In Zelman, the Court examined the constitutionality of an Ohio pilot program that took effect in the Cleveland City School District. One of the program's provisions permitted parents to use a tuition voucher for their children to attend public or private schools, including religious schools. The statute authorizing the program ensured that participating private schools remained affordable for the most disadvantaged children, and required that the schools refrain from "advocat[ing] or foster[ing] unlawful behavior or teach[ing] hatred of any person or group on the basis of race, ethnicity, national origin or religion." The Cleveland program exemplifies one attempt, informed by the reality of religious pluralism, at a political solution to the perceived failure of the public school system. The recent decision happily ends the divisive legacy of extreme separation, and in this respect, promises to play "a calming role in the culture wars ...." Furthermore, the private choice doctrine affords much needed space for religious speakers. The culture wars, however, will continue. Since the late 1940's, the Supreme Court has produced a cacophonous composition by its divergent interpretations of the Establishment Clause. The disharmony besetting church-state jurisprudence is the subject of this Article. It examines, in particular, the legal and political theories that have tended to promote secular establishment in the United States.
Laura T. Rahe, Zelman v. Simmons-Harris and the Private Choice Doctrine, 50 Clev. St. L. Rev. 221 (2002-2003)