Strings on Vouchers

[Prof. Steven D. Jamar, Dir. LRW Program]

This seems to me to be an area where it is quite easy to talk across each other and not to each other largely, it seems, because there are several intertwined ideas at play.

1.  States can regulate education in a plenary fashion, subject only to constitutional limitations and political limitations.

2.  But states do not regulate every detail about public education.  That is, they do not regulate as much as they constitutionally could.  Horrific things would result if they did - beyond mandated content in general, we would get ever further into the type of thing that just happened in Maryland where the legislature mandated the teaching of the Irish potato
famine!  This event was important on many  levels, no doubt, but, maybe mandating seeing the movie Amistad would be more important for many of our students than learning the ins and outs of potato blight and its effect on U.S. society.

3.  Since states do not in general regulate as much as they could, there is a large area yet open to them to regulate.

4.  It would seem to me to be a legitimate choice to choose not to regulate everyone the same, but have one set of regulations for those who take state tax money and those who do not.  For example, states can apply anti-discrimination laws to small companies which might otherwise be exempt because of size through government contracts and subsidies.

5.  The question becomes a fairly narrow one then - (probably you guys all got this right off - I am probably just a bit slow at it)  - can the state choose to fund some schools who abide by certain standards, and not fund other schools which do not abide by those standards?  It would seem that the answer to this must be yes.  (The analysis should not change
because the funding mechanism is vouchers, should it?)

6.  If the answer to 5 is in general "yes, the state can choose to fund only those schools which meet its standards, then the issue must turn on the content of those standards.  Can the content include things relating to religion-state relationships?  Surely it can.  And maybe it even must.  If one takes the idea that funding of a school by state money is an
unconstitutional establishment, then the state should or even must make a condition of the vouchers be that they be used for non-parochial schools.  We can now devolve into all sorts of words like neutrality and equal treatment and the like, but I don't think those take us much further than the simple declaration or decision that direct or even one-step-removed
funding constitutes and establishment.

Why should my tax dollars go to create more Jews, more Catholics, more Baptists, more fundamentalists, more Muslims?  I want my education tax dollars spent to create effective, moral citizens, not to create sectarian strife.

Of course, this all hinges on the tenability of the secular-sacred distinction in the first place, which tenability is tenuous, albeit mandated by the Constitution.

So, can the state condition use of vouchers on attendance at certain schools?  Surely.  In fact, maybe it must do so.

Should this be the law? - well that is another question entirely.  I am not convinced that the use of vouchers in this fashion should be held to violate the establishment clause.

But now, let's extend the concern one step further.  Should vouchers be given to homeschoolers to cash for themselves?  Should we subsidize homeschooling in this way?

Cheers,
Steve
--
Steven D. Jamar
Professor of Law
Director, Legal Research & Writing Program
Howard University School of Law
2900 Van Ness Street N.W.
Washington, D.C.  20008

President, Legal Writing Institute

vox:  202-806-8017  fax:  202-806-8428
email:  sjamar at law.howard.edu