On Jan. 5, the Florida Supreme Court struck down a K-12 scholarship program that last year gave 763 kids, 94 percent of whom were minorities, an opportunity to escape the failing public schools they attended. The majority in the 5-2 decision in Holmes v. Bush ruled that the "Opportunity Scholarships Program" is unconstitutional because "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 Opportunity Scholarships Program gave two options to students whose public schools received an ‘F’ from the Florida Department of Education for two of four years. First, they could transfer to a public school that the state of Florida determined was not performing poorly. Alternatively, they could use a scholarship, or "voucher," to attend an independent school that would meet their educational needs. It is the latter option that the Florida Supreme Court ruled unconstitutional.

Despite many months of speculation and a lower court ruling that struck down the program based on the Blaine amendment in the Florida constitution, the Florida Supreme Court justices chose not to rule on whether tax dollars can be used at independent, rather than government-operated, schools.

The original lawsuit was filed with a Florida circuit court soon after Gov. Jeb Bush signed the 1999 legislation that created the OSP. The program was allowed to operate during appeals and the suit bounced among various courts before finally landing on the state Supreme Court’s docket. Oral arguments were heard on June 7, 2005.

Mackinac Center Senior Policy Analyst Andrew J. Coulson, who is also director of the Center for Educational Freedom at the Cato Institute, wrote a commentary in June (which we reprinted below) about how unfortunate it is that the education of millions of children depends upon legal arguments rather than sound policies regarding educational quality. Such an education policy would take into account a study that found that competition from this scholarship program has helped both students who receive scholarships and those who remain in the public schools.

Given this success, we can only hope that the options that may remain for children and parents in the Sunshine State will benefit those who were denied school choice by this ruling. These options may still include the McKay Scholarships program, which served more than 15,000 students with disabilities last year, and the business donation education tax credit program, which provides an incentive for businesses to contribute to organizations that give scholarships to students from low-income backgrounds.

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Ryan S. Olson is director of 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.

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(The piece below was originally published in June 2005. It was reprinted following the Florida Supreme Court’s Jan. 5, 2006, ruling.)

Thou Shalt Have No Other School System Before Me

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[1] 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.

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Andrew J. Coulson is a senior policy analyst with the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich., and director of the Center for Educational Freedom at the Cato Institute. This commentary was originally published in June 2005. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.