountze High School run-through banners, including those

with religiously themed messages, serve legitimate, nonreligious,

secular purposes.

247

Under the first heading of this request for declaratory relief, the school

district asked the court for a classification of the cheerleaders’ banner as

243

Matthews, 482 S.W.3d at 127–28.

244

See Kountze ISD’s Reply to Plaintiffs’ Response to Traditional Motion for Summary Judgment of

Kountze ISD Regarding Its Request for Declaratory Relief at 1–3, Matthews ex rel. Matthews v.

Kountze Indep. Sch. Dist., No. 53526 (Tex. Dist. Ct. May 8, 2013), 2013 WL 2299644, at *1–3

(requesting the Court to clearly state that the cheerleading squad could display religious banners

without violating the Establishment Clause).

245

Id. at 1–2.

246

Defendants’ Motion for Preliminary Declaratory Relief at 1, Matthews v. Kountze Indep. Sch.

Dist., No. 53526 (Tex. Dist. Ct. May 8, 2013), 2012 WL 8203195, at *1.

247

Id. at 1–2.

946 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

government speech for Establishment Clause purposes.

248

The net result of

this motion was a request for an impermissible advisory opinion.

249

Because the cheerleaders wanted the same judicial finding on the

Establishment Clause issue, they were not adverse parties to the school

district on that issue. In their motion for partial summary judgment, the

cheerleaders sought a similar determination by the trial court that the school

district “violates no law by allowing the Cheerleaders to display religious

messages on their run-through banners.”

250

A judicial determination of “no

law” violation would indicate this type of allowance does not violate the

Establishment Clause.

251

In their April 29, 2013, reply to the school district’s motion for summary

judgment for declaratory relief, the cheerleaders expressly acknowledged a

lack of live controversy and a lack of adversity on this issue: “KISD’s sudden

adoption of the Plaintiffs’ position that religious messages on the

Cheerleaders’ run-through banners are constitutionally permissible

vindicates the Cheerleaders’ rights and brings this case to an end.”

252

The

cheerleaders stated that the school district’s request for declaratory relief was

“the SAME position the Plaintiffs (and the Texas Attorney General) have advocated from

day one. . . . [and] the SAME relief the Plaintiffs have requested in their

Motion for Partial Summary Judgment.”

253

The only point of disagreement between the parties was the classification

of the speech as private or government speech. Speech classification would

have been necessary for the question of waiver of governmental immunity to

the free speech and free exercise claims asserted in the cheerleaders’ petition.

The cheerleaders, though, specifically stated that “no additional ruling

regarding the nature of the speech is necessary at this time” because the

248

Id. at 5.

249

Id. at 7; see State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (barring advisory opinions

based on their non-justiciability). The second argument also implies that the school district

requested the trial court not adhere to the hierarchical precedent doctrine.

250

Brief of Amicus Curiae American Jewish Committee at 15, Matthews ex rel. M.M. v. Kountze

Indep. Sch. Dist., 484 S.W.3d 416 (Tex. 2016) (No. 14-0453), 2015 WL 12911362, at *15.

251

See id. (discussing the logical result of the cheerleaders’ request).

252

Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Motion for Partial Summary Judgment and

Response to Traditional Motion for Summary Judgment of Kountze ISD Regarding its Request

for Declaratory Relief at 1, Matthews ex rel. Matthews v. Kountze Indep. Sch. Dist., No. 53526

(Tex. Dist. Ct. May 8, 2013), 2013 WL 2299634, at *1.

253

Id. at 2–3 (emphasis in original).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 947

“Court has already determined that the messages on the Cheerleaders’

banners is private speech” in its temporary injunction order.

254

Regardless, that point of disagreement on the student speech

classification did not create a justiciable controversy as to the Establishment

Clause issue, because there was no controversy on that issue between actually

adverse parties. Every party in the lawsuit wanted the same resolution of the

question of whether the district’s allowance of the banners violated the

Establishment Clause.

255

And that sought-after shared answer was “no.”

The cheerleaders’ April 29, 2013, filing solidified that the parties were not

adverse as to an Establishment Clause determination and that there was no

live, actual controversy or adversity on that issue. It does not matter that the

parties differed on the reasoning for that joint determination, because, as

Professor Ann Woolhandler has explained, the adverse party requirement

for justiciability is one of adverse legal interests and not adverse legal

arguments.

256

Consequently, any Establishment Clause decision by the court

would be an improper advisory opinion on a nonjusticiable issue.

That impermissible advisory opinion is exactly what the court gave the

parties. Five days after this filing, and one month after the adoption of the

revised banners policy, on May 8, 2013, the trial court issued an order on the

parties’ multiple cross-motions for summary judgment, including the

defendants’ motion for summary judgment regarding declaratory judgment

and the defendants’ plea to the jurisdiction.

257

Despite the vast complexity

of Establishment Clause doctrine,

258

the court made a cursory decision on

the nonjusticiable issue of the application of that clause to the display of the

254

Id. at 3 n.12.

255

Although the FFRF had attempted to find someone in the Kountze High School community “to

bring a countersuit” that claimed a violation of the Establishment Clause, it “[was] unable to find

a person in the community who [was] willing to” do so. Green, supra note 211.

256

See Woolhandler, supra note 82, at 1032–33 (“Adverse legal arguments . . . are clearly not sufficient

for a case, nor are they always necessary. By contrast, adverse legal interests are necessary and often

sufficient. The most plausible version of the adverseness requirement is that a case requires a clash

of legal interests but does not always require a clash of argument.”).

257

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796 (Tex. Dist. Ct. May 8,

2013).

258

See Joseph O. Oluwole & Preston C. Green III, School Vouchers and Tax Benefits in Federal and State

Judicial Constitutional Analysis, 65 AM. U. L. REV. 1335, 1357 (2016) (emphasizing the difficulty of

judicial interpretation of the Establishment Clause); Anastasia P. Winslow, Sacred Standards: Honoring

the Establishment Clause in Protecting Native American Sacred Sites, 38 ARIZ. L. REV. 1291, 1307–08 (1996)

(discussing the persistent, inherent difficulties of Establishment Clause jurisprudence).

948 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

cheerleaders’ banners.

259

It did so in a nine-sentence, two-page order that

did not cite any case law; that incorporated only two references to the

“Establishment Clause” and one vague reference to the banners being

“constitutionally permissible”; and that made two opaque references to “any

other law.”

260

There were no citations in the order.

261

In this short opinion, the court granted the cheerleaders’ motion for

partial summary judgment in part and the school district’s motion for

summary judgment regarding its request for declaratory judgment.

262

Although the plaintiffs had not asserted an Establishment Clause violation in

their petition, the court granted the district’s request for a declaratory

judgment about the Establishment Clause and made several conclusions of

law about that clause.

263

First, the court found that the “religious messages expressed on run-

through banners have not created, and will not create, an establishment of

religion in the Kountze community.”

264

Next, it concluded that “[t]he

Kountze cheerleaders’ banners that included religious messages and were

displayed during the 2012 football season were constitutionally

permissible.”

265

Finally, it concluded that “[n]either the Establishment

Clause nor any other law prohibits the cheerleaders from using religious-

themed banners at school sporting events. Neither the Establishment Clause

nor any other law requires Kountze I.S.D. to prohibit the inclusion of

religious-themed banners at school sporting events.”

266

The trial court did

not make an express classification of the cheerleaders’ speech as being either

private speech or government speech,

267

which demonstrates that this order

was an impermissible advisory opinion as its scope was limited to an issue to

which the parties both agreed. By granting the cheerleaders’ motion for

partial summary judgment in part, this order implicitly denied the school

259

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796 (Tex. Dist. Ct. May 8,

2013).

260

Id.

261

Id.

262

Id.

263

Id.

264

Id. at 1.

265

Id. at 2.

266

Id.

267

Id.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 949

district’s plea to jurisdiction.

268

The school district appealed this denial of its

plea.

269

2. The First Texas Court of Appeals Decision

On appeal, the Court of Appeals of Texas in Beaumont determined that

the plaintiffs’ claims were made moot by the school district’s April 8, 2013,

policy that allowed the religiously themed run-through banners and the

district’s judicial admissions regarding no intentions to prohibit these banners

in the future.

270

The court found there was no live controversy between the

parties because the district’s “allegedly wrongful behavior [had] passed and

[could not] reasonably be expected to recur.”

271

With respect to the cheerleaders’ counterargument to mootness—that a

controversy still existed based on the disagreement between the parties as to

whether the students’ speech was “governmental speech, student-sponsored

speech, or private speech,” the court stated it had “no authority to resolve a

theoretical or contingent dispute.”

272

Without any evidence in the record

that the district had prohibited the speech of the cheerleaders in light of the

April 8 policy, the court was not required to decide if there was a free speech

violation.

273

The court emphasized that “[a]ny future policy regarding the

cheerleaders’ speech can be challenged at a later date” as the court was “not

empowered to decide cases on future contingencies or hypotheticals.”

274

Consequently, the court did not classify the cheerleaders’ speech as being

either private speech or government speech,

275

and the only mention of the

Establishment Clause in the opinion was a reference to the FFRF complaint

about the banners that led to the district superintendent’s initial restriction

policy.

276

The question of whether the trial court had the power under

268

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, No. 09-13-00251-CV, 2017 WL 4319908,

at *1 (Tex. App. Sept. 28, 2017).

269

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 482 S.W.3d 120, 123 (Tex. App. 2014).

270

Id. at 127–28, 134.

271

Id. at 127, 132.

272

Id. at 131.

273

See id. at 131–32 (holding that the school’s adoption of the new policy indicated that “the allegedly

wrongful behavior has passed and cannot reasonably be expected to recur”).

274

Id. at 132.

275

Id.

276

See id. at 125 (noting that a staff attorney with the FFRF wrote a letter to the superintendent

contending that the school district would violate the Establishment Clause by continuing to allow

the cheerleaders to put religious language on the banners).

950 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

justiciability requirements to make a determination on the Establishment

Clause issue and whether it had issued an advisory opinion on a

nonjusticiable issue was not taken up by the court of appeals, despite its

apparent sua sponte duty to do so.

277

Instead, the court found the trial court erred in its denial of the school

district’s plea to jurisdiction due to mootness, reversed the trial court’s order

in part based on the mootness finding for the plaintiffs’ substantive claims,

and rendered judgment that the school district’s plea to jurisdiction was

granted.

278

The court also vacated the October 18, 2012, temporary

injunction.

279

Importantly, the appellate court’s reversal of the trial court’s

decision was only a reversal of the portion of the trial court’s order that

granted the cheerleaders’ motion for partial summary judgment and

implicitly denied the district’s plea to jurisdiction.

280

It did not reverse the

trial court’s order, granting in part the district’s motion for summary

judgment on its request for declaratory relief on the Establishment Clause’s

application to the case, because the appellate court stated that the school

district’s “request for declaratory relief is not a claim against [the

cheerleaders] and the grant of summary judgment to Kountze ISD on the

declaratory relief claim is not challenged on appeal by any party.”

281

This

appellate decision was made on May 8, 2014.

282

The cheerleaders petitioned

the Texas Supreme Court for review,

283

and the petition for review was

granted by the state’s civil court of last resort.

284

3. The Texas Supreme Court Decision

In the first sentence of its January 29, 2016, opinion, the Texas Supreme

Court noted that the sole issue on appeal was “whether the [school district’s]

voluntary cessation of challenged conduct rendered the plaintiffs’ claims for

prospective relief moot.”

285

However, before proceeding to the mootness

analysis, the court recognized the parties’ dispute over the scope of the

277

See supra text accompanying note 119.

278

Matthews, 482 S.W.3d at 134.

279

Id.

280

Id. at 123–24, 134.

281

Id. at 124 n.1, 134.

282

Id. at 120.

283

Matthews ex rel. M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 417 (Tex. 2016).

284

Id. at 420.

285

Id. at 417.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 951

challenged conduct as a threshold matter.

286

The court stated that “[t]he

cheerleaders contend that they are challenging the District’s ongoing policy

of treating their banners as ‘government’ speech[,]” while the school district

contends that the cheerleaders only challenged the discrete action of the

superintendent’s religious-message banners ban.

287

The court noted the

district’s contention was that “the cheerleaders are attempting to reframe the

controversy as broader than they state in their petition.”

288

However, the

state high court did not resolve this dispute or make any classification

decisions on whether the cheerleaders’ speech was private speech or

government speech, due to its resolution of the case only through a mootness

analysis.

289

Consequently, the Court’s majority opinion contained no

references to the Establishment Clause.

290

The question of whether the trial

court had issued an advisory opinion on a nonjusticiable Establishment

Clause issue was not taken up by the court, despite its apparent sua sponte duty

to do so.

291

In its analysis, the court instead found that the case was not moot.

292

This

determination was premised on the potential of a district policy reversal, the

district’s stance in the litigation, and the nature of the challenged conduct

being easily undone.

293

Although the court acknowledged that “[t]he District

no longer prohibit[ed] the cheerleaders from displaying religious signs or

messages on banners at school-sponsored events[,] . . . that change hardly

[made] ‘absolutely clear’ that the District [would] not reverse itself after this

litigation [was] concluded.”

294

The court found that the district’s continual

defense of the constitutionality of the prohibition and its claimed “unfettered

authority” to govern the content of the banners, as well as the absence of an

unconditional statement by the district that it would not reinstate the

prohibition, were significant factors that weighed against a mootness

286

Id. at 418.

287

Id.

288

Id.

289

Id.

290

See id. at 417–20.

291

See supra text accompanying note 119.

292

See Matthews, 484 S.W.3d at 418 (finding the case was not moot and, therefore, the court did not

have to address the issue of how the cheerleaders framed the controversy).

293

Id. at 418–19.

294

Id.

952 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

finding.

295

Finally, the court found that the easy potential reinstatement of

the prohibition policy contraindicated mootness.

296

In its conclusion, the court determined that the district’s voluntary

cessation of the prohibition policy “provide[d] no assurance that the District

will not prohibit the cheerleaders from displaying banners with religious signs

or messages at school-sponsored events in the future.”

297

The court also

found that the new district policy “only state[d] the District is not required to

prohibit the cheerleaders from displaying such banners, and reserves to the

District unfettered discretion in regulating those banners—including the

apparent authority to do so based solely on their religious content.”

298

As a

result, the Texas Supreme Court determined the case was not moot.

299

reversed the judgment of the court of appeals and remanded the case to that

court for further proceedings.

300

In Justice Willett’s concurrence, the Establishment Clause and its

government speech/private speech dichotomy are referenced multiple

times.

301

Justice Willett praised the court for its narrow decision on mootness

and its lack of classification of the student speech as government speech and

private speech.

302

However, this concurrence also articulated concern over

the vigorous debate throughout the litigation regarding the applicability of

the Establishment Clause to the student speech and regarding whether the

speech was governmental or private.

303

Justice Willett was troubled about

the parties’ conflicting conclusions regarding the trial court’s May 8, 2013,

order.

304

Here, the school district interpreted that order to mean that the

students’ banners were the school’s (government) speech, while the

cheerleaders attested that “the order affirmed that the banners contain the

cheerleaders’ private speech.”

305

The concurrence surmised that the

cheerleaders’ view was based on the inapplicability of the Establishment

Clause to private speech and the language of the temporary injunction

295

Id. at 419.

296

Id.

297

Id. at 420.

298

Id. (emphasis in original).

299

Id.

300

Id.

301

See id. at 420–23 (Willett, J., concurring) (referencing the Establishment Clause six times).

302

See id. at 420 (lauding the court’s decision as “rightfully . . . within the borders of its authority”).

303

Id. at 421.

304

Id. at 421–22.

305

Id. at 422.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 953

order.

306

The concurrence then emphasized that “[t]he record [did] not

yield a conclusive answer” on the classification of the religious speech, and

that “[w]e don’t know” the answer to that question.

307

As a result, Justice

Willett called for clarity:

My concern is that this case may return to the trial court for a final decision

only to reappear on our docket with no clarity as to what this order achieves

and what claims are actually live. If that situation arises, the parties and trial

court would do well to confront the shadowy place in this litigation and

clarify with precision the status of this order and the cheerleaders’ claims.

308

Given the incredible complexity of this litigation—and the lingering

questions as to whether the Establishment Clause prohibited the

cheerleaders’ religious run-through banners, whether the student speech is

government speech or private speech, and whether any of the state courts

should have decided these questions—the one thing that was

uncontrovertibly clear after the Texas Supreme Court’s decision was the

need for some clarity.

4. The Second Texas Court of Appeals Decision

That clarity, at least for Establishment Clause purposes, was not achieved

by the court of appeals’ September 28, 2017, unpublished decision.

309

remand, and unlike the district court litigation, “[n]either party . . . raised

any issue concerning the Establishment Clause,” which the court expressly

acknowledged.

310

Although the court stated that Establishment Clause

jurisprudence is “murky” and “complicated” when applied to student

religious speech,

311

it specifically limited its discussion “to categorizing the

student speech at issue,” and not to any Establishment Clause determinations

given the absence of these issues raised by either party.

312

So, once again,

306

Id. (“[T]he cheerleaders contended that ‘the Establishment Clause . . . is inapplicable to private

speech[,]’ which, taken together with the text of the temporary injunction order, could explain the

cheerleaders’ understanding . . . .”).

307

Id.

308

Id. at 423.

309

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, No. 09-13-00251-CV, 2017 WL 4319908

(Tex. App. Sept. 28, 2017); see also Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001) (citing

TEX. R. APP. P. 47.7) (“[U]npublished opinions ‘have no precedential value and must not be cited

as authority by counsel or by a court . . . .’”).

310

Matthews, 2017 WL 4319908, at *3 n.3.

311

Id. at *3 (quoting Morgan v. Swanson, 659 F.3d 359, 371, 382 (5th Cir. 2011)).

312

Id. at *3 & n.3.

954 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

the question of whether the Establishment Clause issue was a justiciable one

for resolution by the trial court was not taken up by the court of appeals,

despite its apparent sua sponte duty to do so.

313

Instead, the remand centered on whether the trial court had properly

denied the school district’s original plea to the court’s jurisdiction based on

issues of governmental immunity and standing.

314

This discussion was

limited to the school district’s original plea to the district court’s

jurisdiction,

315

because the school district’s supplemental plea to the court’s

jurisdiction based on mootness had been disposed of by the Texas Supreme

Court.

316

In order for the trial court to have had proper subject matter

jurisdiction over the lawsuit, the cheerleaders must have alleged facts to

prove a valid waiver of governmental immunity and proper standing.

317

The

court of appeals highlighted that the trial court’s May 8, 2013, order was an

“implicit” denial of the school district’s plea to the jurisdiction because the

cheerleaders’ motion for partial summary judgment was granted in part by

the trial court.

318

The key determination for the court of appeals regarding this question

of waiver of governmental immunity was whether the cheerleaders’ religious

speech on the banners constituted private speech, as claimed by the

cheerleaders, or government speech, as claimed by the school district.

319

The

court recognized that this classification dispute had been the “central

disagreement” between the parties in the litigation,

320

and it stated that it

must engage in an extended classification analysis to resolve it.

321

The government speech/private speech classification was premised only

upon an analysis of the question of waiver of governmental immunity to the

free speech and free exercise claims in the cheerleaders’ original petition.

322

The court began its analysis by stating that under the government speech

313

See supra text accompanying note 119.

314

Matthews, 2017 WL 4319908, at *1, *2.

315

Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 417 (Tex. 2016).

316

See id. at 418.

317

Matthews, 2017 WL 4319908, at *2, *14.

318

Id. at *1.

319

Id. at *2.

320

Id.

321

Id.

322

See id. at *2 (noting that the issue of whether the speech is government speech or private speech

controls the questions of governmental immunity).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 955

doctrine, “[g]overnment speech is ‘not subject to scrutiny under the Free

Speech Clause,’” which allows the government to restrict its own speech

without implicating First Amendment speech provisions.

323

Pursuant to that

doctrine, if the banners were pure government speech, then that would be

an “absolute defense” to the cheerleaders’ free speech claims and “the

Cheerleaders could not prove a valid waiver of immunity from suit in order

to invoke the court’s subject matter jurisdiction over their claim.”

324

If the

speech was private speech, then “governmental immunity has been waived

for” the cheerleaders’ free speech claims.

325

Ultimately, the court found that the cheerleaders’ speech was “the pure

private speech of the students” for the purposes of finding the trial court had

proper subject matter jurisdiction over the free speech claims.

326

In this

analysis, the court invoked Santa Fe’s government speech/private speech

dichotomy.

327

Here, the court distinguished the cheerleaders’ religious

banners from the football game student invocations that had been held to be

government speech for Establishment Clause analysis in Santa Fe:

328

In contrast, Kountze ISD makes no claim in this case that the Cheerleaders

were required or encouraged in any way to include religious messages on the

banners. Likewise, there is no school policy or rule that, in actuality or effect,

even suggested, much less required, the placement of religious messages on

the banners. Indeed, until the school year in question, the messages painted

on the banners had been entirely non-religious in nature. The extent of the

school’s policy concerning banners was that the cheerleaders should make

banners to promote school spirit at football games. The text and content of

the message, aside from the prohibition on obscene material, is, was, and

always had been, left up to the discretion of the cheerleaders. Thus, we find

the reasoning in Santa Fe to be inapposite.

329

The court instead found that the cheerleaders’ speech was “genuinely

student-initiated” per an application of reasoning from other Establishment

Clause case law and was, therefore, protected private speech.

330

Consequently, the court held that “the Cheerleaders pleaded sufficient facts

323

Id. at *2 (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009)).

324

Id.

325

Id.

326

Id. at *13.

327

See id. at *7 (citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000)).

328

See id. at *8 (contrasting the student election system in Santa Fe with the lack of a school policy

suggesting or requiring the placement of religious messages on the banners in Matthews).

329

Id.

330

Id. (quoting Chandler v. James, 180 F.3d 1254, 1261 (11th Cir. 1999)).

956 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

to show both a waiver of immunity and to affirmatively demonstrate that the

trial court possessed jurisdiction over the dispute.”

331

There was no judicial discussion as to whether the trial court rendered

an advisory opinion on the Establishment Clause in its May 8, 2013, order.

Aside from one reference, the school district’s motion for summary judgment

on its request for declaratory relief was not discussed.

332

There was no

discussion of the school district’s uncontested request for a judicial

declaration that there was no Establishment Clause violation. There was no

discussion of the result of the court of appeals’ previous failure to reverse the

trial court’s granting in part of the district’s motion for summary judgment

on its request for declaratory relief on the Establishment Clause declaration.

Instead, after the government immunity analysis, the court simply overruled

“the school district’s issue on appeal and affirm[ed] the trial court’s ruling to

deny Kountze ISD’s plea to the jurisdiction.”

333

With respect to the standing issue, the court rejected the school district’s

claim that the individual cheerleader plaintiffs lacked standing to sue on

behalf of the entire squad, which made group decisions on the content of the

banners.

334

Specifically, the court found that the cheerleader litigants did not

“lose their individual rights to free speech by speaking as a group.”

335

The

propriety of the cheerleaders’ parents bringing suit on behalf of their children

was not disputed.

336

Therefore, the court also overruled the lack of standing

issue based on each minor cheerleader having “a justiciable interest in the

controversy” through an allegation of a “breach of her constitutional right to

freedom of speech,” which gave each of them standing to sue.

337

The final

sentence of the opinion stated: “Having overruled all of the issues of Kountze

ISD on appeal, we affirm the trial court’s denial of the plea to the

jurisdiction.”

338

However, the question of whether the trial court issued an

impermissible advisory opinion on the Establishment Clause, which goes to

331

Id. at *13

332

See id. at *1 (discussing the procedural history of the case).

333

Id. at *13.

334

See id. at *14.

335

Id.

336

See id. (“It is undisputed that each of the individual cheerleaders who sued was represented by their

parents as that respective minor’s next friend . . . .”).

337

See id.

338

Id.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 957

the heart of justiciability and was an issue that the court should have

examined sua sponte, was never addressed.

339

5. Subsequent Requests for Review to the Texas Supreme Court

The school district filed a petition for review of the appellate court’s

decision with the Texas Supreme Court on January 15, 2018.

340

This

petition for review explicitly stated that “[n]either party has raised any issue

concerning the Establishment Clause.”

341

The Texas Supreme Court denied

the petition on August 31, 2018, without an opinion.

342

In Texas, the denial

of a petition for review indicates that the “Texas Supreme Court is not

satisfied that the opinion of the court of appeals has correctly declared the

law in all respects but determines that the petition presents no error that

requires reversal or that is of such importance to the jurisprudence of the

State as to require correction.”

343

After the denial of the petition, Texas Attorney General Ken Paxton

made a public announcement supporting the Texas Supreme Court’s denial

of review.

344

In a news release, he championed the Texas Court of Appeals’

private-speech classification decision, claiming that “[t]he Kountze

cheerleaders case involved personal expressions of faith and an ill-advised

school district change of policy that mislabeled their expressions as

government speech.”

345

He framed the case as a win for “[r]eligious liberty[,

which] is the foundation upon which our society has been built.”

346

concluded with his endorsement of the “precedent” set by this case: “The

Texas Supreme Court’s decision ensures that the Kountze cheerleaders and

339

See supra text accompanying note 119.

340

See Petition for Review, Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 484 S.W.3d 416

(Tex. Jan. 15, 2018) (No. 17-0988).

341

Id. at 10 n.3.

342

See Denial of Petition for Review, Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 484

S.W.3d 416 (Tex. Aug. 31, 2018) (No. 17-0988), http://www.search.txcourts.gov/Search

Media.aspx?MediaVersionID=5348b981-5cec-4a21-bd15-b3291308d3d4&coa=cossup&DT=PE

T%20FOR%20REVIEW%20DISP&MediaID=8d6afa52-d0b8-4f77-bf4e-2a57637165e5.

343

TEXAS LAW REVIEW ASS’N, TEXAS RULES OF FORM: THE GREENBOOK app. D (14th ed. 2018).

344

Press Release, Tex. Office of the Att’y Gen., AG Paxton: Texas Supreme Court’s Decision in

Kountze Cheerleaders’ Case is a Win for Religious Liberty (Aug. 31, 2018), available at

https://www.texasattorneygeneral.gov/news/releases/ag-paxton-texas-supreme-courts-decision-

kountze-cheerleaders-case-win-religious-liberty.

345

Id.

346

Id.

958 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

other cheerleaders across the state will be able to display their expressions of

faith on banners at football games.”

347

The school district filed a motion for rehearing with the Texas Supreme

Court on October 2, 2018, in which it asked for a declaration that the case

was moot and a vacatur of all of the prior decisions in the case.

348

Here, the

school district argued the case became moot on March 24, 2017, when all of

the original plaintiff cheerleaders no longer were eligible to be school

cheerleaders due to graduating or not qualifying for the squad, which was six

months prior to the state court of appeals decision that classified the banners

as private speech.

349

The school district argued that, with the case becoming

moot, the appellate court lacked jurisdiction to make this decision, and,

instead, should have dismissed the case.

350

The school district next argued that the “cheerleaders abandoned” the

controversy regarding whether the banners constitute private speech “by

agreeing in substance and form to the trial court’s [May 8, 2013] order which

disposed of their motion for summary judgment without characterizing the

banners as their private speech.”

351

Without a live controversy between the

parties as to whether the banners were the students’ private speech, the court

of appeals lacked jurisdiction to classify the banners as private speech.

352

Consequently, the school district argued that the September 28, 2017,

opinion of the court of appeals was a prohibited advisory opinion.

353

It did

not argue the same as to the original trial court’s order, which makes sense

as the school district wanted that judicial declaration that the district was not

violating the Establishment Clause.

In the alternative to these mootness arguments, the school district argued

the high court should grant the petition for review because the appellate

court’s determination that the banners were private speech conflicted with

the First Amendment.

354

Here, the district argued the banners were school-

sponsored government speech under the Supreme Court’s First Amendment

347

Id.

348

See Petitioner’s Motion for Rehearing of the Denial of Its Petition for Review at 24, Kountze Indep.

Sch. Dist. v. Matthews ex rel. Matthews, 484 S.W.3d 416 (Tex. Oct. 2, 2018) (No. 17-0988).

349

Id. at 8–9.

350

Id. at 9.

351

Id. at 13.

352

Id. at 14.

353

See id. (arguing that “[s]uch an opinion is prohibited under Texas law”).

354

Id. at 15.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 959

free-speech jurisprudence,

355

and, as such, the district’s government

immunity had not been waived.

356

Therefore, the district argued that the

Texas Supreme Court should grant the petition for review and reverse the

appellate court’s order that affirmed the denial of the school district’s plea to

the jurisdiction.

357

The school district’s final argument for the grant of its petition for review

was an Establishment Clause argument.

358

Specifically, the school district

argued that “[t]he petition for review should be granted because the lower

court’s decision could lead to the violation of the Establishment Clause of the

First Amendment.”

359

Here, the school district said that Santa Fe made clear

the cheerleaders’ run-through banners were government speech under

Establishment Clause jurisprudence because of the perception of school

endorsement they created and because they were the result of a majoritarian

selection process among the squad.

360

If the school district was “unable to

maintain reasonable control over the school-sponsored speech on run-

through banners, it [would be] likely that the expression contained on the

banners would be attributed to the school and that such attribution of the

content of the unregulated banners could potentially subject the school to

liability for violations of the Establishment Clause” under Santa Fe in the

future.

361

Therefore, the school district urged the Texas Supreme Court to

“grant this motion and the petition for review, recognize that the banners are

school-sponsored speech, and assist [the school district] in avoiding future

lawsuits based on the Establishment Clause.”

362

The Texas Supreme Court

denied the school district’s motion for rehearing of the denial of its petition

for review on November 9, 2018, without opinion.

363

355

See id. at 15–20 (“Pursuant to Hazelwood and its progeny, the banners are school-sponsored speech

and may be regulated.”).

356

Id. at 21–22.

357

Id.

358

See id. at 22–24 (using the interpretation of the Establishment Clause from Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000)).

359

Id. at 22.

360

See id. at 23–24 (citing Santa Fe, 530 U.S. at 307–08, 314, 316–17).

361

Id. at 22 (citing Santa Fe, 530 U.S. 290).

362

Id. at 24.

363

Denial of Petitioner’s Motion for Rehearing of the Denial of its Petition for Review, Kountze Indep.

Sch. Dist. v. Matthews ex rel. Matthews, 484 S.W.3d 416 (Tex. Nov. 9, 2018) (No. 17-0988),

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fc350abd-391b-483e-a30

2-66b58a2c2d63&coa=cossup&DT=REHEARING%20DISP&MediaID=f031814b-daa2-4d8c-

8edd-9df35369bc70.

960 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

6. Lessons to be Learned from the Confusion of this Case

This convoluted case is paradigmatic of the confusion and lack of clarity

regarding the Establishment Clause and the classification of student religious

speech as government speech or private speech. The trial court made an

error in issuing its order on May 8, 2013, that declared as a conclusion of law

that the Establishment Clause did not prohibit “the cheerleaders from using

religious-themed banners at school sporting events,” given the absence of a

justiciable controversy for that issue.

364

Without a live controversy between

adverse parties, the court should not have rendered a prohibited advisory

opinion on any Establishment Clause issues.

365

This was the very definition

of a nonjusticiable issue, but the trial court proceeded regardless in violation

of the fundamental justiciability requirements and constitutional provisions

of the state—requirements that parallel the justiciability requirements of the

federal courts.

In their original petition, the cheerleaders alleged that their free-speech

and free-exercise rights were violated.

366

They did not assert an

Establishment Clause violation, because they wanted their banners classified

as protected private speech for free speech and free exercise purposes.

367

And

it is clear that private speech is not subject to Establishment Clause

constraints.

368

The school district’s motion for summary judgment regarding

its request for declaratory relief, in which it sought a judicial declaration that

the district’s allowance of the cheerleaders’ display of religiously themed

364

Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796, at *2 (Tex. D. Ct. May 8,

2013).

365

See Heckman v. Williamson Cty., 369 S.W.3d 137, 147 (Tex. 2012) (“The Texas Constitution—the

source of the requirements of justiciability in Texas—bars our courts from rendering advisory

opinions and limits access to the courts to those individuals who have suffered an actual, concrete

injury.”).

366

Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 482 S.W.3d 120, 125 (Tex. App. 2014).

367

See Reply Brief of Petitioners at 20–21, Matthews ex rel. Matthews v. Kountze Indep. Sch. Dist., 484

S.W.3d 416 (Tex. Aug. 27, 2015) (No. 14-0453), 2015 WL 10321932 (stating that a necessary

component of the district court’s order was that the banners were private, and not government,

speech, which was in accord with the cheerleaders’ position).

368

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of Educ. v. Mergens,

496 U.S. 226, 250 (1990) (plurality opinion)) (providing the private speech and government speech

dichotomy for Establishment Clause jurisprudence).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 961

banners at football games was not a violation of the Establishment Clause,

did not convert the action to a live Establishment Clause controversy.

369

This is so because there was not an actual controversy between actually

adverse parties as to the Establishment Clause determination, and an actual

controversy between adverse parties with adverse legal interests is required

in order for a Texas court to have the authority to make an adjudication on

a justiciable matter,

370

including when a party is requesting a declaratory

judgment.

371

The state’s provisions on declaratory relief do not give the

courts carte blanche to decide all controversies, regardless of their

justiciability.

372

The cheerleaders’ response to this motion clearly indicated

that there was no live controversy or adversity as to the Establishment Clause

issue, because the parties sought the exact same relief on that issue.

373

The only remaining potentially justiciable issues at the time of the May

8, 2013, order were 1) the question of waiver of governmental immunity to

the free-speech and free-exercise claims, which would require the

classification of the banners as government speech or private speech, and 2)

the standing of the individual plaintiffs to bring suit when the squad made

decisions on the banners’ content as a group. These issues were only

potentially justiciable given that the initial banners restriction had been

amended prior to the court’s order, which raised the question of mootness of

the cheerleaders’ original claims. The court order failed to make any

determination on either of those potentially justiciable issues and made a

decision instead on a nonjusticiable issue in the endemically complex

Establishment Clause arena.

374

369

See Kountze ISD’s Reply to Plaintiffs’ Response to Traditional Motion for Summary Judgment of

Kountze ISD Regarding Its Request for Declaratory Relief at 1–3, Matthews v. Kountze Indep.

Sch. Dist., No. 53526 (Tex. D. Ct. May 3, 2013), 2013 WL 2299644, at *1–3 (requesting court to

issue a declaration that the Establishment Clause does not prohibit the school district from allowing

the cheerleader squad to utilize religious messages on run-through banners).

370

See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (providing

justiciability requirements under the Texas Constitution).

371

See Dallas v. VSC, LLC, 347 S.W.3d 231, 240 (Tex. 2011) (requiring an actual controversy to have

a justiciable declaratory judgment proceeding).

372

See Denver City Indep. Sch. Dist. v. Moses, 51 S.W.3d 386, 391 (Tex. App. 2001) (stating that the

Declaratory Judgments Act is a procedural vehicle to decide controversies that already exist within

the court’s jurisdiction).

373

See supra text accompanying notes 250–51.

374

See Mueller v. Allen, 463 U.S. 387, 392 (1983) (stating the Supreme Court has “oft-repeated [that

the Establishment Clause] . . . presents especially difficult questions of interpretation and

application.”).

962 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

In doing so, the trial court issued an order and opinion that stated these

banners did not violate the Establishment Clause, without an express

classification of the student speech as either government speech or private

speech.

375

It did so summarily in nine sentences with no references to any

case law, with two mentions of the term “the Establishment Clause,” and

with no legal citations.

376

Essentially, the trial court found that there was no

Establishment Clause violation because the court said so. Ipse dixit, there you

go.

377

While the summary nature of this opinion should not be too harshly

criticized, given the overwhelming dockets that Texas trial courts, like all

courts, face,

378

basic rules of hierarchical precedent still must apply when

lower courts issue decisions. A just application of the law requires more than

a conclusory, unsupported statement.

379

Such criticism of the cursory nature

of the opinion could easily have been avoided, though, had the court declined

to decide the nonjusticiable issue, as it was legally bound to do.

The trial court failed to comply with justiciability limits when it issued

such an impermissible advisory opinion by judicial fiat,

380

and all of the

reviewing appellate courts should have reversed and vacated this

Establishment Clause aspect of the trial court’s judgment as a matter of

law.

381

This was cogently argued by the American Jewish Committee in its

375

See Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796, at *1–2 (Tex. D. Ct.

May 8, 2013) (concluding that the banners were constitutionally permissible but not stating why).

376

Id.; see Brett A. Geier & Annie Blankenship, Praying for Touchdowns: Contemporary Law and Legislation

for Prayer in Public School Athletics, 15 FIRST AMEND. L. REV. 381, 405 (2017) (critically deeming this

district court order “very succinct”).

377

See Ipse Dixit, BLACK’S LAW DICTIONARY (7th ed. 1999) (translating “ipse dixit” to “‘he himself said

it” and defining it as “[s]omething asserted but not proved”); Richard C. Wydick, The Attorney-Client

Privilege: Does It Really Have Life Everlasting?, 87 KY. L.J. 1165, 1172 n.41 (1998)

(“Ipse dixit means roughly: it’s so because I say so.”).

378

See OFFICE OF COURT ADMIN., ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY:

FISCAL YEAR 2018, at 2–9 (2018), available at https://www.txcourts.gov/media/1443455/2018-ar-

statistical-final.pdf (showing statewide trend of increasingly heavy caseloads for all Texas civil

courts).

379

See Mary B. Trevor, From Ostriches to Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial

Opinions, 45 U. TOL. L. REV. 291, 302 (2014) (arguing judges must provide clear and credible

explanations in their opinions).

380

See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (discussing how

neither Texas nor federal courts can render advisory opinions).

381

See Renne v. Geary, 501 U.S. 312, 315 (1991) (vacating an appellate court’s judgment and

remanding with instructions to dismiss a nonjusticiable cause of action when there was an absence

of a live controversy filed and decided upon in the trial court); State Bar of Tex. v. Gomez, 891

S.W.2d 243, 245 (Tex. 1994) (providing that a decision that does not bind the parties is by definition

an impermissible advisory opinion).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 963

brief as an amicus curiae to the Texas Supreme Court.

382

Each of the

reviewing courts should have examined this core justiciability issue sua sponte.

None of the state’s appellate courts did so.

383

As a prudential matter, the

courts should also have avoided this improper course to not contribute to the

jurisprudential confusion that surrounds the Establishment Clause. This was

a fundamental error that contravened all of the requirements of justiciability

and a missed opportunity by all of these courts to provide much needed

clarity in this area of school law Establishment Clause jurisprudence. It also

set up state officials to endorse the continued practice of school districts’

allowance of the display of these types of student religious messages as per se

constitutional,

384

which creates a public perception that this practice will

never be an Establishment Clause violation.

385

And this is all based on a

nine-sentence order on a nonjusticiable issue. If faced with similar cases in

the future, courts should avoid the costly mistakes of the Matthews case.

386

B. The Establishment Clause and Student-Led Graduation Invocations: The Judicial

Fiat Dilemma of Schultz v. Medina Valley Independent School District

When the Supreme Court limited its review in Santa Fe only to the

establishment question of the football game prayer policy and did not review

the constitutionality of the school district’s “allow[ing] students to read

Christian invocations and benedictions from the stage at graduation

ceremonies,”

387

it left the question of whether state policies and practices

regarding student invocations at public school graduations were violative of

the Establishment Clause open for future judicial resolution and public

382

See Brief of Amicus Curiae American Jewish Committee at 2–3, Matthews ex rel. M.M. v. Kountze

Indep. Sch. Dist., No. 14-0453, 2015 WL 12911362, at *2–3 (Tex. Aug. 20, 2015) (arguing the trial

court’s advisory opinion on a nonjusticiable matter was error).

383

See Kountze Indep. Sch. Dist. v. Matthews ex rel. Matthews, 482 S.W.3d 120 (Tex. App. 2014).

384

See Paxton, supra note 344 (describing the Texas Attorney General’s support of the Kountze

cheerleaders’ “personal expressions of faith”).

385

See, e.g., Bob Cook, US Supreme Court is Hinting Public School Coaches Won’t Have to Leave Religion on the

Sidelines, FORBES (Feb. 22, 2019), https://www.forbes.com/sites/bobcook/2019/02/22/us-

supreme-court-is-hinting-public-school-coaches-wont-have-to-leave-religion-on-the-sidelines/#11

23e38818ff (characterizing the Texas Supreme Court’s Kountze decision as “a curious decision, to

say that public school cheerleaders writing religious messages in their school-issued uniforms with

school-issued pens on school-issued banners to have players run through in front of God and

everybody is constitutionally okie-dokie”).

386

This case example is relevant to all courts given the symmetry between the federal and Texas

justiciability requirements. See supra Part II.A. (discussing Texas justiciability requirements).

387

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 295 (2000).

964 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

debate.

388

Although there have been many cases that have touched on the

issue of student prayer at school graduations,

389

there have been relatively

few federal cases that have been litigated since Santa Fe that have involved

the constitutionality of an express student “invocation” policy for school

graduations.

1. The Trial Court Proceedings

One prominent example of such a case is Schultz v. Medina Valley

Independent School District, which was filed in the United States District Court

for the Western District of Texas on May 26, 2011.

390

In the complaint, a

graduating agnostic senior of Medina Valley High School, Corwyn Schultz,

his agnostic parents, and his agnostic brother, a graduate of the high

school,

391

claimed that the school district violated the Establishment Clause

through its “longstanding custom, practice, and policy of sponsoring

graduation prayers” as evidenced by its express, formal inclusion of an

“‘invocation’ and ‘benediction’” in its “official graduation-ceremony

program.”

392

The Schultz family first contacted the school district on

October 10, 2010, raising constitutional concerns with this policy and asking

whether the upcoming graduation would include prayer.

393

Because the

school district did not notify the Schultz family until May 25, 2011,

394

that

the June 4, 2011, graduation ceremony would include an invocation and

388

See Kent Greenawalt, Fundamental Questions About the Religion Clauses: Reflections on Some Critiques, 47

SAN DIEGO L. REV. 1131, 1144 (2010) (discussing the different perspectives on the constitutionality

of graduation prayers at public schools); Frederick B. Jonassen, Free Speech and Establishment Clause

Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored

and Does Not Represent the Views of the Valedictorian, 55 WAYNE L. REV. 683, 730 (2009) (discussing the

lack of resolution on this issue by Santa Fe).

389

See Sorkin, supra note 27, at 357–95 (providing a comprehensive account of the federal court cases

that have addressed the constitutionality of public school graduation prayer).

390

Complaint, Schultz v. Medina Valley Indep. Sch. Dist., No. 5:11-cv-422, 2011 WL 7561368 (W.D.

Tex. May 26, 2011).

391

See id. at 5 (describing the Schultz family’s religious background).

392

Id. at 5–6.

393

Plaintiff-Appellees’ Opposition to Defendant-Appellant’s Emergency Motion to Dissolve

Temporary Restraining Order and Preliminary Injunction at 12, Schultz, No. 11-50486 (5th Cir.

June 3, 2011).

394

Plaintiffs’ Motion for a Temporary Restraining Order and a Preliminary Injunction at 4, Schultz

v. Medina Valley Indep. Sch. Dist., No. 5:11-cv-422 (W.D. Tex. May 26, 2011), 2011 WL 7561377,

at *4.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 965

benediction,

395

the plaintiffs filed a motion for a TRO and a preliminary

injunction on the same day as the complaint, asking the court to enjoin

prayer at the graduation ceremony.

396

On May 27, 2011, the presiding

judge, Chief Judge Fred Biery, entered an order that set the motion for TRO

and preliminary injunction for hearing on May 31, 2011.

397

After that hearing, on June 1, 2011, the federal district court entered an

amended order that granted the plaintiffs’ injunctive relief motion, based on

a finding of a likelihood of plaintiffs’ success on the merits that the inclusion

of the graduation prayers violated the Establishment Clause and stating that

the court was bound to follow Santa Fe and other controlling Establishment

Clause precedent.

398

It cited to eleven cases in support of its decision.

399

The

court ordered the school district to “remove the terms ‘invocation’ and

‘benediction’ from the graduation ceremony programs and to replace them

“with ‘opening remarks’ and ‘closing remarks.’”

400

It also ordered the school

district to tell the students who had been “selected to deliver the ‘invocation’

and ‘benediction’ to modify their remarks to be statements of their own

beliefs as opposed to leading the audience in prayer.”

401

Further, all graduation speakers were to:

be instructed that they may not ask audience members to “stand,” “join in

prayer,” or “bow their heads,” they may not end their remarks with “amen”

or “in [a deity’s name] we pray,” and they shall not otherwise deliver a

message that would commonly be understood to be a prayer, nor use the

word “prayer” unless it is used in the student’s expression of the student’s

personal belief, as opposed to encouraging others who may not believe in

the concept of prayer to join in and believe the same concept. The students

may in stating their own personal beliefs speak through conduct such as

kneeling to face Mecca, the wearing of a yarmulke or hijab or making the

sign of the cross.

402

395

Id. at 2–5.

396

See id. at 1, 11.

397

Order Setting Hearing on Motion for Temporary Restraining Order and Preliminary Injunction,

Schultz, No. 5:11-cv-422-FB, available at https://www.clearinghouse.net/chDocs/public/FA-TX-

0001-9000.pdf (Docket Entry No. 10).

398

Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, 2011 WL 13234770, at *1

(W.D. Tex. June 1, 2011).

399

See id. at *1 (citing eleven cases).

400

Id. at *2.

401

Id.

402

Id.

966 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

Finally, the school district was ordered to review the students’ remarks to

ensure compliance with the order and to instruct the students not to deviate

from their district-approved remarks at the graduation ceremony.

403

2. The Interlocutory Appeal to the Fifth Circuit

On June 2, 2011, the school district filed an emergency amended appeal

in the Fifth Circuit to dissolve the trial court’s order.

404

This twenty-page

emergency motion had extensive citations to the Constitution and Supreme

Court authority.

405

On the same day, the school’s valedictorian, Angelina

Hildenbrand, who wanted to pray during her speech, sought to intervene in

the appeal in opposition to the district court’s order.

406

The State of Texas

also filed a twenty-three page amicus brief with citations to hierarchical

precedent in the matter.

407

In a statement to the public about the case, Texas

Attorney General Abbott stated, “This is part of an ongoing attempt to purge

God from the public setting, while at the same time demanding from the

court increased yielding to all things agnostic and atheistic[.]”

408

Abbott also

stated that “[Judge] Biery’s ruling would allow a student to ‘bend over in

honor of Mecca,’ but not lead a prayer to the Christian God.”

409

The Schultz

family filed their response in opposition to the appeal on June 3, 2011, in a

forty-eight page brief with extensive citations to the Constitution and

Supreme Court precedent.

410

403

Id.

404

Amended Appeal of Order, Schultz v. Medina Valley Indep. Sch. Dist., No. 5:11-cv-00422-FB,

available at https://www.clearinghouse.net/chDocs/public/FA-TX-0001-9000.pdf (Docket Entry

No. 19). The school district had filed an appeal with the Fifth Circuit of the first order of the court

on June 1, 2011. Appeal of Order, Schultz, No. 5:11-cv-00422-FB, available at https://www.clearing

house.net/chDocs/public/FA-TX-0001-9000.pdf (Docket Entry No. 17).

405

See Medina Valley Independent School District’s Opposed Emergency Motion to Dissolve

Temporary Restraining Order and Preliminary Injunction, Schultz v. Medina Valley Indep. Sch.

Dist., No. 11-50486 (5th Cir. June 3, 2011).

406

Jim Forsyth, Valedictorian Fights Judge’s Ban on Graduation Prayer, REUTERS (June 2, 2011),

https://www.reuters.com/article/us-prayer-graduation-texas/valedictorian-fights-judges-ban-on-

graduation-prayer-idUSTRE75177D20110602.

407

See Brief of the State of Texas as Amicus Curiae, Schultz v. Medina Valley Indep. Sch. Dist., No.

11-50486 (5th Cir. June 3, 2011).

408

Forsyth, supra note 406.

409

Id.

410

See Plaintiff-Appellees’ Opposition to Defendant-Appellant’s Emergency Motion to Dissolve

Temporary Restraining Order and Preliminary Injunction, Schultz, No. 11-50486 (5th Cir. June 3,

2011).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 967

In the appeal, the school district argued that the plaintiffs could not meet

their burden of a strong showing that they were entitled to injunctive relief.

411

The school district argued that the district court had abused its discretion

with its injunctive order, because “[t]he District clearly ha[d] not violated the

Establishment Clause” and the graduation policies were consistent with the

Establishment Clause.

412

The school district cited to the government

speech/private speech dichotomy in Establishment Clause jurisprudence.

413

It distinguished Santa Fe, as that case dealt with “prayer at football games” and

not prayer at “graduation ceremonies.”

414

It asserted that the speaker selection

process, based on a random drawing from student volunteers from a pool of

“the top three academically ranked graduates, the class president, and

student council officers,” created a limited public forum for the graduation

ceremony.

415

Consequently, the central argument of the school district

revolved around how to classify the religious speech of the students within

the dichotomy of government speech and private speech in Establishment

Clause jurisprudence.

416

Specifically, the school district asserted that the

“student speakers at graduation unquestionably are engaging in private

speech that is altogether distinctive from government speech and does not

run afoul of the Establishment Clause.”

417

The school district also argued

that the court’s injunctive relief order failed to make the requisite findings of

fact and conclusions of law under the Federal Rules of Civil Procedure.

418

In their opposition to the appeal, the Schultz family argued that the

school district lacked standing to assert the constitutional rights of its

students, that the district was not entitled to expedited relief given its six-

month delay in responding to their inquiry as to whether the graduation

ceremony would include prayer and its lack of cooperation in the trial court

proceedings, and that the school district had “not met the procedural

411

See Medina Valley Independent School District’s Opposed Emergency Motion to Stay Enforcement

of Temporary Restraining Order and Preliminary Injunction at 14, Schultz, No. 11-50486 (5th Cir.

June 3, 2011).

412

See id. at 4, 14.

413

See id. at 7.

414

Id. at 9 (emphasis in original) (citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)).

415

Id. at 10–11.

416

See id. at 11–12.

417

Medina Valley Independent School District’s Opposed Emergency Motion to Stay Enforcement

of Temporary Restraining Order and Preliminary Injunction at 11, Schultz, No. 11-50486 (5th Cir.

June 3, 2011).

418

See id. at 13–14.

968 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

requirements for a stay of the preliminary injunction.”

419

The Schultz family

also argued the district court correctly found that the plaintiffs were likely to

prevail on the merits of the case.

420

They asserted that the Supreme Court’s

emphasis in Lee v. Weisman on the unconstitutional coercion of prayers at

graduation ceremonies applied to the graduation at hand.

421

In opposition

to the school district, the Schultz family argued that Santa Fe did apply to the

graduation invocation and benediction “prayers delivered by students”

422

and

that Santa Fe applied to prayer at graduation ceremonies, not just football

games.

423

They argued that graduation ceremonies are not limited public

forums.

424

Finally, they argued against the private speech classification, stating that

“[t]he reasonable observer could hardly be expected to appreciate that the

graduation speeches are private when they arise in a context of pervasive

religiosity that is plainly government-sponsored.”

425

Therefore, these

speeches “would reasonably be perceived to be government-sponsored,”

which meant that the Establishment Clause regulated this type of religious

student speech.

426

Consequently, the plaintiff-appellees urged the court to

not grant the school district’s emergency motion to dissolve the trial court’s

order because:

Only by distorting and ignoring the relevant case law can the District build

support for the unprecedented rule of law that it invites the Court to adopt,

namely, that Medina High School’s graduation prayer-givers are purely

private actors — and can thus present even sectarian and proselytizing

messages — even though the students have been asked by the school to

present their messages, the messages have been denominated in the program

of ceremonies as an “invocation” and “benediction” and have been pre-

screened by government officials, and the messages comprise a formal

portion of a government-controlled ceremony presented to a captive

audience whose attendance is not “in any real sense of the term[,]

‘voluntary.’”

427

419

See Plaintiff-Appellees’ Opposition to Defendant-Appellant’s Emergency Motion to Dissolve

Temporary Restraining Order and Preliminary Injunction at 11–15, Schultz, No. 11-50486 (5th

Cir. June 3, 2011).

420

See id. at 16.

421

See id. (citing Lee v. Weisman, 505 U.S. 577, 587, 592 (1992)).

422

Id. at 18–19.

423

Id. at 21–22.

424

See id. at 28.

425

Id. at 34.

426

Id. at 35.

427

Id. at 1–2.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 969

The next day, during the afternoon of June 3, 2011,

428

the Fifth Circuit

dissolved the TRO and injunction in a per curiam decision, based on a four-

sentence determination:

On this incomplete record at this preliminary injunction stage of the case,

we are not persuaded that plaintiffs have shown that they are substantially

likely to prevail on the merits, particularly on the issue that the individual

prayers or other remarks to be given by students at graduation are, in fact,

school-sponsored. We also observe in particular that the plaintiffs’ motion

may be rooted at least in part in circumstances that no longer exist. For

example, the school has apparently abandoned including the words

“invocation” and “benediction” on the program. The motion also did not

expressly address the involvement of the valedictorian in the graduation

ceremony.

429

There was no mention of the Constitution, the Establishment Clause, or any

case law in the entire opinion,

430

although the reference to whether the

graduation prayers were “school-sponsored” presumably reflected the core

Establishment Clause government speech/private speech dichotomy.

431

The

court also denied Ms. Hildenbrand’s motion to intervene and permitted her

to proceed as amicus curiae.

432

The court remanded the case to the trial court

“for possible further proceedings.”

433

In support of the Fifth Circuit’s

decision, Attorney General Abbott stated, “‘It should not be illegal for

students to say a prayer at a graduation ceremony. Now, the federal court

of appeals agrees.’”

434

428

See Ethan Cole, Texas Graduation Takes Advantage of Prayer Ruling, Goes All Out, CHRISTIAN POST REP.

(June 5, 2011), https://www.christianpost.com/news/texas-graduation-takes-advantage-of-prayer

-ruling-goes-all-out.html (stating the Fifth Circuit’s decision came down “late Friday”).

429

Schultz v. Medina Valley Indep. Sch. Dist., No. 11-50486, 1–2 (5th Cir. June 3, 2011), available at

https://www.clearinghouse.net/chDocs/public/FA-TX-0001-0005.pdf.

430

See generally id.

431

See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (discussing the differences between

government speech endorsing religion and private speech endorsing religion).

432

Schultz, No. 11-50486, at 2.

433

Id.

434

Raven Clabough, Fed Appeals Court Overturns Prayer Ban at Medina Valley, TX Graduation, NEW AM.

(June 6, 2011), https://www.thenewamerican.com/culture/faith-and-morals/item/933-fed-app

eals-court-overturns-prayer-ban-at-medina-valley-tx-graduation.

970 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

3. The Aftermath of the Fifth Circuit Decision

The Medina Valley High School graduation took place the next day, on

Saturday, June 4, 2011,

435

with increased security based in part on threats

against Hildenbrand.

436

The school district superintendent provided a

disclaimer at the start of the graduation ceremony that the “speakers’ views

were their own.”

437

The graduation programs did not contain the terms

“invocation” and “benediction” as the school district had determined, after

scrutinizing this policy, that those terms “could be misinterpreted.”

438

Those

terms were changed to “opening remarks” and “closing remarks.”

439

The

student who delivered these opening remarks began by saying, “Those who

wish, would you please pray with me?”

440

There were many prayers and

invocations to God during the ceremony, including in the valedictory speech

and the speech by Texas State Representative John V. Garza.

441

The

graduation ceremony “was likened to a revival meeting.”

442

Corwyn Schultz,

the student who had brought the original action, and his family did not

attend the graduation.

443

By that Saturday, multiple critiques and threats had been made against

Judge Biery and the courthouse staff.

444

Anonymous sources within the

courthouse reported to the media that “Biery and the court got more than

500 calls from people all over the country, demanding he change his

ruling.”

445

Senator John Cornyn, one of the United States senators from

Texas, “blasted Biery’s order, saying it was hostile to ‘all things religious in

public life.’”

446

Regarding the trial court’s order, Governor Perry stated,

435

See Craig Kapitan, Medina Valley Graduates Hear Prayers Aplenty, MY SAN ANTONIO (June 4, 2011,

11:54 PM), https://www.mysanantonio.com/news/local_news/article/Medina-Valley-graduates-

hear-prayers-aplenty-1410195.php (describing the aftermath of the litigation).

436

See Guillermo Contreras, Appeals Panel Overturns Medina Valley Graduation Prayer Ban, MY SAN

ANTONIO (June 4, 2011, 7:33 PM), https://www.mysanantonio.com/news/local_news/article

/Appeals-panel-overturns-Medina-Valley-graduation-1408548.php (describing the aftermath of

the litigation).

437

Kapitan, supra note 435.

438

Contreras, supra note 436.

439

Id.

440

Kapitan, supra note 435.

441

See id. (describing the commencement ceremony).

442

Cole, supra note 428.

443

See Kapitan, supra note 435 (detailing the commencement ceremony).

444

See Contreras, supra note 436 (describing the physical dangers caused by the prayer controversy).

445

Id.

446

Id.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 971

“The reprehensible action taken by a federal judge underscores the

increasingly inappropriate federal encroachment into the lives of Americans

by unconstitutionally banning prayer at a Texas high school

graduation[.]”

447

The trial court proceedings continued after the graduation, and so did

the vitriol.

448

Judge Biery was given “a nearly round-the-clock security

detail” by the federal marshals in response to the threats he received after his

ruling.

449

Groups called for the judge’s resignation.

450

Presidential hopeful

Newt Gingrich advocated for the elimination of “dictatorial religious bigots

such as Judge Biery” at campaign stops.

451

On national television, Gingrich

stated that Judge Biery should be subpoenaed by Congress to explain his

ruling.

452

Gingrich went on to say that “he would send the U.S. Capitol

Police or U.S. Marshals to arrest [judges] and force them to testify” as a way

to make federal judges, like Judge Biery, “comply with [these types of]

congressional subpoenas.”

453

He also called for Judge Biery’s

impeachment.

454

On July 11, 2011, the trial court entered an Advisory and Order

Concerning Procedures to Reach Resolution of the Merits of the Case, in

447

Jennifer Riley, Texas Valedictorian Can Pray at Graduation, Appeals Court Rules, CHRISTIAN POST (June

4, 2011), https://www.christianpost.com/news/texas-valedictorian-can-pray-at-graduation-appea

ls-court-rules.html.

448

See Guillermo Contreras, Colorful Judge Biery at Eye of Legal Storm, MY SAN ANTONIO (July 3, 2011,

2:18 AM), https://www.mysanantonio.com/news/local_news/article/Colorful-Judge-Biery-at-

eye-of-legal-storm-1450798.php (“Some writers or callers [to the federal courthouse] identified

themselves as Christians—then proceeded to say that Biery should ‘die from cancer’ or drink

human waste, or that they will ‘kick his ass.’”).

449

Id.

450

See id. (explaining the backlash experienced by Judge Biery).

451

Id.; Tracy Idell Hamilton, Biery’s the Man Gingrich Just Loves to Hate, MY SAN ANTONIO (Jan. 28,

2012, 12:22 AM), https://www.mysanantonio.com/news/local_news/article/Biery-s-the-man-

Gingrich-just-loves-to-hate-2764583.php.

452

See Andrew Cohen, Gingrich: Time to Subpoena Federal Judges, ATLANTIC (Oct. 9, 2011),

https://www.theatlantic.com/politics/archive/2011/10/gingrich-time-to-subpoena-federal-judg

es/246407/ (discussing Speaker Gingrich’s critique of Judge Biery).

453

Matt DeLong, Gingrich: Send U.S. Marshals to Compel ‘Radical’ Judges to Explain Rulings, WASH. POST

(Dec. 19, 2011), https://www.washingtonpost.com/blogs/election-2012/post/gingrich-send-us-

marshals-to-arrest-uncooperative-judges/2011/12/18/gIQAlYUg2O_blog.html?utm_term=.f38

c2af38b12.

454

See Johnathan Turley, Gingrich: I Will Arrest Federal Judges, JONATHAN TURLEY BLOG (Dec. 19,

2011), https://jonathanturley.org/2011/12/19/gingrich-i-will-arrest-federal-judges/ (criticizing

Speaker Gingrich’s call for judges to be subpoenaed before Congress as an “attack on the

judiciary”).

972 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

which the court ordered each party to provide “a statement of which judicial

process road that particular party chooses: to attempt sooner and less

expensive resolution or proceed immediately to longer and more expensive

litigation.”

455

In this order, the court provided examples of protracted

litigation that “caused considerable divisiveness within the community” and

examples of cases that reached early resolution that saved considerable time

and money.

456

The court encouraged the parties to choose the latter path as

a way to safeguard the parties’ time and finite funds.

457

The court also

reminded the “adults on both sides [that they] not only have a responsibility

to teach, but also are stewards of financial resources best used for education

of children, as opposed to litigation among adults.”

458

Consequently, the

Court encouraged the parties to “conclude the matter, not only sooner and

less expensively, but as a teachable moment and example for the district’s

children of how people of opposing views can listen to one another and

resolve disagreements peaceably.”

459

Although the parties entered into alternative dispute resolution (“ADR”),

the court was notified that they did not settle on August 23, 2011.

460

Additional ADR did not resolve the case in September of that year.

461

The

case proceeded towards trial. On November 7, 2011, Judge Biery entered

an order on the school district’s motion to dismiss for lack of jurisdiction, the

plaintiffs’ motion to amend complaint, and the motion for leave to permit an

anonymous plaintiff.

462

In this order, the court stated that it had “738 pages”

before it on the pending motions and glibly noted that “there [was] not much

[else] for [the court] to do.”

463

455

Schultz v. Medina Valley Indep. Sch. Dist., No. 5-11-CA-422, at 5 (W.D. Tex. July 11, 2011),

available at https://www.clearinghouse.net/chDocs/public/FA-TX-0001-0006.pdf.

456

Id. at 2.

457

See id. at 3 (encouraging the use of a more efficient procedure).

458

Id.

459

Id. at 4.

460

Notice of Alternative Dispute Resolution Outcome, Schultz, No. 5:11-cv-00422-FB, available at

https://www.clearinghouse.net/chDocs/public/FA-TX-0001-9000.pdf (Docket Entry No. 40).

461

Notice of Alternative Dispute Resolution Outcome, Schultz, No. 5:11-cv-00422-FB, available at

https://www.clearinghouse.net/chDocs/public/FA-TX-0001-9000.pdf (Docket Entry No. 42).

462

See Schultz v. Medina Valley Indep. Sch. Dist., No. 5-11-CA-422, 2011 WL 13234771, at *1 (W.D.

Tex. Nov. 7, 2011).

463

Id. (noting that there are “about 250 felony defendants to whom the Court is required to give

precedence and about 200 pending civil cases, most of which are older than this matter” and that

“[a]dministrative duties over seven divisions spread over 90,000 square miles and about 800 Court

employees also take considerable time”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 973

The Court also emphasized that “the parties are spending what appears

to be inordinate amounts of money and time which could be better spent on

educating students.”

464

Thereafter, the court granted the motion to amend

the complaint, denied the motion for lack of jurisdiction due to mootness

based on the claims of the amended complaint, and allowed the anonymous

plaintiff to proceed as such for a time until disclosure was required for

discovery.

465

Echoing the court in Santa Fe, which allowed anonymous

student plaintiffs,

466

the court expressed its sadness “that youngsters fear the

people within their own community and some of the adults responsible for

their education” because the “pleadings on the issue . . . document[ed] a

pattern of harassment, threats and intimidation of those who disagree with

the majority view in the school district community.”

467

The trial court never determined whether the student graduation prayers

were government speech or private speech for the purposes of Establishment

Clause analysis, because, ultimately, the parties settled.

468

The parties’

settlement agreement was approved by the court on February 9, 2012.

469

reviewing the settlement agreement, the court found that “it achieve[d]

reasonable balance between competing First Amendment rights of free

speech for student speakers and freedom from government endorsement of

a particular religious belief.”

470

In this settlement agreement, the parties agreed that “The School District

[would] not include a prayer—whether referred to as a prayer, blessing,

invocation, benediction, or otherwise—as part of the official program of any

graduation ceremony”; that the student remarks would be labeled with a

non-religious term in the program; and that the school district would not

invite graduation speakers who it had “reason to believe will proselytize,

promote religion, or disparage the religious beliefs (or lack thereof) of

students or members of the community during their remarks.”

471

With

464

Id.

465

See id. at *1–2 (stating the holdings on the motions).

466

See supra text accompanying note 163 (explaining that the Santa Fe court allowed student plaintiffs

to proceed anonymously).

467

Schultz, 2011 WL 13234771, at *2.

468

See Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-422-FB, 2012 WL 517518, at *1

(W.D. Tex. Feb. 9, 2012) (approving settlement), available at https://www.clearinghouse.net/

chDocs/public/FA-TX-0001-0001.pdf.

469

See id. (approving settlement).

470

Id.

471

Id. at *2.

974 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

respect to student graduation remarks, the parties agreed that the school

district would “not restrict, revise, edit, alter, or otherwise influence [or pre-

screen] the content of Student Remarks”; that the district “may permit

student graduation speakers to pray as part of Student Remarks”; and that a

disclaimer, akin to the following, would be printed in the graduation program

and announced at the ceremony:

The students who shall be speaking at graduation were selected based on

neutral criteria to deliver messages of the students’ own choices. The content

of each student speaker’s message is the private expression of the individual

student and does not reflect the endorsement, sponsorship, position, or

expression of the District. We ask that the audience sit and remain seated

during the Student Remarks.

472

This Establishment Clause litigation was long, costly, and contentious,

like most of these First Amendment religion and school cases.

473

Judge

Biery’s Personal Statement in the court’s opinion approving the settlement

provided a clear coda to another cautionary tale within Establishment Clause

jurisprudence:

During the course of this litigation, many have played a part: To the United

States Marshal Service and local police who have provided heightened

security: Thank you. To those Christians who have venomously and

vomitously cursed the Court family and threatened bodily harm and

assassination: In His name, I forgive you. To those who have prayed for my

death: Your prayers will someday be answered, as inevitably trumps

probability. To those in the executive and legislative branches of

government who have demagogued this case for their own political goals:

You should be ashamed of yourselves. To the lawyers who have advocated

professionally and respectfully for their clients’ respective positions: Bless

you.

474

4. Lessons to be Learned from the Lack of Clarity of this Case

This case is also paradigmatic of the lack of clarity and continued

confusion regarding the Establishment Clause and the classification of

student religious speech as government speech or private speech. Although

472

Id. at *2–3.

473

See Ira C. Lupu, Which Old Witch?: A Comment on Professor Paulsen’s Lemon Is Dead, 43 CASE W. RES.

L. REV. 883, 898 (1993) (noting that Establishment Clause litigation is expensive and that “within

small communities, [it] is unusually divisive and difficult for families who have the courage to pursue

it”); William Marshall, The Limits of an Establishment Clause “Restatement”: A Response to Professor Sedler,

43 WAYNE L. REV. 1465, 1471 (1997) (“Establishment Clause litigation is often as divisive as it is

contentious.”).

474

Schultz, No. SA-11-CA-422-FB, at 3 (W.D. Tex. Feb. 9, 2012), available at

https://www.clearinghouse.net/chDocs/public/FA-TX-0001-0001.pdf.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 975

the Fifth Circuit had jurisdiction over the justiciable issue raised on appeal,

the appellate court failed to provide an opinion reflective of the fundamental

jurisprudential principles of hierarchical precedent.

Despite the court’s signal that the litigation hinged on the classification of

the student graduation prayer as either government speech or private speech,

it provided no discussion of this issue beyond its finding that the plaintiffs had

not “shown that they are substantially likely to prevail on the merits,

particularly on the issue that the individual prayers or other remarks to be

given by students at graduation are, in fact, school-sponsored.”

475

While the

appellate court was not charged with making a final substantive

determination on the classification of the student religious speech, it still had

a judicial obligation to provide reasoned support for its finding the plaintiffs

had not demonstrated a substantial likelihood they would prevail on the

merits that this student prayer was school-sponsored speech, not private

speech. Instead, the Fifth Circuit opted to issue an eight-sentence judicial

fiat that lacked a single reference to the Constitution, the Establishment

Clause, or any case law.

476

This failure to provide any legal analysis to support its conclusion on the

speech classification was jurisprudential error. Even during exigent

circumstances,

477

the judiciary needs to provide reasoned judgments for

parties in dispute.

478

Reasoned legal judgment, by its very nature,

encompasses reasoning and an express application of precedent.

479

Between

the parties and the amicus brief, ninety-one pages of briefing, replete with

binding, relevant Supreme Court precedent and constitutional citations, had

475

Schultz v. Medina Valley Indep. Sch. Dist., No. 11-50486, at 1 (5th Cir. June 3, 2011).

476

See id. at 1–2 (finding that plaintiffs had not shown that they were substantially likely to prevail on

the merits).

477

Although it does take some time to reach a reasoned response, interlocutory appeals, like this one,

do not require an ex tempore decision. See Deborah J. Merritt, Bias, the Brain, and Student Evaluations of

Teaching, 82 ST. JOHN’S L. REV. 235, 278 (2008) (“To make thoughtful evaluations, the brain needs

time to recall diverse bits of data, compare them, group pieces of information into larger chunks of

partial judgments, and ultimately yield a reasoned response.”).

478

See Frederick Schauer, Authority and Authorities, 94 VA. L. REV. 1931, 1936 (2008) (describing how

judicial authority is derived through the provision of “reasons for . . . rules, commands, orders, or

instructions”).

479

See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE

L.J. 710, 712–13 (1917) (stating that an understanding and application of legal precedent is the

“formal foundation of judicial reasoning and decision”); Gerald J. Postema, Jurisprudence, the Sociable

Science, 101 VA. L. REV. 869, 885 (2015) (arguing that effective jurisprudence relies upon the

application of past precedents).

976 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

been filed to assist in such reasoning.

480

However, the Fifth Circuit chose

another option that is not reflective of the core ideals of the application of

hierarchical precedent in the American judicial system of rules and

constitutional standards.

481

Like Matthews, this is another example of harmful

ipse dixit in action.

482

Issuing such an opinion in such a contentious and divisive case was

insufficient for several reasons. First, this was a missed opportunity by the

circuit court to provide much needed clarity in this area of classification of

student religious speech in Establishment Clause jurisprudence. Under 28

U.S.C. § 1292,

483

interlocutory appeals are designed to “simplify . . . the

future course of litigation” and to “reduce the burdens of future

proceedings.”

484

The eight-sentence order, with no reference to case law or

the Constitution, achieved neither of these goals. The Fifth Circuit could

have positively contributed to the cloudy area of Establishment Clause

jurisprudence involving the religious speech of students, but it failed to do so.

Opinions via judicial fiat, like this one, also degrade and delegitimize

constitutional interpretation in this important area of school law. The Fifth

Circuit’s opinion contributed to a public perception of results-based

jurisprudence.

485

Its absence of reasoning lent itself to capitalization by

elected politicians who asserted that the appellate opinion set a precedent

that it did not set.

486

Its lack of analytical support and citation to hierarchical

precedent certainly did nothing to quell the extant political demagoguery of

the case, and it likely allowed for the continued inflammatory rhetoric about

480

See supra text accompanying note 400.

481

See Jess M. Krannich et al., Beyond “Thinking Like A Lawyer” and the Traditional Legal Paradigm: Toward

A Comprehensive View of Legal Education, 86 DENV. U. L. REV. 381, 389 (2009) (describing the

American judicial system as a rules-based system).

482

See supra text accompanying notes 375–77 (discussing the Matthews opinion).

483

28 U.S.C. § 1292(a)(1) (2018) (giving the courts of appeals jurisdiction to review district court’s

injunctive relief orders prior to the district court’s final decision).

484

Johnson v. Jones, 515 U.S. 304, 309 (1995).

485

See Andrew Cohen, Judge-Bashing Comes to the 2012 GOP Race, ATLANTIC (Dec. 27, 2011),

https://www.theatlantic.com/politics/archive/2011/12/judge-bashing-comes-to-the-2012-gop-

race/250385/ (characterizing the Fifth Circuit’s decision as “a convenient cop-out by a federal

court unwilling to address the merits of the Supreme Court’s school prayer precedent”).

486

See, e.g., supra text accompanying note 434 (discussing Texas Attorney General Greg Abbott’s

characterization of Schultz).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 977

the trial court’s decision within the political arena.

487

This led to real harms

in the form of overwhelming threats to the bodily and reputational integrity

of Judge Biery, his family, and the courthouse staff.

488

The Fifth Circuit’s judicial fiat also harmed both religion and the state.

It hurt religious liberty and sanctity, as it sent negative messaging to both

adherents and non-adherents of religion through the court “blithely

dispatch[ing] with the case,” and not affording this complex and important

constitutional issue sufficient analysis.

489

In terms of state harms, the Fifth

Circuit’s judicial fiat on interlocutory appeal did not provide any

simplification or clarification for the proceedings once they returned to the

trial court, as beneficial interlocutory opinions should do.

490

The result was

contentious and expensive litigation, as well as an exponential strain on the

already limited resources of the district court. Finally, this cursory circuit

opinion conveyed an anti-democratic principle to the Medina Valley ISD

schoolchildren—that a judicial edict can be based just on a rationale of

because the court said so and not on the application of the Constitution and

hierarchical precedent. If faced with similar cases in the future, all courts

should avoid the harmful jurisprudential approach of the Fifth Circuit in the

Schultz case.

IV. A JURISPRUDENTIAL FRAMEWORK THAT REQUIRES JUSTICIABILITY

AND AVOIDS JUDICIAL FIAT IN ESTABLISHMENT CLAUSE CASES

INVOLVING RELIGIOUS SPEECH OF STUDENTS

Requiring justiciability and avoiding ruling by judicial fiat are both

matters of judicial restraint.

491

The need for judicial restraint, broadly, has

487

See Benjamin P. Edwards, When Fear Rules in Law’s Place: Pseudonymous Litigation as a Response to

Systematic Intimidation, 20 VA. J. SOC. POL’Y & L. 437, 462 (2013) (discussing the threats and backlash

against Judge Biery after the Fifth Circuit’s intervention in the case).

488

See Cohen, supra note 13 (discussing the threats that were directed toward the judge, his family, and

his staff after the trial court order and the Fifth Circuit decision); Hamilton, supra note 451

(discussing the intimidation that resulted from the criticism of the trial court’s order after the Fifth

Circuit’s decision).

489

Cohen, supra note 485; see also Bonnie Barron, 5th Circuit Lets Texans Pray at H.S. Graduation,

COURTHOUSE NEWS (June 8, 2011), https://www.courthousenews.com/5th-circuit-lets-texans-

pray-at-h-s-graduation/ (noting that the court admitted the opinion was “hastily issued”).

490

See Johnson v. Jones, 515 U.S. 304, 309–10 (1995) (discussing the benefits that interlocutory review

should provide).

491

See Ronald K.L. Collins, Foreword: The Once “New Judicial Federalism” and Its Critics, 64 WASH. L. REV.

5, 7 (1989) (identifying criticism of “rule by judicial fiat” as a call for “judicial restraint”); Philip A.

978 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

been a consensus point throughout the jurisprudential ideological

spectrum,

492

as it has been called for by proponents of classical and modern

liberalism,

493

advocates for conservatism,

494

and centrist process theorists

who disavow the espousal of any of these views and who are “merely seeking

to preserve ‘public faith in the objectivity and detachment of the [courts].’”

495

Like so many aspects of Establishment Clause jurisprudence, though, the

concept of “judicial restraint” lacks a unified definition.

496

It means many

things to many people, and that construct can shift with the sands.

497

For

example, judicial restraint has been used as the antithesis of “judicial

activism.”

498

Judicial activism in this context is typically framed to mean

decision-making with which the source does not agree or decision-making

that is extolled if it fits within the preferred jurisprudential approach of the

source.

499

Sadly, the notion of judicial restraint has become a highly

Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22

SEATTLE U. L. REV. 695, 707 (1999) (“Justiciability constraints constitute the essence of judicial

restraint[.]”).

492

See Mark C. Modak-Truran, Corrective Justice and the Revival of Judicial Virtue, 12 YALE J.L. & HUMAN.

249, 249 (2000) (noting that many advocate judicial restraint); Zachary Baron Shemtob, Following

Thayer: The Many Faces of Judicial Restraint, 21 B.U. PUB. INT. L.J. 61, 62 (2011) (discussing how

liberals and conservatives have both championed judicial restraint).

493

See, e.g., MILL, supra note 1, at 403 (advocating for judicial restraint in the forms of justiciability and

application of precedent); Linda Greenhouse, The Supreme Court; A Sense of Judicial Limits, N.Y. TIMES

(July 22, 1993), http://www.nytimes.com/1993/07/22/us/the-supreme-court-a-sense-of-judicial-

limits.html (characterizing Justice Ruth Bader Ginsburg as “a judicial-restraint liberal”).

494

See Scott L. Cummings, Movement Lawyering, 2017 U. ILL. L. REV. 1645, 1678 (2017) (discussing

traditional conservative reliance on judicial restraint).

495

G. Edward White, Unpacking the Idea of the Judicial Center, 83 N.C. L. REV. 1089, 1125 (2005) (quoting

Philip B. Kurland, The Supreme Court and its Judicial Critics, 6 UTAH L. REV. 457, 466 (1959)).

496

See David A. Strauss, Originalism, Conservatism, and Judicial Restraint, 34 HARV. J.L. & PUB. POL’Y 137,

137 (2011) (“‘Judicial restraint’ is not a well-defined term.”).

497

See Rebecca E. Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory, 64 FLA.

L. REV. 483, 502 (2012) (discussing the evolving and changing embraces of notions of judicial

restraint by conservative and liberal jurists and legal theorists).

498

See J. Clifford Wallace, The Jurisprudence of Judicial Restraint: A Return to the Moorings, 50 GEO. WASH.

L. REV. 1, 1 (1981) (“The opposite of juridical activism [is] judicial restraint”); Corey Rayburn

Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 NW. U. L.

REV. 1, 5 (2011) (deeming judicial activism’s antithesis to be restraint).

499

See Joseph Isenbergh, Activists Vote Twice, 70 U. CHI. L. REV. 159, 159 (2003) (“Judicial activism has

a bipolar press . . . . [W]hen a high-profile decision cuts against [scholars’] preferential grain, they

denounce it; and when it promises to advance their favored vision of the future, they wax

rhapsodic.”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 979

politicized one, and, in a meta way, critiques of highly politicized judicial

restraint have become highly politicized.

500

Yet, this politicization of judicial restraint need not be the norm. Ideal

judicial restraint can be articulated in a non-polemical and ideologically

inclusive way. Judicial restraint can mean advocacy for basic justiciability

requirements and a common recognition that lower courts in interpreting

the Constitution should follow hierarchical precedent, should apply that

precedent, and should provide a reasoned, articulated, and explicit

application of that precedent in their judicial decision-making processes.

501

This should be uncontroversial.

502

However, despite the clarity of this

proposed foundation for ideal jurisprudence, this type of “judicial restraint

has frequently gone unrealized in practice.”

503

This has certainly become an

issue within the growing body of Establishment Clause jurisprudence

involving the religious speech of students.

504

Given the clarity of the requirement of justiciability for judicial decision-

making, hierarchical precedent, and the fundamental government

speech/private speech dichotomy, continued controversies regarding how to

classify students’ religious speech must indicate a gap in school law

500

See, e.g., Frank Michelman, The Common Law Baseline and Restitution for the Lost Commons: A Reply to

Professor Epstein, 64 U. CHI. L. REV. 57, 59 (1997) (discussing the viability of a perspective that calls

for “judicial restraint of majoritarian excess without undue politicization of the judiciary”); Roger

Pilon, A Court Without a Compass, N.Y. L. SCH. L. REV. 999, 1010 (arguing that “both sides [of the

conservative and liberal judiciary] play the ‘judicial restraint’ card”); Ilya Shapiro, Introduction,

2016–2017 CATO SUP. CT. REV. 1, 3 (2017) (“Living constitutionalists and their judicial-restraint

handmaidens have politicized the law such that judges quail at enforcing the Constitution’s

structural limits and face attacks for not seeing statutes in a way that favors ‘the little guy.’’); Conor

Fierdersdorf, Movement Liberals Cannot Credibly Demand Judicial Restraint, ATLANTIC (Apr. 3, 2012),

https://www.theatlantic.com/politics/archive/2012/04/movement-liberals-cannot-credibly-dem

and-judicial-restraint/255375/ (discussing the politicization of judicial restraint by both

conservatives and liberals).

501

See Debra Lyn Bassett & Rex R. Perschbacher, Realigning Parties, 2014 UTAH L. REV. 109, 129

(2014) (discussing the consensus on the core live case or controversy and adverse party justiciability

requirements).

502

But see Pfander & Birk, supra note 80, at 1360 (stating the adverse party requirement of justiciability

“sits uneasily with the reality of federal judicial practice”); James E. Pfander, Standing, Litigable

Interests, and Article III’s Case-or-Controversy Requirement, 65 UCLA L. REV. 170, 189 (2018)

(“Noncontentious jurisdiction . . . casts doubt upon three core elements of modern ‘case-or-

controversy’ jurisprudence.”); Jonathan R. Siegel, A Theory of Justiciability, 86 TEX. L. REV. 73, 134

(2007) (arguing that “advisory opinions should not be viewed as constitutionally forbidden”).

503

Shemtob, supra note 492, at 62.

504

See Russell W. Galloway Jr., Basic Establishment Clause Analysis, 29 SANTA CLARA L. REV. 845, 848

(1989) (noting repeated “justiciability problems . . . in Establishment Clause cases”).

980 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

Establishment Clause jurisprudence.

505

The Matthews and Schultz cases

demonstrate the practical and jurisprudential harms that can result from an

undisciplined judicial approach via advisory opinions or summary opinions

based on judicial fiat, rather than express applications of binding precedent

to justiciable issues, to these classifications. In response to this problem, this

Article offers a clear framework for courts to use in their evaluation of

students’ religious speech in school law Establishment Clause cases.

This dual-pronged framework consists of a justiciability requirement and

a precedential requirement. First, it requires justiciability in order for a court

to make any Establishment Clause determination, which requires a live

Establishment Clause case or controversy between parties with adverse legal

interests on that issue. If this justiciability requirement is not met, courts

cannot and should not issue an impermissible advisory opinion. Instead, a

lack of justiciability necessitates the cessation of any judicial Establishment

Clause analysis and decision-making. If and only if the justiciability

prerequisite is met, the framework next requires courts to make a proper and

fully supported classification of the religious student speech as government

speech or private speech through an application of the United States

Constitution and binding precedent rather than through mere ipse dixit.

506

To properly apply the Establishment Clause in cases involving students’

religious speech, courts cannot simply ignore existing precedent in this area

of jurisprudence or issue summary opinions of judicial fiat. Overall, this

framework will help courts to make the government speech/private speech

determination accurately at the outset of Establishment Clause litigation if

they have the requisite justiciability to do so and in a way that will bring

much needed clarity to establishment doctrine in school law, rather than

further complicating this area of jurisprudence.

A. The Requirements of Justiciability in Establishment Clause Cases Involving

Religious Speech of Students

At the center of American jurisprudence is the fundamental principle of

justiciability. This is a particularly important aspect of constitutional

505

See Bassett & Perschbacher, supra note 501, at 127 (discussing how legal commentary has sometimes

overlooked “the necessity for an adversarial context” in justiciability scholarship).

506

See Kirt Shuldberg, Comment, Digital Influence: Technology and Unpublished Opinions in the Federal Courts

of Appeals, 85 CALIF. L. REV. 541, 568 (1997) (“[J]udges are required to provide reasons for the

decisions they reach.”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 981

jurisprudence as it respects “the proper—and properly limited—role of the

courts in a democratic society.”

507

Like Establishment Clause jurisprudence,

questions of justiciability can be confusing and conceptually unclear.

508

Flast v. Cohen, the Supreme Court recognized that “justiciability is itself a

concept of uncertain meaning and scope” and is not “susceptible of [sic]

scientific verification.”

509

Still, certain aspects of justiciability, just like certain aspects of

Establishment Clause doctrine, are clear. Justiciability requires an actual

case or controversy between actually adverse parties in order for federal

courts to make a determination on that issue.

510

Some state courts, like those

in Texas, are constitutionally bound to commensurate case-or-controversy

requirements for justiciability.

511

Requests for advisory opinions are requests

for courts to rule on nonjusticiable matters without a live case or controversy

and without an actual dispute between adverse parties. There is no

justiciable controversy when parties seek an advisory opinion.

512

The first hurdle in clarifying school law Establishment Clause

jurisprudence is satisfying the requirement of a justiciable issue for any

Establishment Clause determinations, which entails a live case or controversy

between parties with adverse interests on that issue. These cases, like others

, can and should be litigated amicably, but for a court to proceed, there still

“must be an actual controversy[] and adverse interests.”

513

Courts have an

507

Allen v. Wright, 468 U.S. 737, 750 (1984).

508

See Flast v. Cohen, 392 U.S. 83, 94 (1968) (describing the case-or-controversy justiciability

requirements as having “an iceberg quality, containing beneath their surface simplicity submerged

complexities which go to the very heart of our constitutional form of government”); Caprice L.

Roberts, Asymmetric World Jurisprudence, 32 SEATTLE U. L. REV. 569, 584 (2009) (stating most

justiciability “doctrines are not absolute conceptually”).

509

Flast, 392 U.S. at 95.

510

See United States v. Johnson, 319 U.S. 302, 304 (1943) (holding “the absence of a genuine adversary

issue between the parties” made the case not justiciable); Muskrat v. United States, 219 U.S. 346,

361 (1911) (providing federal courts may only decide “actual controversies arising between adverse

litigants”).

511

See Heckman v. Williamson Cty., 369 S.W.3d 137, 147 (Tex. 2012) (identifying the Texas

Constitution as the source of justiciability requirements for Texas courts).

512

See Flast, 392 U.S. at 95 (explicitly stating there is “no justiciable controversy . . . when the parties

are asking for an advisory opinion”); Heckman, 369 S.W.3d at 147 (stating that Texas requests for

advisory opinions are nonjusticiable).

513

Lord v. Veazie, 49 U.S. 251, 255 (1850).

982 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

affirmative duty to examine the record to determine if there is a lack of the

required actual case or controversy between actually adverse parties.

514

If this justiciability requirement is not met, courts cannot and should not

issue an impermissible advisory opinion. Instead, a lack of justiciability

necessitates the cessation of any judicial Establishment Clause analysis and

decision-making. Seeking an impermissible advisory opinion is an attempt

to circumvent the requirements of justiciability, and trial courts should reject

such requests in no uncertain terms as advisory opinions are “nullit[ies].”

515

All of these justiciability requirements were met in the Santa Fe case, as

there was an actual controversy regarding whether the football game

invocation policy was a violation of the Establishment Clause between the

school district and the Doe plaintiffs, who had adverse legal interests in the

matter.

516

The court limited its decision-making to that actual Establishment

Clause controversy, it “made no sweeping pronouncements barring religious

speech from public settings,”

517

and it did not venture into the territory of

nonjusticiability.

Conversely, when courts in systems that prohibit advisory opinions make

determinations on nonjusticiable issues,

518

they act outside of their powers

and err as a matter of law. This was the case in Matthews, when the trial court

made its determination that “[n]either the Establishment Clause nor any

other law prohibits the cheerleaders from using religious-themed banners at

school sporting events. Neither the Establishment Clause nor any other law

requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners

at school sporting events.”

519

Federal and state courts should learn a lesson

from this nonjusticiable advisory opinion in Matthews that led to years of

protracted litigation and a continued state of confusion for Texas school

districts. Avoiding impermissible advisory opinions in these cases is

imperative to not exacerbate the confusion in this area of constitutional law.

Alternative approaches create significant harms, which include the

514

See supra text accompanying notes 85–93.

515

Lord, 49 U.S. at 256.

516

See supra Part II.A.

517

Michael W. McConnell, State Action and the Supreme Court’s Emerging Consensus on the Line Between

Establishment and Private Religious Expression, 28 PEPP. L. REV. 681, 706–07 (2001).

518

The arguments regarding prohibited advisory opinions in this Article are geared toward those

judicial systems that have this prohibition.

519

See Matthews v. Kountze Indep. Sch. Dist., No. 53526, 2013 WL 1914796 (Tex. Dist. Ct. May 8,

2013).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 983

delegitimization of this area of constitutional interpretation, as well as

corresponding harms to the state and religion.

Issuing advisory opinions in school law Establishment Clause cases

contributes to the already confused state of this area of jurisprudence.

Establishment Clause jurisprudence is notoriously confusing, as are

justiciability requirements.

520

When courts act outside of the constraints of

justiciability requirements when construing the religion clauses of the First

Amendment, this confusion is only magnified.

521

Distortions of the law

naturally occur when there is a lack of adversity between the parties with

respect to the sought-after judicial declaration on that issue.

Departures

from justiciability in this area of school law will result in case dispositions that

“lack the clarity and force which ought to inform the exercise of judicial

authority.”

522

Issuing advisory opinions in school law Establishment Clause cases also

delegitimizes constitutional interpretation in this area. As the Supreme

Court stated in its 1850 Lord v. Veazie decision, attempts to obtain judicial

resolutions of issues “when there is no real and substantial controversy

between those who appear as adverse parties to the suit, is an abuse which

courts of justice have always reprehended, and treated as a punishable

contempt of court.”

523

The aim of justiciability is the protection of the law

and the adjudicatory process.

524

By issuing Establishment Clause decisions

in school law cases only when justiciability requirements are met, courts will

provide the necessary safeguards to achieve this aim. When courts stray from

these requirements, public perceptions about the judicial process diminish,

especially in cases involving schoolchildren.

Issuing advisory opinions in school law Establishment Clause cases also

contributes to the continued delegitimization of constitutional interpretation

520

See Fallon, supra note 12, at 60 (“Establishment Clause doctrine is notoriously confused and

disarrayed.”); Michael L. Wells, A Litigation-Oriented Approach to Teaching Federal Courts, 53 ST. LOUIS

U. L.J. 857, 870 (2009) (likening the doctrines of justiciability to an “opaque, confusing, and

intricate set of obstacles”).

521

See Mark C. Rahdert, Forks Taken and Roads Not Taken: Standing to Challenge Faith-Based Spending, 32

CARDOZO L. REV. 1009, 1025–26 (2011) (discussing the confusion the Court has engendered by

its justiciability decisions in Establishment Clause litigation).

522

Renne v. Geary, 501 U.S. 312, 324 (1991).

523

Lord v. Veazie, 49 U.S. 251, 255 (1850).

524

See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 16 (1993) (Blackmun, J., dissenting) (“It is a

rule whose aim is to protect not parties but the law and the adjudicatory process.”).

984 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

in this area by allowing possible end runs around the Establishment

Clause.

525

When a state requests an advisory opinion that a practice

involving religious student speech is not a violation of the Establishment

Clause, when that matter is not the live controversy at issue and there is no

adversity of legal interests, this should indicate a potential red flag to the

judiciary.

526

Here, a governmental entity may be trying to maneuver around

the Establishment Clause’s restraints on what was deemed unconstitutional

school-sponsored prayer in Santa Fe to continue this type of unconstitutional

practice. This might be the case “especially in religiously homogeneous areas

where a lack of opposition to the practice may prevent a justiciable case or

controversy from arising.”

527

Despite all of the division within this area of jurisprudence, “it seems clear

that the state should not compel people [especially children] to follow the

dictates of any given religion or impose burdens on them for failing to do

so.”

528

Claims of free exercise of religion cannot be used as a zero-sum game

to circumscribe the limits of the Establishment Clause. As the Court stated

in Lee, “[t]he principle that government may accommodate the free exercise

of religion does not supersede the fundamental limitations imposed by the

Establishment Clause.”

529

Courts certainly should not allow this practice to

525

The term “end run” here means “an evasive trick or maneuver.” End run, MERRIAM-WEBSTER

ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/end%20run (last visited

June 15, 2020). Appropriately, based on the cases scrutinized in this article, the term’s etymology

is from football, meaning “a football play in which the ballcarrier attempts to run wide around the

end of the line” of players. Id. The incorporation of this sports-derived term, with the inclusion of

its specific definition, is intended to be helpful to understand the difficult concepts of justiciability

and the Establishment Clause, and not as a way to accede to a gendered orthodoxy. See Adam

Benforado, Color Commentators of the Bench, 38 FLA. ST. U. L. REV. 451, 457 (2011) (arguing sports

analogies “present the best opportunity to demystify the world of law for the widest possible cross-

section of the public at a time when distrust of the judicial branch of government is high and when

myths about the work of judges proliferate”); Geraldine Szott Moohr, Opting in or Opting Out: The

New Legal Process or Arbitration, 77 WASH. U. L.Q. 1087, 1087 n.4 (1999) (stating that sports analogies

are not helpful when provided without clear definition); Jeanne L. Schroeder, Subject: Object, 47 U.

MIAMI L. REV. 1, 110 (1992) (describing sports metaphors as “masculinist”); Catherine Weiss &

Louise Melling, The Legal Education of Twenty Women, 40 STAN. L. REV. 1299, 1337 (1988) (framing

a critique of the use of sports analogy in law schools as a gender issue).

526

Of course, parties may seek to capitalize on litigation in states that allow for advisory opinions to

pursue free exercise and free speech claims as a mechanism for judicial decisions on Establishment

Clause applicability.

527

Kenneth Katkin & Laurie Lamb, The Establishment Clause: A Survey of Recent Religion Cases Decided

Within the Sixth Circuit, 29 N. KY. L. REV. 73, 112 (2002).

528

Rubin, supra note 205, at 38–39.

529

Lee v. Weisman, 505 U.S. 577, 587 (1992).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 985

occur via an end run around the Establishment Clause in the form of an

advisory opinion.

Finally, issuing advisory opinions in school law Establishment Clause

cases harms both religion and the state. It harms religious liberty, in that a

decision on a nonjusticiable issue involving religious practices or nonreligious

practices that many schoolchildren

530

(and their families)

531

may hold dear is

made in a context that lacks the full presentation of all relevant information,

as there are no “adverse parties, with a stake in the outcome of the litigation,

[who would] perform this task best.”

532

Requesting advisory opinions and

granting those requests also sacrifices judicial efficiency by taking up precious

time and resources in a matter that should not be addressed by the courts.

533

Conversely, the early resolution of justiciability issues aims to serve judicial

efficiency, because resolving problems with justiciability concludes litigation

at the appropriate time and in earlier stages.

534

For courts that are evaluating

the application of the Establishment Clause to student religious speech, this

justiciability determination should be the first item on the judicial agenda.

Following a justiciability and rules-based jurisprudential approach in this

area of educational constitutional law will “make the judicial process a

principled one.”

535

When courts are presented with nonjusticiable requests for prohibited

advisory opinions in Establishment Clause cases, the only correct response is

a denial of such a request based on a lack of justiciability. Courts have the

affirmative duty to inquire as to the justiciability of a case, which means that

they must ensure there is a live controversy with truly adverse parties in order

to proceed.

536

Without an actual controversy between actually adverse

530

See Emily Buss, The Adolescent’s Stake in the Allocation of Educational Control Between Parent and State, 67 U.

CHI. L. REV. 1233, 1264 (2000) (“The development of a sense of religious identity is an important

piece of the adolescent’s larger identity formation process[, g]oing as it does to the core of one’s

beliefs, values, practices, and affiliations.”).

531

See id. (discussing the importance parents often place in the reproduction of their own religious

identities in their children).

532

ERWIN CHEMERINSKY, FEDERAL JURISDICTION 44 (6th ed. 2012).

533

See Siegel, supra note 502, at 87 (“Judges are busy with a multitude of cases.”).

534

See Renne v. Geary, 501 U.S. 312, 324 (1991) (“If the as-applied challenge had been resolved first

in this case, the problems of justiciability that determine our disposition might well have concluded

the litigation at an earlier stage.”).

535

Id.

536

See Hatfield v. King, 184 U.S. 162, 164–65 (1902) (stating that it is well settled that a court has the

duty to make justiciability inquiries “in order that it may not be imposed on by an apparent

controversy to which there are really no adverse parties”).

986 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

parties on the issue, courts lack the authority to decide the matter. The Texas

trial court in Matthews failed to take this correct jurisprudential course, and

the effect was years of costly and unnecessary litigation that only served to

complicate the area of Establishment Clause applicability to religious student

speech even more and to create perceptions of distortion of the legal process

and religious values.

537

Consequently, courts must not render advisory

opinions in cases dealing with religious student speech that do not have a live

Establishment Clause controversy between truly adverse parties. If trial

courts incorrectly do so, appellate courts have the sua sponte responsibility to

vacate the nonjusticiable issue determination. This is a necessary way to

ameliorate the current state of confusion within school law Establishment

Clause jurisprudence when courts are tasked with the classification of

religious student speech as being government speech or private speech.

B. The Avoidance of Judicial Fiat in Establishment Clause Cases Involving Religious

Student Speech

If and only if the prerequisites of justiciability are met, should courts

proceed to classify religious student speech as government speech or private

speech for a determination of an alleged Establishment Clause violation.

538

When doing so, courts must make this classification through an application

of the United States Constitution and binding precedent rather than through

mere ipse dixit. To properly apply the Establishment Clause in cases involving

religious speech of students, courts cannot simply issue summary opinions of

judicial fiat with no references to precedent. Unfortunately, unlike the

careful, supported reasoning of the Santa Fe decision, the Matthews and Schultz

cases featured two examples of this type of deleterious judicial fiat. To

disregard a careful and measured approach to Establishment Clause cases

involving the religious speech of students, like these courts did, is to

perpetuate the confusion in and delegitimize this area of jurisprudence,

which harms both religion and the state. Other courts should take care to

avoid judicial fiat in the arena of Establishment Clause jurisprudence and

should instead employ an express application of hierarchical precedent as the

basis for their decisions.

537

See supra Part III.A.

538

This applies to all courts, as “American judges have the unique privilege—the privilege of

interpreting constitutional law—at all levels of the American judicial system.” Nancy Gertner, The

Globalized District Court, 26 U. HAW. L. REV. 351, 353 (2004).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 987

The hierarchical precedent doctrine is an axiomatic aspect of the

American judicial system.

539

In Hubbard v. United States, the Court stated that,

“We would have thought it self-evident that the lower courts must adhere to

our precedents.”

540

When lower federal and state courts are making federal

constitutional decisions, they must follow the Supreme Court’s case law.

541

This fundamental component of jurisprudence is “a consideration grounded

in formalism, or the notion that judicial decision making must adhere to

formal legal rules.”

542

The alternative to this notion of hierarchical precedent

would be chaos.

543

Indeed, in countries without a hierarchical precedent

doctrine, “courts may and often do change their view on the application of

one law or another, and therefore jurisprudence may serve only as a guide,

never as a rule.”

544

Unlike these judicial systems, the American judicial

system follows this doctrine, because it is “[a] government of laws[, which]

means a government of rules.”

545

When courts work within this system, they derive their judicial power

from reasoned decision-making and not fiat.

546

Reasoned judgment relies on

hierarchical precedent and provides an express articulation of the application

539

See Caminker, supra note 122, at 820 (stating that “the doctrine of hierarchical precedent . . .

constitutes a virtually undiscussed axiom of adjudication”); Joshua A. Douglas & Michael E.

Solimine, Precedent, Three-Judge District Courts, and the Law of Democracy, 107 GEO. L.J. 413, 417 (2019)

(“Of course, all courts must follow precedent from the Supreme Court[.]”).

540

Hubbard v. United States, 514 U.S. 695, 713 n.13 (1995).

541

See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (reaffirming the requirement that state

courts must follow Supreme Court precedent in interpreting the federal constitution); Wallace v.

Jaffree, 472 U.S. 38, 47 n.26 (1985) (quoting Hutto v. Davis, 454 U.S. 370, 375 (1982)) (“Federal

district courts and circuit courts are bound to adhere to the controlling decisions of the Supreme

Court.”).

542

Douglas & Solimine, supra note 539, at 441.

543

See Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L.

REV. 401, 402 n.6 (1988) (stating the alternative to vertical stare decisis is “so obviously chaos”).

544

Ioan-Luca Vlad, General Introduction, Romania, in 6 INTERNATIONAL ENCYCLOPEDIA LAWS: FAMILY

AND SUCCESSION LAW 27 (Aspen ed., 2019).

545

Morrison v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J., dissenting).

546

See Colin Starger & Michael Bullock, Legitimacy, Authority, and the Right to Affordable Bail, 26 WM. &

MARY BILL RTS. J. 589, 593 n.17 (2018) (“[P]ropositions that do require justification by authority

are fallacious if supported only by ipse dixit argument.”).

988 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

of that precedent.

547

Judicial fiat, or judgment that lacks reasoning, runs

contrary to the core values of the hierarchical binding precedent doctrine.

548

The basic translation of fiat is “let it be done.”

549

Broadly defined, it is a

“governmental decree or order,”

550

but it has acquired a negative

connotation when used in the term “judicial fiat.”

551

Judicial fiat has been

defined in several different ways. For some, judicial fiat indicates when

“courts make law by broad pronouncement rather than by narrowly deciding

the cases before them.”

552

For others, judicial fiat is a criticism of courts when

they “say[] too little.”

553

Other perceptions of judicial fiat deem it to be

decision-making “without definition.”

554

A common understanding of

judicial fiat is when a court makes a decision based on a rationale of “because

the court said so,” without adequate or even “an iota of . . . interpretation or

citation to legal precedent,”

555

rather than based on a reasoned, articulated

judgment derived from the application of binding hierarchical precedent.

556

This common understanding is reflected in the criticism of judicial fiat

through the “pejorative use of the phrase ipse dixit.”

557

The basic (and

547

See Andrew C. Spiropoulos, Just Not Who We Are: A Critique of Common Law Constitutionalism, 54 VILL.

L. REV. 181, 205–06 (2009) (stating “reliance on evolving precedent” is what makes “reasoned

judgment [reasoned]—and what makes it reasoned rather than judicial fiat”).

548

See Tracey E. George, Developing A Positive Theory of Decisionmaking of U.S. Courts of Appeals, 58 OHIO

ST. L.J. 1635, 1642–43 (1998) (discussing how the cornerstones of classical legal theory are the

premise “that judicial decisions were based on logical reasoning” and an emphasis on “the primacy

of rules”); Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 633–34 (1995) (“Results

unaccompanied by reasons are typically castigated as deficient on precisely those grounds. In law,

and often elsewhere, giving reasons is seen as a necessary condition of rationality.”).

549

Fiat, WEBSTER’S II NEW COLLEGE DICTIONARY 423 (3d ed. 2005) (defining fiat as “Lat., let it be

done. 1. An arbitrary decree. 2. Authorization or sanction”).

550

Fiammetta Piazza, Bitcoin in the Dark Web: A Shadow over Banking Secrecy and A Call for Global Response,

26 S. CAL. INTERDISC. L.J. 521, 527 (2017).

551

See William N. Drake, Jr., The Common Law and the Rule of Law: An “Uncomfortable Relationship,” 45

STETSON L. REV. 439, 448 (2016) (“[Fiat] is a term with a negative connotation of authoritarianism

that long had been eschewed by our courts as inapplicable to their function in our system.”).

552

Michael C. Dorf, Dicta and Article III, 142 U. PA. L. REV. 1997, 2022 (1994).

553

Id. (emphasis omitted) (describing Justice Scalia’s perceptions of judicial fiat).

554

Malcolm J. Harkins III, The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care

Act, and the Corporate Person: How A Historical Myth Continues to Bedevil the Legal System, 7 ST. LOUIS U. J.

HEALTH L. & POL’Y 201, 203–04 (2014).

555

Ceausu v. Progressive Cas. Ins. Co., No. CV12-6254PSG(VBKx), 2013 WL 12131280, at *8 (C.D.

Cal. Oct. 10, 2013).

556

See Bernard Schwartz, “Brennan vs. Rehnquist”––Mirror Images in Constitutional Construction, 19 OKLA.

CITY U. L. REV. 213, 222 (1994) (discussing how judicial fiat disregards precedent).

557

Dorf, supra note 552, at 2022; see also Schauer, supra note 548, at 634 (“To characterize a conclusion

as an ipse dixit—a bare assertion unsupported by reasons—is no compliment.”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 989

gendered) translation of ipse dixit is “he himself said it,”

558

or in a non-

gendered way, “it’s so because I say so.”

559

So, ipse dixit is “something said

but not proved.”

560

It is a stated, but unproven bare, dogmatic assertion.

561

In its application to jurisprudence, the term “is a statement that lacks

reasoning to support its conclusion but, nevertheless, must be taken as true

simply because the court says so.”

562

Criticism of judicial fiat has united people from all over the ideological

spectrum. Justice Antonin Scalia argued that jurisprudence based on ipse dixit

is dangerous and “ill-considered,”

563

and it results in grievous harm to the

Constitution.

564

In Morrison v. Olson, he criticized such a jurisprudential

example that “gutt[ed] in six quick pages devoid of textual or historical

precedent for the novel principle it set forth, a carefully researched and

reasoned 70-page opinion.”

565

Justice John Paul Stevens criticized a plurality

opinion in an Establishment Law case as judicial fiat that was “divorced from

the methodology prescribed by [the Court’s] doctrine.”

566

Professor Michael

McConnell has argued the Framers themselves had an expectation that the

evolution of their rights would not be the result of judicial fiat.

567

The Santa Fe decision was not a decision of judicial fiat. It was the product

of careful reasoning and supported analysis. It certainly did not resort to ipse

dixit. Instead, the Court displayed a devotion to the facts of the disputed

invocation policy and its limited analysis to the establishment dispute at

issue.

568

It “engaged in a careful, context-sensitive analysis of why, under the

circumstances of this case, the school district’s argument that the football

game prayers were ‘private speech’ should not be accepted.”

569

558

Ipse dixit, BLACK’S LAW DICTIONARY 833 (7th ed. 1999).

559

Richard C. Wydick, The Attorney-Client Privilege: Does It Really Have Life Everlasting?, 87 KY. L.J. 1165,

1172 (1999) (providing this translation).

560

Bryan A. Garner, GARNER’S DICTIONARY OF LEGAL USAGE 482 (3d ed. 2011).

561

See id.; Ipse dixit, BLACK’S LAW DICTIONARY (7th ed. 1999).

562

Dorf, supra note 552, at 2022.

563

Bond v. United States, 572 U.S. 844, 881, 882 (2014) (Scalia, J., concurring).

564

Morrison v. Olson, 487 U.S. 654, 725–26 (1988) (Scalia, J., dissenting).

565

Id. at 726.

566

Salazar v. Buono, 559 U.S. 700, 755 (2010) (Stevens, J., dissenting).

567

See Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s

“Moral Reading” of the Constitution, 65 FORDHAM L. REV. 1269, 1292 (1997) (“[T]he people who

instituted the Constitution expected that their traditional rights and privileges would continue to

evolve—not by judicial fiat, but by decentralized processes of legal and cultural change.”).

568

McConnell, supra note 517, at 706.

569

Id. at 707.

990 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

Conversely, there have been instances in school law when courts have

issued determinations on Establishment Clause violations or on the

classification question of religious student speech in a cursory, unsupported

way. The Matthews and Schultz cases’ sub-ten-sentence orders and opinions

on core Establishment Clause issues present two prominent examples of this

type of ipse dixit approach to school law decisions. Because Establishment

Clause cases are difficult,

570

future courts should avoid this approach to

decision-making regarding the classification of religious student speech and

the extent of the Establishment Clause’s constraints on that speech. Avoiding

judicial fiat in these cases is imperative to not further contribute to the

confusion of this area of constitutional law. Alternative approaches create

significant harms, which include the delegitimization of this area of

constitutional interpretation and harms to religion and to the state.

Issuing cursory opinions by judicial fiat in school law Establishment

Clause cases contributes to continued confusion in an already-confused area

of law. Although “[d]istinguishing between government speech and private

speech is famously difficult,” when tasked to do so on a justiciable issue,

courts need to engage in this endeavor through an application of precedent

and reasoned judgment.

571

Here, the issue is not so much the endorsement

of only one bright-line rule of Establishment Clause interpretation in all cases

in the school law setting,

572

as that is not consistent with the pluralistic

American society in which these cases arise.

573

Instead, this argument calls

on courts to provide some explanation when making these difficult

decisions.

574

“Unexplained decisions . . . encourage appeals and make it

570

See John T. Valauri, The Concept of Neutrality in Establishment Clause Doctrine, 48 U. PITT. L. REV. 83,

144 (1986) (discussing the difficulty in “reach[ing] principled decisions” in Establishment Clause

cases).

571

Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 MINN. L. REV.

972, 1015 (2010).

572

See Glenn A. Phelps & John B. Gates, The Myth of Jurisprudence: Interpretive Theory in the Constitutional

Opinions of Justices Rehnquist and Brennan, 31 SANTA CLARA L. REV. 567, 570 (1991) (arguing proper

jurisprudential approaches are premised on “principled[] constitutional theories,” even if they are

different approaches).

573

See Iddo Porat, The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law,

27 CARDOZO L. REV. 1393, 1402 (2006) (stating the varietals of Establishment Clause analyses

exemplify a “pluralistic society[’s] . . . idea that different and conflicting world-views can co-exist

within it”).

574

See Ronald Turner, On Substantive Due Process and Discretionary Traditionalism, 66 SMU L. REV. 841,

877–78 (2013) (discussing the Supreme Court’s emphasis on the need for constitutional reasoning

in order to have reasoned judgment).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 991

difficult, even impossible, for the appellate court to determine whether the

lower court erred.”

575

Judges need to provide legal rationales for their

decisions in compliance with the doctrine of hierarchical precedent to

preserve basic clarity and core stability in this area of law.

576

This becomes especially important when an appellate court takes up an

interlocutory appeal, like the Fifth Circuit did in Schultz.

577

This type of

appellate review is “the exception, not the rule”

578

and can create confusion

akin to the confusion generated by Establishment Clause jurisprudence and

justiciability requirements.

579

Under 28 U.S.C. § 1291, federal circuit courts

have jurisdiction to review “all final decisions of the district courts.”

580

The

courts of appeals also have jurisdiction to review trial court injunctive

interlocutory orders under 28 U.S.C. § 1292(a).

581

Although interlocutory

appeals can have beneficial effects for litigants,

582

they also “can make it

more difficult for trial judges to do their basic job—supervising trial

proceedings . . . [and] can threaten those proceedings with delay, adding

costs and diminishing coherence.”

583

Interlocutory review also “risks

additional, and unnecessary, appellate court work.”

584

Consequently,

appellate courts need to take care that they are not acting in an unsupported

575

David Dyzenhaus & Michael Taggart, Reasoned Decisions and Legal Theory, in COMMON LAW

THEORY 134, 148 (Douglas E. Edlin ed., 2007).

576

See James Bopp, Jr. & Anita Y. Woudenberg, An Announce Clause by Any Other Name: The

Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising Their Freedom to

Speak, 55 DRAKE L. REV. 723, 727 (2007) (discussing the need for judges to provide legal rationales

in their decisions); Randy J. Kozel, Stare Decisis in the Second-Best World, 103 CALIF. L. REV. 1139,

1159 (2015) (linking adherence to precedent to stability within the law).

577

See Schultz v. Medina Valley Indep. Sch. Dist., No. 11-50486 (5th Cir. June 3, 2011) (order granting

emergency motion to the dissolve temporary restraining order and preliminary injunction).

578

Johnson v. Jones, 515 U.S. 304, 309 (1995).

579

Bryan Lammon, Rules, Standards, and Experimentation in Appellate Jurisdiction, 74 OHIO ST. L.J. 423,

423 (2013) (“This system of interlocutory appellate review is a mess; the exceptions are so many,

the requirements so vague, and the judicial treatment so inconsistent that the regime is too

complicated and too unpredictable.”).

580

28 U.S.C. § 1291 (2018).

581

Id. § 1292(a)(1) (2018) (giving federal circuit courts jurisdictional review of trial court orders

“granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions” and excepting jurisdiction “where a direct review may be had in the Supreme

Court”).

582

Johnson, 515 U.S. at 309 (stating that interlocutory appeals “may avoid injustice by quickly

correcting a trial court’s error[;] . . . can simplify, or more appropriately direct, the future course of

litigation[; and] . . . can thereby reduce the burdens of future proceedings”).

583

Id.

584

Id.

992 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

dictatorial way in these interlocutory appeals to avoid these harms to

themselves and the underlying trial courts.

Issuing cursory opinions by judicial fiat in school law Establishment

Clause cases also delegitimizes constitutional interpretation in this area.

Jurisprudence matters. This principle is at the core of constitutional

theory.

585

“[I]t is, by adhering to rules and principles in the positive law,

within the constraints of practical reason as incorporated into the law and

the methodology by which it is applied that judges fulfill their constitutional

function of preserving and protecting the boundaries of the laws made by the

people . . . .”

586

The judiciary requires those who practice before it to provide

reasoning based on precedent; the courts should require no less of themselves

to ensure the continued legitimacy of the judicial system.

587

When judges issue edicts that are not reflective of principled reasoning, it

creates a subversion that implies to the American public, and in school law,

to schoolchildren, that decision-making is premised on desired outcomes,

rather than a reasoned application of the law.

That is a perilous position for

Establishment Clause jurisprudence involving the religious speech of

students, as it threatens “the very authority and stability of [our]

constitutional system.”

588

The rule of law is constrained, in a positive way,

by the requirements of consistency and transparency.

589

“[T]he integrity and

functionality of the [judicial] system depend[] upon the shared expectation

that lawmakers and judges will play by the rules of the game, i.e., that they

will follow the rules and precedents produced by the system itself . . . .”

590

Things fall apart with the dissolution of these twin aims in judicial decision-

making, and the avoidance of such dissolution is paramount in the area of

constitutional school law. In essence, when courts issue a judicial fiat without

585

See Phelps & Gates, supra note 572, at 570 (“Much of the energy and passion expended on the

pursuit of the constitutional theory is predicated on the notion that jurisprudence matters . . . .”).

586

Evelyn Keyes, Judicial Strategy and Legal Reason, 44 IND. L. REV. 357, 382 (2011).

587

See Michael J. Higdon, The Legal Reader: An Exposé, 43 N.M. L. REV. 77, 107 (2013) (“[L]egal readers

expect legal support . . . .”).

588

Phelps & Gates, supra note 572, at 570.

589

See A. Christopher Bryant & Kimberly Breedon, How the Prohibition on “Under-Ruling” Distorts the

Judicial Function (and What to Do About It), 45 PEPP. L. REV. 505, 522 (2018) (discussing the problems

that result from the dissolution of the “requirements of consistency and transparency” in judicial

decision-making).

590

Keyes, supra note 586, at 382.

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 993

any supporting case law, they “sacrifice [their] legitimacy.”

591

As Justice

Thurgood Marshall stated, it is “fidelity to precedent” that will create a

public “conception of ‘the judiciary as a source of impersonal and reasoned

judgments.’”

592

Rulings by judicial fiat in this area also can suggest subjectivity in

jurisprudence as a way “to secure a political, Machiavellian end.”

593

This is

dangerous decision-making, especially in the area of Establishment Clause

cases involving the religious speech of students.

594

Conversely, providing

decisions based on articulated reasons through an application of binding

precedent respects the dignitary values of the parties, “reassur[ing] the

litigants that the case has been thoroughly considered by the judge and

satisfies the basic human demand of those affected by judicial action to be

told why.”

595

It also communicates to the public positive messaging about the judicial

process.

596

Essentially, it “enhance[s] public confidence that a judge is not

simply acting by virtue of his or her power through judicial fiat but rather

through a reasoned process whereby the conclusion leading to his or her

decision is transparent, logical, and reasonable.”

597

Such supported reason-

giving is at the core of Deweyan ideal educative philosophy, which is an

appropriate ideal for courts to follow in school law jurisprudence.

598

Although this requires more work and is more time-intensive, the provision

of such a legal rationale in school law establishment cases is the best way for

591

Adam M. Smith, Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian

Case, 24 BERKELEY J. INT’L L. 218, 264 (2006).

592

Payne v. Tennessee, 501 U.S. 808, 852 (1991) (Marshall, J., dissenting) (quoting Moragne v. States

Marine Lines, Inc., 398 U.S. 375, 403 (1970)).

593

Ellis Washington, Natural Law Considerations of Juvenile Law, 32 WHITTIER L. REV. 57, 102 (2010).

594

See Edwards, supra note 487, at 463 (describing the Schultz case as making the unmistakably clear

point that “church-state cases are dangerous”); Christopher J. Peters, Adjudication as Representation,

97 COLUM. L. REV. 312, 420 (1997) (discussing the dangers of rule by judicial fiat).

595

Dyzenhaus & Taggart, supra note 575, at 148.

596

See Donald J. Kochan, The “Reason-Giving” Lawyer: An Ethical, Practical, and Pedagogical Perspective, 26

GEO. J. LEGAL ETHICS 261, 264 (2013) (stating that when people’s desire for reasons is

“[u]nquenched, that thirst also leaves us unsatisfied and generally less accepting in the face of events

or circumstances that are not or cannot be explained”).

597

Rosemary Barkett, Judicial Discretion and Judicious Deliberation, 59 FLA. L. REV. 905, 911 (2007).

598

See JOHN DEWEY, HOW WE THINK 27–28 (1910) (arguing the best practices of education “cultivate

deep-seated and effective habits of discriminating tested beliefs from mere assertions, guesses, and

opinions; . . . develop a lively, sincere, and open-minded preference for conclusions that are

properly grounded, and . . . ingrain into the individual’s working habits [appropriate] methods of

inquiry and reasoning”).

994 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

courts to have these rules make sense to the schoolchildren who are affected

by these decisions.

599

Finally, issuing cursory opinions by judicial fiat and without adequate

support in school law Establishment Clause cases harms both church and

state. The Establishment Clause “is primarily an equal liberty provision,”

600

designed to provide protections for free exercise and against establishment.

One might say that “[t]he defining paradox of the Establishment Clause is

that it exists to protect the government from religion in order to protect

religion from the government.”

601

When courts use ipse dixit to make

determinations in cases involving the religious speech of students, they are

harming both sides of Jefferson’s wall. This jurisprudential approach harms

religious liberty. It harms the judiciary. It harms schoolchildren by teaching

them anti-democratic principles.

602

Consequently, this type of unreasoned

decision-making should be avoided in the milieu of school law.

Proper analysis of the Establishment Clause is necessary for both

adherents and non-adherents to religion, especially for minors in schools.

603

The religion clauses of the First Amendment are meant “to define the

protection granted to an objector or a dissenting nonbeliever,” as well as to

“protect religion from government interference.”

604

James Madison was

opposed to religious establishment not just because of “its effect on the

minority,” but also because of a concern with “‘maintaining the purity and

efficacy of Religion.’”

605

So, a failure to engage in reasoned analysis that

incorporates hierarchical precedent in cases involving the religious speech of

599

See Marleen O’Connor-Felman, American Corporate Governance and Children: Investing in Our Future

Human Capital During Turbulent Times, 77 S. CAL. L. REV. 1255, 1299 (2004) (discussing how child

development theorists state the best approach for children to understand “prosocial behavior” is

through a “purposive and calculated” reasoned explanation, even though this method is “more

hands on, emotionally draining, and time-intensive”).

600

Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of

Religion, 140 U. PA. L. REV. 555, 568 (1991).

601

Gey, supra note 207, at 28.

602

See Jerry L. Mashaw, Reasoned Administration: The European Union, the United States, and the Project of

Democratic Governance, 76 GEO. WASH. L. REV. 99, 101 (2007) (“[R]eason-giving’s most fundamental

function [is] the creation of authentic democratic governance.”).

603

See Stanley Ingber, Religious Children and the Inevitable Compulsion of Public Schools, 43 CASE W. RES. L.

REV. 773, 792 (1993) (stating that “[s]chools cannot avoid instilling values” in schoolchildren).

604

Lee v. Weisman, 505 U.S. 577, 589–90 (1992).

605

Id. at 590 (quoting JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS

ASSESSMENTS (June 20, 1785), reprinted in 8 THE PAPERS OF JAMES MADISON 1784–1786, at 301

(Robert A. Rutland et al. eds., 1973)).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 995

students harms religious liberty, as it can signify to both religious and

nonreligious children that legal matters dealing with students’ religious

practices or conscientious practices do not merit extended treatment and

careful consideration by the judiciary.

Specifically, issuing unsupported decisions that imply that student

religious exercises are of a de minimis character, which will receive only the

court’s abbreviated attention, are affronts to religion and its adherents.

606

These opinions communicate a message that cases involving “[r]eligious

faith, [which] is a significant component in the lives of many children,

forming their identity, values, and sense of self-worth in their developing

years,” are cases that merit only cursory review.

607

When courts issue

summary dictates regarding Establishment Clause claims, that implies a

potential lack of careful consideration of the matter, which can be perceived

as the judiciary’s lack of respect for such religious faith.

The messaging of the insignificance of minor encroachments through an

ipse dixit opinion also harms non-adherents to religion, especially

impressionable schoolchildren. Courts must ever be mindful of “both the

fundamental place held by the Establishment Clause in our constitutional

scheme and the myriad, subtle ways in which Establishment Clause values

can be eroded.”

608

Claimed de minimis Establishment Clause violations or

“minor encroachments” of that clause, if proven, are still Establishment

Clause violations.

609

Therefore, they require carefully reasoned judgments

by courts that expressly apply hierarchical precedent. A failure to provide

judgments that reflect the doctrine of hierarchical precedent can create

schisms among students of different religious faiths or no religious faith,

which contradicts the “vital need” that Justice Felix Frankfurter articulated

in the McCollum opinion, “to keep out divisive forces” in American schools

when evaluating Establishment Clause cases.

610

606

See id. at 594 (stating the characterization of a claimed constitutional “intrusion of the religious

exercise” as being “of a de minimis character . . . would be an affront to the rabbi who offered them

and to all those for whom the prayers were an essential and profound recognition of divine

authority”).

607

Green, supra note 138, at 848.

608

Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring).

609

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963) (“[I]t is no defense to urge that the

religious practices [at issue in Establishment Clause cases] may be relatively minor encroachments

on the First Amendment.”).

610

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948).

996 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

Issuing decisions via judicial fiat in school law cases can also harm the

structures in which constitutional judicial decision-making is seated. The

practical and legal harms that can occur because of such a jurisprudential

approach are typified by the events that transpired in the Schultz case after

the issuance of the Fifth Circuit’s eight-sentence opinion.

611

After that

opinion, the federal district judge who entered the initial TRO and his staff

were threatened with death and bodily assault.

612

It does not seem like a

stretch beyond reason that the Fifth Circuit’s cursory opinion contributed to

a public perception of a lack of legitimacy of the trial court’s initial order

granting the request for injunctive relief at the high school graduation. A

perception of a lack of legitimacy in judicial decision-making can lead to

public resistance to that judicial act.

613

Issuing decisions via judicial fiat in school law cases also teaches anti-

democratic principles to children and runs contrary to the Supreme Court’s

ideology in the area of school law Establishment Clause cases.

614

The Court

has emphasized how vital its school law Establishment Clause jurisprudence

is because “[t]he vigilant protection of constitutional freedoms is nowhere

more vital than in the community of American schools.”

615

In order for

children “to become self-fulfilling, self-sustaining adults who can contribute

to the civic community,”

616

state institutions, like the courts, need to model

the ways to best achieve this maturation. Consequently, courts need to

function in a way that best represents the core ideals of our civic democracy

through supported judicial reasoning and not ipse dixit. As Professor Glen

Staszewski has stated, “[i]n a true democracy, citizens are ordinarily entitled

to a more meaningful explanation for the official exercise of coercive

611

See supra Part III.B.

612

See supra Part III.B.

613

See Kochan, supra note 596, at 267–68 (“[R]eason-giving demands a check of power and helps the

governed determine whether those in power are acting within their constraints . . . . [T]his helps

to engender a more democratic relationship with the giver and receiver. Reasons add legitimacy

and deviations from given reasons tend to call action into question.”).

614

See David Schimmel, Studying the Massachusetts Goodridge Decision on Same-Sex Marriage as an Antidote to

Mutual Misunderstanding and a Lesson in Civics and Law, 2011 BYU EDUC. & L.J. 495, 512 (2011)

(arguing that “thoughtful and wise decision-making” is necessary “in our pluralistic constitutional

democracy”).

615

Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (quoting Shelton v. Tucker, 364 U.S. 479, 487

(1960)).

616

Rodney J. Blackman, Showing the Fly the Way Out of the Fly-Bottle: Making Sense of the First Amendment

Religion Clauses, 42 U. KAN. L. REV. 285, 350 (1994).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 997

authority.”

617

This applies with equal if not more resonant force for the

requisite judicial reason-giving to schoolchildren when a court is making a

decision regarding the religious speech of students and the Establishment

Clause, given that “[t]he public school is at once the symbol of our

democracy and the most pervasive means for promoting our common

destiny.”

618

Consequently, religious student speech in the public school

context presents “unique circumstances” that require cautious and careful

judicial scrutiny in the area of Establishment Clause jurisprudence.

619

courts are to teach democratic principles to impressionable schoolchildren in

this area of law,

620

courts must avoid a judicial fiat approach.

A legal judgment regarding a case that alleges a violation of the

Establishment Clause based on the religious speech of students requires

adherence to the hierarchical precedent doctrine and express articulation of

the same. The application of the Establishment Clause “requires

interpretation of a delicate sort.”

621

When courts are making determinations

on Establishment Clause claims in the context of religious student speech,

they need to provide that delicate and careful interpretation through an

express and supported application of Supreme Court precedent. This is the

only way for this area of jurisprudence to begin to find some much needed

clarity, to retain its legitimacy, to protect against state and religious harms,

and to ensure American schoolchildren have sufficient safeguards through

more than “mere platitudes.”

622

Although “Establishment Clause cases . . .

stir deep feelings[] and we are divided among ourselves,” courts must take

these cases head-on when there is justiciability to do so and accord them the

proper reasoned analysis that our nation and our schoolchildren deserve.

623

617

Glen Staszewski, Reason-Giving and Accountability, 93 MINN. L. REV. 1253, 1286 (2009).

618

Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948).

619

See Lee v. Weisman, 505 U.S. 577, 596–97 (1992) (highlighting the differences of Establishment

Clause cases that arise in “the public school context” versus other environments); Lynch v.

Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring) (“Every government practice must

be judged in its unique circumstances to determine whether it constitutes an endorsement or

disapproval of religion.”).

620

See Edwards v. Aguillard, 482 U.S. 578, 583–84 (1987) (discussing students’ impressionability);

Lemon v. Kurtzman, 403 U.S. 602, 616 (1971) (emphasizing “the impressionable age of the pupils,

in primary schools particularly”).

621

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 226 (1963).

622

W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

623

Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980).

998 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

CONCLUSION

The Establishment Clause seeks to prevent division along religious

lines.

624

Yet, the interpretation of this clause has created expansive

divisiveness.

625

Arguably, this jurisprudence is fractured to the point where

“diversity and multiplicity in Establishment Clause doctrine are endemic and

ineradicable.”

626

It is possible that no other area of constitutional

jurisprudence is quite as complex.

627

Given the fluidity of Establishment

Clause jurisprudence,

628

it is hard to find a coherent theory within this

doctrine.

629

This has created rampant controversy among scholars and

jurists as to how courts should approach these cases. Although some of this

discussion has been polemical,

630

most of this division is simply a reflection

of the seemingly inconsistent nature of First Amendment jurisprudence.

631

Indeed, it almost seems that every Establishment Clause case should begin

with the Walrus’s speech in Lewis Carroll’s Through the Looking Glass and What

624

Town of Greece v. Galloway, 572 U.S. 565, 577 (2014) (articulating this core purpose of the

Establishment Clause).

625

See NUSSBAUM, supra note 16, at 227 (“Recent Establishment Clause cases look like a mess. The

proliferation of standards and distinctions is perplexing even to scholars.”); Shari Seidman

Diamond & Andrew Koppelman, Measured Endorsement, 60 MD. L. REV. 713, 713 (2001) (discussing

the lack of “unified Establishment Clause doctrine”).

626

Fallon, supra note 12, at 72.

627

See Gary C. Leedes, Rediscovering the Link Between the Establishment Clause and the Fourteenth Amendment:

The Citizenship Declaration, 26 IND. L. REV. 469, 471–72 (1993) (citing Rex Lee, The Religion Clauses:

Problems and Prospects, 1986 BYU L. REV. 337, 338 (1986)) (“A former United States Solicitor

General rates the doctrinal coherence of the Supreme Court’s Establishment Clause cases on a

scale of one to ten as between ‘zero’ and ‘less than zero.’”).

628

See Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (stating the Establishment Clause creates “a

blurred, indistinct, and variable barrier depending on all the circumstances of a particular

relationship”).

629

See Samuel D. Brunson, Dear IRS, It Is Time to Enforce the Campaigning Prohibition. Even Against Churches,

87 U. COLO. L. REV. 143, 189 (2016) (deeming the “Supreme Court’s Establishment Clause

jurisprudence . . . largely incoherent”).

630

See Nelson Tebbe, Religion and Social Coherentism, 91 NOTRE DAME L. REV. 363, 372 (2015)

(discussing harsh cross-critiques of Establishment Clause scholarship).

631

See, e.g., Richard Albert, Religion in the New Republic, 67 LA. L. REV. 1, 4 (2006) (arguing that

Establishment Clause doctrine “is more properly viewed as an evolving product of the continuing

public constitutional discourse among Americans and between public and private forces about the

proper role of religion in the American polity”); Steven D. Smith, Discourse in the Dusk: The Twilight

of Religious Freedom?, 122 HARV. L. REV. 1869, 1870–72, 1893, 1905–06 (2009) (reviewing 2 KENT

GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISHMENT AND FAIRNESS (2008))

(criticizing an alternate interpretation of the Establishment Clause, but then excusing it, “not so

much [as] an individual failure[, but rather as] a reflection of the current condition of the

tradition”).

June 2020] JUSTICIABILITY AND JUDICIAL FIAT 999

Alice Found There: “‘The time has come,’ the Walrus said, ‘To talk of many

things: Of shoes—and ships—and sealing-wax—Of cabbages—and kings—

And why the sea is boiling hot—And whether pigs have wings.”’

632

Yet, there

is at least one point of consensus in this confusion and division,

633

which even

the Supreme Court admitted in a school law case: “Establishment Clause

cases are not easy.”

634

Much of the Court’s establishment doctrine in the area of education

remains inconsistent, unclear, and disputed.

635

Despite this division and

confusion, courts have an obligation to attempt to decipher that doctrine

when evaluating student religious speech constitutional claims when there is

justiciability to do so and, if so, through the application of the rule of law and

pursuant to binding precedent. This is the only way to clarify the muddy

waters of this area of school law.

636

A failure to do so constitutes judicial error, and it results in exponential

jurisprudential and practical harms. One needs to look only to the Matthews

and Schultz cases’ judicial approaches to the Establishment Clause’s

applicability to student religious speech to see the harms of advisory opinions

and opinions by judicial fiat. An advisory opinion or ipse dixit approach to

these cases contributes to the continued confusion of school law

Establishment Clause jurisprudence; delegitimizes constitutional

interpretation in this area; allows possible end runs around the Establishment

Clause; harms religious liberty; harms the administration of the judicial

system; and teaches anti-democratic principles to citizens and

632

LEWIS CARROLL, THROUGH THE LOOKING-GLASS AND WHAT ALICE FOUND THERE, in THE

ANNOTATED ALICE: THE DEFINITIVE EDITION 129, 185 (Martin Gardner ed., W.W. Norton &

Co. 2000) (1872).

633

See Steven G. Gey, Life After the Establishment Clause, 110 W. VA. L. REV. 1, 35 (2007) (“Commentators

and jurists on all sides of the debate about the proper scope of the Establishment Clause have long

agreed that Establishment Clause doctrine is a chaotic and contradictory mess.”); Mary Ann

Glendon, Law, Communities, and the Religious Freedom Language of the Constitution, 60 GEO. WASH. L.

REV. 672, 674 (1992) (stating “the Supreme Court’s Religion Clause case law has reached the point

where it is described on all sides as confused, inconsistent, and incoherent.”).

634

Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980).

635

See Kevin T. Baine, Education Litigation: Prospects for Change, 35 CATH. LAW. 283, 287 (1994)

(concluding “the Supreme Court has decided a series of [Establishment Clause] education cases

that, read together, simply defy comprehension”); Thomas C. Berg, Vouchers and Religious Schools: The

New Constitutional Questions, 72 U. CIN. L. REV. 151, 193 (2003) (“[D]isputes over religion in the

public schools . . . at graduation and other school events . . . are highly divisive and emotional. . . .”).

636

See Lund, supra note 571, at 1020 (“The problem, however, is that the distinction between

governmental and private speech gets muddy in the middle. . . .”).

1000 JOURNAL OF CONSTITUTIONAL LAW [Vol. 22:4

schoolchildren. Courts that have disregarded the core principles of

justiciability and hierarchical precedent have confusingly converted school

law Establishment Clause jurisprudence into a sword that harms religion and

the state, rather than preserving it as the shield that it was meant to be for

both parts of the axiomatic Jeffersonian principle.

637

These injurious

jurisprudential practices must stop. Ensuring justiciability and avoiding

judicial fiat are the mechanisms to do so.

637

See JEFFERSON, supra note 60, at 113 (“Believing with you that religion is a matter which lies solely

between man and his God; that he owes account to none other for his faith or his worship; that the

legislative powers of the government reach actions only, and not opinions,—I contemplate with

sovereign reverence that act of the whole American people which declared that their legislature

should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’

thus building a wall of separation between church and State.”).