Oral arguments played out last week in a school-choice showdown of national significance. The Florida Supreme Court heard the case of Bush v. Holmes, in which attorneys for Gov. Jeb Bush appealed a lower court ruling striking down the state’s "A+" voucher program.
Having followed such cases for more than a decade, I initially planned to comment on the legal niceties of the arguments and to prognosticate about the case’s likely outcome. But then I came across this brief exchange between an unnamed supreme court justice and John West, the attorney representing voucher opponents:
Unnamed justice: "You would agree, would you not, that whether (voucher schools) have been an overwhelming success or an utter failure, is, really, irrelevant to whether the program is constitutional."
John West: "Absolutely, your honor. Absolutely."
Legally speaking, they’re completely right. In this case, as in similar cases in other states, the educational fate of future generations hangs on legal questions entirely unrelated to educational quality.
This unfortunate outcome is not entirely avoidable. Some school-choice lawsuits have hinged exclusively on avoiding state sponsorship of religion, one of the most fundamental principles in American law. But issues of religious entanglement played only a supporting role in Bush v. Holmes. The question that most captivated the justices’ attention was quite different: Does the Florida Legislature have the right to supplement or modify the constitutionally required public school system?
The Florida Constitution not only calls for the government’s operation of a uniform system of free schools; it actually stipulates how the system must be broken down into school districts and outlines the nature and role of school boards. Voucher program opponents contend that the Legislature must use this constitutionally mandated school system as its exclusive means of providing general elementary and secondary education services. Voucher advocates argue that the Legislature can enact additional programs, including the existing voucher program, as adjuncts to the required government school system.
Whichever way the justices decide this question, one thing seems fairly certain from their interactions with the attorneys: Florida's Supreme Court would strike down a statewide voucher program that replaced traditional public schools or competed with them on a level playing field, regardless of how well it worked.
Floridians, and citizens of every other state with such explicit constitutional mandates, have backed themselves into a corner. Even if compelling new evidence convinces the majority of voters that there is a better way to educate children, the state could be stuck with the status quo. It would likely take a supermajority and a constitutional amendment to put alternatives to traditional government schooling on a sound judicial footing.
In describing this legal hurdle earlier, I said that it was "quite different" from the issues of religious dogma that normally dominate school-choice litigation. In a sense, however, it is not so different after all. Government-run, fully tax-funded schooling is enshrined in so many state constitutions because it has become an article of faith with many Americans. It is believed to be the only possible means of sustaining our democracy and ensuring universal access to education. While we are protected by the First Amendment against an establishment of religion, we are constitutionally defenseless against the establishment of narrow ideologies.
Consider: Article IX, Section 1 of the Florida Constitution demands the enactment of "a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education." This wording fails even to entertain the possibility that a state-run education monopoly might not be conducive to efficiency and uniformly high quality.
As it happens, Americans spend roughly $120,000 on each child’s government schooling. The last time our 16-to-25-year-olds were tested, about a quarter were found to be functionally illiterate. Indeed, research shows the inefficiency of government school monopolies to be a worldwide problem. As for their ability to advance social goals (such as civic engagement, the reduction of racial achievement gaps or the promotion of social harmony), the evidence suggests that other approaches to organizing schools are more effective than the currently ubiquitous government school systems.
So, despite the reality that government monopoly schooling is failing to fulfill our needs, what have we done? In many states, we have carved that system into constitutional stone, forbidding alternative systems even if they offer substantially better prospects for our children’s education. This entanglement of blind political ideology with education policy is no less dangerous for our children than the religious entanglement that Americans have striven so hard to avoid.
Andrew J. Coulson is senior fellow in education policy at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.
 Neither the video recording nor the preliminary transcript of the proceedings identifies the justice in question.