On the eve of Betsy DeVos' hearing for education secretary I was wondering if there is any clear provision in the Constitution against vouchers & school choice? Will they need new legislation to pass these reforms?
No there are no explicit provisions against school choice. Perhaps some argument could be cobbled together on the equal protection clause of the 14th Amendment, but given that choice was immortalized in the Roe vs. Wade decision, and a right to privacy so discovered, I don't see how it could happen, frankly.
Or perhaps it could be found in the Ninth and Tenth amendments, the so called federalism amendments. But if applied to those, the whole canon of federal law and regulation on education, including the Department of Education itself, could come under scrutiny as unconstitutional as well.
Yes legislation will be needed here.
Why would you look in the Constitution for such a provision?
The Constitution is quite short (about the length of a large restaurant menu), and only covers the broadest outlines of government. The Code of Federal Regulations (CFR) is where most detailed answers are found.
Among other things not found in the Constitution:
- The Air Force
- Housing and Urban Development (HUD)
- Department of the Treasury
- Food and Drug Administration (FDA)