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Article of Interest - Court Cases

Vouchers: Proceed with Caution

The Supreme Court’s Cleveland ruling, a stunning victory for public education reform, could loose a boa constrictor on private schools.

M. David Stirling, California Political Review, July 17, 2002

M. David Stirling, vice president of Pacific Legal Foundation, writes a regular column, “Those in Power Over Us,” in California Political Review.

The recent Supreme Court decision holding constitutional Cleveland’s use of taxpayer- funded vouchers at private and parochial schools is touted in glowing terms by most conservative commentators. “The most important civil-rights case in almost 50 years,” declares one. “One of the most significant political decisions ever made by the Court,” comments another, adding that the “decision will do more to rescue a deteriorating educational system than any other act to come from Washington, D.C.,” in 25 years. And I agree with both assessments. Indeed, recognizing the forces in conflict within the public education arena, I am heartened that vouchers, as a concept, were preserved by the High Court as a viable alternative in the ongoing public education debate.

Yet, while vouchers may be an effective vehicle for introducing “competition” into the moribund public education monopoly, I am troubled by a rarely discussed, but undeniable, fact of modern government regulatory life: where taxpayer-generated revenues fund education vouchers that are redeemable by students at private or parochial schools, state legislatures are empowered to tie regulatory strings to the recipient schools’ acceptance of vouchers. While vouchers may be good medicine for public education’s many ailments and the thousands of children locked into poorly performing schools, I fear the mischief those responsible for the dismal state of public education today will wreak on participating private and parochial schools. The independence of such schools — indeed, their distinguishing characteristic — is imperiled by the public revenues used to fund vouchers.

In the Cleveland voucher case, the Supreme Court found only that student use of public vouchers at private schools is not unconstitutional. The Court did not address how state adoption of a public voucher system might affect participating private or parochial schools. But it clearly spoke to that question back in 1984, in a case called Grove City College v. Bell, Secretary of Education.

Grove City College, a private, co-educational, liberal arts college, chose not to accept direct federal financial assistance specifically to avoid the regulatory conditions that follow receipt of “public funds.” Also, it did not directly accept federal student grant funds. But the College did enroll students who themselves directly received federal student grants and used them to pay tuition. On that basis, the federal Department of Education sought to force the College’s compliance with its regulations. When the College objected, the Department terminated it as an approved institution for redemption of its student grants.

In short order the Supreme Court rejected the College’s argument that it should not be forced to comply with the Department of Education’s conditions because it was not the direct recipient of the Department’s grant funds, stating: “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. Grove City may terminate its participation in the ... program and thus avoid the requirements of (the program). Students affected by the Department’s action may either take their (federal grant funds) elsewhere or attend Grove City without federal financial assistance.”

And therein lies the cause for my concern about vouchers. There is no appreciable difference between Grove City College indirectly receiving federal student grant funds and private or parochial schools indirectly receiving state voucher funds. Whether established by the legislature, or by voters through the initiative process, any voucher law that allows students to use taxpayer-generated revenues to attend private or parochial schools will attach strings in the form of conditions or requirements with which the school must comply.

Some private schools, including Christian schools, may decline to participate in a voucher system for fear it would jeopardize their independence. State regulations can affect curriculum and book selection, student discipline, teacher training, licensing, salaries, and even tenure, among other concerns. At the same time, parochial schools that for decades have offered quality educational opportunities to poor families, may conclude that more such students can be served through acceptance of public vouchers.

It would be sad if, some years from now, instead of vouchers adding the “competitive” element to improve K-12 public education, vouchers provided the vehicle by which private and parochial schools lost their unique quality of independence, and thus became more like public schools. One thing seems certain: When public dollars are flowing, those inclined to regulate — and government is increasingly filled with them, both elective and bureaucratic — will treat private and parochial school recipients the way a boa constrictor treats its prey.

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