Strings on Vouchers

[Nicole Garnett]

We are currently litigating the Rust issue in a case challenging the exclusion of religious schools from Maine's voucher program.  We have argued that Rust, as limited in Rosenberger, applies only when government enlists private entities to convey a specific government message.  Vouchers do not present such a situation  because, as Richard Duncan notes, they subsidize parental -- not governmental -- speech.  Rosenberger's description of Rust is helpful here:

When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.  
        It does not follow, however, ? that viewpoint based restrictions are proper when the University does not itself speak or subsidize transmittal of a message but instead expends funds to encourage a diversity of views from private speakers.

Rosenberger, 115 S.Ct. at 2519.  

We do not yet have a decision in the case, and I would welcome any suggestions about how to best address this argument.  

Nicole Garnett, Institute for Justice
----------
From:   stoke001 at maroon.tc.umn.edu[SMTP:stoke001 at MAROON.TC.UMN.EDU]
Sent:   Tuesday, February 10, 1998 4:19 PM
To:     RELIGIONLAW at LISTSERV.UCLA.EDU
Subject:        Re: Strings on Vouchers

A quick question with respect to Doug Laycock's point about *Rust*:
Does Rust really hold that government funding of the family planning
program gives it general regulatory authority to regulate the conduct
of a recipient *outside of that program*?  My recollection is that
Rust upheld rules designed to (i) limit what conduct could be engaged
in with respect to a directly-funded federal program; i.e., doctors
acting within the context of the federal program cannot counsel or
refer for abortions; while wearing a federal hat, here are the
parameters of what you can do as our "deputy"; and (ii) enforce
physical- and accounting-separation rules designed to assure the
efficacy of the first limitation.  Or is there more that I am missing
(I am not a Rust expert)?

Does Rosenberger read Rust in such a limited manner?  Are vouchers (or
tax credits) distinguishable on the basis that private schools are not
"carrying out a government program" but merely third-party payees?

I have not yet settled on answers to any of these questions (which is
why I have put them to the group in the first place), but am finding
the discussion *very* helpful.

Michael Stokes Paulsen
University of Minnesota Law School

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