Cleaning Up With Banquo's Ghost in the Dairyland? A Brief (Economic) Analysis of the Milwaukee Parental Choice Program's Unconstitutional Conditioning of Its Aid on an Effective Waiver of a Recipeint's Free Exercise of Religion: Professor Richard A. Epstein's Bargaining With the State and Miller v. Benson

If a state gives school-choice aid to individual parents, for instance, can it constitutionally attach a condition coercing, pressuring, or inducing such a parent to in return effectively waive the free exercise of religion by preventing the use of that aid - by, again, an individual - for tuition at a sectarian school? A pending federal lawsuit by Kansas City's Landmark Legal Foundation on behalf of five low-income parents and their children essentially asks this question of Wisconsin's four-year-old Milwaukee Parental Choice Program (M.P.C.P.), as does this short piece.' The following section, then, by way of further introduction, encapsulates law professor/economist Epstein's interpretation of the doctrine of unconstitutional conditions and briefly summarizes the M.P.C.P. Section III equally briefly describes cases from other, similar contexts in which the Court has relied on the doctrine, and applies Epstein's interpretation to them, then to the more-specific contexts of education-funding, and finally to the M.P.C.P. in particular, the conclusion is § IV.