Strings on Vouchers

[Douglas Laycock]

        Much may depend on whether the Court views the program as funding a forum
for private education (think Rosenberger), or as paying private school's to
deliver the government's message (think the case on funding birth control
counseling but not abortion counseling).  And the answer to that may depend
on whether the Court looks at substance or form.

          Public forum doctrine has degenerated into a matter of form in which the
government's characterization of its intent is dispositive.  A public forum
is one that has been so from time immemorial, or one that the government
intentionally creates.  No bureaucrat ever admits to intentionally creating
a forum.  The actual cases have not yet tested the limits of this formalism.

        Suppose the voucher statute says:  We will pay any school to teach the
following precepts.  And suppose the list is long enough, and inclusive
enough, that schools with evangelical or socialist or otherwise
nonmainstream views are effectively excluded, without the government ever
having to put out a list of things that can't be taught.  And suppose the
result is that 75% of private schools can sign the pledge and take the
money.   The government swears it never intended to create a forum and is
merely subsidizing the spread of its own message.  What result?

        It seems to me that the people who want vouchers had better draft very
carefully.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu