The Florida Supreme Court's School Voucher Decision: Not Only Incorrect, But Also Unprincipled

By SHAVAR D. JEFFRIES

Thursday, Jan. 26, 2006

A few weeks ago, in Bush v. Holmes, the Florida Supreme Court struck down the State's Opportunity Scholarship Program (OSP). The OSP had provided private-school vouchers to about 750 children - most of whom were African-American or Hispanic -- in failing public schools. The Court based its holding on the state constitution's Education Clause, which requires the state to provide "for a uniform, efficient, safe, secure, and high quality system of free public schools."

The Florida court's interpretation of the Education Clause may provide a reference point for other courts throughout the nation - for many other state constitutions or statutes include provisions with similar language. And that's quite unfortunate, for the Florida court's reading of the clause is deeply flawed and fundamentally incompatible with even a charitable reading of applicable legal standards.

The Florida court gave three principal reasons to support its holding. All three are unpersuasive, as I will explain.

The Court Grossly Misread the Education Clause as Not A Guarantee, But A Limit

First, the Florida court held that the Education Clause not only places a positive obligation on the State to provide for a system of free, public schools, but also places a negative limit on the State's capacity to support education outside the context of public schools. Put another way, according to the court, the constitutional mandate to provide for a system of free public schools prescribes the exclusive means by which the State may support public education

There's simply no support in the Education Clause for this interpretation. The Clause's language affirmatively obliges the State to make "[a]dequate provision . . . for a uniform, efficient, safe, secure, and high quality system of free public schools." That is all.

The Education Clause, plainly, is a guarantee - of access to high-quality public schools. And it is no more than that. It says what the state must provide for, not what it is forbidden from doing. As long as the State provides such high-quality schools, whatever else it does in the area of education is unencumbered by the Education Clause.

There was no basis, then, for the Florida Supreme Court's holding that this affirmative obligation precluded the State from supporting any educational services that were not provided uniformly in public schools. This interpretation not only invalidates the OSP program but also suggests a broader, and detrimental, principle that may be applied in future cases: The principle that government support for education may be provided only if such support is provided in traditional public schools -- even if an alternative kind of support does not at all encumber the quality and uniformity of traditional public schools.

Why did the Florida court twist what was plainly a guarantee, into a prohibition ? The answer may lie in the court's limited powers. Unlike in the federal system, where Congress has only those powers constitutionally enumerated, the Florida Legislature possesses general legislative authority. It is thus constitutionally empowered to legislate in any manner not explicitly prohibited by the State Constitution.

Thus, in order to strike down the OSP, the Florida Supreme Court had to find an express constitutional prohibition of the program. Since no such prohibition existed, the court had to, in effect, invent one.

The Court Held the OSP Unconstitutional Without Any Empirical Basis To Do So

Perhaps realizing that its first holding was on shaky ground, the court reasoned, in the alternative, that the OSP is unconstitutional because it "undermines" the quality of public schools by "divert[ing]" funds to private schools that otherwise would be used in public schools.

The Florida court, however, so concluded without any explication of its reasons, or any reference to any empirical support for its claim. That's especially troubling because the court entertained a facial challenge to the OSP - that is, a challenge to a wide range of applications of the program, not just one. That meant that, under well-settled law governing facial challenges, the court could strike down the program only if its constitutionality could be sustained under no set of possible facts.

In fact, there are a host of reasons to doubt whether the OSP in any way compromises the capacity of Florida to ensure high-quality public schools:

First, fewer than 800 students participate in the OSP program. And spending on the program amounts to approximately $3.1 million - a mere drop in the bucket, barely more than .001% of Florida's total education budget of $27.6 billion. This is hardly an amount that would or could, empirically, compromise the efficacy of Florida's public schools.

Second, the amount of money diverted from public schools constitutes less than the marginal cost of educating each child in the OSP program; public schools thus experience no financial loss, on a per-pupil basis, by virtue of the OSP program.

Third, let's assume that some future, maximum-capacity OSP generated some financial loss to public schools in light of fixed capital expenditures. That wouldn't matter for the purposes of this facial challenge; for those purposes, if the current program is constitutional, that's good enough. And in any event, there is no evidence -- and the Florida Supreme Court did not cite any -- that even this increased amount to fund some future, hypothetical maximum-capacity OSP would inhibit, in any meaningful way, the capacity of Florida to provide high-quality public schools.

Fourth, it's important to recognize - as the Florida court did not - that state budgets are varied instruments, containing revenues and expenses concerning a wide diversity of subjects. There is thus absolutely no need for the Florida court to view education finances narrowly as a zero-sum game: Even making the extravagant assumption that a maximum-capacity OSP would divert essential resources away from public schools, that predicate would simply require the Florida Legislature to find the resources necessary for compliance with the Education Clause -- wherever those resources might be found in the total state budget.

The Education Clause, therefore, would prohibit the OSP only if the state budget could not accommodate both the State's constitutional obligations under the Education Clause and its statutory responsibilities under the OSP. On the facts I've cited above, that is plainly not the case. And, as noted above, the court did not cite any facts at all in support of its holding.

The Court Argues Unpersuasively that OSP Violates the Uniformity Requirement

Finally, the Florida Supreme Court concluded that the OSP violated the uniformity requirement of the Education Clause, because OSP-participating schools were not governed by the same teacher-qualification, teacher-certification, and curriculum standards as public schools.

This interpretation seems to be made up out of whole cloth. The Court cites neither prior caselaw, nor legislative history, in reaching this unyielding conclusion.

As a threshold matter, the uniformity requirement does not speak at all in terms of the particular bureaucratic inputs of schools. Rather, the Education Clause articulates broad, philosophic norms requiring the State to provide "for a uniform, efficient, safe, secure, and high quality system of free public schools."

Given the level of generality at which this language is articulated, the more reasonable interpretation is that schools must be uniform in terms of the "high quality" of the education provided, not necessarily in terms of the particular operational and pedagogic means by which that education is achieved.

Indeed, there is a broad consensus in educational practice that schools should be governed, managed, and designed flexibly in order to respond appropriately to the varied educational needs of diverse student populations. In fact, it is significantly because of this desire for flexibility in approach that the Florida Legislature enacted the OSP.

The Court's rigid interpretation of uniformity not only unjustifiably illegitimizes the OSP, but also hamstrings the State's capacity -- whether through charter schools, magnet schools, or other sorts of creative programs -- to adapt to particular student needs the means through which high-quality educational services are provided.

The Florida Court Should Have Deferred to the People's Judgment

In sum, the Supreme Court of Florida disrespected settled precedent requiring it to find legislative acts unconstitutional only if that conclusion was unavoidable. It transformed the affirmative requirement to establish quality public schools into a negative ban on government support for anything other than public schools. And it contorted the state constitution's vision of uniform, high-quality schools into a bland inflexibility concerning the substantive means through which effective education is attained. The Constitution simply does not prescribe - as the Court seemed to think - a "one-size-fits-all" education.

The Court's strained logic not only does a disservice to the needs of thousands of children, disproportionately poor and minority, ineffectively served by public schools, but also flouts longstanding rules of law admonishing courts to defer to the people's judgment, unless specifically and unambiguously compelled by constitutional mandate to do otherwise.


Shavar D. Jeffries is an Associate Professor of Law at Seton Hall Law School.

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