Unconstitutional Conditions on School Choice?

[stoke001 at maroon.tc.umn.edu]

Stephen Gilles's article "On Educating Children:  A Parentalist
Manifesto" is at 63 U Chi L Rev 937 (1996).  A quick review shows that
it gives a *framework* for analyzing burdens on parental choice in
education, but does not address my specific question.

In the UC Davis article, I expressed the view that receipt of a
voucher does not enlarge governmental regulatory authority as a
constitutional matter (but cleverly hid my ignorance about what the
actual scope of such authority is, by bracketing that issue out of my
thesis); nonetheless, I ventured that receipt of a voucher might
cause regulators to seek to exercise constitutionally
permissible regulatory authority that had been unexercised in the
past.

Brooks Fudenberg is right to ask Mike McConnell exactly how the
unconstitutional conditions doctrine plays out here.  (Mike is the
guru on these things, as on many others.)  My *premise* in the Davis
article is that the "baseline" right is a right to equal access to
the benefit.  But can government require private schools to become
more like public schools, as a condition of the benefit?  (After all,
the right is one of "equal" access.)  Where the benefit is provided
to families, exercising voluntary choice, at one step remove, would
that ordinarily support increased regulatory authority?  For example,
I doubt whether government could regulate a church's employment
practices *simply because* church members' contributions to that
church were given a tax deduction by the government.  The general
police power may reach churches (subject to whatever First Amendment
limitations exist), but is government's authority increased by the
fact of dollars flowing to such institutions?

A bit of background from Minnesota on this issue.  Last summer, the
legislature adopted a tax credit / tax deduction plan for
*non-tuition expenses* incurred by parents in sending their child to
a private or public school.  It is a first-step-foot-in-the-door
statewide voucher plan of sorts.  Now, certain teachers unions are
pressing for legislation that would attach some "poison pills" to a
*private school's* admission of a student *whose parents intend* to
take advantage of the tax credit or deduction:  forms to fill out
(certifying proper surveillance of parents' tax intentions, etc.); or
agreeing to be bound by a state board's "goals oriented high school
graduation requirement" rules (curriculum regulation?) and the
state's "pupil fair dismissal law" (first step in regulating
admissions and internal discipline).  The purpose of the bills is to
threaten to public-ize formerly private schools, as a consequence of
decisions to utilize a tax credit, made by the private schools'
customers.  The threat will, of course, undo the program.

Michael Stokes Paulsen
University of Minnesota Law School