Strings on Vouchers
ngarnett at INSTITUTEFORJUSTICE.ORG
Tue Feb 10 17:50:15 PST 1998
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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