Unconstitutional Conditions on School Choice?
destro at LAW.EDU
Tue Feb 10 00:54:17 PST 1998
Brooks R. Fudenberg wrote:
Prof. Destro's rejoinder seems to me to miss the point. He argues,
first, that state regulation of public schools is not affected by
vouchers. Agreed. He argues, second, that states already extensively
regulate private schools. Agreed; indeed, asserted in my previous
post. He seems then to conclude that vouchers could not expand the
scope of state regulation. Is he assuming that "extensive" regulation
without vouchers means that more extensive regulation cannot come with
No, I am not assuming that "more extensive regulation cannot come with
vouchers." Extensive regulation *can* be the result of a voucher plan,
and states that do not currently regulate extensively might feel freer to
do so. My point is that many states *already* regulate private (and
religious) schools extensively. The funding of choice gives the *states*
no more power than they already have.
The important questions are political, and need to be seen in historical
context. Early in the nineteenth century, the political questions involved
drawing a line between "sectarian" education and "Common Christianity."
Sectarianism was defined as "bad" and "common Christianity" as "good." In
the lore of the Establishment Clause one finds evidence that some of the
Justices even question whether *education* (as opposed to
"indoctrination") goes on in religious schools.
As the twentieth century opened, political forces hostile to private
education used state power over children to shut down the private schools
altogether. Today, the political forces are different. There are billions
of dollars involved. Voucher plans are controversial not only because we
have yet to resolve the question "Is religious education good or bad for
America" (or, as Steve Jamar put it: "Why do we need more sectarian
strife?"), but also because each student enrolled in a private school
subsidizes the public school system. If the money leaves the system, it
also leaves the control of any and all who benefit from it, including
local politicians, bureaucrats, teachers, public sector unions, suppliers,
So I think it is a safe bet that there will be attempts to regulate
schools that get vouchers. After all, this is an issue that turns on
matters of *control* not equity, or educational excellence. Such attempts
will certainly be draped in the mantle of "good government" and
"accountability", but they will be attempts at control nevertheless.
Wisconsin is a case in point, for it proves the old adage that litigation
is politics by another means.
Prof. Funderberk also wrote:
Certainly there are some limits on what the state can require of
religious schools, in the absence of vouchers, and despite the
currently permissible "extensive" regulation. Just as certainly,
there are things the state could not require, directly, of religious
schools, but about which it can say, "If you take our money, you
cannot do X."
What limits? Certainly not Free Exercise limits. After Smith, all a state
need show is that its educational standards are "generally applicable".
Voucher or no voucher. The limits, if any, will have to come from state
constitutional or statute law.
What things could the state "purchase", but "not require"? The only things
relevant to this list go to the religious character of the school itself.
Can a state say that "If you take our money, you may not infuse a religious
perspective into teaching, curriculum, or the physical environment of the
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
University of Miami School of Law
On Sat, 7 Feb 1998, Robert Destro wrote:
> 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
> curriculum content?]
> 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.
> Bob Destro
> 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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