Judicial Clouds in the Sunshine State
Posted: Mon Jun 20, 2005 1:14 am
Judicial Clouds in the Sunshine State
Gov. Bush's voucher program is improving public schools, but Florida's Supreme Court may strike it down.
BY CLINT BOLICK
Thursday, June 16, 2005 12:01 a.m. EDT
TALLAHASSEE, Fla.--Historically, American courts have played a leading role in ensuring educational equality and opportunity. But the Florida Supreme Court may reject that tradition by denying the constitutionality of, and thereby ending, the most promising educational progress for minority schoolchildren in the U.S.
The saga began in 1999, when Gov. Jeb Bush signed into law the first money-back guarantee in the history of public education: the Opportunity Scholarship Program. Under the program, whenever a public school receives two failing grades on Florida's academic performance standards, state educational officials come into the school with a remedial program, and the students are allowed to transfer to better performing public schools or to use a share of their public funds as full payment of private-school tuition.
Six years later, only 750 children are attending private schools using opportunity scholarships. But their footsteps have reverberated across the state, prompting failing public schools to reform. Steps taken by failing schools have included spending more money in the classroom and less on administration, hiring tutors for poor performing teachers, and providing year-round instruction to pupils.
Defenders of the status quo insist that such reforms were already under way. But a freedom of information request by the Institute for Justice from school districts that lifted schools off the failing list revealed ubiquitous reference to the dreaded V-word: Without such measures, school officials warned, we wind up with vouchers. The rules of economics, it seems, do not stop at the schoolhouse doors.
The results have been stunning. Even with tougher state standards, nearly half of Florida's public schools now earn "A" grades, while a similar percentage scored "C's" when the program started. A 2003 study by Jay Greene found that gains were most concentrated among schools under threat of vouchers.
Most remarkable has been minority student progress. While the percentage of white third-graders reading at or above grade level has increased to 78% from 70% in 2001, the percentage among Hispanic third-graders has climbed from 46% to 61%, and among blacks from 36% to 52%. Graduation rates for Hispanic students have increased from 52.8% before the program started to 64% today; and for black students from 48.7% to 57.3%. Minority schoolchildren are not making such academic strides anywhere else.
The usual cast of characters that has opposed parental choice programs in other states--teachers unions, the American Civil Liberties Union, and People for the American Way--mounted a legal attack on the Florida program as the ink was drying.
Most attention had focused on the challenge under the state's Blaine Amendment, a relic of a late-19th-century campaign against Catholic immigrants that sought to block the use of public funds for parochial schools. State supreme courts in Wisconsin and Arizona (and past decisions by the Florida Supreme Court relating to other social benefits) have found that general aid programs in which religious institutions provide services do not violate the Blaine amendments. Moreover, a decision singling out religious schools for exclusion from an otherwise applicable aid program could violate the First Amendment to the U.S. Constitution.
But several of the Florida justices focused instead on the clause of the state constitution that establishes the "paramount duty of the state to make adequate provision for the education of all children," mandating that the state provide "a uniform, efficient, safe, secure, and high quality system of free public schools."
Although many states have similar provisions, no appellate court anywhere has ever held categorically that public funds cannot be used in private schools. Indeed, the U.S. Supreme Court has held unanimously under the federal Individuals with Disabilities Education Act that where public schools fail to provide disabled children an "appropriate" education, they must do so in private schools at public expense. Students in every state receive public education in private schools.
Yet several Florida justices appeared open to such an unprecedented ruling. "Where does the Legislature . . . get the authority to, in fact, have other forms of education, other than public education?" asked one. Another wondered if allowing parents to use state funds in private schools "wouldn't completely undermine the system that has been provided in the Constitution for the free system of public schools?" Interesting question given that Florida's public schools are thriving like never before.
Courts in other states all have concluded that the requirement of a uniform system of public education is a floor, not a ceiling, for the provision of educational opportunities. So too would it seem in Florida: The same constitutional provision that mandates free public schools also decrees that they be high quality. What happens if they're not? The Opportunity Scholarship Program makes good on the fundamental right to education by providing an option for children who would otherwise be trapped in failing schools.
Should the Florida court strike down the program, it would spell a death sentence not only for opportunity scholarships, but for more than 10,000 scholarships used by disabled children to attend private schools, and for a host of other parental choice programs as well. Even more significant, it would doom the dramatic and unprecedented progress Florida has made in delivering high-quality educational opportunities.
Last month marked the 50th anniversary of the U.S. Supreme Court decision in Brown II, which decreed that states make equal educational opportunities available "with all deliberate speed." Since that decision, we have lost large parts of three generations of schoolchildren to substandard education. The Sunshine State's great strides are long overdue and an example for the nation. We can only hope that the state's top court will not blot out progress with a dark jurisprudential cloud that once again turns the constitutional promise of educational opportunity into a cruel hoax.
Mr. Bolick is president and general counsel of the Alliance for School Choice (http://www.allianceforschoolchoice.org).
Gov. Bush's voucher program is improving public schools, but Florida's Supreme Court may strike it down.
BY CLINT BOLICK
Thursday, June 16, 2005 12:01 a.m. EDT
TALLAHASSEE, Fla.--Historically, American courts have played a leading role in ensuring educational equality and opportunity. But the Florida Supreme Court may reject that tradition by denying the constitutionality of, and thereby ending, the most promising educational progress for minority schoolchildren in the U.S.
The saga began in 1999, when Gov. Jeb Bush signed into law the first money-back guarantee in the history of public education: the Opportunity Scholarship Program. Under the program, whenever a public school receives two failing grades on Florida's academic performance standards, state educational officials come into the school with a remedial program, and the students are allowed to transfer to better performing public schools or to use a share of their public funds as full payment of private-school tuition.
Six years later, only 750 children are attending private schools using opportunity scholarships. But their footsteps have reverberated across the state, prompting failing public schools to reform. Steps taken by failing schools have included spending more money in the classroom and less on administration, hiring tutors for poor performing teachers, and providing year-round instruction to pupils.
Defenders of the status quo insist that such reforms were already under way. But a freedom of information request by the Institute for Justice from school districts that lifted schools off the failing list revealed ubiquitous reference to the dreaded V-word: Without such measures, school officials warned, we wind up with vouchers. The rules of economics, it seems, do not stop at the schoolhouse doors.
The results have been stunning. Even with tougher state standards, nearly half of Florida's public schools now earn "A" grades, while a similar percentage scored "C's" when the program started. A 2003 study by Jay Greene found that gains were most concentrated among schools under threat of vouchers.
Most remarkable has been minority student progress. While the percentage of white third-graders reading at or above grade level has increased to 78% from 70% in 2001, the percentage among Hispanic third-graders has climbed from 46% to 61%, and among blacks from 36% to 52%. Graduation rates for Hispanic students have increased from 52.8% before the program started to 64% today; and for black students from 48.7% to 57.3%. Minority schoolchildren are not making such academic strides anywhere else.
The usual cast of characters that has opposed parental choice programs in other states--teachers unions, the American Civil Liberties Union, and People for the American Way--mounted a legal attack on the Florida program as the ink was drying.
Most attention had focused on the challenge under the state's Blaine Amendment, a relic of a late-19th-century campaign against Catholic immigrants that sought to block the use of public funds for parochial schools. State supreme courts in Wisconsin and Arizona (and past decisions by the Florida Supreme Court relating to other social benefits) have found that general aid programs in which religious institutions provide services do not violate the Blaine amendments. Moreover, a decision singling out religious schools for exclusion from an otherwise applicable aid program could violate the First Amendment to the U.S. Constitution.
But several of the Florida justices focused instead on the clause of the state constitution that establishes the "paramount duty of the state to make adequate provision for the education of all children," mandating that the state provide "a uniform, efficient, safe, secure, and high quality system of free public schools."
Although many states have similar provisions, no appellate court anywhere has ever held categorically that public funds cannot be used in private schools. Indeed, the U.S. Supreme Court has held unanimously under the federal Individuals with Disabilities Education Act that where public schools fail to provide disabled children an "appropriate" education, they must do so in private schools at public expense. Students in every state receive public education in private schools.
Yet several Florida justices appeared open to such an unprecedented ruling. "Where does the Legislature . . . get the authority to, in fact, have other forms of education, other than public education?" asked one. Another wondered if allowing parents to use state funds in private schools "wouldn't completely undermine the system that has been provided in the Constitution for the free system of public schools?" Interesting question given that Florida's public schools are thriving like never before.
Courts in other states all have concluded that the requirement of a uniform system of public education is a floor, not a ceiling, for the provision of educational opportunities. So too would it seem in Florida: The same constitutional provision that mandates free public schools also decrees that they be high quality. What happens if they're not? The Opportunity Scholarship Program makes good on the fundamental right to education by providing an option for children who would otherwise be trapped in failing schools.
Should the Florida court strike down the program, it would spell a death sentence not only for opportunity scholarships, but for more than 10,000 scholarships used by disabled children to attend private schools, and for a host of other parental choice programs as well. Even more significant, it would doom the dramatic and unprecedented progress Florida has made in delivering high-quality educational opportunities.
Last month marked the 50th anniversary of the U.S. Supreme Court decision in Brown II, which decreed that states make equal educational opportunities available "with all deliberate speed." Since that decision, we have lost large parts of three generations of schoolchildren to substandard education. The Sunshine State's great strides are long overdue and an example for the nation. We can only hope that the state's top court will not blot out progress with a dark jurisprudential cloud that once again turns the constitutional promise of educational opportunity into a cruel hoax.
Mr. Bolick is president and general counsel of the Alliance for School Choice (http://www.allianceforschoolchoice.org).