Regulating school vouchers

The gurus of school choice have often shuddered at the word “regulation.” On occasion this instinctive hostility has been tactically justified. Viewed objectively, however, it is meaningless – even self-contradictory. And too often has it driven fair-minded listeners from the civic conversation about the ideal structure of this very necessary reform called “school choice.”

Regulation is itself a pre-condition of any system of choice, whether the intended beneficiary be the have-not family or the comfortable suburbanite. The empowerment of parents always comes as the effect of a particular set of rules. Nor is this reality limited to reforms aimed at the complex and private world of the family. The simplest of legal systems – one, for example, that embraced the most complete market freedom – would depend upon the regulatory oversight of some third-party authority to interpret and enforce those promises which constitute any market. Contracts are not self-enforcing. Nor is parental choice or any other human regime.

Children present perhaps the most obvious example of my point; by nature their lives will be regulated by someone. The only question is “by whom?” That the state will be one of the players seems quietly accepted by all. This includes the school choice reformer who has unequivocally embraced compulsory education – a thing to be enforced and paid for by the state. The issue, then, becomes how far beyond the requirement of schooling shall the state penetrate the natural territory of the family?

We appear to agree on rules forbidding child abuse. Beyond this and compulsory schooling, where shall we the people allow (or require) the state to go? The answer can come only in some cluster of regulation – some that command, some that limit the state. If it is parents who are to rule (i.e., to regulate their children), then government must be commanded (again, regulated) first – in a positive way – to subsidize the family’s preference in schooling, and second – negatively – to avoid subverting parental authority by unnecessary busybody rules. The state itself must be ruled in both positive and negative ways: it must do this; it may do this – but not that.

Through our constitution and our politics, we are invited to create the more detailed statutory and – yes – regulatory answers that shall clarify the parental authority over Jimmy. Just as there are rules about food stamps, there will be rules about vouchers. You can’t use stamps to buy beer; and you can’t use your voucher for a school that teaches no English. In short, you will be regulated; hence, let us be about the necessary business of drawing lines to empower the family.

We need not here contest America’s admiration for suburban parenthood. This society has regulated so as to empower the comfortable family with school choice – and that seems correct. We need only extend this regime of mothers and fathers to families who presently can’t afford its economic preconditions. They are not to be disenfranchised and themselves treated by society as children; they must be recognized as responsible; but any such extension of practical power will require regulation. In this barest of introductions, I will merely suggest how regulation that is intended to extend choice can be categorized in specific ways to encourage intelligible discussion in later essays like this, but focused upon such particular matters as information, admission, and so forth. In these later essays I will be assuming that the object always is to constitute systems that roughly recapitulate that model which has so long and so well served those who could pay for a house in suburbia. How can every American parent be offered the choice that I myself treasured? Unless there is some subtle objection to treating ordinary parents as responsible agents, the only issue is technique. And, if there is such an objection against trusting workers and disadvantaged families, let’s hear it; if not, in the name of justice, let’s proceed to ponder together how we can best regulate in the name of choice.

It is my present intention to break this series of essays into perhaps six parts focused separately on such questions as the following: 1) the size of the parental subsidy and the freedom of the school to impose add-on tuition and to accept external private support; 2) the need for admission rules that protect access for lower-income families and the disabled; 3) the scope of the school’s duty to inform the parent about various matters such as curriculum, test scores, and faculty qualifications; 4) the duty to test and the selection of the test; 5) due process in discipline and in academic expulsion; 6) the criteria determining the school’s qualification to participate. There will be other issues to be touched on in passing.

My present intention is to focus exclusively on systems that regulate “vouchers” – that is subsidies direct to the parents from government. I will not deal with tax-credit systems designed to promote school choice. Many of the same issues arise under each type of system, but I would like the American Center to begin this particular effort at civic education in as simple a form as possible. Very soon my attempt to clarify voucher regulation will be followed by and merged in more sophisticated essays on the regulation of tax credits. These will be the work of my very distinguished colleague and vice chair of the American Center, Stephen D. Sugarman.

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BY John E. Coons

John E. Coons is a professor of law, emeritus, University of California at Berkeley, and author with Stephen D. Sugarman of "Private Wealth and Public Education" and "Education by Choice."