- The Washington Times - Tuesday, March 21, 2000

Florida Circuit Court Judge L. Ralph Smith desperately needs and education in the obvious. On March 14, 2000, the seemingly cerebrating jurist in Holmes vs. Bush held that the Florida constitution prohibits private school collaboration with the public school system to rescue children from educational failure. In reaching that obtuseness, Judge Smith turned logic on its head and shut his mind to what every layman intuitively knows laws should not be interpreted to sabotage their remedial purposes.
A 1998 amendment to the state constitution emerged primarily from popular chagrin over stark deficiencies in Florida's public schools. Proponents of a remedy understood, like British sage Sam Johnson, that the difference between the learned and unlearned is the difference between the living and the dead. Thus, the pro-learning amendment enshrined "a paramount duty of the state to make adequate provision for the education of all children residing within its borders." It further instructed that "[a]dequate provision shall be made 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."
Children are the indisputable beneficiaries of the amendment; and a supreme canon of construction frowns on interpretations that confound a plain remedial objective.
The Florida legislature sought to implement the 1998 amendment by deputing private schools as white knights to save children from public school calamity. The "Opportunity Scholarship Program" was its statutory banner. Enrollees at public schools with a notorious "F" on their marquees for performance and whose educational progress has been stunted are entitled to private school vouchers to remedy the educational malpractice.
Private schools, however, are not divorced from the secular educational mission of public schools. States characteristically mandate private school instruction in a core secular curriculum and state licensing of its teachers. Private school students typically must pass achievement or other performance requirements levied on their public school counterparts. Moreover, when private schools receive state funds, as in the Opportunity Scholarship Program, they are saddled with certain state obligations. Thus, the U.S. Supreme Court held in Norwood vs. Harrison (1973), that the equal protection clause of the 14th Amendment required nondiscrimination on the basis of race in private schools that receive significant state aid.
In sum, private schools are virtual surrogates of public schools in secular instruction. That is why the Supreme Court also sermonized in Pierce vs. Society of Sisters (1926) that parents enjoy a federal constitutional right to insist on private schooling for their children so long as evenhanded state educational standards are satisfied.
Judge Smith, nevertheless, interpreted the 1998 state constitutional amendment to obstruct what it hoped to achieve namely, "an adequate provision" for the education of all children. He maintained that the sole permissible manner of effectuation was through the exclusive use of public schools. What he ignored, however, is that for purposes of secular education, private schools are virtual carbon copies of public schools. They must teach a mandated curriculum, employ licensed instructors, and satisfy educational performance standards. Even conceding some ambiguity on that score, any uncertainty should be resolved in favor of advancing, not retarding, the overriding educational aspiration of the amendment. The Opportunity Scholarship Program does just that. Judge Smith's ruling, in contrast, arrests children in failed institutions who are demonstrably mired in educational stagnation, a result that no sane voter or legislator could have intended.
To his credit, the circuit court judge instinctively felt the perversity of his stiletto in the Opportunity Scholarship Program. Public funds to pay for handicapped students to attend private schools to serve their special educational needs, he recognized, were placed under a legal cloud. Ditto for state tuition payments for disabled students to attend private institutions and the "second chance schools" program for disruptive or violent students. He invoked an unconvincing distinction that the schooling the latter provide is not readily available in the public school system. But that unavailability is the choice of the state. Nothing inherent in educating the disabled, disruptive, or violent requires abandonment of public schools.
Opportunity Scholarship Program beneficiaries by definition similarly cannot readily receive an adequate public education because they have been assigned to "F"-rated schools and are failing in fact. The private schools they attend are providing, as with specialized-needs students, what is not readily available to them in the public system.
Judge Smith tacitly acknowledged the weakness in his distinction, and thus took refuge in the fact that the constitutionality of non-OSP programs were not under challenge in Holmes. Thus, he need not follow the logic of his reasoning to further folly.
But judicial interpretation should not be a semantical game. When a law gives clear signals of where it is headed, it should not be derailed because a superior map might have been conceived. What Judge Smith did in Holmes, to quote Mr. Bumble, is to make the law "a ass, a idiot."

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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