Will Florida Voters Choose Freedom Over School Uniformity?

Published June 1, 2008

They were called Opportunity Scholarships when, in 1999, Florida created them to give parents the power to move their children out of failing public schools. Until recently, this first statewide voucher program to be initiated in modern times seemed to have become Opportunity Lost, on two counts.

First, the Florida Supreme Court in January 2006 ruled in Bush v. Holmes that using public funds to award Opportunity Scholarships for kids to attend private schools somehow violated the state constitution’s requirement for maintenance of a “uniform” public school system.

Second, on April 4, that unfortunate judicial enshrinement of cookie-cutter education seemed to receive insulation from reversal anytime soon. A powerful state commission with the power to put constitutional amendments directly on the statewide ballot fell one vote short of setting a November referendum on modifying the “uniformity” clause in a way that would allow publicly funded scholarships for private school attendance.

But on April 25, the state’s Taxation and Budget Reform Commission combined the voucher-friendly language with another measure that would oblige public school districts to spend at least 65 percent of their tax money on classroom instruction. The reworked amendment passed 19-6 and will go to voters this fall.

Restoring Choices

As a result, Opportunity Lost could become Opportunity Restored, if 60 percent of voters approve the ballot question. Teacher unions and other school choice opponents were quick to declare their vehement opposition.

Just how much opportunity has been lost was indicated in an empirical study by Greg Forster, Ph.D., released March 25 by the Friedman Foundation for Educational Choice. The loss was not just to voucher recipients, but to students in public schools that were prodded by the threat of vouchers to make improvements that boosted learning.

Forster found that at every stage of their brief history “vouchers were a key element driving improvements in public schools from the A+ program.” For instance, when vouchers were a blip on the screen but not yet widely available, improvements were modest (up 13 points in math) in public schools on notice that voucher availability loomed.

In 2002-03, the first year vouchers were available statewide, public schools in which some students accepted vouchers for transfer outperformed other Florida public schools by 69 points.

Procedural hassles slowed voucher participation the next few years, and the positive impact likewise slowed. Public schools in which students were offered vouchers outperformed other public schools by 20 to 27 points.

Finally, post-Holmes, schools that would have been threatened with vouchers made no gains stacked against other Florida public schools, compared to the 13 point gain in 2001-02.

Targeting Blaine

So is all lost? Fortunately not, because Florida still has an array of other school choice programs, such as the McKay Scholarships currently used by 17,000 disabled children; scholarships raised via tax credits for corporate donations; public charter schools; and virtual schools.

Moreover, a week before the Taxation and Budget Reform Commission’s April 4 “uniformity” vote, choice advocates garnered the necessary 17 votes to ask voters this fall to strike the notorious “Blaine” language–another impediment to free choice–from the state constitution.

Blaine amendments were added to the constitutions of 37 states in the late 1800s on a wave of anti-Catholic bigotry. They sought to ban all forms of government assistance for religious institutions, particularly parochial schools.

In the wake of the U.S. Supreme Court’s 2002 decision in Zellman v. Simmons-Harris, which held voucher programs enabling families to choose religiously oriented schools do not violate the establishment clause of the First Amendment, anti-choice forces have sought to use state Blaine amendments as a last-resort roadblock to the school choice movement.

In Florida, an appellate court in August 2004 used Blaine language to strike down the Opportunity Scholarships. However, the state supreme court subsequently relied on the “uniformity” clause instead, thus leaving the impact of Blaine murky.

Removing Barriers

If Floridians vote to strip this nineteenth century bigotry out of their constitution, it will serve several good purposes.

First, it will help protect numerous other state aid programs that directly or indirectly support faith-based institutions–everything from Bright Future college scholarships to universal pre-kindergarten to private schools enrolling McKay students–from becoming the targets of litigation.

Second, it would serve as a useful precedent for choice advocates, such as the Institute for Justice, which is battling Blaine assaults on school choice in other states, including Arizona.

Finally, Florida’s high court used such convoluted reasoning to make uniformity a barrier to reasonable educational alternatives that a future court could conceivably abandon Holmes as a precedent. At that point, opportunity could knock again.

Robert Holland ([email protected]) is a senior fellow for education policy with The Heartland Institute.