External Author Name: 
Liam Julian

Now that the Florida Supreme Court has struck down the state's Opportunity Scholarship Program (which provided students in repeatedly failing public schools vouchers for use at private schools), it's important to evaluate that decision's implications for education in the Sunshine State and beyond.

Those agreeing with the Court's decision immediately urged voucher supporters to surrender. "Focus on improving public education," they said, "not on politics." Besides, voucher opponents argued, the Court's ruling affects only the 700-odd students who actually received Opportunity Scholarships. No big deal.

Wrong. It is a very big deal. Not only because Opportunity Scholarships were canned via an overreaching legal interpretation, and not just because the students impacted directly were by all accounts thriving in their new environments, but because the Court's decision will undoubtedly affect thousands of additional students.

Writing the Court's majority opinion, Chief Justice Barbara Pariente concluded that the Opportunity Scholarship program "diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children" (italics added).

Pariente also objected to state funding for "schools that are not 'uniform' when compared with each other or the public system."

There are two flaws in the majority's logic. First, it boldly implies that public schools are the "sole means" by which the state may educate its students. Nowhere is that specified in the state constitution, which provides for a public school system but in no way excludes other school types (even if they are in competition with the established public system).

Second, and perhaps more worrisome, is the majority's interpretation of the word "uniform." If uniform education means - as the Court seems to believe - identical education, or education subject to identical regulations, then it is not only Opportunity Scholarships that run afoul of the state constitution. Charter schools, other voucher programs, Bright Futures Scholarships (a higher education program), and even district-operated magnet schools do not meet that standard. What about gifted and talented programs? Special education?

Charter schools serve some 80,000 Florida students. "Uniform" (in the Court's interpretation of the word) they certainly are not. In fact, non-uniformity is precisely their point.

Also vulnerable are the more than 16,000 Florida students who receive McKay Scholarships, vouchers given to disabled youngsters that they then use to enroll in private schools. A 2003 evaluation of McKay Scholarships revealed that 92.7 percent of McKay participants were satisfied with their private school education, while only 32.7 percent of them registered similar feelings about their previous public schools. The same study found only 30.2 percent of McKay students said they received from their old public schools all the federally mandated services they were entitled to.

Although the Court took pains to distance its Opportunity Scholarship decision from other Florida voucher programs (especially those that serve special needs students), it's highly unlikely that its ruling won't be applied to other voucher cases. The St. Petersburg Times reported that regardless of "the potential for negative headlines, the ACLU is considering a legal challenge to McKay vouchers."

And what of Florida's Bright Futures Scholarships? Through this laudable program, motivated Florida students receive a discount on in-state, public university tuition - or can opt to take a "voucher" for the equivalent amount of money to a private institution. Does that not divert "public dollars into separate private systems" that are, most assuredly, non-uniform and in competition with the state schools (public schools that are supposedly the only means to educate Florida's students)?

Nor does the Court's decision affect only Florida. Public Impact tells Gadfly that fourteen other state constitutions have similar "uniformity" clauses. Some of these jurisdictions have few school choice programs; others, such as Arizona, have many. (Wisconsin's Supreme Court has already addressed the issue and wisely ruled that Milwaukee's voucher program does not violate the state uniformity clause.)

Reports from Florida suggest that the legislature is forming a short-term strategy to switch funding for the state's voucher programs from public money to private dollars in the form of tax credits (see here). Come November, it's likely that Florida voters will have an opportunity to amend the Sunshine State's constitution to allow tax dollars to go to private schools. The Florida Constitution is frequently amended, and we hope, for the good of Florida's students and for the future of school choice across the nation that these efforts succeed. And we hope that state courts across the land don't take a "uniform" approach to this critical issue. Multiple wrongs don't make a right.

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