George Will writes about the petition for certiorari in Winn v. Arizona Christian School Tuition Org.. The panel decision was written by Judge Fisher, joined by Judges Reinhardt and D.W. Nelson, and there’s a dissent from denial of en banc rehearing by Judge O’Scannlain, joined by Judges Kozinski, Kleinfeld, Gould, Tallman, Bybee, Bea, and N.R. Smith (coupled with a concurrence from denial of en banc rehearing by the original panel, plus Judge Pregerson).
I think the dissent is correct, and the program should have been upheld under the Supreme Court’s Zelman v. Simmons-Harris decision, which in turn I think is quite right (though I’d probably take it even further). It will be interesting to see if the Justices think this is worth resolving.