Unconstitutional Conditions on School Choice?
destro at LAW.EDU
Sat Feb 7 15:02:50 PST 1998
Brooks Funderberg asks:
Perhaps I am missing something, for I too have not read the Gilles
article. But can it really be that the provision of benefits
(vouchers) entails *no* additional power for states to regulate
schools? Bob Jones University *seems* to say, "If you take our
federal tax exemption, you cannot discriminate based on race, even
though, as a private, religious institution, your discrimination
violates no other law."
Before posing a response, perhaps it would be useful to note a few facts
about state regulation of education.
1) Under the law of most (if not all) states, education is a *state*
2) Nothing in the case law, including Pierce, Meyer & Yoder, undercuts
that assertion. In fact, those cases take great pains to acknowledge
the existence and presumed legitimacy of state power. First Amendment
cases arising in public schools acknowledge that the state may control
the curriculum, environment, and conduct of students and teachers.
3) The most *important* form of regulation in the elementary and
secondary setting is the compulsory education law. Such laws are
regularly invoked against both parents and children. Jonas Yoder was
the target of prosecution under Wisconsin's Compulsory Education Law.
I describe it as *most* important because education law operates
"directly" on the child and family. Children and their parents are
subject to direct state control (including criminal prosecution or
civil neglect) under compulsory education laws that can be satisfied
only if the child attends an "approved" school, program, or
4) State case law varies widely on the issue of how much autonomy
religiously-affiliated schools have to control what most of us might
consider "regulatory" matters, such as: length of school day, class
size, library facilities, textbook selection, facilities, etc. While
I would hestitate, on e-mail at least, to state what the "majority"
rule might be at this point in time, there is no doubt that extensive
regulation is the norm in some states, while others are considerably
more libertarian in their approach. We summarize extensively both the
state and federal case law in Chapter 6 (Religion in the Classroom)
of our book, Ariens & Destro, "Religious Liberty in a Pluralistic
Michael McConnell was correct when he wrote "that as a matter of
constitutional authority, states have no less power to regulate private
schools in the absence of vouchers than they do when they give vouchers." The
state law and court decisions could not be clearer on this point.
I do not agree, however, that discussion of this topic via the
"unconstitutional conditions" doctrine is the way to shed light on the
matter. The fundamental question is: *How much* power do the states have to
control the substantive educational content, philosophical perspective, and
learning environment of children in pre-K, elementary, and secondary schools?
This is an up-to-date rendition what was known throughout the nineteenth
century as "The School Question." It affects not only the actions of
private schools seeking reimbursement for the costs of educating children
who are otherwise entitled to an education at state expense, but also to
the daily operations of the public schools.
Consider these questions:
1) Is the result in Lee v. Weisman compelled by a) the public funding of
the graduation ceremony, b) the character of the public school as an
official agency of the state; c) the non-associational liberty interest of
Ms. Weisman; d) something else (more)?
2) Why does the use of the Bible as "literature" in public schools even
raise a *constitutional* question? [i.e. Don't such questions assume that
the "First Amendment" either authorizes or requires *federal* censorship of
3) Would public funding -- i.e. 100% -- of a private, non-religious
"charter school" permit the government to dictate the "perspective" that
organizes the curriculum, discipline, and environment?
4) Does receipt of a government contract or grant by a defense contractor
permit the government to regulate the content of either the speech of its
training supervisors, or the content of its training materials?
Apologies for the length of the post. I'll leave my views on the
relevance, and application, of Rust to another day.
Robert A. Destro Destro at law.edu
Columbus School of Law 202-319-5202
The Catholic University of America fax:202-319-4498
Washington, D.C. 20064-8005 http://www.law.edu
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