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Breaking Down the Florida Decision on School Choice

by Clark Neily

Supreme Court Ruling is Not a Barrier to Choice Elsewhere

In a decision devoid of supporting legal authority, logic or principle, the Florida Supreme Court in January struck down the nation's first statewide school voucher program, designed to enable families to escape chronically failing public schools. The Court held that Florida's Opportunity Scholarship program, which served predominantly minority students once trapped in some of the state's worst public schools, ran afoul of a state constitutional provision directing the legislature to establish a "uniform" system of free public schools.

Not surprisingly, opponents of educational opportunity have already started using the decision to attack school choice initiatives in other states. True to form, those attacks have been long on alarmist rhetoric but short on facts. As this article explains, the decision is of such poor quality, and the language in other state constitutions so different, that there is little reason to fear that courts in other states will follow the Florida Supreme Court's misguided foray into educational policymaking.

I.The Florida Supreme Court's Decisions Striking Down Opportunity Scholarships Is Unprecedented, Unsupported and Incoherent.

As part of the state's A+ plan for education reform, Florida created the nation's first statewide school voucher program, Opportunity Scholarships, in 1999. The program gave any student attending a public school that had been rated failing by the state two years out of any four-year period the right to transfer either to a higher performing public school or to a private school of their choice using a state-funded voucher.

The day after the program was signed into law, a coalition of special interest groups including state and national teachers unions, the ACLU, the NAACP and others filed suit in state court, challenging the program on a variety of state and federal constitutional grounds. After more than six years of litigation, only two claims remained: First, that allowing scholarships students to attend religious as well as nonreligious private schools violated Florida's Blaine Amendment, which forbids state revenue from being used "in aid of" religious institutions; and second, that the state constitutional requirement that the Legislature establish a "uniform, efficient, safe, secure, and high quality system of free public schools" prohibited the state from augmenting the public education system by providing private school scholarships to children trapped in failing public schools.

After unanimously rejecting the latter "uniformity" argument at an early stage of the litigation, a sharply divided Florida appellate court held that Florida's Blaine Amendment prohibited the state from providing scholarships to K-12 students if the scholarships could be used at both religious and nonreligious schools. Notably, the court made no effort to reconcile that interpretation with Florida's decades-long practice of providing college scholarships to students choosing religious or nonreligious schools or with the three-dozen other programs in Florida that likewise allow public aid recipients to choose from a full range of religious and nonreligious providers.

Presumably eager to minimize controversy and evade Supreme Court review, the Florida Supreme Court decided to revive the "uniformity" claim previously rejected by a unanimous court of appeals panel and sidestep the Blaine Amendment claim. Thus, in Bush v. Holmes, the five justices of the Florida Supreme Court - all appointed by Democratic Governor Lawton Chiles - read into the Florida Constitution a prohibition against any attempt to provide educational options in addition to public schools - no matter how bad some of those schools might be and no matter how clear the evidence that school choice programs improve, rather than harm, public education.

Besides being literally unprecedented, the Holmes decision is riddled with contradiction and errors. Among the most glaring problems:

False factual assumptions. The majority opinion rest on the false factual assumptions both about the way the Opportunity Scholarship program works and its effect on public schools.

First, the court claimed the program "undermines" public schools by reducing funding for the public education system. But the only evidence before the court of the effect of school choice on public schools - expert affidavit from respected researcher Jay Greene - showed that Opportunity Scholarship improved public schools by exposing them to competition. Four independent studies of the program affirm that finding, and it is consistent with the studies of other school choice programs by Harvard economist Caroline Hoxby and researchers at Columbia Teachers College. There is no evidence that Opportunity Scholarships, or indeed any school choice programs, harms public schools.

The court's other erroneous assertion was that Opportunity Scholarships divert money from public schools. As the dissent painstakingly explained, "The amount of money removed from the public schools is not a dollar-for-dollar reduction because Opportunity Scholarships are capped at the nonpublic school's tuition" - a cap that is substantially below the $7,000 to $8,000 per-pupil funding available in any given school district.

Contrary to case law ignored. In striking down the Opportunity Scholarship program on uniformity grounds, the majority ignored the sound reasoning from the only other state supreme court to consider similar claims against school voucher programs. In Davis v. Grover1 and Simmon -Harris v. Goff2 the Wisconsin and Ohio Supreme Courts, respectively, rejected arguments that school voucher programs violated the "uniformity" or similar provisions of those states' constitutions.

The text of the Wisconsin Constitution is, if anything, more restrictive than Florida's. It requires the legislature to establish a system of district schools, "which shall be as nearly uniform as practicable."3 The Wisconsin Supreme Court rejected the exact same argument by the exact same school choice opponents who prevailed in Florida, reasoning that "[t]he uniformity clause clearly was intended to assure certain minimal educational opportunities for the children of Wisconsin" and that school vouchers simply reflect "a legislative desire to do more than which is constitutionally mandated."4 The Florida Supreme Court did not even try to rebut that commonsense analysis; instead it simply dismissed the Wisconsin case in a footnote.

Precedent Abandoned. As in most state, it is black letter law in Florida that legislative enactments will be stuck down only if they are clearly prohibited by the state constitution. In other words, if there are any doubts about constitutionality of a legislative enactment, it should be upheld. Incredibly, the five-justice majority simply ignored that principle. After admitting the uniformity is not clear on the question of school choice, the court struck down the Opportunity Scholarship program under that provision anyway.

Thus, on page 24 of its decision, the majority candidly admits that the constitutional amendment containing the uniformity clause "is not clear and unambiguous regarding public funding of private schools." A court that was interested in applying law rather than making it would simply have stopped there and upheld the program. Instead, the majority chose to flout a bedrock principle of Florida law in order to strike down a program that was not "clearly prohibited" by the state constitution.

Besides ignoring the principle that only clearly prohibited laws should be stuck down, the majority breezed past an earlier case in which it approved a state educational program that paid for students with "special" educational needs to attend private schools. The majority simply said that program was "structurally different" from Opportunity Scholarships, in that id did not provide a systematic private school alternative to the public school system. But as the dissent pointed out, the two programs were exactly alike in that each provided a private school alternative to students whose needs were not being met - whether because of their disability or because of the school's failure to meet minimum educational standards.

II.Other States Have Different Constitutions, Different Case Law, and Different Histories

The incoherence and blatantly ends-oriented nature of the Florida Supreme Court's decision renders it useless to any court honestly attempting to construe similar uniformity language in other state constitutions. Equally important, other states have unique constitutional language, historical traditions, and judicial interpretations and either preclude or at least cut strongly against the likelihood of adopting the Florida Supreme Court's idiosyncratic interpretation of uniformity.

Less than a third of all states nationwide have "uniformity" provisions like Florida's, which limits the applicability of the case to a relatively small number of states.

Other states besides Florida that have education uniformity provisions in their constitutions are: Arizona, Colorado, Idaho, Indiana, Minnesota, Nevada, New Mexico North Carolina, North Dakota, Oregon, South Dakota, Tennessee, Washington, Wisconsin and Wyoming. As explained above, the Wisconsin Supreme Court already interpreted uniformity provision to permit school vouchers, and other states have analogous case law that all but forecloses any anti-school-choice interpretation. For example, in upholding a tax credit program in 1999, the Arizona Supreme Court noted that encouraging private schools "can properly facilitate a state's overall educational goals."

Besides favorable judicial interpretations, the history and traditions of other states make it highly unlikely that courts would apply uniformity provisions to strike down school choice. For example, Indiana offers a dual-enrollment program that allows private school students to also enroll in public schools and receive publicly provided services in their private schools. The Indiana Supreme Court upheld this program in 2003 in Embry v. O'Bannon. Indiana also offers free transportation to private school children - another program that would likely be unconstitutional if Indiana courts followed Florida's lead.

Finally, while the Florida Supreme Court ignored the problem, other courts might be reluctant to set a precedent on "uniformity" grounds that could wreak havoc on state education system - which are anything but "uniform" - and roll back important education reform. Most states have charter schools that are not bound by the same teacher hiring, curriculum and testing requirements as public schools and do not receive similar levels of funding. Those schools are plainly "non-uniform" under the Florida Supreme Court's reasoning - must they too go by the wayside? What about magnet schools? Special programs for disabled, disadvantaged or gifted students? The list goes on and on.

III.Conclusion

The Florida Supreme Court's decision to strike down Opportunity Scholarships has little to commend it on legal, policy, or humanitarian grounds. The court put an end to a flourishing school choice program that gave hundreds of primarily minority students their first opportunity for a truly "high quality" education and improved public schools. Besides that, the ruling constitutes a glaring and outrageous usurpation of legislative prerogative.

Legislator should not be cowed by school choice opponents' cynical attempts to demagogue the issue and portray the Florida Supreme Court's unprincipled Opportunity Scholarships decision as a death knell for choice in other states. The school choice team at the Institute for Justice encourages any legislator who needs accurate, truthful information - whether to fortify their own arguments or rebut the irresponsible charges of school choice opponents - to contact us, and we will gladly work with you to advance the cause of educational opportunity.

Clark Neily is a senior attorney with the Institute for Justice in Washington, DC.

Endnotes
1 480 N.W.2d 460, 473-74 (Wis. 1992).
2711 N.E.2d 203,
3480 N.W.2d at 473.
4480 N.W.2d at 474.