Strengthening Constitutional Self-Government

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Florida vouchers again

Katie Newmark brings us up to date with an account of the oral arguments in the Florida voucher case, about which I’ve posted before here, here, here, here, here, here, here, and here. (Some of the earlier posts are about Georgia, but the issues in the two states--dealing with "Blaine Amendments"--are similar.)

What’s surprising about the oral arguments, also noted in this article, to which Katie links, is that the judges spent less time on Florida’s religious funding restrictions than on another clause of Florida’s constitution that requires the state to make "adequate provision...for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require." Taken together with another constitutional reference to a "state school fund," whose principal and interest may only be used to fund free public schools, this provision may serve as the basis of an argument that the state cannot support any form of private education, religious or secular. This is a very clever argument, which if successful would likely make support of public schools the only constitutional option in Florida. And since it doesn’t in any way discriminate against religious schools in particular, it wouldn’t be subject to any 14th Amendment equal protection or 1st Amendment viewpoint discrimination challenge. Saving Florida’s voucher program under these circumstances would probably require a constitutional amendment, which would be portrayed by its opponents as an assault on public education. Whew!

There is one possible loophole identified by one of the program’s legal defenders, Barry Richard. He suggests that the Florida legislature could appropriate money for its voucher program separate from the so-called "school fund," and that, even if the money for the voucher program reduces dollar for dollar funds available to public schools, the legislature would have met its obligation to provide for a free public school system. Here’s his argument:


Of course, someone could take up the challenge and argue that the legislature isn’t in fact making adequate provision for public schools, which seems to be what happened last week in Kansas and also elsewhere. This could end up driving the costs of education through the roof, with or without vouchers, as judges predictably succumbed to the temptation to legislate from the bench.

Hat tip (for the oral argument transcript): Religion Clause.

Update: Howard Friedman thinks that my worries might be misplaced. Here’s his quick and helpful response:

Many state constitutions require the state to furnish a "thorough and efficient system of common schools". Florida’s provision just seems to be a more elaborate version of these. These clauses have been used to reform the financing system for public schools, but I do not know of any cases that have said they mean that states cannot support private schools. See Ohio’s DeRolph case for an example of a school funding case.

Of course, that it hasn’t been done before doesn’t mean that the Florida court won’t try it.

Discussions - 15 Comments

I am no expert regarding school vouchers, but isn’t the logic of the program that, by giving the public schools meaningful competition, the public schools will improve the quality fo thje education that they provide to their students. In other words, are not vouchers a means (perhaps not the only one, but definitely a means)to assure "...a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education...." If so, and if that is the declared legislative purpose, school vouchers are a means of fulfilling this constitutional mandate, aren’t they, and not a means of frustrating that mandate?

"Adequate provision for a... high quality system of free public schools."

This clause should not be an obstacle if one argues that the injection of competition into the system (via vouchers) is a legitimate, well-established tool (one of many) for insuring the quality of that system (or any service system). Whether or not one is actually convinced of the salutory effects of competition, there is enough empirical evidence for it that one would be hardpressed to argue that the state’s actions here are UNREASONABLE.

I agree that the Florida Supreme Court ought to defer to the legislature’s judgment about the best way of educating Florida’s children, but I’m not altogether confident that it will. In the first place, much of the heroic "mythology" regarding the role of courts in the 20th century derives from their supervision of school districts. And even here there have been massive instances of overweening that have survived all the way to the U.S. Supreme Court (e.g., Milliken v. Bradley and Missouri v. Jenkins). Second, as I noted above, there are recent instances of judges substituting their judgment for that of the politically responsible parties with regard to matters of education policy that have nothing to do with civil rights. Third, there is the rather high-handed behavior of the Florida Supreme Court in the aftermath of the 2000 election.

Perhaps the judges were only fishing for good responses to a line of argument that hadn’t adequately been aired in the briefs. I hope so. But, as I said, I’m not confident.

These interpretations of vague state constitutional educational requirements are just ratchets to boost employment and wages for the teachers’ union. What these states really need are constitutional amendments that clarify 1) how schools will be funded, and 2) at what level (% of state GDP, for instance). Hard to do, admittedly, but until this is done we will continue to experience these law suits sponsored by the NEA and its minions.

As far as the logic of vouchers, come on! The very last thing on the minds of the NEA’s leadership is the welfare of students or the improvement of education. It’s a business, profit is the bottom line, and the ’milk cows’ are the treasuries of the Federal, State and local governments.

"The NEA and its minions"? These suits are usually brought by schools that don’t have textbooks and can’t meet state safety standards due to a lack of funding. You don’t need to be a union boss to know that a 40 year old history textbook is no good.

Between 75% and 90% of school district costs are strictly wages and fringe benefits...contractual obligations the unions squeeze out of school districts. What do they cut back on? Books, infrastructure...stuff for the kids! Ohio Voter, you need to look at this more objectively. To suggest that the NEA isn’t party to these lawsuits is laughable. Break the teacher monopoly and I’ll gladly discuss alternative funding arrangements. Until then, local control is all we have, and if that means "poor" schools then so be it!

I knew this teacher once who never did a lick of work, drove a Rolls-Royce to work, lived in a mansion, was a Communist and a union boss, and discouraged children from reciting the Pledge of Allegiance. Oh, and she was also on welfare and food stamps (she was cheating, of course - our taxpayer dollars at work!). At least 60% of teachers have similar lifestyles. We have to stop these teacher people!!!!

Oh, the sarcasm...sob, I can’t take it. I have sinned by suggesting that teachers’ unions are counterproductive. Break out the tar and feathers.

Don’t know what to say other than I WASN’T being sarcastic!!

Come on, dude. 60% of teachers drive Rolls? Live in mansions? Only college professors live like that!

Between 75% and 90% of all statistics are completely made up by anonymous posters.

Nope, those statistics accurately reflect the metropolitan area I live in. Sorry to disappoint you.

Which metropolitan area would that be?

These suits aren’t brought by plaintiffs in metropolitan areas, they are brought by students in poor, rural districts that don’t have any money. The Ohio case Knippenberg refers to is a good example.

We’ve featured this post at this week’s Carnival of Education.
A collection of posts from around the EduSphere.

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