Unconstitutional Conditions on School Choice?

[Marie A. Failinger]

To be explicit about what I think Bob Destro's message implies, it seems
to me that the question of what conditions are likely to be imposed and
even legallypermitted depends a great deal upon whether the general public is likely
to view the whole educational system (including "public" schools) as more
privatized or more public as a result of a voucher system. (It might be
more ideal for education to be considered as the "third" part of
society--mediating institutions or civil society or whatever you want to
call it--but for now we seem to be somewhat stuck with public/private.)
Depending on how the powerful players (such as the teachers' union)
approach this question, there might be more deregulation for everyone
rather than more regulation of parochial schools.  If all schools are
viewed as more public as a result of vouchers, I expect that local
concerns are likely to drive what state courts consider legitimate
regulations--i.e., non-discrimination regulations in so-called
"progressive" states, economic in fiscally conservative states, etc.


Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu