Through the identification of this fidelity within this subset of school law, this Article reclaims the thicket theory pejoration as a constitutionally correct and significantly beneficial theory that embodies the original purposes of the Framers in their adoption of the First Amendment. In doing so, this Article demonstrates that the Court’s educational Establishment Clause jurisprudence has formed a protective thicket around American schoolchildren—a political minority that merits special constitutional shielding from the divisive forces of state-established religion. It is a positive thicket that safeguards the freedom of conscience of all American schoolchildren, no matter their beliefs, while balancing respect for their autonomy to engage in constitutionally protected religious practices. Finally, it is an instructional thicket that upholds democratic principles by preserving respect for both government and religion. These educative results align with the Court’s recognized importance of the public school as the preparatory situs for children’s participation in our constitutional democracy. Consequently, the Court should continue to employ this consistent approach to preserve the civics lessons regarding the Establishment Clause that should be imparted daily inside and outside America’s public schools.
Amanda H. Cooley,
Framers' Fidelity and Thicket Theory in Educational Establishment Clause Jurisprudence,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol58/iss1/1