How School Voucher Laws Protect Discrimination.


When an institution receives money from the government, just how many strings are attached?

Some string history

It’s not a new issue. In 1976, the federal government cut off aid to students of Grove City College, a small church-affiliated college in northwestern Pennsylvania; the termination of aid was in response to the college’s refusal to fill out Title IX compliance paperwork. The college sued, and the case made it to the Supreme Court.

Meanwhile, the college started refusing all government aid packages for students, just to avoid those government strings. SCOTUS ruled, sort of, in favor of the school; then in 1987, Congress passed the Civil Rights Restoration Act of 1987 that plugged the holes highlighted by the ruling and declared that if a school accepted any federal dollars, they must comply with all civil rights rules. Grove City College (like Hillsdale College) has never accepted a dollar in direct aid or via student aid packages.

The question of strings is at the heart of a case the Supreme Court may hear this term. Peltier v. Charter Day School is, on the surface, about a charter school’s dress code for female students. But the case hinges on the question of whether the charter school is a state actor or a private business. If they are state actors, they must abide by the same rules and regulations that public schools must. The taxpayer dollars they collect will come fully laden with strings.

There have been attempts to cut those strings. In a fifteen-page opinion issued December 1, Oklahoma Attorney General John O’Connor argued that in the wake of Trinity Lutheran, Espinoza, and Carson, he believed that SCOTUS would “very likely” find Oklahoma’s charter law restriction on nonsectarian or religious charters unconstitutional. Therefore, his opinion is that the state should no longer follow the law forbidding sectarian or religious charter schools.

Charter schools may have to struggle within this grey area a while longer, but backers of new school voucher laws believe they have found a way to cut the strings entirely.

The school voucher declaration of independence

As waves of education savings account proposals have rolled across the country, most are crafted with the following language.

(b) This article does not limit the independence or autonomy of an education service provider or make the actions of an education service provider the actions of the state government.

(c) Education service providers shall be given maximum freedom to provide for the educational needs of Hope Scholarship students without governmental control.

(d) A participating school or education service provider is not required to alter its creed, practices, admission policy, hiring policy or curriculum in order to accept eligible recipients whose parents pay tuition or fees from a Hope Scholarship account pursuant to this article.

(e) This article does not expand the regulatory authority of the state, its officers, or any school district to impose any additional regulation of education service providers beyond those necessary to enforce the requirements of the program.

This excerpt is taken from West Virginia’s ESA law passed in 2021. Utah’s recently passed bill uses nearly identical language; like several more recent bills, it has added some language stating plainly that any provider “is not an agent of the state” and “has maximum freedom” to do as it wishes. One can find the same language in new voucher bills in Virginia, Iowa, Oklahoma, Wyoming, South Carolina, and Idaho.

The similarity of voucher bills should not be a surprise. Both the American Legislative Exchange Council (ALEC), where business leaders and legislators get together to draft model legislation, has a model education savings account bill that aligns with their 2022 education policy goals. The Institute for Justice, a libertarian law firm that champions “economic liberty” also has a model bill. The bills pushed in states follow one or the other (or both) closely.

What’s the danger here

The intent is clear enough—to provide education service providers (private schools, tutors, education materials publishers, etc) with the ability to use taxpayer dollars however they see fit. No officials can ask them to alter their “creed, practices, admission policy, hiring policy or curriculum,” meaning that a private school could be free to discriminate as it wishes, even as it uses taxpayer dollars to deliver religious instruction.

This allows states to operate—and require taxpayers to fund—a school system that exists in parallel dimension where the United States Constitution is forbidden to reach. Private schools and other education service providers will be free to discriminate against students and staff on the taxpayer’s dime. The voucher non-interference language further insures that the system will be one in which it is the school, not the family, that has choice—”admission policy” is one of the protected areas.

We’ve already seen vouchers used to send millions of taxpayer dollars to anti-LGBTQ schools and schools with anti-science curricula. We’ve seen plenty of research indicating that voucher programs hurt result in sub-par education for students. But with laws written to protect such actions, it’s hard to know how far such taxpayer-funded miseducation could go.

Consider the recent discovery in Ohio of Dissident Homeschool, a national network of Nazi homeschoolers whose leaders are “so deeply invested into making sure that that child becomes a wonderful Nazi” and “secure a future for white children.”

Ohio’s state school board president can “emphatically and categorically denounce” such materials being used to teach children, but in states that adopt the string-cutting language in education savings account bills, taxpayers would pay for Nazi homeschooling, even as the state promises not to require anyone to alter their “creed or practices.”

Writing laws designed to forbid oversight or accountability may protect the ability of some folks to discriminate, but those laws certainly don’t protect the interests of taxpayers, society, or the students themselves.



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