Getting federal school choice legislation passed might be easier said than done—especially given the hyper-partisan nature of education policy debates in recent weeks.

During the campaign, President Trump promised a $20 billion school choice voucher program. His pick of an avowed school choice activist to lead the Department of Education, Betsy DeVos, is a sign the President is serious about fulfilling that promise.

As the legislative season rolls toward spring, Republican lawmakers on Capitol Hill are faced with working out the details of the proposal and getting legislation to the White House.

There are two likely formats Republicans could rally behind. In one version, they would create a new federal grant program, similar to Title I for low-income students or IDEA for disabled students. In another proposal, they would borrow the blueprint for a tax-credit voucher program—or “education savings accounts”— from states like Arizona or Nevada.

According to Politico’s reporting, Republicans are likely to push for the latter route—creating a voucher program that would rely on tax incentives to support school choice.

Going in that direction makes sense for a couple strategic reasons. Not only do Republicans need to ensure that a vote to fund vouchers is politically acceptable to the deficit hawks in their caucus, but the Republican-backed voucher proposals also face a set of legal obstacles erected over a hundred years ago by members of their own party.


The Political Calculus

When the school choice initiative was announced during the campaign, Trump’s team issued a release that said: “Mr. Trump’s first budget will immediately add an additional federal investment of $20 billion towards school choice. This will be done by reprioritizing existing federal dollars.”

The wording was unclear to federal policy wonks—was the candidate saying that existing federal education programs would be melted down and reauthorized under new rules, or would the $20 billion come from somewhere else in the budget?

The federal government spends over $26 billion in Title I and IDEA funds for K-12 students. While Republicans in Congress have previously introduced legislation that would make those funds “portable” such legislation wouldn’t fit the bill of “an additional federal investment of $20 billion towards school choice.”

Furthermore, while considerable attention was given to the role of teachers unions in the bitter confirmation fight over DeVos’ nomination, parents of children with disabilities also emerged under-the-radar as a single-issue voter bloc to be reckoned with.

Jack Jennings, a longtime former Democratic education committee staffer and the founder of the Center on Education Policy, said he thought Republicans were “taken aback” by the reaction from IDEA parents. “They’ve learned this is a sensitive area.”

Therefore, if funding $20 billion in school choice can’t come from the education department’s budget, any proposal would necessarily add to the deficit. A highly informal survey of this weekend’s gathering of the Conservative Political Action Committee revealed just how complex that approach would be. Conservatives are split on whether school choice is important enough to warrant more spending.

“As much as I hate deficits, it’s an objective worth pursuing,” said Michael Neher, who attended the yearly conference. Neher said he hoped lawmakers would be able to find other programs to cut in recompense.

Jeff Stein, another conference attendee, disagreed: “The federal government shouldn’t have any kind of program which would allocate any kind of federal dollars—whether it’s a conservative or liberal cause—in regard to education.”

Instead, the appeal of adopting tax credits to fund the initiative, from a political perspective, is two-fold.

A handful of states, such as Arizona, offer corporations, (or in other cases individuals), tax incentives to donate money to non-profits who then give scholarships or “education savings accounts” to low-income families or students served by failing schools. There are multiple permutations for tax-credit funded education savings accounts. But in most cases, they can then be used as a form of educational voucher, allowing students to use the funds to attend private schools or secure private tutoring services.

So the first political advantage to instituting a federal tax credit would be that it could be sold to members of Congress as a tax break, rather than a spending increase.

The second political advantage, as Politico reported, is that the credits could be included as part of a larger tax reform process. Therefore, the proposal could be enacted through budget reconciliation, which would only require 51 Senate votes.


The Little Blaine Amendments

There is another more technical reason why a tax-credit program could be the way to go for Republicans—and it’s rooted in an education policy debate that raged in the late 1800’s.

During Reconstruction, liberal northern Republicans made a push for universal public education—in part to support the advancement of freed slaves. Their opponents, the Democratic Party, represented a coalition of white southerners and immigrants in northern inner cities—many of whom were from Catholic countries.

As Democratic immigrants began putting up Catholic schools, James G. Blaine, a former Republican Speaker of the House from Maine, nearly pushed through a Constitutional amendment that would prohibit public funds from going to private religious organizations—including schools.

While the amendment failed in the Senate, GOP activists of the era took the fight to statehouses, and today, more than two-thirds of states have “Little Blaine Amendments” on the books.

Today’s state-level Republican school choice activists have found themselves “hoisted by their own petard,” said Jennings.

While these “Little Blaine Amendments” do not apply to the federal government, Washington only contributes a total of about 10 percent of educational resources to states and local school districts. Therefore, if GOP leaders truly want to expand choice for all students, they’d likely need to create a framework that would allow states and local districts to back the proposed voucher program with their own financial weight.

The advantage of the tax-credit proposal, from a pro-school choice perspective, is that the money used to fund the vouchers never enters government coffers. A tax-break would allow state-level Republicans to circumvent even the strictest Little Blaine Amendments that bar even indirect appropriations from going to support religious schools.

Douglas Laycock is an expert in religious liberty law at the University of Virginia. He has testified before Congress and argued religious liberty cases before the Supreme Court. He pointed to an Arizona ruling in which the state Supreme Court upheld a tax-credit voucher law, specifically because it wasn’t funded through appropriations.

In an email exchange with InsideSources he wrote that conservative lawyers “may be predicting that there’s a better argument to defend tax credits under Little Blaine Amendments than to defend appropriations.”

Of course, this line of reasoning only applies if “the federal proposals mean to involve the states in some way,” wrote Laycock.


Support From Conservative Policy-Shops 

One of the main proponents of a school-choice tax credit is the American Federation for Children, a national school choice advocacy group founded by DeVos before she took office.

The group issued a press release this week backing the initiative at the federal level, along with other school choice priorities. Given its ties to the current education secretary and its presence in numerous states, the AFC is an important bellwether to watch for clues on how a school choice proposal might unfold. The right-leaning Fordham Foundation has also expressed support.

Regardless of what shape an eventual school choice bill takes, one should not expect the proposal to include mandates that states adopt education savings accounts. DeVos repeatedly promised there would be no mandatory voucher program during her confirmation hearings, and top Republicans have publicly celebrated the 2015 passage of the Every Student Succeeds Act, which devolved considerable educational policy making authority to states.

Because no plan has been formally unveiled yet, Republican staffers on the Hill did not confirm Politico’s report that a tax-credit plan is in the works. However, one committee spokesman did allude to “significant interest” in exploring various options to increase parent school choice.

Any option the GOP ends up backing will face headwinds from the left. Liberals have widely circulated Friday’s news that new studies show poor results for students in voucher programs, and teachers unions have signaled in the past that any voucher program—including education savings accounts—is a nonstarter.

Connor Wolf contributed to this report

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