This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of the voucher movement, with respect to education as well as other social services. This section first focuses on knotty questions of state constitutional law, and the interplay of those questions with federal constitutional norms, that have arisen in Zelman's wake. The piece then turns to the debate about regulatory conditions that might be imposed upon providers in voucher programs. Viewing the problem in light of the Supreme Court's tangled jurisprudence of unconstitutional conditions and religious accommodation, we explore conditions related to school performance, student admissions, faculty hiring, and controversial expression by providers. Finally, we analyze the importance of Zelman outside the field of education, by probing the decision's implications for the President's Faith-Based Initiative - that is, for efforts by government to enlist faith-based organizations in providing a variety of social services.
Robert W. Tuttle & Ira C. Lupu, Zelman's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917 (2003).