Theorizing the Submerged State: The Politics of Private Schools in the United States

Abstract

In this paper, I apply Mettler's concept of the “submerged state” to aid for children at private schools in the United States, including education vouchers, in‐kind aid, and property tax exemptions. All aid policies are “submerged” in that they help private organizations take on state functions but some are more submerged than others. Theoretically, this paper distinguishes between subcategories of submergence. Using policy data from 50 states and an original database of court challenges between 1912 and 2015, I employ probit regression with sample selection to evaluate the effect of submergence on successful court challenge. I find that more submerged policies are less likely to be successfully challenged than less submerged policies. Submerged policy design enables supporters to avoid legal as well as political challenge.

Attenuated Governance: How Policymakers Insulate Private School Choice from Legal Challenge

“…They are one of the grounds for challenging the constitutionality of voucher programs, although there are many others. There is lively scholarly dispute about the extent to which these No-Aid Provisions and their failed federal counterpart reflected anti-Catholic animus (Green, 1992;Hackett, 2014;Viteritti, 1997), but it is undisputed that the majority passed during a period of widespread anti-Catholicism. States with larger Catholic populations were statistically significantly more likely to pass strongly worded No-Aid Provisions than those with smaller Catholic populations (Hackett, 2014).…”

“…After the Supreme Court struck down segregated education, state governments' attempts to perpetuate it were vulnerable to legal challenge. Forty state constitutional provisions prohibiting public aid for denominational schools make it risky to fund religious education openly (Hackett, 2014).…”

“…The overwhelming majority of the vouchers (96 percent in the Ohioan case) were spent at religious schools. For opponents, voucher programs violated the separation of church and state (enshrined in 40 state "Blaine Amendments" 7 and the First Amendment) by unconstitutionally aiding religious institutions (Hackett, 2014). "Child benefit theory" and attenuated policy design could help here: by funding the individual consumer and not the school directly, the state could avoid legal confrontation (Hackett, 2017).…”

“…Hidden, delegated, or “submerged” forms of governance are expanding rapidly across America in health care, education, and many other policy arenas (Faricy, ; Hacker, ; Hackett, ; Mettler, ). These governance arrangements utilize private organizations and the tax system to deliver government social policy, weakening the link between the state and the institutions it funds.…”

“… Deeply attenuated programs are tax expenditures, rebates and credits, and policies delivered by third parties with more than one private organization interceding between the state and policy outputs; weakly attenuated ones are quasi‐direct contractual arrangements between the state and private providers. For a full account of the coding procedure used to distinguish deeply and weakly attenuated programs, see Hackett (). …”