How Many Objections Can Dance on the Head of a Voucher?

This article appeared on National Review (Online) on September 17, 2007.

Dick Komer, in response to my article, “Credit Is Preferred,” charges that I “recklessly dismiss” vouchers while indulging in “carelessness” based “on a poor understanding of the state of constitutional law.”

It probably comes as no surprise that I respectfully disagree. In support of his critique, Komer cites what he believes are two errors in my article: “that vouchers are government funds under Blaine Amendments” and therefore “ineffectual in any state with a Blaine Amendment,” and “that unfortunate decisions from the Colorado and Florida supreme courts doom vouchers elsewhere.”

Neither of these claims of error is correct; although the lack of nuance in my article may have courted misinterpretation, the statements with which he wrestles are caricatures of what I actually wrote. The article is adapted from a policy paper to be published by the Cato Institute in early October, which deals more fully with legal minutiae that are difficult to address in a short opinion piece. I hope the paper will answer any questions this article has prompted, but in the meantime, I hope this reply will help.

First, there is no disagreement between me, Komer, or any state courts that vouchers are government funds. Vouchers are government checks drawn on government revenues. In my article, I write of general and credible legal threats to voucher programs; because vouchers are government funds, they are vulnerable to being overturned on the basis of many state constitutional provisions. I know that Komer agrees with this point because his employer, the Institute for Justice, published a report describing these threats in detail and recommending that vouchers not be pursued in many states.

State courts in Wisconsin and Ohio have ruled that because parents, not the government, spend the government dollars there is no conflict with constitutional restrictions. Three other states, Colorado, Florida, and Vermont, have found that the government funds are used in a way that violates state constitutional restrictions and have thereby struck down the voucher laws. The use of government funds, in other words, does not automatically result in vouchers violating state constitutional restrictions. Nothing in the courts is certain. But the use of government funds opens myriad avenues of credible — and in some cases, already successful — legal attacks to which tax credits generally are not vulnerable.

Second, Komer’s easy dismissal of examples such as Colorado and Florida misses the point. These precedents illustrate how the use of government funds creates unanticipated legal vulnerabilities that tax credits avoid. These voucher programs were overturned on legal reasoning that relied on unexpected provisions in those states’ constitutions. Both rulings, however, relied on the fact that vouchers are government funds.

In his effort to deflate my argument, Komer actually reinforces it, noting that “tax credit programs in Illinois and Arizona have withstood legal challenges, while programs in Minnesota, Iowa, Pennsylvania and other states have not even been challenged.” Why is it that in the past 25 years every state voucher program that includes religious schools, excluding special needs programs and states with settled voucher precedent, has been challenged? Could it be that our opponents put their money on better bets?

Let’s step back from these legal details for a minute and take a look at the big picture again. In general, vouchers are more vulnerable to legal challenges than tax credits. These vulnerabilities cannot always be anticipated, but where opponents have been successful it is because vouchers are government funds. Conversely, several state court rulings upholding education tax credits (e.g., those in Arizona and Illinois) specifically cite the fact that credits are private funds as a central reason why they were upheld. Credits close off a major avenue for legal attacks by opponents of school choice.

So, here’s a question: Why risk it? Why ask legislators to vote for a more legally vulnerable policy when we — and even school‐​choice opponents — know that there is a less vulnerable alternative?

The most important point is that the greater legal vulnerability of vouchers is only one among many reasons to prefer education tax credits. Credits are also more popular with the public, can command a larger and more energized coalition, are less susceptible to burdensome government regulations, allow individual taxpayers a say in how their education funds are spent, reduce reliance on sub‐​optimal third‐​party payment, and create powerful political dynamics that make it easier to expand the programs later on.

Why not focus on the best school‐​choice policy?