Devil's deal…

National Review, Sept 15, 1997 by Ronald L. Trowbridge

JUST about every responsible conservative and Republican in America seems to be pushing choice at public and private schools through government vouchers. I have in hand "The Educational Freedom Amendment" now proposed for the California Constitution; one of the proponents is Milton Friedman. William Bennett, NATIONAL REVIEW, Focus on the Family, the Wall Street Journal, Newt Gingrich, the Heritage Foundation, the Christian Coalition, and countless others endorse full choice. Their arguments are compelling, as far as they go, but all stop short of presenting the full argument, including the price to be paid, the downside if choice includes government vouchers for private schools. Yes, competition is desperately needed to improve public schools by eroding the monolithic control of government and unions. Yes, inner-city youths desperately need educational options. But the full price for these solutions, if private schools are included, is the virtual abolition of private education through government or judicial control.

Let's examine the major arguments of full-choice advocates and apply them to legislative and judicial history:

1. "We the people can legislate a kind of firewall Proposition 13, as was done in California, that keeps private schools 'free from unnecessary, burdensome, or onerous regulation."' I would initially counter that "We the People" also ratified our Constitution, and look how much radical interpretation has been imposed upon that document by revisionist judges over the past two hundred years. Moreover, it defies history and common sense to argue that the recipient of largesse can forever restrict the terms of the giver. Legislators can eventually change the law, as we learned the hard way at Hillsdale College. When certain federal grants were first offered, in the mid 1960s, Congress declared that no strings would be attached. Ten years later, in the summer of 1975, the government and the courts changed the rules: if a single student at a particular college received a government grant, that would make the college a "recipient" of federal funds, therefore required to comply with centralized, political terms from Washington.

On February 28, 1984, the Supreme Court ratified that ruling in Grove City v. Bell. The Court ruled that "Title IX applies to a college that accepts no direct federal assistance but that enrolls students who receive federal grants that must be used for educational purposes." But this recipiency was "program-specific" --that is, only the specific program receiving the federal aid, not the entire college, was required to comply with Title IX. On March 22, 1988, however, Congress, under the Civil Rights Restoration Act, broadened the term "recipient" from "program-specific" to include the entire school. The Title IX language now read: ". . . the terms 'program or activity' and 'program' mean all [emphasis added] of the operations of . . . a college, university, or . . . a local educational agency . . . , system of vocational education, or other school system." Note the inclusion of elementary and secondary schools.

In other words, if one student receives a Pell grant or GI Bill -like voucher and passes it on to any private school, that entire school is subject to Title IX control.

2. "Private schools are already subject to some government regulations, enjoy some government benefits, and are therefore vulnerable to government control anyway." For example, private schools must comply with the Americans with Disabilities Act; they are the beneficiary of public police and fire protection, their teachers and students use public roads, they enjoy tax exemptions, and they are therefore recipients in this sense of government funds. Gary Bauer was asked at our college's seminar in February 1994 why Focus on the Family was endorsing government vouchers for private schools, and his response was that private schools were already subject to some government control, and that, as a result, it would be easy under the status quo for government officials, if they chose, to impose more control on these schools. True. But just because the camel's nose is under the tent does not mean that we should invite the camel fully in. Why gratuitously and conspicuously invite more government control?

3. "Government control is not that bad." On June 26, 1993, I debated Polly Williams and Lamar Alexander at a NATIONAL REVIEW Institute forum. The former Secretary of Education responded that, yes, taking federal money would subject private institutions to "some rules," but those controls were really not that bad. He added, however, "What Ron said is very important. The single biggest obstacle to any sort of broad-scale program that will let the government money follow the kids to the school that parents think is best for them is what Ron said. That's the single biggest problem. . . . We run a serious risk, as Ron said, that with the [government] money will go some rules." Perhaps these "rules" were not so bad on Secretary Alexander's watch, but not all Secretaries of Education or Administrations would grant such leniency. In 1991, then-Governor Clinton signed into law Arkansas Senate Bill 264 replete with political correctness that is now being codified in Washington. This case had to do specifically with Title IX of the 1972 Education Amendments which barred sexual discrimination in funding for school programs, with school sports being the most hotly contested area.