Unconstitutional Conditions on School Choice?

[Nicole Garnett]

Regardless of whether vouchers in fact increase government power to regulate private schools, bureaucrats (especially hostile ones) have historically acted as if it does.  

-- Immediately after Milwaukee's first voucher pilot program took effect in 1990, the state department of public instruction went on a regulatory rampage.  The state issued so many burdensome regulations that almost all eligible schools refused to participate in the program.  Luckily, a group parents successfully sued to have the regulations invalidated as ultra vires.  The court held that the regulations exceeded the state's statutory authority, without reaching any constitutional issues.

--The 1995 amendments to the Milwaukee program, which added religious schools, include one significant "string" -- schools must permit students to opt out of religious activities and classes.  This condition has not been challenged.

--  Rural Maine towns without public high schools have paid tuition for residents to attend private schools for at least 200 years.  This voucher system (called "tuitioning") was codified in state law in 1903.  In Maine, private schools approved to accept tuitioned students must comply with many of the same state regulations as public schools.  Private schools that do not accept tuitioned students are not subject to these rules.

As an voucher advocate, I think that these types of problems are best addressed at the legislative stage.  Carefully drafted legislation can strip bureaucrats of the ability to overreach.
 
Nicole Garnett
Staff Attorney
Institute for Justice
1717 Penn. Ave., NW
Suite 200
Washington, D.C. 20006
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From:   stoke001 at maroon.tc.umn.edu[SMTP:stoke001 at MAROON.TC.UMN.EDU]
Sent:   Thursday, February 05, 1998 5:27 PM
To:     RELIGIONLAW at LISTSERV.UCLA.EDU
Subject:        Unconstitutional Conditions on School Choice?

A few years ago, I wrote an article in UC Davis entitled "A Funny
Thing Happened on the Way to the Limited Public Forum:
Unconstitutional Conditions on 'Equal Access' for Religious Speakers
and Groups" in which I advanced the proposition (inter alia) that
receipt by a private school of parental vouchers does not enlarge the
scope of government's regulatory authority over private schools.
Whatever the constitutionally permissible scope of government's power
to regulate private schools (consistent with Free Exercise, Free
Speech, and freedom of association), neutral receipt of a voucher does
not alter that scope.

I am beginning to think further about the argument.  Two questions for
the list:

1.  Am I right in this proposition?  (I don't have self-doubts at this
point, but I am open to persuasion and certainly would like to hear
the contrary arguments.)

2.  Assuming I am right, what *is* the constitutional scope of
government's power to regulate private schools?  What are the leading
cases?  What do you think are the properly applicable general
principles, and what is their constitutional basis?

Specifically, can government regulate private school:
(a) admissions?
(b) employment decisions?
(c) student discipline?
(d) graduation requirements -- mandatory testing, etc.
(e) curriculum   [could it require sex ed, etc.]

I have read Stephen Gilles' fine article.  What else should I be
looking at?  Things that several of you have written, no doubt?

Michael Stokes Paulsen
University of Minnesota Law School

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