Academic journal article Education Next

Florida Grows a Lemon: Court Contortions Overturn a Successful Voucher Program

Academic journal article Education Next

Florida Grows a Lemon: Court Contortions Overturn a Successful Voucher Program

Article excerpt

Florida's supreme court is no stranger to political warfare. Before the U.S. Supreme Court decided Bush v. Gore in favor of George W. Bush, the Florida court had ruled in favor of Al Gore. And the same court played a crucial role in the state's extraction of an $11.3 billion settlement from the tobacco industry in the 1990s. After the legislature had passed a constitutionally dubious law loading the deck against the tobacco industry, the court, in a 4-3 decision, found a way to uphold it. Clearly, these judges do not recoil from constitutional constructions that suit political purposes.

The court had no choice but to enter Florida's school voucher wars. In 1999 the legislature had created the Opportunity Scholarship Program (OSP), which allowed students in failing K-12 schools to transfer to better public schools or to private schools with the aid of state funds. Organized teachers, school boards, and other voucher opponents brought suit. Several years of wrangling in the state's lower courts culminated in an appellate decision that the OSP was unconstitutional. The state supreme court was obliged to hear an appeal.

To strike the program down, as happened in January in Bush v. Holmes, the court had to do two things. It had to find that the state's constitution prohibits the use of public funds in private schools. That was the key issue. And, to avoid a bruising political battle, it had to distinguish the OSP from other, quite similar but very popular state programs that seemed to be indistinguishable in principle. With tortured logic, the court went to work.

The court focused on an article in the Florida constitution stating: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools." It interpreted this to mean that "free public schools" shall be the sole way in which the state provides for children's education, although that is not what the constitution says. Seizing also on the requirement of uniformity, the court asserted that private schools are not uniform when compared with each other or with the public system. But the uniformity clause, whatever it may mean, clearly applies only to public schools. …

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