More on the Florida Supreme Court ruling

I read this Eisenhower quote yesterday in David Gergen's fabulous book, Eyewitness to Power (www.amazon.com/exec/obidos/ASIN/B000CC49JE/tilsoncapitalpar/), which reminds of what's important in the battle to reform our schools: "What counts is not necessarily the size of the dog in the fight -- it's the size of the fight in the dog."

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My initial read of the recent Florida Supreme Count decision was that it was correct from a technical, legal standpoint -- though a huge setback for common sense, morality and the American Dream.

 

Here's an excerpt from the ruling (www.floridasupremecourt.org/decisions/2006/sc04-2323.pdf):

The narrow question we address is whether the second option violates a part of the Florida Constitution requiring the state to both provide for “the education of all children residing within its borders” and provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Art. IX, § 1(a), Fla. Const.

 

As a general rule, courts may not reweigh the competing policy concerns underlying a legislative enactment.

In other words, the court was NOT ruling on whether the voucher law is good public policy (it is), whether the exisiting K-12 public school system is failing many students to a horrifying degree (it is), whether the system is providing "safe, secure, and high quality" schools (it's not) -- the simple question is whether the law violates the state constitution, which says that the state has to provide "uniform...free public schools".  Given that the voucher program is the antithesis of the word "uniform" -- in fact, it's SPECIFICALLY DESIGNED to be an exit visa from the uniform system of public schools that's not working!!! -- it would appear to violate this clause.

 

However, upon reading Jay Greene's comments (below), I'm persuaded that the court erred.  Simply put, the state constitution's requirement has always been interpreted (both in FL and elsewhere) as a FLOOR, not a ceiling; in other words, the state must provide "a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education”, but this doesn't mean that it's unconstitutional to SUPPLEMENT this system with alternatives, as the state has long done for disabled children, for example.

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1) Jay Greene's comments:

One more thought on the FL Court’s interpretation of uniformity – Shouldn’t it threaten the existence of school districts?  Each may have different policies and standards, thereby lacking uniformity.  Perhaps we would be forced to adopt a French-style centrally controlled system to satisfy the Court’s definition of uniformity.  But then again I’m sure that the FL Court would come up with another “mine goes to 11” argument to distinguish the lack of uniformity produced by districts and lack of uniformity produced by vouchers or charters.

And the FL Court’s invention of an implied prohibition on the government providing education through private schools simply because the state’s constitution requires that they provide a system of public schools is entirely lacking in logic.  If a state constitution required a system of public roads would that imply a prohibition on the construction of public airports or railroads?

2) A memo from Clink Bolick, head of the Alliance for School Choice, on the national implications of this ruling:

Florida's ruling endangers all such programs, but other courts are unlikely to follow its lead.  About 15 states, including Arizona, have "uniformity" clauses, but the Florida court pointed out that its constitutional language is unique. 

3) A thought blog post from my friend Dan Gerstein.

But the real mind-blower in this ruling is what's left unsaid about the chronically underperforming public schools that the voucher kids are trying to escape.  How on earth could the court conclude with a straight face that the successful voucher program violates the uniform, high-quality requirement but the disastrous public schools in Miami and other urban districts themselves do not?  

I'm sorry, but on the constitutional harm-ometer, I think the failures of the public officials running the state's urban public school districts -- which are systematically denying thousands upon thousands of children access to a decent education (forget about a high-quality one) to placate politically-powerful interest groups -- rank just a little higher.

4) An editorial in the LA Times.  Too bad the legislation in FL didn't have stronger accountability provisions, so opponents could say things like this:

In Florida, where the state Supreme Court ruled Thursday against the only statewide voucher system in the nation, standards appear to be a one-way street. Supporters of vouchers talk about parents being free to choose schools, but they also tout vouchers as the path to accountability...The private schools don't have to meet the same rigorous and expensive standards as public schools. Private schools in Florida aren't required to do criminal checks on their employees or meet the same fire standards. Teachers don't need state credentials or even college degrees. In other words, accountability stops before it reaches the private schoolhouse door - even though the public is picking up the tab.

5) This editorial at least asks the right questions:

And what about students who, for whatever reason, remain in the public school -- are they supposed to suffer a sub-par education because the state can't or won't meet its requirement to provide "a high quality education" in "a uniform system of free public schools"?

That's the issue here -- the failure of the state to do what it takes to ensure that its schools do not fail.

If Gov. Bush believes the state simply can't -- or won't -- provide a high quality public school education for every student, he should say so, and explain to us why not...Florida voters, taxpayers and parents should be demanding that the governor and Legislature explain to them why, despite the constitutional mandate, they provide schools that require students to flee them in order to get a good education.

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From: N. Llumiquinga [mailto:NL@AllianceForSchoolChoice.org]
Sent: Saturday, January 07, 2006 2:29 PM
To: N. Llumiquinga
Subject: Florida Ruling Striking Down School Choice Will Not Affect Arizona (other states)

Friends,

We have received several inquiries regarding the implications of the Florida supreme court ruling.  The brief commentary below was prepared by the Alliance for School Choice president, Clint Bolick, for Arizona's Goldwater Institute.  I hope you will find the information useful in understanding the potential impact on your state. 

The states with uniformity clauses include AZ, CO, FL, ID, IN, MN, NV, NM, NC, ND, OR, SD, WA, and WY.  Additionally, Wisconsin's clause, though not as restrictive, reads: "as nearly uniform as possible."

Other states might see similar challenges under other provisions (for instance, there is a challenge to OH charter schools on uniformity grounds under the "thorough and efficient" clause). However, as Clint notes below, other courts are unlikely to follow its lead.

Thank you for your continued support.

Nelson

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Florida Ruling Striking Down School Choice Will Not Affect Arizona

by Clint Bolick

The Florida Supreme Court ruling last Thursday holding unconstitutional a school choice program for children in failing public schools will not affect the ability of other states to expand educational choices and opportunities.

The basis for the decision was a provision of the Florida Constitution that requires the Legislature to make "adequate provision . . . for a uniform, efficient, safe, secure, and high quality system of free public schools."  In a ruling without precedent anywhere in the nation, the Court held that the provision means that public schools are the exclusive means by which the state may provide educational opportunities.  Bizarrely, the decision means that children will be forced to return to public schools that are anything but "high quality," turning the constitutional provision on its head.

Every state allows at least some children who are not receiving an adequate education in public schools---students with disabilities or special needs or who are otherwise disadvantaged---to attend private schools at public expense.  Moreover, more than 40 states provide public charter schools, which are not "uniform" in terms of curriculum, teacher requirements, or governance.  Arizona is the nation's leader in the diversity of educational choices.

Florida's ruling endangers all such programs, but other courts are unlikely to follow its lead.  About 15 states, including Arizona, have "uniformity" clauses, but the Florida court pointed out that its constitutional language is unique.  Arizona's Constitution requires the state to provide for the "establishment and maintenance of a general and uniform public school system."  In upholding the Milwaukee school choice program against challenge under a similar provision, the Wisconsin Supreme Court held that the clause was not implicated because the state had done exactly that:  it had created a uniform public school system.  But it was also free to go beyond that to provide for the educational needs of its children.  In other words, the Constitution creates a floor, not a ceiling, for educational opportunities.

Given that the intended beneficiaries of the constitutional provisions regarding education are children, we can expect reasonable courts to interpret the provisions to uphold programs that benefit children.  In doing exactly the opposite, we can be confident that the Florida Supreme Court will find itself as lonely as it is misguided. 

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By Dan Gerstein, Dangerstein.blogspot.com

Most casual news consumers will probably see the decision by the Florida Supreme Court to outlaw the state's Opportunity Scholarships program as just the latest in a series of legal rulings in the voucher wars.

But I would urge anyone who cares about the inequities in our public education system to read the fine print of the ludicrous Florida opinion <http://www.floridasupremecourt.org/decisions/2006/sc04-2323.pdf>  -- and the fine exposition of it by New York Times columnist John Tierney <http://select.nytimes.com/2006/01/07opinion/07tierney.html>  in Saturday's paper -- to understand the much broader and troubling implications of this case on urban school reform.

As Tierney points out, the Supreme Court chose not to ground its decision in the state's Blaine amendment, which prohibits using state funding to aid religious institutions, as most other voucher-hostile state courts have in similar circumstances (including the lower court that originally invalidated the Florida  program).  Instead, the majority ruled that the Florida voucher program violated the state constitution's requirement to make "adequate provision . . . for a uniform, efficient, safe, secure, and high quality system of free public schools."

The logic behind this rationale is beyond bizarre -- it is fantastical.  First off, regardless of what you think about state funded vouchers as a policy tool,  independent studies of the Florida program seem to show that participating students are doing better in the private schools they have switched to -- as are the public schools who losing students and are thus being forced to improve to compete.  If that is the case, it begs credulity to suggest that this initiative is somehow undermining the state's ability to provide a uniform, high-quality system of public schools.

But the real mind-blower in this ruling is what's left unsaid about the chronically underperforming public schools that the voucher kids are trying to escape.  How on earth could the court conclude with a straight face that the successful voucher program violates the uniform, high-quality requirement but the disastrous public schools in Miami and other urban districts themselves do not?  

I'm sorry, but on the constitutional harm-ometer, I think the failures of the public officials running the state's urban public school districts -- which are systematically denying thousands upon thousands of children access to a decent education (forget about a high-quality one) to placate politically-powerful interest groups -- rank just a little higher.

Now, in highlighting the follies of this decision, I am not making the case for vouchers.  While I am open to voucher experiments, and am hard-pressed to argue against the moral case made by voucher advocates like the admirable Howard Fuller, I do not believe private school choice is ultimately an effective large-scale solution for closing the achievement gap separating the haves and have nots in our society.  I believe our priority has to be to reform and modernize our public education system, reorder its priorities, and refocus it on meeting the needs of children (not the adults working in it) and producing results.

And that in the end is why I found the Florida court decision so disturbing -- its ramifications for public education reform efforts in the 15 other states that have similar uniformity provisions in their state constitutions.

Consider the example of charter schools, which are independently-run public schools that have shown great promise as a gap-closing instrument in low-income communities.  As Tierney and others have noted, under the Florida court's supremely-twisted logic, charter schools could be found to violate the "uniform" benchmark and thus be outlawed.  So could other unconventional public school models that don't look like the cookie-cutter, lowest-common-denominator form most urban public schools still take today.

Hopefully we can use this legal lunacy as a learning moment.  If nothing else, it brings into stark relief the consequential choice that policy-makers and by extension the American people have to make about the future of our public education system.  Is the priority uniformity in structure and governance -- even if it means mass mediocrity and indefensible inequities for another generation of children?  Or is the priority uniformity in achievement -- that we have great schools of many shapes and sizes and equal opportunities for all kids?

You be the judge.

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Vouching for the schools

Los Angeles Times editorial

January 8, 2006

DURING THE FIRST FEW YEARS of a school voucher program in Cleveland in the 1990s, many parents exercised their newfound freedom of educational choice by enrolling their children in private schools that ferried students to and from home in taxis. So much for spending money in the classroom.

Eventually, public outrage over the waste of tax dollars ended that practice. But it remains a prime example of how parental choice doesn't necessarily lead to better education. Good schooling requires standards, and this is where voucher systems can fall spectacularly short.

In Florida, where the state Supreme Court ruled Thursday against the only statewide voucher system in the nation, standards appear to be a one-way street. Supporters of vouchers talk about parents being free to choose schools, but they also tout vouchers as the path to accountability. The idea is that competition with private schools will lead to an improvement in the public school system.

The problem with this theory is that the only schools held accountable are the public ones. Voucher students in Florida take the same standardized tests as those in public schools, but those scores aren't made public. So private schools face no public penalty if their scores are poor. Parents are free to keep their children in such schools, of course, but should public money be spent to support a substandard education?

The court found there is nothing equal or fair about this sort of system, which diverts money from public schools to private ones. The private schools don't have to meet the same rigorous and expensive standards as public schools. Private schools in Florida aren't required to do criminal checks on their employees or meet the same fire standards. Teachers don't need state credentials or even college degrees. In other words, accountability stops before it reaches the private schoolhouse door - even though the public is picking up the tab.

The Florida ruling's effect is unclear because the justices threw out vouchers based on wording in the state's constitution guaranteeing a free, fair and equal public education. Not all state constitutions, including California's, have the same language. But all states should have the same commitment.

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Gov. Bush ready to say our schools can't perform?

Pensacola Paper Editorial

Now that the Florida Supreme Court has ruled Gov. Jeb Bush's "Opportunity Scholarship Program" unconstitutional, the governor and Legislature should stop wasting time and money on it and get busy doing what the state constitution requires: provide a high quality education in public schools.

Why aren't they doing that instead of putting their energy into a plan that takes money out of the public school system?

Anyone interested can go the Web site of the Florida Supreme Court (www.FloridaSupremeCourt.org) and read the 5-2 decision, as well as the dissent from the two justices who opposed the ruling.

Neither is easy reading, and both are filled with legal language and concepts that take a fair amount of parsing for the layman to wade through.

But both contain clear statements of their ultimate arguments, and it is there that the dissenting justices hang themselves and expose the pro-voucher argument.

In their conclusion, the dissenting justices say this in arguing that vouchers do not hurt the public school system:

"The clear purpose behind article IX (of the Florida Constitution) is to ensure that every child in Florida has the opportunity to receive a high quality education and to ensure access to such an education by requiring the Legislature to make an adequate provision for a uniform system of free public schools. There is absolutely no evidence before this Court that this mandate is not being fulfilled. ..."

But wait -- what is the case about?

The Legislature and governor want to allow parents to take state dollars from a failing public school and expend them in a private school in order to get a decent education.

Well, if the public school is failing, isn't that conclusive evidence that the constitutional mandate is not being fulfilled?

That being the case, why isn't the state doing what is needed to immediately fix that school instead of telling parents they should send their children elsewhere?

Shouldn't parents be able to expect the state to offer them competent schools in exchange for their tax dollars?

And what about students who, for whatever reason, remain in the public school -- are they supposed to suffer a sub-par education because the state can't or won't meet its requirement to provide "a high quality education" in "a uniform system of free public schools"?

That's the issue here -- the failure of the state to do what it takes to ensure that its schools do not fail.

If Gov. Bush believes the state simply can't -- or won't -- provide a high quality public school education for every student, he should say so, and explain to us why not.

Now, the majority's decision rested not on a judgment about whether the voucher program is good or bad public policy, but on the question of whether the Florida Constitution allows it. A clear majority of the justices ruled that it does not.

But the intellectual emptiness of the pro-voucher argument is summed up all too well in the dissent. Florida voters, taxpayers and parents should be demanding that the governor and Legislature explain to them why, despite the constitutional mandate, they provide schools that require students to flee them in order to get a good education.