Fifteen Eighty Four

Imagine you’re a policymaker who wants to expand parental choice of private education. You’re not alone: sixty school voucher programs operate across the United States, offering hundreds of thousands of families the money to pay for private school tuition. Virtually all of them were created in the last two decades. What explains this explosive recent growth? Where did these policies come from? And how do you – the policymaker – fight political challenges, pass your legislation, and ensure your program survives into the future?

Maybe you think it will be easy? After all, President Trump and his education secretary, Betsy DeVos, have been pitching a federal tax credit voucher scholarship for years. School choice is the Trump administration’s education policy. There are plenty of policy designs for you to copy, from Arizona to Wisconsin to Florida, and freely-available model legislation from that conservative powerhouse, the American Legislative Exchange Council (ALEC). Besides, who could oppose choice for children? You’d think it would be a slam-dunk. Not so fast.

You’re forgetting the courts.

If you pass the legislation your opponents – teacher unions and public school representatives – will hit you with lawsuits straight away. If your vouchers end up being used at religious schools, they’ll argue that you’re subsidizing religion in violation of the Constitution’s Establishment Clause. Most private schools are religious, so paying tuition there makes your program vulnerable to the charge that you’re using taxpayer money unconstitutionally. But if you exclude religious schools from your program (like they did in Montana and Maryland just recently) then you’re also vulnerable, because you’ll be hit by the Free Exercise Clause: unconstitutionally excluding religious institutions from a public benefit just because they’re religious. The Founding Fathers attempted to balance religious protections on a tightrope: government, don’t interfere with religion, and religion, don’t interfere with government. Navigating the First Amendment is no cakewalk.

Even if you manage to avoid the Establishment and Free Exercise prongs, you face dozens of state constitutional provisions guaranteeing a right to an adequate, free, non-discriminatory, public education. These provisions form the basis of legal challenges too. Your opponents can argue in court that you’re draining cash from the public schools and diverting them to the private sector. In the last few weeks alone, programs in Florida, Indiana and Tennessee have been challenged on the grounds they’re subsidizing some private schools that discriminate against gay students and staff. If you’re a school choice supporter, how do you protect your policies against these legal attacks?

The solution is to hide the role of the state. Instead of funding vouchers directly, do it indirectly. You don’t have to appropriate money for a voucher payment. Instead, deduct the taxation that you would otherwise collect on individual and corporate donations to third-party organizations, which administer the vouchers on your behalf, providing payments to individual families rather than directly to schools. These ‘tax expenditure’ programs are complicated but you can plausibly claim they don’t involve public money. Yes, you’re subsidizing specific activities through the tax code. But the role of the state is obscured. Foreground private donations, individual consumers and children, and you take the emphasis off government.

Over seventy years of voucher litigation, programs that use tax expenditure funding and private delivery mechanisms are more likely to pass than directly-funded vouchers, less likely to be challenged in court, and more likely to survive challenges if brought. This privatizing strategy has a long pedigree. When the Supreme Court started to dismantle segregation in the mid-twentieth century, white supremacists infamously sought to avoid challenge by de-emphasizing the role of the state in supporting restrictive covenants, ‘privatizing’ white primaries, and transferring public property (parks, swimming pools, and other recreational facilities) to private hands – all while maintaining it with public funds. Even liberals have used these privatization strategies to achieve their aims indirectly. For instance, funding housing voucher programs allows them to help low-income urban families without subsidizing stigmatized public housing outright.

It’s all about tactics. Facing hostile courts for decades, policymakers learned what it takes to win. Once they hit upon the right formula – privatize delivery, use the tax system, and don’t mention the state – they achieved stunning success. If you can make out that it’s not public money, it’s much easier to pass your program and defend it from legal challenges from the left. And you can placate worries on your right flank too. Some conservatives are worried that Trump’s $5 billion tax credit scholarship plans will grow the federal bureaucracy and involve state interference with private schools. ‘It’s not really government money’ is a valuable line of defense.