Last week, in a ruling fraught with far-reaching ramifications, the Florida Supreme Court declared the state’s school choice plan unconstitutional. Argued in June 2005, this pivotal 5-2 decision brought an end to months of waiting and speculation.
The 700-plus students (94% of whom are African-American or Hispanic) who redeem Opportunity Scholarships could be forced to withdraw from their schools next year, or scramble to find alternate sources of financial assistance. For the past 6 years, students attending a school given a grade of “F” two times within any 4-year period have been eligible for either a transfer to another public school, or a scholarship to attend a private school (religious or non-religious).
While supporters had braced themselves for the possibility of a ruling against the program, few had anticipated the nature of the Court’s objection. Choice advocates around the country expected the Court to focus on the State Constitution’s Blaine Amendment – essentially, language prohibiting public funds from going to any kind of religious school. This kind of objection seemed likely since the vast majority of parents participating in Florida’s choice program redeem scholarships at religious schools.
Instead, the judges ruled that Opportunity Scholarships violated the State Constitution’s “uniformity” clause. This constitutional provision requires the state to provide for a “uniform, efficient, safe, secure, and high quality system of free public schools.” The Court held that this provision limits such opportunities to public schools with uniform curricula and teacher credentials. This ruling came in spite of the fact that Supreme Courts in both Wisconsin and Ohio rejected challenges to choice programs under similar provisions. The judges in those cases determined that the state did, in fact, provide a uniform system, but was not limited to that system to provide for the educational needs of all children. Clint Bolick, President of the Alliance for School Choice, explains it this way: “The Constitution creates a floor, not a ceiling, for educational opportunities.”
So, where do we go from here? Governor Jeb Bush called the ruling a “blow to educational reform,” but pledged to explore all legal options to protect the program, including asking the Florida Legislature to enact any available legislative fixes or amend the Florida Constitution.
While reformers may be temporarily disheartened by the Florida ruling, they should draw comfort from the fact that the manacled grip of the education establishment on American schools is slowly being exposed. This Friday, January 13th (at 10/9 Central), ABC News will air a 20/20 episode entitled “Stupid in America: How We Cheat Our Kids.” In the program, John Stossel examines the reasons American public schools are failing students; topping the list is our government monopoly system, and the fact that parents don’t get to choose where their kids go to school.
In the end, was justice served by the Florida decision? Not by my estimation. Such “justice” calls to mind Thomas Jefferson’s view on the limitations of the courts: “It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.” Fortunately, our government is much broader than the narrow views of a handful of judges. So keep your eyes on choice programs, in Florida and around the country. This battle is far from over.