For six decades, American schools have been the major battleground in the controversy surrounding the doctrine of separation of church and state.There are huge problems and tensions among the warring parties in religion-school cases, and resort to state constitutional law will not make them disappear. The determined federal judiciary chooses to snub history, tradition, and settled state law to inject its version of civic religion back into the schools. Courts ought to undertake careful examination of the history, language, and experience before embracing a one-size-fits-all rule. For more than a century, states such as Nebraska have fought the battle over whether someone's religion ought to be able to co-opt the public schools. The nonelected national judiciary that is eager to insert someone's faith into public classrooms should not ignore the experience and the anguish of the states. That is, after all, what the New Federalism—the empowerment of the states—should be about.
Richard E. Shugrue,
Faithful to the Constitution: The Roadblock for Nebraska's Schools,
79 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol79/iss4/8