Strings on Vouchers

[Doug Laycock]

        I have not come close to thinking this thread all the way through,
but let me suggest some distinctions and thoughts:

        1.  What the law should be as a matter of first principles may be
quite different from the law that may be predicted from existing Supreme
Court cases.

        2.  The drive to regulate what the state funds is partly
bureaucratic and political imperative; it is partly, as someone suggested,
poison pills to sabotage the program.  Am I right to assume that the
Wisconsin educational agency that loaded the program up with regs had
opposed the program from the beginning?

        3.  The state's power to control the expenditure of its own funds
should be considerably greater than the state's power to use those funds as
leverage to control everything else the school does.  But this line is
blurred in practice, because the money is commingled, and blurred in Supreme
Court doctrine.

        4.  Several years ago Michael McConnell wrote a great article
showing how both left and right were inconsistent in their claims about
state funded abortion and state funded religious schools.  The inconsistency
extends to this argument about attaching conditions.  The left hated Rust v.
Sullivan; the religious right hailed it.   Rust v. Sullivan is a blueprint
for how the government, in the guise of controlling how its own money is
spent, can regulate everything that goes on at any physical site that gets
some government money.  As a matter of current doctrine, Rust savages the
argument that religious schools have a constitutional right to be free of
intrusive conditions even if they take government money.  The arguments that
Rust was wrong all came from the left, and those arguments are equally
applicable to religious schools.  But very few of the same people will be
making the arguments.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-471-3275 (voice)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu