Covering the Front and Back Pages of the Newspaper
January 6, 2006
LAW: No Choice For You!
Another victory for the forces of massive resistance to freedom of choice in education, and another tragic defeat for students trapped in bad public schools, as the Florida Supreme Court strikes down Jeb Bush's Opportunity Scholarship Program on the grounds that it violates the Florida Constitution. The opinion in Bush v. Holmes, No. SC04-2323 (Fla. Jan. 5, 2006) is here.
SCOFLA relied on the following provisions of article IX, section 1(a) of the Florida Constitution:
The relevant words are these: "It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools."
Slip op. at 4. The OSP program allows students in failing public schools - i.e., schools that fail to meet certain minimum criteria set by the state - to choose either to move to another public school or to take a voucher to a private school of their choice. The court held that the latter option violated the requirement that a system of public schools be "uniform":
It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.
Id. (emphasis added). Leaving aside the Maoist overtones of the emphasis placed on "uniformity" in the education of the populace - emphasized later in the opinion with a lengthy screed against the sin of non-uniformity by private schools - the core of the court's holding is its conclusion that allowing students to voluntarily leave the public school system and be educated elsewhere at public expense reduces the exclusive hold of the public school system on public funds for education:
The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service - basic primary education. Thus, contrary to the defendants' arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children.
Id. at 25-26. First of all, nothing in the provision at issue says that the public school system must be the state's "exclusive" means of educating children. Yet, that is the real concern of the SCOFLA majority:
Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent's view of the Legislature's authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them "uniform, efficient, safe, secure, and high quality." However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of "high quality" free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.
Id. at 26-27. The dissent is right, of course; the language of the Florida Constitution plainly requires that the state fund and keep open a system of quality, uniformly operated public schools for anyone who wants them, but it does not set any requirement that those schools capture any particular market share. Nor is it necessarily true that a shrinking market share will reduce the quality of education for those who remain; indeed, in most businesses, the existence of competition improves services for customers of a monopoly. SCOFLA's majority substitutes its own judgment on this point for that of the legislature, even though it is the quintessential sort of public-policy judgment best left to the people's representatives in determining how to execute the enumerated powers and obligations of a legislature in assuring the quality of public services.
And not only is the majority's focus on exclusivity misplaced, it is unrealistic - unrealistic in precisely the way that Brown v. Board of Education sought to be realistic, i.e., by recognizing the reality that not all public schools are equal. The majority acts as if just saying that the public schools are uniform and high-quality will make it so. To the contrary, if all of the students in failing schools abandoned them, leaving only the functioning schools afloat, that would create a school system that was genuinely both high-quality and uniform (as the present system is not, and - in the real world - probably never will be).
In the real world, there are public schools that don't perform up to standards, there are people who want their kids to go to a public school, and there are people who do not want their kids to go to a public school. The state can't get out of its constitutional duty to try to fix those schools for those who prefer to remain, but it blinkers reality to ignore the fact that substandard schools have long been with us, and it is truly heartless to require the customers of substandard schools to wait without hope of escape while the decades-long unfulfilled promises of help on the way proceed.
The majority seeks to hide its decision behind a patina of textual analysis, but at the end of the day, it is these judgments of real-world impact that decided this case. And they are judgments best left to elected officials.
UPDATE: What really rankles about this decision is its usurpation of the role of the legislature in deciding factual questions about the impact of public policy, and without even bothering to consider evidence. Yes, it can be argued, hypothetically, that voucher programs harm the public schools, despite the fact that they reduce the obligations of those schools. But the asserted negative impact of voucher programs on the ability of the existing school system to provide a quality, uniform education - much less a quality, uniform education as compared to the existing system - depends upon a bunch of factual assumptions and is precisely the sort of highly debatable empirical policy question that should be decided by legislatures, not courts.
Note that SCOFLA did not cite any record evidence showing an actual negative impact on the school system, which you would think would be required to violate a constitutional requirement of "quality." That's what's so objectionable about this decision - yes, there are policy arguments on both sides, but without consideration of any empirical evidence the court (despite its protestations to the contrary) held that one side's theories about the policy impact were categorically true. When, in fact, it should have admitted that the fact that the question was a hotly disputed matter of public policy rendered it better suited for resolution by the Legislature, not the courts.