release

This past Thursday, the Florida Supreme Court struck down Florida’s Opportunity Scholarship program, [PDF opinion] a voucher system allowing parents of students at substandard public schools to receive state assistance to send them to private schools. Voucher critics, namely the teachers’ unions and the ACLU, opposed the program primarily because some of the schools parents chose to use their vouchers on were religiously affiliated, the Court based its ruling almost exclusively on Florida’s constitutional requirement that the state provide 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.

The majority argues that Art. IX, §1(a), provides the exclusive means by which the state may provide educational opportunity for K - 12 students. In order to do so, it relies on various principles of statutory construction to read prohibitory language into a clause that does not contain it.

The majority also argues that the provision of state funds to private schools violates the “uniformity” provision because the private schools are subject to different standards than the public schools.

In order to support the previous two conclusions, the court also relies on the notion that the OSP “diverts” funds from public schools to private schools.

Exclusive Means

Justice Pariente, writing for the majority, stated:

The OSP violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.

The dissent, on this same point, notes that there is no evidence whatsoever, from the language itself to the legislative history behind the provision, that the drafters intended to prohibit educational spending in private schools to supplement the public school system.

There is no language of exclusion in the text. Nothing in either the second or third sentence of article IX, section 1 requires that public schools be the sole means by which the State fulfills its duty to provide for the education of children. And there is no basis to imply such a proscription.

As the ultimate sovereign, if the people of Florida had wanted to mandate this exclusivity, they could have very easily written article IX to include such a proscription. [but when provision was written...] There was no intent to make public schools the exclusive manner by which the Legislature could make provision for educating children.

The majority dismisses this by arguing that the program diverts funds from public schools to private schools:

Under the dissent’s view of the Legislature’s authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them “uniform, efficient, safe, secure, and high quality.” However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of “high quality” free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.

In other words, if the absolute total allocation drops by as much as a single dime, the program violates the constitution without regard to whether the remaining funds are adequate to provide the “uniform, efficient, safe, secure, and high quality” educational system for those who choose to remain in public schools. The dissent dismantles this argument by showing that reducing the student load of the public school system actually results in an increase of per-pupil resources for the schools they leave.

…the program is part of a broader education initiative that provides additional assistance to failing schools. Schools that receive an “F” must file school improvement plans, and studies show that these schools actually receive, on average, $800 more in per-pupil funding than “A” schools, even after accounting for the financial rewards given to high performing schools.

The majority dismisses this as irrelevant without any justification whatsoever:

Even if the tuition paid to the private school is less than the amount transferred from the school district’s funds and therefore does not result in a dollar-for-dollar reduction, as the dissent asserts, it is of no significance to the constitutionality of public funding of private schools as a means to making adequate provision for the education of children.

Uniformity

The majority opinion also stated …article IX, section 1(a) also requires that this system be “uniform.” It goes to great lengths to demonstrate ways in which private schools are subject to different standards than public schools and hence are not “uniform” with the public schools.

This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system. … In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

The OSP makes no provision to ensure that the private school alternative to the public school system meets the criterion of uniformity.

The dissent doesn’t address this, but a look at the plain language of the provision shows that the “uniformity” requirement applies only to the public school system. The majority apparently believes that Article IX, §1(a) not only prohibits supplemental public spending on private schools, but imposes requirements on the very thing it prohibits. It is clear from the language that the state must first provide for a “uniform… system of free public schools” but once it has met that obligation, there is no restriction on state spending for supplemental education programs in the manner the legislature sees fit. The OSP makes no provision to ensure that the private school alternative meets the criterion of uniformity because that criterion simply doesn’t apply to the private school alternative. But the majority’s interpretation would hold all students to the lowest common denominator, one-size-fits-all approach. One shudders to think what this opinion means for charter schools and magnet school.

Bad, But Not So Bad That We Want You To Stop Right Now

After concluding that the OSP violated the Florida Constitution, the majority expressly sanctioned this violation to continue for the rest of the school year:

In order not to disrupt the education of students who are receiving vouchers for the current school year, our decision shall have prospective application to commence at the conclusion of the current school year.

In the paragraph immediately preceding, the Court states:

As we recently explained, “[w]hat is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone.”

Apparently, what is in the Constitution does not prevail over the “disruption” of moving students during the school year, only the “disruption” of forcing them to move to different schools at the end of the year. The Court cited no legal authority for authorizing the continuation of this purportedly unconstitutional program, nor did they “interpret” an “end of the school year” exception into latent prohibitions of Article IX, §1(a). They simply declared it by fiat. The dissent, unfortunately, failed to point out that the constitutionality of the program is the same this school year and next; one must assume that portion of the majority opinion was drafted after the dissent was finished.

The court’s willingness to prolong a program it has declared illegal calls the validity of the entire opinion into doubt. It also casts a very dim light on these justices’ self-professed commitment to their oaths to the “polestar” of the constitution.

What It All Means

Although I am loathe to suggest political motivations to the court, even in light of their willingness to cast aside their own opinion in the name of avoiding “disruption,” it is worth noting that the court split precisely on party lines. All five of the majority were appointed by Democratic former Governor Lawton Chiles, while the two dissenters were appointed by the current Republican Governor Jeb Bush. I think that illustrates the type of justice each governor has tried to appoint. One group is finds prohibitions in language that creates none, protects the government bureaucracy, stifles innovation, hurts those very people who were meant to be protected by the provision in question (minorities and the poor), and then casts the law aside at the last minute for a momentary convenience. The other group, well… they showed they went to schools that taught them how to read.

Link via Abstract Appeal

Alia

Volume 11 makes the policy-based argument that something has to be done because Florida’s public school system is uniformly inadequate. The irony, of course, is that any school whose students qualified for the OSP, by definition, inadequate - thereby presumably violating the requirements of Art. IX, §1(a).

Southern Appeal says:

The Florida Supreme Court’s opinion is but another example of judicial supremacy endangering a state’s system of representative government.

Political Bloviation misses the point:

Diverting money away from poorly performing schools insures that the students with the least parental involvement will be left in the worst schools. It takes money away from those who most need the resources to fund what are largely church affiliated schools

Um, no. As the record in this case - cited by the dissent - clearly shows, this program reduced the burden on those schools more than it reduced the resources available to those schools, because the amount of funds “diverted” was less than the cost of educating the students who had left. In other words, per-pupil resources went up.

I’m not suprised that the court side stepped the article I section 3, “no aid” provision. It’s fairly straight forward.

Except that the program was carefully crafted to be absolutely neutral to the religious affiliation, or lack thereof, of the private schools. The purpose of the program was to aid students, not religious institutions. A similar argument was advanced but rejected in the Zelman case in federal court. I think this court dodged it for two reasons. First, they may have had trouble securing a majority to conclude that the “no aid” provision was violated. Second, the “no aid” challenge would have only affected money going to religiously-affiliated schools, thereby striking only part of the program and leaving voucher students free to attend non-sectarian private schools.

By contrast, Rachel seems to be the only reader of Sticks of Fire who gets it right - and she aced her Con Law exam!

Chuck Muth thinks the voucher movement will come out of this stronger than ever. He’s probably thinking of the backlash that happened after the U.S. Supreme Court decided the Kelo case.