Mitchell v. Helms and school choice

[Michael MASINTER]

I can find nothing in Mitchell which undermines the holding in Pierce v.
Society of Sisters that the first amendment ensures the freedom of parents
to choose private religious education for their children.

On a more serious note, I think the question of whether states can fund
voucher programs without violating the Establishment Clause remains open.
Four justices clearly would answer yes, three pretty clearly would answer
no, and Justices O'Connor and Breyer continue to play their cards close to
the vest.  Justice O'Connor may be traveling a reverse Shaw v. Reno path,
insisting that neutrality in funding may potentially still violate the
Establishment Clause, but never invalidating an actual application on that
basis.

I gave up gambling for teaching many years ago, but were I forced to bet,
I would bet in favor of vouchers, with Justice O'Connor providing the
fifth vote.  Assuming something like voucher programs passes muster, it
will be interesting to see how long it will take states and Congress to
condition acceptance of vouchers upon compliance with various mandates.
Congress has found the temptation to attach conditions to federal funds to
be all but irresistable (e.g., sectarian schools are exempt from Title
Three of the ADA, but those which accept federal financial assistance are
subject to the virtually identical provisions of section 504 of the
Rehabilitation Act).  Of course, the fear of a faustian bargain is a
political concern, not a constitutional issue.

If Thomas neutrality becomes the rule, then would states violate either
the free exercise clause or the equal protection clause by limiting
voucher programs to nonsectarian schools?

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Wed, 28 Jun 2000, Volokh, Eugene wrote:

>         Any thoughts on what Mitchell v. Helms means to school choice
> programs?
>