Joe, as a ten-year-and-counting member of the school choice movement, I appreciate your defense of tax-credit scholarships. But I don’t think the “it’s my money until Uncle Sam touches it” argument works. If government can give tax credits at all, it must have the right to set bounds on their use. That gives it all the authority it needs to impose regulations. Such regulations must be rational, nondiscriminatory, etc., but that’s also the case for voucher regulations so “it’s my money” makes no difference. Ultimately you can’t defend the program except on the same old First Amendment grounds we’ve always used for vouchers.
U.S. education law is so favorable to the state that I doubt the courts will be of much use in preventing overregulation of school choice programs regardless of design. Thankfully, to date they have not been much needed. We’ve had school choice for twenty-three years (actually, Maine and Vernont have had vouchers in small towns for almost 150 years) and regulatory encroachment has been at most a minor problem. We tend to win those battles in the legislature.