This Note will argue that the cheerleaders’ run-through banners constitute state action, and thus, the superintendent’s ban is necessary to avoid an Establishment Clause violation. The aim of this Note is to demonstrate that courts are more eager to find state action when the underlying claim involves establishment in public schools. Although courts do not acknowledge that they are applying a lower state action threshold in these cases, they are correct to do so because schools have enormous power to regulate the lives of students. Part I discusses how the legal scholarship supports the idea of a lower state action threshold for establishment claims in public school, although this Note’s specific argument has not been made previously. First, scholars have noted that the state action doctrine is malleable because state inaction can always be framed as action. Second, courts apply the state action doctrine differently based on the nature of the underlying constitutional claim. Finally, the state action doctrine may be unique for Establishment Clause claims in general. Part II demonstrates that the lower state action threshold for the Establishment Clause in public schools is supported by case law and the relationship between the religion clauses. Like the military, public schools are an area of pervasive government regulation where a student has fewer free speech and free exercise rights. Because the government has greater leeway to direct private actors in these realms, declining to regulate can imply state approval. That is, when the power is present but not exercised, inaction can become state action. This idea finds support in case law and by analogy to other areas of state action law. Part III applies this understanding of state action to the Kountze case. The Note ends with a short summary and conclusion.

Continue reading Solemn School Boards: Limiting Marsh v. Chambers To Make School Board Prayer Unconstitutional on HeinOnline.