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date: 23 October 2019

Abstract and Keywords

When the Court in Tinker v. Des Moines famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” everyone understood that the gate was the entrance to a public school, funded by state tax dollars and operated by state officials. No one on the Court had yet contemplated what might happen to those students’ rights if the gate accessed a private school and public funds were used to buy that entry. Publicly funded subsidies for private education have evolved considerably since the Court heard Tinker and now parents in many states may use public funds to choose the school for their child via voucher programs, tax credit scholarship programs, and education savings accounts. But what impact does such a choice have on the rights students typically enjoy in schools? This chapter explores that question and explains that even though voucher and voucher-like programs like tax credit scholarship programs and education savings accounts are publicly funded, the rights afforded to children when they enroll in a private school through such a program do not mirror those enjoyed in public school settings. In fact, when parents exercise a voucher, they effectively trade constitutional protections for contractual obligations. That trade has significant impacts on the claims that may be brought should concern arise over issues related to students’ rights to freedom of speech, freedom of religion, or due process.

Keywords: School vouchers, Free speech, Due process, Students rights, Public/private distinction, Private schools, Tax credit scholarships, Education savings accounts, Zelman v. Simmons-Harris

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