Just How Bad Is the ‘Educational Choice’ Bill in Congress that Trump Is Expected to Support?

For years, a powerful faction of political conservatives has pushed for creating a federal school voucher program alongside the many state-level voucher programs that have recently passed. During her tenure as U.S. Secretary of Education during Donald Trump’s first presidential administration, Betsy DeVos advocated for creating a federal voucher program, but she was not able to successfully launch it.

Now, a federal voucher bill called the Educational Choice for Children Act of 2024 (ECCA) is making its way through Congress, and is expected to receive the support of Trump and his Education Secretary pick, Linda McMahon.

If passed, the ECCA will fund vouchers through a tax credit system. Contributors (which the bill refers to as “any taxpayer”) will donate money to a 501(3)(c) scholarship granting organization (SGO), which in turn awards the money as vouchers to families. The families may then use the money for a variety of education-related expenses, including private school tuition. Contributors then receive a dollar-for-dollar credit on their federal tax bill of up to $5,000 or 10 percent of their gross income—whichever is greater.

This bill has already passed out of the Ways and Means Committee, picking up twenty-four GOP co-sponsors. There is an expectation among some Congress watchers that the bill will go through the reconciliation process, with smoother filibuster-free sailing through a process that buries it in a bundle of other budgetary items.

Existing vouchers on the state level are used primarily for private religious school tuition payments. Fans of this structure argue that it doesn’t involve any government expenditure or violation of the rapidly-eroding wall between church and state because the tax dollars are never in the government’s hands. 

But imagine that your brother owes you fifty dollars, and as you go to collect it, your partner warns you that you’d better not spend any of that money on beer. So you instead tell your brother to just give you a few cases of beer rather than the originally owed money and you’ll call it even. Will saying that you “didn’t spend the money on beer” convince your partner that you are not fifty dollars short?In a tax credit scholarship system, the government allows individuals to finance vouchers as a substitute for paying their taxes, leaving the government short that amount.

Per this rationale, the Kentucky Supreme Court was unconvinced when the state’s tax credit voucher program was challenged in court. “The money at issue cannot be characterized as simply private funds,” the judges concluded. “Rather it represents the tax liability that the taxpayer would otherwise owe.” The fact that these tax dollars are spent before they’re collected does not make them anything other than tax dollars.

Tax credit voucher schemes usually include a volume cap, which limits how large a hole the program will be allowed to blow in the government’s budget. ECCA sets a volume cap of $5 billion. That is $5 billion fewer dollars collected by the federal government—hardly a help with Trump’s promised belt-tightening.

But the cap would change over time. For each year that 90 percent of the $5 billion is used, the following year would see the cap increased to 105 percent of the previous year’s amount, potentially compounding the budget hole with each passing year. The cap can never go down, per the drafted legislation.

To make matters worse, there are no guard rails in sight anywhere in ECCA.

To qualify as an SGO, an organization must be a non-profit that awards funds to more than one student and directs dollars to more than one school. It can neither engage in self-dealing nor earmark funds for a particular student. It must also verify the income of the receiving families. Each SGO must hire an independent accountant to audit its records and report to the Secretary of the Treasury that the audit has been performed (the bill does not give the U.S. Department of Education, which Trump has vowed to dismantle, any responsibilities for dealing with the $5 billion in education spending). No office or board member can have a felony conviction.

And that’s it. There are no particular qualifications or expertise that SGOs must display, and other than their Treasury Department audit reporting, there is no government body overseeing them.

SGOs have no responsibilities beyond conducting an audit, making sure parents fit the required income cap, and distributing all the funds they collect. And what’s more, they may keep up to 10 percent of the money they handle for administrative purposes.

Students need meet only two requirements to be eligible for the ECCA voucher: They must be  “eligible to enroll in a public elementary or secondary school,” and be  members of a household “with an income which is not greater than 300 percent of the area median gross income.” The use of the word “area” means that no matter how wealthy your area is, a large number of people in it will be eligible for a voucher. This means that any student currently enrolled in a private school, including a religious one, would still be eligible for the voucher even if they had never set foot in a public school, and that very wealthy families could receive subsidies for their children’s private education.

The ECCA vouchers would take the form of education scholarship accounts (ESAs), which means families may spend their voucher money on any “qualified expenses,” including private school tuition, tutoring, instructional materials, fees for national tests (such as ACT or AP tests), or educational therapies. Home schooling families could also use ECCA vouchers for these qualified expenses. State-level ESAs have been used for surfboards, televisions, theme park tickets, cosmetics, clothes, horseback riding lessons, and $1 million on Lego sets.

ECCA offers no guidance on what does or does not count as a legitimate educational vendor, so it would fall to the SGO to make those decisions. But the bill does not charge SGOs with a responsibility to vet the qualifications of vendors or private schools that receive their money. Nor does the bill require SGOs to confirm that the vendors or private schools are providing the promised services. ECCA leaves all oversight and accountability to the invisible hand of the market.

What the bill does offer is a requirement for “maximum freedom” for SGOs and a prohibition against any government control, as well as a declaration that no portion of the act can be taken to mean that the SGO is itself an arm of government, freeing it from all regulations that bind government agencies. If an SGO wanted to offer vouchers only to white Christian nationalists, there is nothing in the ECCAto stop it.

The bill provides the same hands-off language for private schools. Under ECCA, the government may exercise no control over the school—no schools or expenses may be ruled out because they are religious in nature.

This is a common feature of recent state-level voucher laws, and we know how it turns out. In Pennsylvania, voucher-financed schools can reject or expel students with LGBTQ+ identities, special needs, academic challenges, or just not being the right fit. Under Illinois’s short-lived tax credit-funded voucher program, families could be rejected from certain schools for not being born-again Christians, for allowing “sexual immorality,” or for refusing to agree that marriage must be between a man and a woman.

ECCA clearly and aggressively asserts that SGOs and education vendors may do as they wish, and nobody from the government may tell them otherwise.

The bill contains this unusual piece of language: “No federal, state, or local government entity, or officer or employee thereof, shall disfavor or discourage the use of scholarships . . . .”

ECCA not only strips away any sort of oversight or accountability, but also prohibits government officials from trying to point out that any SGO or private vendor is doing a less-than-stellar job. With this vaguely worded sentence, the accountability shield for the vouchers would be complete.

The bill says nothing about the size of the vouchers to be awarded. It spells out safeguards against double-dipping for tax credit on both the state and federal levels but is absent any language about families double-dipping by taking both state and federal vouchers.

Under this law, someone with a half-million dollar gross income living in a high-income area in a state with a voucher program could collect state and federal vouchers to underwrite their child’s attendance at a school that teaches that the Earth is flat and only admits white evangelical students. With the lack of transparency enshrined in the bill, taxpayers would never know how money intended to fund the government is being spent, and any official who pushed for accountability would be violating the law.

States without voucher programs would find themselves suddenly saddled with voucher operations over which they may exercise no regulatory control, as well as a crop of new subprime private schools like those that have popped up just to take advantage of the vouchers.

As scholar Josh Cowen has pointed out, voucher systems have been a “catastrophic failure,” and the weight of evidence shows that this is not the sort of program that the federal government ought to be throwing $5 billion toward.