Court Denies Floridians Chance to Vote on School Choice

Published November 1, 2008

The Florida Supreme Court removed two amendments from the November 4 ballot that would have protected the state’s existing school choice programs while creating an opportunity to implement additional choice options.

On September 3 the court ordered Amendments 7 and 9 had to be stripped from the ballot as a result of a lawsuit filed by the Florida Education Association, the state’s largest teachers union. The seven justices unanimously ruled the Taxation and Budget Reform Commission exceeded its constitutional authority in proposing the two amendments to the state constitution earlier this year.

The commission, which meets once every 20 years to examine Florida’s tax and spending policies and recommend changes, has the power to place amendments directly on the ballot for voters’ consideration. It did so earlier this year, but the court said the amendments overreached its authority.

Amendment 7 sought to lift the state’s century-old “Blaine amendment” prohibiting tax money from going to religious institutions. In this case, the public funds would have allowed school vouchers to be used at Catholic schools statewide. In 2004 a state appellate court cited the Blaine amendment in its ruling striking down former Gov. Jeb Bush’s (R) universal voucher program, the first nationwide.

No Power for Voters

Amendment 9 had two parts. One would have instituted a 65 percent rule, which would require at least 65 percent of school funds to be used in the classroom and not for administrative purposes. The other would have expanded the definition of “uniform education” to include private options.

In ruling the universal voucher program unconstitutional in 2006, the Florida Supreme Court had cited a clause in the document requiring the state to provide a “high quality, uniform” education to all students, opining only public schools met that requirement.

“Now, more than ever, Floridians should have a voice in determining, not just how much they are taxed, but how their tax dollars are spent,” Bush said in a September 12 newsletter. “Perhaps even more heartbreaking is the realization that Floridians will not have the opportunity to protect important programs, including the McKay Scholarship for students with developmental disabilities and Corporate Tax Credit Scholarships for students in low-income families.”

Status Quo Prevails founder Patrick Byrne, co-chairman of the Indianapolis-based Friedman Foundation for Educational Choice, in 2005 conceived the 65 percent rule proposed in Amendment 9. Byrne said he is disappointed by the court’s pro-establishment focus and lack of concern about law and constitutional principle. He said the Florida Supreme Court is more interested in defending the education establishment than in reforming a broken system.

“These amendments were proposals to build a bridge to get the poor people off the poor-people island, and the [Florida] Supreme Court decided that the poor people didn’t deserve that bridge,” Byrne said. “People in Florida now have to design these bridges to be fireproof from the rulings of the Florida Supreme Court.

“Overall, the decision of the Florida Supreme Court is shameful,” Byrne said. “The rulers who benefit from the current arrangement are burning the bridges of educational opportunity, to leave the poor people on the island.”

Diversity Arguments

Doug Tuthill, president of the Florida School Choice Fund, which awards the Corporate Tax Credit Scholarship to more than 20,000 low-income children statewide, said the rulings potentially threaten the Sunshine State’s existing choice programs.

“Amendments 7 and 9 would have clarified that including private schools in a high-quality, uniform system of public education is constitutional in Florida. Because these amendments were removed from the ballot, our scholarship program now remains vulnerable to constitutional challenges,” Tuthill said.

“We are working to convince the courts and the public that the uniformity clause in our state constitution means ‘uniformity of opportunity’ and not ‘uniformity of delivery,'” Tuthill continued. “A one-size-fits-all system of K-12 education does not provide every child an equal opportunity to succeed.”

Because only 43 percent of black males in Florida graduate from high school in four years, the focus needs to be on diversifying delivery methods to achieve a high-quality education, Tuthill said. Fortunately, “the increasing bipartisan support in our legislature and in the public at large is strengthening our ability to defend school choice generally and our scholarship program specifically,” he said.

During the spring 2008 legislative session, a bill to expand the corporate tax-credit scholarship program received support from more than 50 percent of the House Black Caucus and 36 percent of all House Democrats—a dramatic shift in support from when the program was created seven years ago with only one Democrat voting in favor of the bill.

Long Defense

Florida Education Association spokesman Mark Pudlow said his group’s 140,000 members have been fighting against vouchers since they were first enacted in the Sunshine State in 1999.

“FEA had to file suit because these amendments were beyond the scope of the Taxation and Budget Reform Commission, because each amendment was confusing and misleading,” Pudlow said. “We are quite happy that the Florida Supreme Court struck these misleading constitutional initiatives from the ballot. We expect to see the effort to open up vouchers for all to come back in some form in the years to come.”

Aside from the teachers union, other supporters of the lawsuit included the Florida School Boards Association, Florida Association for District School Superintendents, Florida Association of School Administrators, Anti-Defamation League, Americans United for Separation of Church and State, People for the American Way Foundation, and American Civil Liberties Union Foundation.

Jillian Metz ([email protected]) writes from Tampa.