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.

Comments

[Phil]

I still want to know why I should think, even for a second, that vouchers won't be for education what Enron was to the energy markets. The interests pushing vouchers aren't stereotypically enthusiastic about government standard-setting, oversight, regulation or, you know, governance generally speaking.

Suppose we acquiesce and let the great and powerful market have access to per student public funds. Why should I believe that private players won't run amok once again, seeking profit and "shareholder value" at the expense of educational infrastructure, vulnerable communities and the future of our country?

[Deborah Spaeth]

Kimball you are a lying sack of shxt and I've busted you again at your dissembling.

You wrote:

"That Justices of the Florida Supreme Court are ELECTED OFFICIALS and that the National Education[al] Association, the Federation of Teachers and others of their ilk (affectionately known in lobbying circles and elsewhere as the "blob") ardently and effectively oppose virtually all vouchers and those who support them may be the real, underlying reason the Florida Supreme COurt rejected the voucher program it reviewed. NOTHING LIKE HAVING YOUR JOB ON THE LINE IN THE FACE OF SUCH FINANCIAL AND POLITICAL MUSCLE. The beneficiaries of the state monopoly on education are clearly out to protect it and themselves." (emphasis added)

Now you want me to believe that you weren't arguing that the Supreme Court was bought off?

Again, Kimball: where is the evidence? You make a serious accusation and provide nothing but inuendo and winking. It's pathetic.

Show me where the Supreme Court of Florida got it dead wrong. Show me where the Supreme Court of Florida lied about or blatantly mischaracterized the Florida Constitution.

Without that, you're just spinning and spinning and spinning in your love embrace with Perfesser Epstein.

"The Florida constitutional provision addresses only quality in public schools and that was my point. It does not therefore preclude quality private schools."

Another strawman. First you say it doesn't OUTLAW quality private schools. Now you say it doesn't PRECLUDE quality private schools. That's nice, Kimball. The Florida Constitution doesn't preclude the creation of UFO landing pads either. So what?

Why do you make these strange statements about what the Florida Constitution does not preclude, Kimball? Why can't you simply write honestly and articulately?

I think I know why: you're a lying tool like a lot of conservative shills (Deborah Howell of the Washington Post leaps immediately to mind these days).

"Why not let the state provide its per capita funding directly to the parents who can then buy the quality of education they want for their children where they want."

The Supreme Court of Florida answered this question with regards to the specific voucher program at issue. You didn't like their conclusion because you BELIEVE that the reason public schools in Florida are lacking is because they don't have "competition."

What is your evidence to support your conclusion, Kimball? Anecdotes about the Soviet Union or the fantastic greatness of UC-Berkeley are not particularly compelling in this context. Sorry to break that news to you.

"virtually all parents want to see their children do well and have hope and prospects. The public education system does not address those needs and parents know it and in part and for those reasons have the attitudes they do."

That wasn't my experience at all. Could it be that the situation is more complicated than you pretend, Kimball?

[Deborah Spaeth]

Phil

"Why should I believe that private players won't run amok once again, seeking profit and "shareholder value" at the expense of educational infrastructure, vulnerable communities and the future of our country?"

Great question.

The answer is that if you don't believe in the wonderful powers of "free markets" you don't belong in God Bless America.

Enron wasn't about the dangers of capitalism run amok. Enron was about the dangers of not using the proper code words in meetings and in emails.

[Deborah Spaeth]

Hey Kimball, perhaps you can find support for the benefits of increased privatization in the apparently smashing success of the Bush Admin's new Medicare program.

Or we could just bag the whole concept of helping sick elderly people. It's so inefficient to systematically attempt to provide comfort and aid to sick old people. Right, Kimball?

I suppose this is why the best private schools require everyone to read Mein Kampf. Teach the controversy! It's only "fair" after all. It's all about the "marketplace of ideas." Right?

[The Law Fairy]

Phil:

"Why should I believe that private players won't run amok once again, seeking profit and "shareholder value" at the expense of educational infrastructure, vulnerable communities and the future of our country?"

That actually sounds a bit like what's already happening in our public schools. Some districts, for instance, have taken to tying teacher compensation to student performance on standardized tests. Most states tie some form of compensation to these test results. What this has resulted in is that teachers "teach to the test" so that students only learn what the bureaucrats think is a good indicator of basic proficiency, without really understanding what they're learning or why. They're getting a poor education and assimilating an ends-oriented thought process, rather than one that emphasizes the importance of means (one of the most important things in education).

Parents are increasingly being shortchanged by the public school system (granted, partly their fault due to the fact that the ones who complain the most tend to complain that their kids' grades aren't high enough, or that their kids shouldn't be disciplined for breaking rules, etc.). The ridiculous political focus on "keeping out" certain influences has overtaken the importance of learning for learning's sake.

Taxpayers, who might be seen as minority shareholders, are getting little to no return on their investment. Our schools are graduating incompetent students, too many of whom are barely literate. And, again, the political bickering and infighting only wastes money that could be put to use actually *teaching* the kids basic skills.

In short, Phil, there's already a crisis in the public school system. Privitization and/or vouchers might be a solution. It might not. But what we have clearly isn't working -- generally if something isn't working this means it's time for a change.

[Deborah Spaeth]

Law Fairy

"What this has resulted in is that teachers "teach to the test" so that students only learn what the bureaucrats think is a good indicator of basic proficiency, without really understanding what they're learning or why. They're getting a poor education and assimilating an ends-oriented thought process, rather than one that emphasizes the importance of means (one of the most important things in education)."

Gosh, do you suppose any of these problems were predicted by education professionals prior to the enactment of the Chimperor's bogus "No Child Left Behind" program?

"But what we have clearly isn't working -- generally if something isn't working this means it's time for a change."

Uh, sure. Change is fine. How about hiring more and better teachers, better managers of schools, appropriate books, and establishing some reliable and reasonable measures of performance, and hiring people with more expertise to oversee the system?

Sure, it'll cost more money. I guarantee you next to the current defense budget it won't amount to a drop in the bucket. We could roll back the tax breaks that Bush gave to the rich to help fund it.

Or would that be "unfair"?

Some people have this strange belief that obscenely wealthy people deserve to keep most of their money so there is more of it to "trickle down" to those poor urban and country folks with the crappy schools.

Where does that belief come from? Anyone know?

I bet Perfesser Epstein knows. But I doubt he'll say much about it.

[The Law Fairy]

For the record, I never stated any support for No Child Left Behind, nor for Bush himself for that matter. Appointing more bureaucrats to oversee the problem doesn't "change" things -- it just injects more government (and, hence, more Bush, particularly given the troubling increase in executive power we've seen in the past few decades, coupled with a likely SCOTUS justice who frighteningly sees no problem with this). "Change" to me means overhauling the system. More bureacracy won't do that.

I'm all for hiring better and more teachers. Perhaps the good people who aren't currently interested in teaching would be more open to a system that isn't the same old bureaucratic mess they've avoided.

[Kimball Corson]

To Phil and Law Fairy:

Phil wrote:

"Why should I believe that private players won't run amok once again, seeking profit and "shareholder value" at the expense of educational infrastructure, vulnerable communities and the future of our country?"

Law Fairy responded:

"That actually sounds a bit like what's already happening in our public schools."

I argue:

Private players operate our nation's private schools and they do very well on average and suberbly at some levels (Exeter and Andover, for examples). They have done well for a long time. The problem is the poor current performance of our public schools, not the country's private schools, just as Law Fairy suggests.

There is no reason that reasonable standards and regulations could not (and already do to some extent) govern private schools while at the same time permitting agressive competition between them. Regulation is not necessarily inconsistent with competition; it depends on how it is done.

Public schools should be brought into the competitive system and vouchers are a key way of doing that without handicapping the private schools as we do presently by requiring parents to pay for both public and prive schools when they put their kids in private schools.

[Kimball Corson]

Deborah,

Your acute incivilty resurfaces and I pass.

[Deborah Spaeth]

Law Fairy

"Appointing more bureaucrats to oversee the problem doesn't "change" things"

I didn't say we should appoint more beaucrats. I said we should hire people with more expertise.

Big difference.

But you should know that already, shouldn't you? I mean, you're allegedly a lawyer, right?

And yet, you have this share this strange reading comprehension problem with Kimball.\

Interesting.

[George Liebmann]

I am reluctant to become involved in an argument with people most of whom are incapable of civil discourse, but let me point out two inconvenient facts:

1, The Florida program as I understand it (I am speaking of the program for ordinary students, not disabled ones) gave vouchers only to students in "failing" schools designated for closure. Thus the assertion that the public system will lose money on a per capita basisw is an unfounded one. The program did not contemplate vouchers for students already in private schools.

2. The opposition of the NEA is just as rabid where it is proposed to give vouchers for use in public charter schools. Their real objection is to any decentralized mode of school governance. If teachers can carry their complaints to a building-level board, there is no need for multi-level grievance systems and the union officers to operate them. If schools must compete for teachers, there is likewise less need for collective bargaining appropriate to a monopoly employer. The argument that less privileged students will lose out in such a system is not necessarily correct. It would be simple to provide larger vouchers for Title I students and those otherwise deemed harder to educate. Moreover, less privileged students lose out in the present system by reason of union seniority systems and 'bumping rights' in union contracts. The most experienced and most highly paid teachers gravitate under these provisions to the schools with students that are easiest to teach. Notwithstanding the much vaunted school finance litigation, it has been found in several places (Baltimore County, Maryland several years ago providing one example) that there were disparities of two to one or more on spending on schools within the same district. In a charter school or voucher system in which schools receive per capita allocations rather than allocations of teacher slots, beloved of unions who want to reduce class size to multiply their membership, this phenomenon would not arise.

[Deborah Spaeth]

Kimball the Snivelling Dissembler:

"Public schools should be brought into the competitive system and vouchers are a key way of doing that without handicapping the private schools as we do presently by requiring parents to pay for both public and prive schools when they put their kids in private schools."

How are private schools "handicapped"? Are private libraries "handicapped" because we don't subsidize the people who use them in lieu of public libraries?

Your argument, Kimball, is what many of us refer to as a "classic stupid-ass conservative" argument. We've learned to expect very little of substance from you by now but c'mon, man, your fluff is lighter than helium.

Is your proposition that I should pay taxes only for the public services that I rely on? And that to the extent I choose to rely on private services, I should be subsidized for them?

That sounds like a really sweet deal for rich people, Kimball. I'm sure they're comforted knowing that you're watching out for them. After all, we wouldn't want the world to stop turning now, would we?

[Deborah Spaeth]

George "Civil Discourse" Liebmann

"The Florida program ... gave vouchers only to students in "failing" schools designated for closure. Thus the assertion that the public system will lose money on a per capita basis is an unfounded one."

Uh, I think the Supreme's point is that rather than "designating the school for closure" and giving the "freed" money to private schools, the public school should "designated for improvement," George.

"The argument that less privileged students will lose out in such a system is not necessarily correct. It would be simple to provide larger vouchers for Title I students and those otherwise deemed harder to educate."

Huh. So all of a sudden "throwing money at a problem" is back on the table. As long as it's voucher money.

How convenient ...

[The Law Fairy]

Okay, Deborah, I'll bite. Earlier you wrote:

"How about hiring more and better teachers, better managers of schools, appropriate books, and establishing some reliable and reasonable measures of performance, and hiring people with more expertise to oversee the system?"

Just now you write:

"I didn't say we should appoint more beaucrats. I said we should hire people with more expertise."

Even expert bureaucrats are still bureaucrats. Struggling with the definition of "bureaucrat"? Here it is from webster.com:

A member of a bureaucracy

Not exactly helpful, so here's "bureaucracy":

1 a : a body of nonelective government officials b : an administrative policy-making group
2 : government characterized by specialization of functions, adherence to fixed rules, and a hierarchy of authority
3 : a system of administration marked by officialism, red tape, and proliferation

So... if we hire really good smart expert people to "manage" and "oversee" the system -- they're bureaucrats. So I reiterate: hiring more government bureaucrats won't solve the problem.

[Deborah Spaeth]

Law Fairy, what does your dictionary say about "people with more expertise"? Is that equal to "more bureaucrats"?

Or could it mean -- just possibly -- "same number of people with more expertise"?

As in: less cronyism, less robotic yes-sayers, less crapping on scientifically accepted and valid statistical analyses that disagree with the preordained conclusion ... and more expertise.

There are such things as smart adminstrative people who are reasonably honest and competent. Or at least, there used to be such people.

[Phil]

Law Fairy / Kimball:

You folks can't just wave away the possibility of "voucher-mill" exploitation by pointing to (1) current public school problems or (2) current private school successes. This is an issue that doesn't arise until there is a government dispensary for tax dollars to which for-profit service providers have access.

One of you (I forget which) said they's support "reasonable oversight" (or somesuch) of the private providers. How much is reasonable to prevent fraud and insure adequate education is provided? Would you support more or less oversight than is currently devoted to the administration of, say, Medicare/Medicaid? Would a system that insured accountability be any less complex?

[The Law Fairy]

Fair enough, Deborah. I agree that better people overseeing the system could mean improvement. But I don't see this as a fundamental change -- it sounds more like an aspiration. These people would still be appointed or elected by the same groups as before -- so the trick would be to changing the standards for hiring them.

What kind of standards would we have? Already the question seems fraught with political implications. Different people will want different things in school administrators -- which could lead to yet more political infighting, which tends to be wasteful and counterproductive. I think a better system would be to give parents more choice -- more of a free-market approach to education. It would likely still be the case that higher education (college and upwards) would be the best bet to getting a decent job/career, and colleges would still be free to make the same requirements they have now regarding primary and secondary education. This would likely lead to self-monitoring by the schools, since if a school has low college acceptance rates it will rank lower on parents' desired-schools lists and hence see less money.

Phil:

The point isn't merely that there are problems with the public school system. You had argued earlier that a system of vouchers could be fraught with problems of fiduciary disloyalty and wastefulness. Sure, that's a risk. But my point was that this is already a problem with the schools we have. Thus, if switching to vouchers makes us no worse off than we already are, this doesn't operate as an argument against vouchers.

I'm not saying vouchers is the answer. But it might be. And given the problems we're facing, it's worth a shot at least.

I don't know what the oversight thing is addressed to. I personally wouldn't want to much government oversight because the government tends to be inefficient and ineffective in overseeing these kinds of programs. Like most things in the free market, particularly where people care greatly about them, if there is enough choice there will be a lot of self-regulation. As long as there are honest alternatives, the exploiters will have a hard time gaining recruits. As for any other oversight, I wouldn't be opposed to severely criminalizing conscious abuse of voucher funds -- much harsher than the slap on the wrist doled out to charlatans like Ken Lay.

[Phil]

LF:

The argument is no good. You're still trying to equate inefficiencies in a public program with the threat of deliberate, large scale fraud by profit-motivated private players in a government payor system. Apples. Oranges. You then leap from that awkward conflation to the conclusion that "switching to vouchers makes us no worse off" in this regard. I went to public school, but I still know that argument is no good at all.

As for criminalizing abusers, you can electrocute them if it makes you feel better. Just remember that doing so won't teach anybody to read, think logically, or appreciate the delicate balance of freedoms and responsibilites that we enjoy in this miraculous but fragile republic.

[The Law Fairy]

Phil, perhaps I don't understand the argument you're trying to make. Is the problem that the money will be siphoned off to fraudulent uses (i.e., private school administrators using funds for their own benefit and underfunding classrooms)? Or is the problem that the children wouldn't be educated at all? If it's the former, criminalization of such fiduciary disloyalty seems a good solution, if it's accompanied by a robust policing system. If it's the latter, we still have standardized tests and hopefully more vigilant parents (who will be marginally more invested in their children's education, having chosen the particular school themselves). I'm not quite sure I understand what abuses you're alluding to that aren't possible/existent under the current regime.

[Bob]

Phil, You said, "You folks can't just wave away the possibility of "voucher-mill" exploitation..."

You can't wave away monopolistic exploitation of the current system either.

You also said, "This is an issue that doesn't arise until there is a government dispensary for tax dollars to which for-profit service providers have access."

So, are you saying that the government should not dispense tax dollars to any for-profit providers of products and services?

Sounds like you might want to scrap other similar programs, like Medicaid, Soc Sec, Welfare ...aw hell, just name any social programme.

[Kimball Corson]

As for paying public school teachers more, it might be a fine idea if and only if we got better teachers than the ones we now have. As it is we do not have them and paying lesser teachers more makes no sense. I once saw a listing of mean SAT scores by college major years ago. Not surprisingly math, English and physics major were at the top of the list with the highest mean scores. Some eightly majors or so down at the very bottom were high school teachers and then grade school teachers. The teachers colleges many go to are not much better. Why pay more to those arguably not capable of providing much more? Reviewing carefully and firing most and then rehiring better credentialed teachers at higher pay might make some sense but the blob has cut off that avenue of approach in most states with protective legislation.

[Kimball Corson]

. . .high school and grade school teachers who majored in education, that is.

[Kimball Corson]

RAEpstein writes:

"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. . ."

This is silver lining? Help me understand. It sounds more like a death sentence to voucher programs in those states with no attending upside.

[Kimball Corson]

Why are we tying ourselves in knots over "the possibility of "voucher-mill" exploitation..." for a program that does not even exist (and that the states would presumably run anyway inasmuch as they dispense the per diem subsidies). What does Enron have to do with the sidewalk temperatures in China or this situation for that matter? What evidence is there a voucher program would be fraudulent or exploitive? This is like saying if we have breakfast and order scrambled eggs, the eggs would be rotten. Talk about not giving the voucher program a chance, this position one ups the blob. Put to death before birth.

[Deborah Spaeth]

Kimball

"What evidence is there a voucher program would be fraudulent or exploitive? This is like saying if we have breakfast and order scrambled eggs, the eggs would be rotten."

Or it's like saying if you give local school boards carte blanche to decide what to teach kids, they'll teach kids religion in science class.

Yeah, that'll never happen.

The thing about this allegedly horrible "monopolistic system" that is public education is that in many instances it works just fine. My parents were lower middle class, blue collar types (mom was homemaker until she went to nursing school), I went to public school, got a Ph.D. and now I've earned more in the past five years than my dad earned in the previous twenty-five. I believe I was served very well by my public school.

This isn't everyone's experience with public schools. But the question is: why not? And if it is possible for this "monopolistic" system to serve some communities, why can't it be adjusted or modified to serve other communities?

And no, encouraging people to leave the system by giving them money to do so is not "modification." It's giving up.