We asked five school choice proponents to offer their advice on what the forthcoming regulations from the Department of the Treasury on the new federal scholarship tax credit should be. Our five-part series continues today with an essay by Robert Enlow.

On the Education Exchange podcast this summer, I told Paul Peterson that Congress swung for the fences on school choice in the One Big Beautiful Bill Act, but only hit a single. If we’re not careful, that single could lead to the education equivalent of a rally-killing double play.

The final version of the act contains compromises that undermine the tax credit provision from the first pitch. The first and largest is the cap on individual taxpayer credits at $1,700. If we do some back-of-the-napkin math, assuming an average scholarship of $7,500, that means for every 1,000 scholarships, a scholarship-granting organization (SGO) would need 4,412 donors contributing $1,700 each. As someone who has done his fair share of fundraising, I know that the effort to identify, contact, follow up with, track, and do all the other administrative work for that many people will be enormous.

The second compromise made the program opt-in for states. For a program heralded as one that could bypass the special interests that have blocked school choice in dozens of states, especially blue states, it put the ball back firmly in their glove. The argument is that states won’t want to turn down “free” federal money, but states do that for ideological reasons all the time. This also opens the program up to bureaucratic micromanaging, potentially allowing states to condition their participation on whether they can apply their preferred regulations.

So, what do we do now? Proponents claim these compromises can easily be fixed in the rulemaking process or in future reconciliation bills. That may be true, but as the old saying goes, when you are at bat and the bases are loaded, don’t get caught looking.

The Treasury Department should establish three rules to ensure that doesn’t happen.

Prohibit states from adding their own regulations or creating their own new rules for the program. Several blue states have demonstrated that they want more control over private and home schooling. New York’s long-running desire to make private schools offer a “substantially equivalent” education led to a set of invasive regulations published in 2022 and a host of court and political battles since then. In Illinois, a bill to regulate homeschooling was beaten back by advocates this past legislative session.

If Treasury allows states to add their own regulations, the federal government could hand these governors and their functionaries a huge tool to exert influence over private schools. The carrot of millions of scholarship dollars could accomplish what the stick of regulations, court cases, and legislation could not.

Require governors to allow scholarships for education services across all school sectors, with no limit on which qualified SGOs can participate. States should not be permitted to allow scholarships for tutoring or supplemental education services for public school students unless they also allow scholarship support for private and charter school students. The bill uses the definition of “school” that is employed by the Coverdell Education Savings Accounts program, so it includes scholarships that provide support for public school students. School districts or nonprofits could create SGOs solely for public school students and could hoover up scholarship dollars. Given the massive administrative infrastructure of school districts, they are in prime position to accomplish this. There’s not much to be done about that now. But as a fallback position, the Treasury Department can ensure that states don’t only provide funding for public school students.

Additionally, I worry that Treasury could step in to create additional definitions of “school,” which could effectively federalize what it means to be a private or home school. This is the main concern of many choice advocates on the right, and we should do everything we can to avoid that outcome.

Ringfence existing private-school choice programs. To assuage concerns of private schools and homeschoolers, state-level choice programs use specific language which makes it clear that these programs do not impose any new requirements or regulations on existing private schools or homeschooling families. Similar language would be helpful in federal regulations.

Private schools already have a confusing patchwork of regulations to comply with from local officials, state departments of education, and federal lawmakers. Private-school choice programs layer a new level of regulations on top of those, and this new federal choice program could layer even more on that.

The good news is that the game is not lost . . . yet. With smart, aggressive rulemaking and appropriate defense against those looking to distort the purpose of this program to suit their own ends, federal rule-makers can create a program that schools will want to participate in and that will not empower those who do not have students’ or schools’ best interest at heart. They’re down in the count and facing an ace pitcher, but if a hobbled Kirk Gibson can hit a home run, so can they.

Robert C. Enlow is the president and CEO of EdChoice.