« The "Professor" Puzzle | Main | Reminders »

Thursday, April 15, 2010

New Paper: The Story of Santa Fe

I've posted a new paper on SSRN, titled "Of Football, 'Footnote One,' and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe."  It will appear in a new book in the Law Stories series, First Amendment Stories, edited by Andy Koppelman and our own Rick Garnett.  My chapter deals with the Santa Fe case, in which the Court struck down an election mechanism that provided for student-led prayer before high school football games.  I argue that much of the reason for the failure of this mechanism, which the school district argued was a "circuit-breaker" between impermissible government speech and permissible private speech, can be found in the neglected first footnote to the opinion, which discusses official and private efforts to ferret out the identity of the "Doe" plaintiffs in the case; this, I argue, tells us something about how the Establishment Clause should be applied in overwhelmingly religiously homogenous communities.  I argue for similar reasons that, contrary to the trend among some scholars and one Justice (Justice Thomas), the Establishment Clause is, if anything, best applied more strictly at the state and local level than at the national level, and not vice versa.  

Here are the opening paragraphs of the piece:

The saying goes: Don't Mess With Texas.  So how do you mess with a Texan?  You could start by messing with two things a Texan holds dear: God and football. 

That is why the case that forms the subject of this chapter has its name: Santa Fe Independent School District v. Doe.  This is a tale that hangs on an anonymous plaintiff, a Jane Doe -- on why that plaintiff was anonymous, and the meaning of that anonymity for the modern Establishment Clause.

Comments are always welcome.  Enjoy.  

Posted by Paul Horwitz on April 15, 2010 at 10:11 AM in Paul Horwitz | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference New Paper: The Story of Santa Fe:


The comments to this entry are closed.