School Choice Struck Down in Florida

I’ve been on a hiatus from blogging because of publishing and family commitments – and have been enjoying just reading my comrades’ rich discussions – but New Year’s the time to start again ….

The Florida Supreme Court just struck down the state’s “Opportunity Scholarship” program for students in failing public schools to receive free education in another school, public, secular private, or religious.  The basis for the invalidation was not that the program included religious schools – a basis that Rick and I had argued against in an amicus brief in the case – but rather that it violated the state’s duty “to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”  The court read “adequate provision” in the second sentence as restricting the means of satisfying the obligation of “adequate provision” in the first sentence; the provision

specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives [such as private schools].

I’m not an expert on the Florida Constitution, but the court’s reasoning here seems quite unpersuasive.  The key language was added (and in parts amended) by a ballot referendum in 1998, and as the dissent points out, the stated purpose of the measure was simply “to emphasize the importance of education and to provide a standard for defining ‘adequate provision.’”  The dissent adds that during the hearings that led to putting the proposal on the ballot, the issue of school choice was debated with no conclusion reached, and

Nowhere in th[e official ballot summary given at the polls] were the voters informed that by adopting the amendments, they would be mandating that the public school system would become the exclusive means by which the State could fulfill its duty to provide for education.

In contrast to this review of the context of the ballot measure, the majority relies mostly on the abstract axioms that in general, different parts of a provision should be read together and that the expression of one means is the exclusion of others – neither of which provides any reason for ignoring the specific context of the ballot measure.  Moreover, if the second sentence were meant to take the quite substantial step of restricting the means by the first sentence’s duty of “adequate provision” can be satisfied, one would expect the second sentence to say not that “adequate provision shall be made for . . . public schools,” but that “adequate provision shall be made by [or through] public schools.”

It certainly appears as though opponents of school choice have snuck a prohibition against it into the state constitution by means of the court’s decision.

At least, though, the ruling does not discriminate against religious schools by excluding them alone from a choice program left open to secular private schools.  And because the language of “adequate provision” in two contiguous sentences is far more unusual in state constitutions than is language that could be used to exclude religious schools alone, the Florida ruling seems likely to have less of a negative effect on school choice in other states.

Tom

UPDATE: Columnist John Tierney in the New York Times (subscription only, I think) roundly attacks the decision, touching on another important legal point:

[P]arents in Florida worry that more programs are in jeopardy, like the scholarships given to thousands of disabled students in private schools. Or the many charter schools in the state, which may not suit the judges' personal vision of a "uniform" system.

The FL SCT justices offered some extremely unconvincing rationales for distinguishing some of the existing programs that already gave aid to private schools.  The result-oriented nature of the decision was particularly apparent in this aspect.