Making Mediocrity the Standard

For a number of years the State of Florida has had school choice, in which students at poorly performing schools could get a voucher to move to private schools and have a better chance at a good education. That's gone now thanks to the brain-dead Florida Supreme Court which would rather see that all students achieve mediocrity rather than allowing some to excel (from OpinionJournal.com):

If you think kids are all the same, and that monopolies are the key to quality and efficiency, consider moving to Florida. As of this month, a uniform government bureaucracy is the only legal approach to public education in the Sunshine State.

For six years, students in Florida's failing public schools have been able to switch to a private school of their parents' choosing, using the state funds allocated for their education. No longer. The "Opportunity Scholarship" voucher program was struck down Jan. 5 by the state Supreme Court in a sweeping decision with national implications .

Unlike previous school-choice cases, Bush v. Holmes did not hinge on the use of public funds at religious schools. Instead, five of the seven presiding justices ruled that school vouchers violate the "uniformity" clause of Florida's Constitution. Far from being an arcane and forgotten technicality, this clause was amended and reapproved by voters just eight years ago: It mandates, among other things, "a uniform, efficient, safe, secure and high quality system of free public schools that allows students to obtain a high quality education." If only wishing could make it so.

What the new wording fails to consider is that a homogenized government bureaucracy is not necessarily compatible with efficiency and quality. By this point in American history, we should know better. After more than a century of honing its public school system, Florida has managed an on-time graduation rate of just 57%, placing it third from last nationally. Its composite SAT score is the fourth lowest among the states.

You may think I'm being a little too hard on the courts, because after all, it was the voters who passed the "uniformity" clause of the Constitution. The court clearly had an agenda in this case:

The full heft of that millstone can be gleaned from the oral arguments in Bush v. Holmes. At one point, an unnamed justice asked the attorney for voucher opponents: "You would agree, would you not, that whether [voucher schools] have been an overwhelming success or an utter failure, is, really, irrelevant to whether the program is constitutional." The answer was a resounding "yes." In other words, legislators may not consider alternative educational arrangements, no matter how effective they might be.
To be fair, most Florida voters probably had no idea that the 1998 education amendment would preclude alternative K-12 options. In all likelihood, they saw it as a toothless but well-intentioned attempt to improve public school performance. That is not how the state Supreme Court chose to interpret it. While the constitution does not say that uniform government-run schools must be the only public education program policymakers can adopt, the court majority inferred the existence of an implicit requirement to that effect.

In a dissenting opinion joined by Justice Raoul Cantero, Justice Kenneth Bell argued that there was no "textual or historical" basis for that inference. In fact, it should not have mattered who was right, because Florida case law admonishes the courts to adopt any reasonable interpretation of a statute that supports its constitutionality. Instead, the majority in Bush v. Holmes appears to have looked for an excuse to do the opposite.

Florida's Supreme Court was not, after all, the first to consider this issue. In Jackson v. Benson, the Wisconsin Supreme Court upheld Milwaukee's voucher program for private schools, even though Wisconsin is one of the 14 other states with a uniformity clause. The court in Jackson, like Justices Bell and Cantero, concluded that only public schools were required to be uniform. One state's rulings are not binding in another, but the Wisconsin case demonstrates a reasonable interpretation of a uniformity clause that is compatible with school vouchers.

Could this case have nationwide impact? You bet.

Finally, Florida's ruling appears to make charter schooling unconstitutional. A specific point made by the justices in striking down the Opportunity Scholarships is that they allow private schools to offer curricula different from that found in regular government schools. So do charter schools.

Every other state with a school choice program and a uniformity clause untested in its courts can expect to feel the heat. Arizona, which has education tax credits and charter schools, is apt to be a prime target. Minnesota, Colorado, Oregon and North Carolina, among others, all have uniformity clauses and at least one school-choice program vulnerable to attack.

Meanwhile, come this June, the more than 700 mostly low-income students currently in Florida's Opportunity Scholarship voucher program may be herded back into the very public schools that vouchers allowed them to flee. Unless the Constitution of Florida--and other states--is amended, they may not be the only ones.

Anyone want to bet that public school teacher unions will be behind the effort to stamp out charter school and other successful education experiments? You know they will.