Beyond Jefferson's Wall: From Free Exercise Doctrine to the Federalization of School Choice

Abstract

This article examines the first federal tax-credit scholarship program as a post-doctrinal development in education law, tracing how settled Free Exercise jurisprudence has been translated into federal statutory design. Building on prior scholarship documenting the judicial erosion of state constitutional no-aid provisions,1 this article analyzes the Federal Tax Credit for Scholarships enacted in the One Big Beautiful Bill Act as a legislative response that restructures education governance through tax policy rather than constitutional confrontation. Using Thomas Jefferson's 1802 “wall of separation” letter as a historical baseline,2 this article argues that institutional separation has not been restored but functionally replaced by a framework of privatized choice—mediated through tax expenditures, administered by private intermediaries, and insulated by constitutional doctrine. The analysis demonstrates how this structure produces de facto federalization without formal preemption, constrains state autonomy, and shifts accountability away from courts and public agencies toward administrative and nonprofit actors. This article concludes that contemporary school-choice policy reflects a post-doctrinal phase in which the central questions are no longer constitutional permissibility, but governance, accountability, and democratic control over the public purposes of education.