- The Washington Times - Monday, January 9, 2006

The Supreme Court of Florida deserves a dunce cap for invalidating the state’s limited school voucher program calculated to spur improvements in free public education. In Bush v. Holmes (Jan. 5, 2006), a 5-2 majority obtusely interpreted the state constitution to prohibit state financing of private school alternatives for students attending public schools found by the state to be failing for two years in a four-year period. The decision marked a dismaying surprise O Henry ending for Florida’s voters who enshrined education as a “fundamental value” in the constitution only three years ago.

Parents, students and legislators alike covet a high-quality system of elementary and secondary education. Whether the instruction is provided in public or private schools or by teachers or tutors is generally unimportant. What counts for all three groups is the end result.

With that consensus, Florida’s voters in 1998 approved an amendment to Article IX of the state constitution aiming to upgrade educational standards and opportunities. The “education of children” was made “a fundamental value.” The state was saddled with a “paramount duty” of providing an “adequate” education for youngsters. The state legislature was directed to establish “a uniform, efficient, safe, secure and high quality system of free public schools that allows students to obtain a high-quality education….” That language was interpreted by the Florida Supreme Court to confine the legislature to relying on public schools exclusively to provide an adequate education.

But neither the text nor purpose nor history of the 1998 amendment suggests it intended to foreclose state funding of private school scholarships for students attending public schools defaulting on their adequate education mandate. A chief proponent elaborated: “Now I want to point out clearly and for purposes of intent that as education of our children in the state move in various directions, whether it be charter schools, private schools, public schools, and whatever preference you have as to how our children are educated, this amendment does not address that.

“What this amendment does is says that as we move off in those directions … this amendment is going to insure everyone moves together, that every child is ensured an education: the poor, the black, the whites, the Asians, the Hispanics. Every one will be ensured this fundamental right, no matter what direction this state takes.”

In other words, the amendment sought uniform educational opportunity, not a public school monopoly of state funding to placate public employee unions. In 2002, the Florida legislature responded to the clarion cry of the amendment in re-authorizing the Opportunity Scholarship Program (OSP), which was uniformly available to all students. It provided attendees at failing public schools a right to enroll at a higher-performing public school or to receive a scholarship to attend a qualified private school in an amount equivalent to the cost of a public education. Thus, if all public schools performed adequately, no scholarship funds would be forthcoming. Private schools stepped in only when adequate instruction was unavailable in the student’s public school, just as exceptional students regularly received instruction in private schools at state expense when needed facilities or personnel were unavailable in public schools. The latter programs were held constitutional in Scavella v. School Board of Dade County (1978).

The Florida Supreme Court in Bush v. Holmes rightly underscored the importance of an educated citizenry. James Madison lectured: “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power knowledge gives. … Learned institutions ought to be favorite objects with every free people.” Thomas Jefferson similarly instructed: “If a nation expects to be ignorant and free … it expects what never was and never will be.” But neither Madison nor Jefferson insinuated public schools were preferable to private counterparts. Their overriding objective was indistinguishable from that of the OSP: learning by any means that succeeds.

The Florida framers of the 1992 amendment were not writing on a clean slate. Ten other states featured constitutional provisions that expressly made public money for private schooling taboo. The South Carolina constitution, for example, provides, “No money shall be paid from public funds nor shall the credit of the state or any of its subdivisions be used for the direct benefit of any religious or other private educational institution.” Florida’s amendment, in contrast, eschewed such a categorical prohibition.

The Florida Supreme Court faulted the OSP for not ensuring eligible private schools were carbon copies of public schools in curriculum or teacher training. These variances, claimed Chief Justice Barbara J. Pariente, flunked the amendment’s mandate of “uniformity.” But as any student or parent knows, public schools also vary enormously in the competence of teachers and subject matter taught. Were the Holmes majority consistent, the entire Florida public education system would be held unconstitutional because of disparities among schools.

Chief Justice Pariente stumbled in interpreting the 1992 amendment by mistaking the ambitions of the Florida Education Association (which joined in attacking the OSP) for the educational goals of its sponsors. That is not a passing grade.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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