January 6, 2006

"Adequate provision shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools."

That is a clause of the Florida state constitution, relied on by the Florida Supreme Court in striking down the state's school voucher program.

How do you interpret that clause to keep the state from giving vouchers for private school to children who are stuck in failing public schools?
"[The Opportunity Scholarships 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," the ruling said. "This diversion not only reduces money available to the free schools, but also funds private schools that are not 'uniform' when compared with each other or the public system."...

Chief Justice Barbara J. Pariente, who wrote the court's majority ruling, said that private schools are not "uniform," partly because they are exempt from many requirements imposed on public schools, including standardized tests and teacher credentialing rules.
That is the state supreme court's view of it, and the only way around it is to amend the state constitution (or get the state supreme court to overrule it).

Does the case mean anything outside of Florida?
Joseph P. Viteritti, a professor at Hunter College who has written widely on voucher programs, called the Florida ruling important because many state constitutions have provisions similar to Florida's, requiring that public education be "uniform."

"It signals a direction that litigation may go in the future, offering a strategy for people who may want to strike voucher programs down," he said.
In the past, we saw a United States Supreme Court case about school vouchers (Zelman), where the challenge was based on the U.S. Constitution and the focus was on the fact that many of the private school were religious. The Supreme Court rejected that Establishment Clause challenge. So the new direction for litigation is into the state courts, using state constitutional provisions that address the obligation of the state to provide a system of free public education.

I think it makes a lot of sense for the question of the voucher programs to take place at this level. It really is a dispute about how education should be structured and public money spent. You may think the state court went too far, reading too much meaning into that state constitutional clause in pursuit of its own policy preferences, but it's not all that hard to change a state constitution -- unlike the federal Constitution. If the people of the state really want the program, they can get it. And if they don't like they approach to state constitutional law their state judges take, there are democratic solutions to that too.

38 comments:

Jonathan said...

It sure looks like the majority on the FL court acted in a partisan manner. However, given the Republican majority in the legislature, not to mention FL's low procedural threshold for amending its constitution by initiative, I assume that the FL campaign for school choice will now move into the world of electoral politics, which is probably where it should be conducted anyway.

Ross said...

I'm going to go out on a limb and say that "uniform" was inserted in the Constitution to prevent one district from being given vastly better schools (or at least the resources to so provide) than another. As long as a district didn't, for instance, shut down its public schools altogether and simply give everyone a voucher, I can't see how supplying an "opt-out" option undermines that (laudable) goal of uniformity.

On the other hand, in the broader sense, it is precisely the uniformity that is the problem.

Hunter McDaniel said...

But Jonathan, the voucher program has ALREADY been through the world of electoral politics. And even if voucher proponents can get an amendment passed, I wouldn't discount the probability that the FL supremes will "discover" some defect in the amendment or some other constitutional provision for rejecting vouchers.

Jonathan said...

Hunter,

I think there's a big enough constituency for vouchers to amend the FL constitution in a way that the court won't be able to interfere with, but maybe I am wrong.

Sloanasaurus said...

It seems the courts support the elites who "know what is best."

A voucher system in inevitable. Florida citizens should move to change their constitution to address exactly what the Court said. At some point, the Courts have to back down in the face of a clear democratic majority and a failing and corrupt school system.

Balfegor said...

I wonder what the standard for "uniform" is, here (because I am too lazy to read the opinion itself). Does Florida have local school district control over things like curriculum, disciplinary policy, maintenance, etc.? I would think a strong argument could be made that allowing substantial local control, as is standard in most of the country (or so I understand) would also violate this uniformity provision, and be similarly unconstitutional. Standardised tests and teacher credentialing are not the whole of a school's makeup, after all.

Further, just reading the provision as quoted in the title of the post(again, without the benefit of knowing the whole of the court's reasoning), the argument seems odd. After all, orphanages and state parks divert funds from the state's coffers too, reducing money available for the free schools. Even the fact that government money is used for other educational non-public-school purposes does not seem to be something that should trigger a violation of the state constitution either, seeing as it's just another state spending program, like welfare.

I wonder, though, whether there might not have been significance attached to the structuring of the budget. Sometimes, the budget has funds earmarked for educational purposes (e.g. from lotteries or property taxes), so that voucher programs funded from those funds could be seen as infringing on the general educational fund, such that this reasoning might apply. Could a subsequent fig-leaf workaround be found by funding educational vouchers through some other element of the state budget, tying state educational expenditures to the number of pupils, and effecting a transfer that way?

I mean "fig-leaf workaround" to refer to those statutory redraftings Congress engaged in after Lopez came down. The substance of the law was pretty much the same; there were just a few superficial alterations, to match the court's language. Could there be something like that here?

Art said...

Wisconsin's constitution requires school funding be as unform as practicable which make you wonder how a plan that applied to only one area of the state was held to be constitutional in the first place.

(There's a prohibition on local bills affecting only one area, too, but that gets worked around all the time.)

But what I find interesting is that conservatives have been pushing school vouchers for years. There are lots of states with Republican governors and solid Republican majorities in both houses which should be able to poke a sharp stick in unionized teachers' eyes anytime they feel like it. But they don't.

Charles said...

The public education can remain uniform while still permitting vouchers - vouchers would only encourage upgrading the public schools to attract back lost students. Why didn't the Florida court strike down the public school system there for failing to provide safe, secure, high quality schools? That seems a bigger violation of the Florida constitution on the basis of budget, not to mention other categories.

John Thacker said...

It's a rather odd ruling to me, largely because the only students eligible for vouchers were those whose schools had been given failing grades multiple times. That is, the students who were getting vouchers were already failing to receive a uniform, efficient, safe, secure, and high quality public education. This program was designed to help get them an education as good as the people who go to good public schools. It was designed to help uniformity-- to let students escape schools that perform much worse than elsewhere in the state.

Simon said...

I'm interested in canvassing the opinions of other Althouse commenters on the normative question underlying the decision, rather than the decision itself. I find myself hugely conflicted over the vouchers question, because on the one hand, I'm a strong believer in choice and the consequences of unaccountability, and I believe that there is something deeply, deeply wrong with forcing parents to send their children to failing schools. But on the other hand, it seems to me that the practical cost of giving parents a way out of this trap with vouchers is to deprive the failing schools of precisely the money they need to improve. This is just an incredibly difficult choice, and I really don't know what the answer is, but it seems to me that the only efficacious answer is either for the system to be entirely private or entirely public; I just don't see how it can endure neither one nor the other.

My son starts middle school next year, so this is not an academic question for me, it's viscerally personal, and I just dont' know what the answer is.

Jake said...

"But on the other hand, it seems to me that the practical cost of giving parents a way out of this trap with vouchers is to deprive the failing schools of precisely the money they need to improve".

Money is not the problem. Minneapolis spends $15,780 per student and only 40% pass their grade level tests. Private elementary schools in the poorest neighborhoods who spend $4000 per student have 80% of their students pass their grade level tests.

Millions of black children's lives are going down the drain annually because of the death grip the teachers' unions have on our educational system. We have to rescue as many children as we can with public or private vouchers.

Harkonnendog said...

The court over-reached with this ridiculous ruling, and no, it is not okay, and yes, it is a big deal. Nowadays the legislature has to have a super-majority to pass any bill the court doesn't like. HiGlish!

Simon said...

"Money is not the problem. Minneapolis spends $15,780 per student and only 40% pass their grade level tests. Private elementary schools in the poorest neighborhoods who spend $4000 per student have 80% of their students pass their grade level tests."

Even if that is true now - and it may well be - pedagogical talent is certainly part of the solution, and money is certainly part of getting the best teachers. If one drains the school system of financial resources, how can one expect the best teachers to not go to the private schools where the pay is better?

Again, this is not necessarily a problem if vouchers are merely a transitory scheme to get us to fully private education. Without suggesting I support that end, it does make a certain amount more sense.

Balfegor said...

Even if that is true now - and it may well be - pedagogical talent is certainly part of the solution, and money is certainly part of getting the best teachers. If one drains the school system of financial resources, how can one expect the best teachers to not go to the private schools where the pay is better?

Shovelling more money at a decrepit system may be one way of achieving the desired end. I hardly think it's the most efficient one. Why not consider where that money is all being spent -- I suspect an unhealthy proportion is devoted to bureaucracy and district administration -- and simply devote more of it to teacher salaries?

Henry said...

Simon, I'm a 100% supporter of voucher programs. Note that when a student stops attending a school, it lowers the school's costs and objectively makes the school better, by lowering the student/teacher ratio.

The complaint that vouchers take money away from public schools should be put into the context that parents take money away from particular public schools all the time by moving.

Until the Florida court prevents parents from moving, their ideas of "uniformity" are nonsensical.

But furthermore, I don't know why the concept of "public" education must be wedded to the civil servant status of teachers and government ownership of crumbling brick buildings. Given government mandates on the subjects students must learn, the mechanism by which students learn those subjects need not be fixed to an accidental status quo.

I'm somewhat in the same boat as you, just a few years behind. My son will be going to kindergarten in a year. The local elementary school appears okay and we have a charter school option. However, our city's public high schools are dreadful. There's no question in my mind that we will move if we have to when the time comes.

Elizabeth said...

Is the pay better at private schools? I'm not sure that's true, though I'd believe that the working conditions are better, since private schools can toss out students with behavior problems.

I'm not inclined to support more tax funds going to public schools, but I've recently become much more in favor of school choice, within the public school system. This is a post-Katrina effect, as I have friends who evacuated to Champaign-Urbana, and whose children are thriving in that schools system. It makes the public schools more accountable and competitive, which is good for students, and good for taxpayers. But private industry ought to make it on its own, and private schools should be subject to the market. I particularly object to tax money funding religious schools, of any dogma. Taxpayers already pay for textbooks and transporation of private school students. Why believe that if we start funding their tuition, too, that those schools won't become just as useless as public schools?

Sloanasaurus said...

Elizabeth, I agree with ou about private schools making it on their own. However, I think the genesis of the voucher program is to give a chance to low income people to attend private schools. Most low income people are probably not getting a tax rebate in the form of a voucher as they never paid the tax to begin with. It's the voucher itself that gives a low income person the power of wealthier person. The power of choice... In a sense, vouchers are more egalitarian than the current system. If its more egalitarian... why do liberals oppose it? I am not sure, but I bet it has a lot more to do with a powerful union and disinformation than anything else.

Balfegor said...

But private industry ought to make it on its own, and private schools should be subject to the market. I particularly object to tax money funding religious schools, of any dogma. Taxpayers already pay for textbooks and transporation of private school students. Why believe that if we start funding their tuition, too, that those schools won't become just as useless as public schools?

Vouchers function as a quasi-market environment. Education consumers are (within certain limits) endowed with an equal amount of funds to spend on education and can allocate those funds as they think best. The reason we would expect private schools receiving voucher tuition not to become useless like our public schools would be that they are not allocated a set volume of funds; they have to persuade education consumers to give them those funds. To the extent those consumers are looking for a good education, they will exert competitive pressures on schools to avoid the worst of what our schools are today.

Of course, to the extent people are interested merely in an attractive school environment and straight-A's for their child, vouchers can enable that too, so there is no absolute guarantee that the educational quality will be commensurable across all voucher-driven schools. But that's the market.

Elizabeth said...

Sloan,

We're on the same page, but I think choice could work as a principle in reforming the public schools, without including the private ones in the formula. With the choice to move freely to any school that has an opening, students in poor neighborhoods will have leverage. More popular schools will receive more funds, based on enrollment, and poorly performing schools will bottom out, as they should. With charter schools as part of the system, students with particular interests will be served. For poor people, part of the formula would have to include help with travel, but urban areas usually provide bus passes to students already.

knoxgirl said...

It's obvious that public schools in poor neighborhoods suck while those in wealthier areas tend to be pretty decent... to me this represents institutionalized, government-sponsored inequality, which is about a million times more repugnant than the sort of inequalities created in a free-market system. In a free market, at least if you don't like something, you can choose to go elsewhere!

I know a public school teacher and from what she says, it seems like the problem is not that the public schools can't toss out students with behavior problems, it's that they can't do anything at all about them because of the threat of being sued.

Jake said...

"I know a public school teacher and from what she says, it seems like the problem is not that the public schools can't toss out students with behavior problems, it's that they can't do anything at all about them because of the threat of being sued".

The teachers' union in Minnesota controls the Democrat Party and I am sure they do in most states. Why don't they tell the Democrats to give our educational system and its employees immunity from lawsuits?

OddD said...

Every private school teacher I have known (which numbers in the dozens, if not hundreds) has assured me that private schools pay much less than public schools. (I assume there are exceptions, of course.)

I wouldn't, however, say, that they are better on the whole than public school teachers.

Harkonnendog said...

What you pay public school teachers doesn't matter much. Their unions assure that they aren't paid based on performance so, regardless of their potential, the least productive teachers are paid the most for their production.

Given the lack of competition within public schooling, the only way to spur public schools is by providing competition from private schools. That's why these voucher programs were started.

dick said...

Elizabeth,

The flaw in your reasoning about how the poor can move to any school that has an opening is how are the poor supposed to learn which schools are better and then how if the students who are not prepared go to these schools how do you keep them better.

I live in NYC and one of our problems here is that the education employment is so heavily weighted that there are not enough teachers to choose from and the good ones have been promoted to managerial positions. As a result the per student cost keeps going up but the quality of the teachers does not improve and as a result the schools do not improve either.

If you are a parent who is given the option of school choice, just how are you to educate yourself if you are interested and how is the public to get the ones who are not currently interested up to snuff so that the kids can get a good education. If the parents are given a voucher to use, that helps to center them. If the school sends out a blanket announcement that there is such a thing as school choice and does nothing to force the parents to understand it, they might just as well not bother sending out the announcement.

The main problem remains that there are just too many teachers who are not doing their job or if they are trying the lack of support from the community defeats them. I wish that the ed establishment would cut way back on the nonsense courses and also cut back on all the management. The good teachers are needed in the classroom, not in the Board of Ed building passing paperwork back and forth.

The voucher movement is an attempt to patch a broken establishment but with the Florida decision the establishment has signalled that it does not want the break fixed. Take a good look at who supported the court decision. If I remember right from the Miami Herald story, the main supporters were the Florida teachers union, the ACLU and the League of Women Voters (for some reason).

brylin said...

The Florida Supreme Court's decision in Bush v. Holmes is here.

School vouchers have become a political issue with Republicans supporting them and Democrats in opposition.

The National Educational Association (NEA) opposes vouchers. The NEA gives over 98% of its political contributions to Democrats.

Five justices, Chief Justice Barbara J. Pariente, and Justices Charles Talley Wells, Harry Lee Anstead, R. Fred Lewis, and Peggy A. Quince, were appointed by Democratic Governor Lawton Chiles.

Two justices, Justices Raoul G. Cantero, III and Kenneth B. Bell, were appointed by Republican Governor Jeb Bush.

Notice that the Court's decision in Bush v. Holmes was 5-2. The 5 Democratic appointees voted to reject vouchers, while the 2 Republican appointees dissented.

Another way to look at this case is that by enacting the Opportunity Scholarship Program, codified at Section 1002.38, Florida Statutes (2005), the people have spoken through their elected representatives in the Florida Legislature. The unelected Democratic majority on the Florida Supreme Court has usurped legislative authority and taken an activist position to invalidate the will of the people of Florida.

Do you really need to read the opinions of the Florida Supreme Court on issues that have become politicized?

I submit that the answer is no - you needn't read the opinions, just look at the politics and you will have an extremely powerful predictor of the outcome of these cases.

Or is the rule of law operative in this case?

Elizabeth said...

Dick, the flaw in your response is arguing that vouchers somehow, by "centering," whatever that means, helps poor parents be bettered informed about their choices. Smaller, less centralized school districts would help parents get to know their choices better. But it's the role of local press to keep parents informed: publish test results, student-teacher ratios, graduation rates, any benchmarks that matter. Schools, too, will want to publicize their own virtues to attract students.

Public school choice and vouchers don't work in any substantially different way. I'm arguing for keeping tax money spent on public institutions, not private businesses.

ckswift said...

I thought I read somewhere that a part of the opipion was also based
Article 1 Section 3
of the florida consistion:


SECTION 3. Religious freedom.--There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

Marcus said...

No, I wouldn’t agree with this ruling. I think that giving the all the religious zealots’ kids a check and sending them down the road would improve public education. After all, religion tends to dominate in the more pedestrian, blue-collar castes of society, the children of which don’t tend to well when it comes to academics. The average at the public schools could only go up.

Ann Althouse said...

ckswift: Good question. That issue was raised below, but the Fla. Supreme Court resolved the case on the provision I've cited. From the court's conclusion:

"Because we conclude that section 1002.38 violates article IX, section 1(a) of the Florida Constitution, we disapprove the First District's decision in Holmes I. We affirm the First District's decision finding section 1002.38 unconstitutional in Holmes II, but neither approve nor disapprove the First District's determination that the OSP violates the "no aid" provision in article I, section 3 of the Florida Constitution, an issue we decline to reach."

vbspurs said...

I particularly object to tax money funding religious schools, of any dogma.

Then stay clear of Canada, Elizabeth.

My boyfriend went to a Catholic school, which was completely supported by public funds, and yet, private at the same time.

Last I heard, many progressives in America lauded Canada for her more socially-conscious system.

They, up North, certainly do not have a problem with this situation, whilst being much less religiously-minded, than the majority of Americans.

Of course, cherry-picking what is good or not with a country is a sport we all indulge in.

Taxpayers already pay for textbooks and transporation of private school students.

We do? I say this completely innocently.

When I went to school down here for the 11th grade (having taken a year off from my usual, independent school -- our word for private -- in the UK), my parents paid for my uniform, my books, and my transportation, in totality.

Why believe that if we start funding their tuition, too, that those schools won't become just as useless as public schools?

Because of their mindset, their ethos, and the support of parents who have consciously chosen a different path for their children.

It's just that simple.

Cheers,
Victoria

vbspurs said...

This is my blogpost of Friday, about this matter, from a Floridian perspective.

No To Vouchers

I touch on the local charter school set up by our governor, Jeb Bush, which I believe in part bears his name.

Such schools, located in the centre of the most depressed minority area of Miami (Liberty City for you Grand Theft Auto fans), will have to be closed down as of 2007.

The kids' test scores are astounding in comparison to "normal" public schools in similar areas.

What a loss.

Cheers,
Victoria

vbspurs said...

Florida citizens should move to change their constitution to address exactly what the Court said.

I'm confident that the Governor will push for an amendment to the constitution, which should receive far wider support than say, a Terry Schiavo amendment.

This is especially true in minority communities.

Cheers,
Victoria

Elizabeth said...

Victoria,

I've managed to keep clear of Canada thus far. Are you arguing that their funding Catholic schools is responsible for their socially-conscious virtues? There are lots of ways in which our cultures differ, even if I find much to admire in Canada. I wouldn't trade our greater separation of church and state for their more integrated one.

I was vague in my comment about tax funds going to religious schools; I meant here in Louisiana. Lots of state money goes to Catholic and other private schoosl, for books, buses, lunch programs, and so forth.

I'm happy to accept that public funds won't corrupt private schools; I still don't want to part with any more of my tax bucks for my local archdiocese. And I think public school choice would accomplish the same goals as vouchers, so why not support improving the public schools, and let the private ones succeed or fail as a business?

Slac said...

Reading news about school vouchers always makes a shooting pain in my stomach. And this is no exception.

That religion and money is getting in the way of people who have no legal right to freedom (kids) finding opportunities for learning... is a lot to bear.

I hope your right, Ann, that this is a sign of progress. I might not have considered it as that if someone like you hadn't said it.

esk said...

Elizabeth: I totally agree with everything you’ve said to this point with the exception of:

“I wouldn't trade our greater separation of church and state for their more integrated one.”

Our Prime Minister and our previous P.M. have made this separation abundantly clear. One of the reasons some of us here have more rights than our counterparts down south.

Ann Althouse said...

Slac: You should recognize that a lot of people who choose private school are not doing it for the religion. Many, many people who are not Catholic -- and not fools -- have sent their kids to Catholic school for the education and the educational environment. There is a special problem with government imposing religion, but if people are free to choose, they might very well choose to put their kids in a school that is enveloped in a religion that isn't theirs. Relgion isn't poison, and being around some other group's religion can be enriching and interesting.

Kev said...

I'm late to the party here--for some reason, Ann, your posts weren't showing up from Tuesday forward until late last night--but I had a few thoughts:

Balfegor: "Why not consider where that money is all being spent -- I suspect an unhealthy proportion is devoted to bureaucracy and district administration -- and simply devote more of it to teacher salaries?"

Dick: "I wish that the ed establishment would cut way back on the nonsense courses and also cut back on all the management. The good teachers are needed in the classroom, not in the Board of Ed building passing paperwork back and forth."

You guys hit the nail on the head--public schools are top-heavy with administrators, and they're contributing very little to the educational experience. What happens is either that, in order to received a "promotion," a great teacher is removed from the classroom, or an awful one is put in a position of power over a lot of good ones. My solution: Administrators Must Teach. I wonder if any district has the guts to try this.

AlaskaJack said...

I'm waiting for the first politician to call for hearings on what is going on in our schools of education. What exactly do aspiring teachers study there and what are the latest theories of learning that are being foisted upon them? (These learning theories seem to change at least once or twice every 2 or 3 years with the most recent always contradicting all the earlier ones.)

I once heard a professor of education assure all of us that we should not worry about falling reading scores because we are moving towards a "visual culture" where learning will take place with visual images. We were reassured that traditional reading skills will come to be seen as an archaic vestige of an earlier age.

I was told that he had a number of contracts with eager public school districts who wanted him to help them implement his cutting edge theory.