Tuesday, March 25, 2014

The New Politics of School Vouchers: Privatization Masquerading As Constitutional Claims?

Yesterday, I had the opportunity to debate Richard Duncan in a Federalist Society forum on school choice.  In my naivete, I had assumed the point of the debate was academic.  Halfway through it, I felt compelled to point out to the audience that his arguments about religious freedom had moved well beyond constitutional doctrine or sound educational policy.  Rather, he was forwarding a political argument masquerading as a constitutional claim.  I revel in a good political debate as much as anyone else and said I welcomed a political debate, in which everyone would be entitled to their opinion, but the same is not necessarily true in regard to the constitutional and educational policy claims because there are certain baseline facts and doctrines beyond dispute there.

Nevertheless, I left the debate thinking our conversation was limited to a causal Monday afternoon luncheon.  Today, my naivete was exemplified again.  Stephanie Simon, of Politico, reports that taxpayers are increasingly bankrolling the tuition of students attending private religious schools. The current total investment in just 14 states is nearly $1 billion a year.   Since 2010, those numbers are up 30 percent.  Twenty-six additional states are considering measures that would add to this growth.  I knew we had seen an uptick in recent years, but not this much.  This rapid growth is being fueled by political lobbies.  One pro-voucher group, the American Federation for Children, has spent $18 million on these campaigns since 2007.  

Of course, this movement is not new.  James Foreman's article, The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), details how religious advocates for vouchers drew on inner city communities' interest in escaping failing schools to secularize their voucher claims, and how the Supreme Court then sanctioned it.  But as charters became more readily available, inner city communities' interest in vouchers fizzled somewhat and, with it, the necessary political support to pass legislation.  What is interesting in this new round of advocacy is that since the Court has sanctioned vouchers that place students in religious schools (because the overall program is non-discriminatory and the purported purpose secular), voucher advocates appear more willing to assert religious freedom, if not entitlement, as the basis for expanding voucher programs.  They claim the state is discriminating against them if it does not provide them with vouchers.  Current doctrine, of course, does not support such a claim. But pushing back against this claim requires that one sees it for what it is: a political claim. Moreover, it may not even be the politics of religion pushing it, but the politics of privatization, which use religious and minority interests as window dressing for a larger agenda.  


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