Strings on Vouchers

[stoke001 at maroon.tc.umn.edu]

I appreciate all the comments on this thread ("string"?), which are
helping me as I grope toward a hypothesis on this issue.

1.  It seems to me the essential question (as with all
"unconstitutional conditions" or "selective funding" or "equal access"
issues) is one of *baseline*.  What is the correct starting premise?
There seem to be two (utterly contradictory) options:  (a)  the state
"owns" education of children, and may run it itself, regulate it any
way it sees fit, and selectively fund it.  Whether or not it funds
private schools, it may regulate them.  (b)  parents and families
(private institutions) "own" the education of children, as an
essential First Amendment freedom (closely allied to speech and,
often, to free exercise), which government may not burden without
compelling justification or disfavor with its funding schemes.  If one
starts with baseline/premise (a), strings on vouchers are perfectly
sensible; private schools exist at the state's sufferance, and if we
decide to fund them (directly or indirectly) it is perfectly
appropriate to employ the state's (pre-existing) regulatory
authority.  If one starts with baeline/premise (b), government *never
was* permitted to regulate other than incidentally private educational
institutions, and the removal of the discriminatory funding regime (in
part) does not enlarge government's (very limited) pre-existing
regulatory authority.

2.  Note that on either view, government funding of private school
education does not enlarge government's constitutional regulatory
authority.

3.  Baseline (a) is, at least in its broadest formulation, rejected by
our constitutional tradition of *Pierce v. Society of Sisters*.
Baseline (b) is emphatically rejected by the tradition of the past 100
years or so of well-settled practice.  Those who adopt (a) basically
read *Pierce* as a limited exception to the baseline rule of
governmental control over education.  Those who adopt (b) read
*Pierce* as rejecting in theory the past 100+ years of practice, but
recognize that practice as an implicit rejection of too-broad a
reading of *Pierce*.  (Or, some would reject 100+ years of practice.)

4.  If (a) is the baseline, it becomes clear that
where government is *also funding* the education, it may control
the content of the education within the context of what it is
funding, and require "strict separation" between whatever sphere
of education constitutes purely private expression (protected by
*Pierce*) and the sphere of government-controlled education.  This
appears to be Doug Laycock's point re *Rust*.  If (a) is the premise,
*Rust* controls, at least to that extent.  A goverment-supported
"private" school (weird nomenclature) could be required to keep its
religious instruction at a separate facility and to not have an
integrated curriculum.  But it is the baseline premise that does most
of the work here:  the operating premise is that government may
regulate, with exceptions construed narrowly.  (As I understand the
*Rust* argument, government could require that "private" schools
teach evolution, but perhaps could not prevent them from teaching
creationism at a physically separate facility, with its own funds,
as long as the publicly-funded part of the curriculum made no
reference to the creationism class taught at the separate
facility.  My only question is why government could not, on this
view, require the teaching of evolution with *or without* funding?
If the answer is that mandating the teaching of evolution, in
contravention of the private school's belief system, would interfere
with their liberty to teach anti-evolution, then this would seem to
undermine (a) as the baseline in the first place, wouldn't it?)

5.  If (b) is the baseline, government regulations that impinge on
private educational institution's expressive autonomy, in any respect,
are subject to whatever level of heightened First Amendment scrutiny
would ordinarily be applicable to government action that abridges
freedom of expression.  (Would this depend on what the regulation
is?)  Curriculum regulation sounds like content, hours of attendance
sounds like content-neutral time, place, manner, etc., with lots of
difficult areas falling in the cracks.  Regulation of admissions
criteria would seem to present freedom of association issues against
to Roberts v. Jaycees and Democratic Party of Wisconsin, yes?

6.  If (b) is the baseline, the extension of funding (direct or
indirect?) to private schools is not government "buying" of the
schools but merely the (long overdue) rectification of a system of
selective subsidization of the government's own messages and taxation
(without similar subsidy) of private messages.  The correction of
constitutional violation (in part) in the government's previous
funding scheme does not enlarge the government's power to regulate
private expression.  Curing one first amendment problem does not
authorize creation of a different one.

This is mere hypothesis at this point.  Comments?

Michael Stokes Paulsen
University of Minnesota Law School