On Jan. 5, the Florida Supreme
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.
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
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
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.
* * *
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
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
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.
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 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.