Vouchers Fall in the Florida Supreme Court
It is an open secret that the question of state support for private education, often in the form of vouchers, is one of the flashpoints that divide liberal from conservative thinkers and policy-makers. For conservatives of all stripes, the most dominant feature of the system of public education is that it operates from soup to nuts like a state-created monopoly. To them, which is to say folks like me, state protected monopolies tend to be sluggish and unresponsive, especially when they are beholden as a matter of state law to recognize and negotiate over the terms and conditions of employment with strong teachers’ unions. The results in question are not surprising. System-wide failure that translates itself into expensive and unresponsive education that works far better for the well-to-do families that live in the suburbs than for the urban poor who have neither the wealth nor clout to escape the system.
For us market-oriented types, the solution for this problem is undermine the state monopoly by allowing, even fostering, in various forms of competition that give greater levels of parental choice on these matters. The ability of parents to opt out of public education and finance their children’s education privately is an important check on the state monopoly—an option that is frequently exercised in the form of home schooling programs. But that option still has the unfortunate consequence that, by removing one’s own children from the school system, parents do nothing to reduce their tax burdens to support the education supplied to other students who choose to remain in the public school system—or who are trapped by it. Put simply, the escape from the public school system comes at the cost of double taxation. Any program of state support for private education helps to remedy that failing. The amount of money that families pay into the system may not be reduced, but the amount of money that can be taken out from it is increased. The private costs are now lower, so that something akin to a level playing field is preserved.
The liberal vision of public education is quite the opposite. It does not see any particular danger in state monopolies, in education or any where else. But does see a mortal threat to quality education that stems from “diverting” funds from the public system to those students who choose to vote with their feet. Accordingly, they have thrown every conceivable obstacle in the path of vouchers in order, as they see it, to improve the quality of education for all by, I fear the same ham-handed methods of command and control that bloat bureaucracy elsewhere in the public sector.
The battle between these two points of view, and the interest groups that they represent, took an odd turn recently n Bush (as in Governor Jeb) v. Holmes. There the Florida Supreme Court held that the state constitutional provision requiring the state to provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education” knocked out the state’s Opportunity Scholarship Program that allowed students in failing schools to use state funds to pay for a private education. The case shows what bad interpretation can do for unwise constitutional provisions.
On the question of constitutional design, Florida’s uniformity clause teaches many unhappy lessons. The first of these illustrates the danger of adopting hortatory constitutional provisions that promise particular level of state services as opposed to the allocation of powers and responsibilities that are the traditional fare of most constitutions. These Soviet-style provisions of positive rights are always honored more in the breach than in the observance, for there is no way that any constitutional document can guarantee the supply of the need level of resources or expertise, let alone the desired level of services. Here it seems evident that the ostensible state law requirements are all in tension with each other, for one sign of an efficient and high quality system is a level of flexibility and decentralization that cut against the demands of uniformity.
Second, the Constitution provides no hint of what should be done in the event that this guarantee is not kept, so that in most cases it operates solely on a precatory basis. That approach makes relatively good sense. Since these provisions are not capable of direct enforcement in any obvious sense, then by all means do not enforce them selectively. It would be bizarre if the Florida Supreme Court decided to throw the entire state system into receivership because it failed systematically to reach the standards set for it. So why then police other breaches.
Unfortunately, the Florida Supreme Court did not absorb these lessons when it decided Bush v. Holmes. Instead the majority of the Court held that the demand for uniformity precluded any experimentation in state vouchers which would drain off money from public schools. That conclusion seems odd in the extreme. First, the general rule in Florida requires deference to the legislature, which surely makes sense in connection with these provisions that seek to mandate public services as opposed to protecting individual rights. Second, it is unclear just how much intervention its constitutional approach would require. Is a system of public schools “uniform” if it has different graduation requirements in different schools? Different courses offered to students? Different hours for the school day? Different salary scales or conditions of employment for teachers? The logic of the argument could go that far, but so long as a threat to the state monopoly is kept safely in the distance it won’t happened.
Worse still, there really was no need to insist on substantive uniformity in order to make sense of this provision. The United States Constitution contains two uniformity provisions in article I, Section 8, the first of which calls for uniform taxation and the second for uniform rules of naturalization and bankruptcy. In these contexts it is easier to supply rules with substantive uniformity than it is with educational services, even so the uniformity requirement has been held to demand at most geographical unity, which is easily satisfied by the this state-wide Florida program. And even on these geographical matters, the Supreme Court has held (more dubiously) that this requirement of uniformity allows for regional deviation from the uniform standard for reasons that meet the weak rational basis standard. Hence the windfall profit tax survived an exemption for Alaskan oil, and Amtrak did not have to operate uniformly on a nationwide basis. That geographical sense of uniformly could have been pounced on in the Florida case, but the federal analogies were not mentioned let alone discussed in either the majority or dissenting opinions.
The last feature of Bush v. Holmes that is so distressing is its ready embrace of the story that the use of voucher programs necessary diverts needed resources from the public school system. That view of the world is hopelessly static, especially in connection with a constitutional provision that actually cares about efficiency and high quality education. Viewed dynamically, the removal of children from public schools has at least two effects above and beyond the simple diversion of resources. The first of these is that it reduces the obligations of the public school systems, especially when the per pupil cost of education within the state system is higher than the cost of education within the public system, as I suspect it is in Florida. What is so horrible about a higher level of funds on a per capita basis for the students left behind. In addition, the private school options, secular or religious, injects a measure of competition. The public school teachers and their unions now realize that they are in competition with a nameless set of some and versatile institutions that they cannot control with the drop of a hat. The only way they can maintain their market share is to provide, as the Florida Constitution requires, a high quality education in an efficient fashion.
For all its blunders, Bush v. Holmes has this silver lining. It is likely that this decision will be followed in other states whose constitutions contain similar language. Too bad that this won’t help the hundreds of kids who deserve better than being trapped in state run system that has proved itself, even after strenuous efforts of Jeb Bush, to be so unresponsive to its needs.