Unconstitutional Conditions on School Choice?

[Paul Salamanca]

Professor Paulsen:

        Lynn Baker wrote a fascinating article a couple years ago about
conditional federal spending in the wake of Lopez.  She argued that Congress
should no more be able to attach conditions to its expenditures than it
should be able to impose unconstitutional conditions to the receipt
entitlements.  It sounds to me like you're looking into the same set of
issues.  Her article is at 95 COL. L. REV. 1911 (1995).

                                        Paul E. Salamanca
                                        Assistant Professor of Law
                                        University of Kentucky
                                        College of Law

At 11:08 AM 2/7/98 CST, you wrote:
>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
>
>