The voucher case: Politics, policy -- and children.
You'd think the grown-ups could fight these things out on their own without dragging the kids into our various social neuroses.
But we can't.
And so it was that six years after the Legislature passed the law the justices of the Florida Supreme Court found themselves on one sunny June morning as the legal arbiters of one of Gov. Jeb Bush's first initiatives: Vouchers, known as "opportunity scholarships," to pay for students at "failing" public schools to attend private, even religious, schools.
A rethinking of the state monopoly in public education is overdue. Money with inadequate performance accountability, which was then-Gov. Bob Graham's formula for better schools in the 1980s, isn't much more satisfactory than accountability with inadequate or misallocated money, which is the Bush brothers' formula. Monolithic control of schools by huge, impersonal school districts with big bureaucracies is not the best answer. Creativity, innovation and well-considered experimentation are surely desirable.
But Jeb Bush's theistic pandering to evangelical Christian organizations has marred his credibility as a policy-maker in education. You don't know, for example, whether this voucher program is just a foot in the door, to be expanded if court challenges fail. At the same time, others seized the initiative from Bush on education. A black Democratic legislator (now congressman), Kendrick Meek, championed class-size limits, which now dominate school budgeting. A universal prekindergarten program could well have been a Bush initiative furthering his emphasis on early reading skills, but he and Republican legislative leaders merely tagged along and then converted it into a privatized "choice" program. Bush has never offered much to Florida's teachers, who supported his opponents in three statewide campaigns, yet even Bush seems to think that better teachers would do more than smaller class sizes in improving education.
On the other hand, Bush's initiatives in reading and school accountability have focused on underachieving students, a natural Democratic constituency that hasn't been a priority for Democratic policy-makers. Bush's "A-plus" schools program, assigning grades of A to F to schools based on student performance on the FCAT test, has forced local school administrators to quit ignoring subpar schools in poor neighborhoods. Vouchers are a follow-on punch: If a school gets two F's in four years, its students have a right to an "opportunity scholarship" they can use for tuition at private schools -- the vast majority of which are religious-affiliated.
It can't be assumed, though, that the best private schools will be available to those who opt out of failing schools. They aren't likely to welcome a squad of unsuccessful students from failing schools under a program where the state voucher must be accepted as full payment of tuition.
This opt-out choice is no small matter for the failing school, for it often means the loss of students with the most involved parents. It is also no small matter for the Florida Constitution, which declares, "No revenue of the state or any political subdivision ... 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."
Which brings us back to the seven justices on that sunny morning in June. The question was not whether vouchers are good policy. Both sides cited studies, but the fact is that most studies on this issue are done by academics with a point of view on the issue. Jay P. Greene, who produced an oft-cited scholarly report favorably analyzing Florida's program in 2001, is a senior fellow with the Manhattan Institute, long an advocate of vouchers.
The political issue turns less on the scholarly research, which is equivocal, and more on individual beliefs about the importance of a strong public educational system. But the argument for public schools sometimes sounds like the case made 20 years ago for preserving the AT&T phone monopoly. Does breaking up the monopoly really deprive us of the social benefits?
Justice Kenneth Bell, a Bush appointee, briefly tried to make the case on policy. He challenged John West, the attorney for the voucher opponents, about the declining number of F schools. West said it wasn't necessarily because of vouchers. It's not even clear that the result comes from real student achievement or teachers' success at "teaching to the test."
Chimed in Justice Raoul Cantero, Bush's most recent appointee and probably the brainiest member of the court: "You would agree that whether they have been an overwhelming success or an utter failure is really irrelevant to whether the program is constitutional."
"Absolutely, your honor," said West.
Advocates of vouchers were heartened in 2002 when the U.S. Supreme Court ruled a voucher program in Ohio didn't violate the U.S. Constitution's ban on "establishment of religion." But Florida's constitutional provision is different and more specific about financial aid to religion. So private religious schools are not allowed to "compel any student attending the private school on an opportunity scholarship to profess a specific ideological belief, to pray, or to worship."
Supporters say the result is a "neutral" program, leaving the choice of school up to parents and showing no preference for religion. Argues retired Supreme Court Justice Major B. Harding, representing a voucher student and the libertarian Institute for Justice, "Nothing in the Florida Constitution prevents the state from giving 'have nots' the same freedom to choose educational excellence for their children that society's 'haves' take for granted." Harding's brief was clearly aimed at the more liberal members of the court, but there was no indication in the justices' questions that his appeal worked.
Justice Cantero seemed to have a more aggressive way of dealing with the problematic "no aid" language: Declare it a violation of the U.S. Constitution's protection of the "free exercise of religion." That position, even in a dissent, would have a double benefit for the voucher advocates: It would provide a basis for attacking the troublesome provision itself, and it would create a federal claim that would permit an appeal to the U.S. Supreme Court if necessary.
There are other constitutional provisions at issue. The constitution says it is "a paramount duty of the state to make adequate provision for the education of all children residing within its borders." It next requires a "uniform, efficient, safe, secure, and high quality system of free public schools." The voucher legislation pushed the idea that letting students out of failing schools was actually fulfilling this obligation. Critics, of course, say the state is obligated to do whatever it takes to fix the failing school.
The justices' questions indicated they would strike down the voucher program 5-2. There were some contrary signs, but not many. There was even a hint that the justices might base their decision on the requirement of "free public schools" rather than the religion clause -- which should mean the case ends here, without an appeal to the U.S. Supreme Court.
The sad thing is that whatever happens, the public schools won't be materially better off. Vouchers are a sideshow, with the usual suspects debating government recognition of religion. It's not a case about education. It's just another case of playing politics with Florida's children.