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?

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    Extra freedom was seen as a major problem by the Founding Fathers. – user4012 Jan 18 '17 at 5:04
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    @user4012 That's a bit unfair; there's some genuinely interesting case law around the subject. – Avi Jan 18 '17 at 5:18
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    For the sake of clarity: are you asking whether vouchers would conflict with the Constitution, or with current law? There seems to be two questions here. – Avi Jan 18 '17 at 5:19
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    Where in the Constitution is there authority for the Department of Education, and the dispensation of public monies collected through Taxation towards Government Schools? – Drunk Cynic Jan 18 '17 at 6:07
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    @Avi - generally, the body of the question has primacy over (sometimes, incorrectly condensed) title. – user4012 Jan 18 '17 at 7:47

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.

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    The usual constitutional argument against school choice is based on the first amendment and involves supporting religious instruction. Of course, they then have to explain why that doesn't prevent secular education from espousing views contrary to religion. They also have to explain why school choice is legal for colleges, where it is the standard. – Brythan Jan 18 '17 at 16:03
  • @Brythan, K Dog: what is "school choice" and how is the concept, whatever it is, even relevant to college, when postsecondary education is not mandatory? Brythan, who does "they" refer to in your comment? – phoog Jan 18 '17 at 17:27
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    @phoog school choice is allowing the parents of school aged children to choose a school, public or private, for which their offspring may attend, assuming they meet entrance criteria and pay the tuition. Currently in most jurisdictions, for public schools parents have two choices: one school or home school – K Dog Jan 18 '17 at 20:58

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:

  • NASA
  • The Air Force
  • Housing and Urban Development (HUD)
  • Department of the Treasury
  • Food and Drug Administration (FDA)
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    This is really just half the answer. It doesn't contain an answer to the question "Will they need new legislation to pass these reforms?". You could also greatly improve this question with a summary of what the CFR says about the topic. – Philipp Jan 18 '17 at 15:01
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    This doesn't mention any of the establishment clause challenges to voucher programs. – Avi Jan 18 '17 at 18:16

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