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:
"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."
"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
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
were tested, about a quarter were found to be functionally illiterate.
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.