The U.S. Supreme Court in al man v. Simmous-Hanis held in June 2002 that a state does not violate the Establishment Clause by providing funding to a religiously affiliated school if the program meets certain criteria outlined in that opinion. One of the questions that remains after Nan, however, is whether a state, once it has initiated some form of tuition voucher program that includes non-sectarian private schools, can be compelled under the federal Constitution to include sectarian schools in its program. This Note analyzes this question under two lines of U.S. Supreme Court precedent—the limited public forum cases and the government-as-speaker cases—and concludes that Zebnan does not require a state to include religiously affiliated schools in its school voucher program. This Note then applies this reasoning to the Maine school voucher program that is currently the focus of two lawsuits, and concludes that the Maine program, which excludes sectarian schools, does not violate the federal Constitution.
Rita-Anne O'Neill, The School Voucher Debate After Zelman: Can States Be Compelled to Fund Sectarian Schools Under the Federal Constitution?, 44 B.C.L. Rev. 1397 (2003), http://lawdigitalcommons.bc.edu/bclr/vol44/iss4/17