The neutrality principle: the Supreme Court will soon reconsider Washington State's revoking of Joshua Davey's college scholarship after he decided to major in theology. Will its decision render the Blaine amendments, provisions of state constitutions that prohibit aid to religious schools, unconstitutional? - feature

Education Next, Fall, 2003 by James E. Ryan

Regulating Voucher Schools

A separate and equally vexing set of questions facing voucher programs has to do with government regulation of private schools. States may want to regulate schools that accept vouchers in at least one of two ways. First, given the popularity of the accountability movement, states may require voucher schools to follow state academic standards and administer standardized tests. Second, they may enact laws that protect prospective students and teachers from discrimination based on certain characteristics, such as race, gender, religion, or sexual orientation.

As for the first concern, some states may not have much of a choice when it comes to monitoring the performance of students in voucher schools. In about 20 states, courts have concluded that students have a state constitutional right to an "equal" or "adequate" education. To guarantee that right, legislatures are often required to ensure a certain level of funding to public schools and to provide a realistic opportunity for students in those schools to meet certain academic goals. It is quite possible that this duty would also extend to voucher schools. To the extent that the right to an equal or adequate education is a personal right, held by each student, the legislature may be required to ensure that any school that a student attends with public funds delivers a constitutionally sufficient education.

Consider the voucher program in Florida. A recent constitutional amendment states that students in Florida are entitled to a"high quality" education. Under Florida's program, vouchers are available to students attending schools that have received a grade of "F" for performance for two consecutive years. Presumably such schools are not providing a high-quality education. Private schools in Florida are not currently graded or otherwise monitored in the way that public schools are. The question is whether simply providing vouchers to students, who can use them to attend better public schools or private schools, is sufficient to satisfy the legislature's obligation to provide a high-quality education to all students. This is a hard question.

The legislature's duty might be satisfied as long as students have a"genuine choice," to borrow a phrase from Zelman, to attend at least one school that delivers a high-quality education. But even this limited duty would require the state to regulate at least some private schools if there are not enough seats in "good" public schools. And it is quite possible that a court would go further and require the state to ensure that all participating voucher schools deliver a high-quality education. It would follow that whatever public schools are required to do in order to ensure a high-quality education, voucher schools may also have to do. It could also follow that, to the extent that a certain level of funding is required to guarantee a high-quality education, the value of the state voucher must not fall below the constitutionally required level of funding per pupil.