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

[Bob]

Deborah,

You said, "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."

You can't really mean this as an arguement for public schools. I, too, make many times more than my father (I have only an under-graduate degree.), and he was a highly educated engineer with a PhD. My father also bought his first house for $3,000. My first house cost $290,000. Inflation is the primary reason we make more than our parents, not our education. Let's just stick to one issue without trying to confuse everybody with your logical fallacies.

[Bob]

It's funny how you compare the public school system to the universities and colleges. In one instance, we have no choice due to the laws that enforce the government monopoly, and this system is failing our children. In the other instance, we have free choice to pay for the best we can afford and this system is the envy of the world. Perhaps we should adopt the "free choice" system for all education. The voucher system would be a compromise between the state monopoly and the free-enterprise system. The voucher system is still a redistribution program, but it is better than forced "choice". Welfare recipients aren't told which brand of milk they must buy!

[Bob]

Deborah,

You said, "encouraging people to leave the system by giving them money to do so is not "modification." It's giving up."

Are you suggesting that giving people a choice is wrong? Are you saying people should not have freedom to make choices? I can't understand your views at all. They make no sense!

If people "leave the system" due to better choices, then the system will be forced to compete by improving its' services. This is not giving up, unless you believe that the system is hopeless and beyond repair. If so, then the system should die. Face it, any laws creating a monopoly are not only unconstitutional, but immoral.

[Deborah Spaeth]

Bob

"You can't really mean this as an arguement for public schools."

You're right and I don't. It's merely anecdotal evidence against the claim that the "monopolistic" public school system is flawed to the core and requires fundamental changes.

"Inflation is the primary reason we make more than our parents ... My father also bought his first house for $3,000. My first house cost $290,000."

My father never could afford a house, still lives in a crappy apartment, and my house cost $700,000. This isn't about inflation. And you'll note that I didn't claim simply that "I make more than my parents."

Back to the drawing board, Bob!

"Welfare recipients aren't told which brand of milk they must buy!"

Uh, sure. And parents of children are free to home school their children. Or move to a better school district. Or send their children to private school. And let their children drop out of school as soon as it is legal for them to do so.

This happens every day, by the way, all over the country.

"In one instance, we have no choice due to the laws that enforce the government monopoly, and this system is failing our children."

Really? Whose children is it failing? Everyone's children? It didn't fail me. It's not failing my many friends who have children in public schools and are happy with the schools.

So why is the public school system a "failure"?

"It's funny how you compare the public school system to the universities and colleges."

Who is "you" in your statement above? Did you read all the comments here? Start from the top and see when public universities were first brought up, who brought them up, and why.

[The Law Fairy]

Deborah said:

"Uh, sure. And parents of children are free to home school their children. Or move to a better school district. Or send their children to private school. And let their children drop out of school as soon as it is legal for them to do so."

This doesn't really address the issue, though. Homeschooling, private schooling, and moving are pretty drastic changes -- changes the vast majority of people in this country cannot afford. That's why vouchers are good -- they help people who can't afford choices to have them. Your counterargument to Bob's analogy would only work if welfare recipients were faced with a situation where there was only one grocery store in town that sold milk, and it only sold one or two brands -- and to get any other brands, they'd have to drive at least an hour to find them. Then your counter-analogy might fit.

[Bob]

Deborah,

An anecdote is not evidence, even if you term it as "merely anecdotal evidence against the claim that the monopolistic public school system is flawed to the core and requires fundamental changes." And an anecdote about inflation does not support or counter any discussion about the flaws of the public school system. So, why did you bring it up?

"And you'll note that I didn't claim simply that I make more than my parents."

No, you claimed, "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." Now, how is that different?

You give this claim as evidence that your PhD allows you to make more than your father, which may be true in your case. But in my case, my father has more education than I, but I still make many times more than he. Our income differential has nothing to do with our education, and everything to do with inflation. So, your initial anecdote IS about inflation.

[Deborah Spaeth]

LOUD NOISES! LOUD NOISES!

I HAVE A PHD! MY HOUSE COSTS $700,000! I DRIVE A DODGE STRATUS! I AM A DIVISION MANAGER! PEOPLE ARE AFRAID OF ME!

LOUD NOISES! LOUD NOISES!

[Bob]

Deborah,

"And parents of children are free to home school their children. Or move to a better school district. Or send their children to private school. And let their children drop out of school as soon as it is legal for them to do so."

But parents don't have the right to not pay the taxes to support a system they want to opt out of. So, either they are suckers for paying for private education while also being forced to subsidize public schools through taxes, or they send their children to schools that are failing. That's not freedom to choose.

Vouchers would give parents freedom to choose. So, I don't understand, why exactly are you against vouchers?

[Bob]

lol, was all that shouting supposed to be a rebuttal? I think a PhD should be able to do better than that! You should be ashamed.

[Bob]

Deborah,

I think I am beginning to understand you. You have a PhD, therefore, you are an intellectual. Everything you say must be correct. I can't argue with someone who fights for the status quo.

I doubt you have any children. Intellectuals don't understand unconditional love for a child. Until you have a child, you have no idea what caring parents go through.

[Deborah Spaeth]

Bob

"You give this claim as evidence that your PhD allows you to make more than your father, which may be true in your case."

It is undoubtedly true. I wouldn't have my present job were it not for the advanced degrees which I was able to obtain with the help, in no small part, of my excellent public school.

Anecdotes are evidence. They are typically not the best evidence, but they are evidence.

Do you think my experience is unusual, Bob? Do you think the number of children of working class parents who go to public schools and become professionals who earn far more than their parents is so rare that we should ignore such events when we trash the public school system?

Seriously. Do you think that, Bob?

"your initial anecdote IS about inflation."

No, dumshxt, it isn't about inflation.

[Deborah Spaeth]

"lol, was all that shouting supposed to be a rebuttal? I think a PhD should be able to do better than that! You should be ashamed."

It's called "identity theft" Bob.

Get a clue.

[Deborah Spaeth]

Bob

"But parents don't have the right to not pay the taxes to support a system they want to opt out of."

Can I opt out of our country's "War on Terror" Bob?

If I can opt out of our country's "War on Terror" I'll consider flushing our country's public school system down the tank.

Sound good, Bob?

[Deborah Spaeth]

Bob

"Intellectuals don't understand unconditional love for a child."

HAhahahahahahaha.

I thought I'd heard it all but this is a first. Thanks for providing me with a dumbass quote for the ages, Bob.

[Deborah Spaeth]

Reading Comprehension Lesson One.

I wrote

"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."

And Bob asked me how that statement is different from the statement, "I make more than my parents."

Well, Bob, the second statement says essentially nothing and could easily be explained by, oh, inflation or some other trivial explanation. The first statement (the one I actually wrote) is a tad more specific and not so easy to warp into an attack on the writer's logic, as you so pitifully attempted to do.

In the spirit of public education, I won't bill you for this lesson. ;)

[Deborah Spaeth]

Bob

"I can't argue with someone who fights for the status quo."

Another first. Bob creates a strawman and then claims he can't argue with it.

Weird.

[Kimball Corson]

Now that hopefully we have made it past the “mine's bigger than yours” contest (which I would have won by the way, based on what I hear, before retiring and selling off to sail the world), I have a few observations:

1. Academically talented people spring up in virtually all places and in most different types of and many schools. The issue is not where the few cannot be held down; it is how the average fairs. Public schools loose by that measure. In fact, more than 20 developed countries do better than we do in that regard, yet, as I have said, at the graduate and professional level, where competition is strongest and public control and funding is least we reign supreme. The question, naturally enough, becomes "why"? Why should we be almost at the bottom for developed nations for 1-12 and at the top thereafter? There is no evidence that the distribution curve of IQ's varies significantly from one developed country to the next, nor do cultural differences explain away the gap. Why do we observe what we do? We need a sensible answer and some solutions that make sense in light of that answer.

2. Other than from the Chicago School I hear no answer to this question except the tired old liberal litany that we should pay the same 1-12 teachers we have more money. On its face, that is silly, as I have explained elsewhere. Nor does any one else appear to have a solution that makes sense in light of any proposed answer, again, except the Chicago School.

3. I have no doubt that a large-scale, long-term test of a state per diem based voucher program would have already taken place but for the lobbying efforts and public (mis)information campaign of the blob and the vested interests involved who have used government to protect themselves, their interests and their poor performance. Serious money has gone into their effort.

4. The Chicago School has an answer and a solution. No one else has anything coherent or even plausible on its face. Our choices then are to accept the status quo or adopt, at least on a serious test basis, a Chicago proposed voucher program. We know what the education lobby wants – the status quo. But what should the rest of America and the parents of these children want? That is the question. Although the waters of perception have been muddied with specious conjecture (e.g., ‘It will be Enron all over again’) and misinformation from the blob and others, America should have enough better heads to get past those problems and come to grips with the issues as I have framed them here.

5. What are we to do?

[David]

I have been trolling for a few days now. I just wanted to say that I agree with Deborah and that Bob is an idiot. I am against vouchers too. It would destroy our public school system by giving parents the choice to leave. People are basically stupid and for important matters such as education, we should not give people this choice. Besides, my kids got to private school. These vouchers would allow those riff-raff kids to be able to afford to go to my kids school. I definitely dont want that. Keep those kids in their inner-city craphole. I am all for the public school system. It produces the labor force that we need for jobs my kids wouldnt touch. Yes, I have become an elitist, but I worked hard to get where I am and I had no goddamn help. I am a self-employed landscaper and I have 5 employees. I worked hard and make enough to send my kids to private school. Why ruin it by letting all those poor people in?

[Dave]

Me again. One more thing. Most poor and middle class people are either ignorant or stupid. Thwy should not be allowed to make school choices. They dont even understand all the issues. Why give people choice in schools? They dont have choice in other areas, and they're happy enough with that. Beside, they cant do anything about it anyway. They dont have the money. Dont give them the money through vouchers, that will just give them more power. If you give them vouchers, they'll want more and more.

[The Law Fairy]

Dave...

I'm not quite sure if I should respond because there's a good 50%+ chance that you're being sarcastic. But, here goes.

If people are idiots, then who gets to make the life decisions for these idiots? (For that matter, why do we allow them to procreate at all?) And aren't the policymakers just as likely to be idiots as the rest of the idiot population? How do we tell the idiots from the non-idiots? Is it just based on who has money? Because
I think most people could agree that there are plenty of rich and powerful idiots.

[Dave]

You silly fairy ...

Policymakers should make the idiot's life decisions, of course! And we need the idiots to procreate so that we can have cheap labor source. Policymakers can't be idiots, because they are elected by a majority...and we all know that the majority is always right. That's why we live in a democracy where the majority rules! And yes, the rich are non-idiots (proven by the fact that they earned so much) and everyone else is stupid. Money proves your social worth (inherited money not withstanding). You are right that there are som rich and powerful idiots, but these people all inherited their money and power. I say we outlaw inheritance. They state should take everything when we die. That way, everyone has to start from nothing. We all start equal. Only the smart people will rise to the top. And I am proud to be one of those on the top!

Back to vouchers, why should we rich people keep supporting the poor. I worked hard for my money. Please, don't let them have vouchers! It will not only ruin the public school system, but it will ruin the private school system too. Once a private school accepts govt money, the govt will begin their assimilation of them too. Then we rich people will have no schools for our kids.

[The Law Fairy]

I'm so confused.

So... *are* you being sarcastic? I just can't imagine someone would seriously believe the things you're arguing.

[Bob Smith]

>How are private schools "handicapped"?

In particular, zoning and land use regulation, to which private schools are subject and public schools are not. It's one of the reasons private schools are so expensive and lacking in numbers, when standard economics says that competition should decrease prices and increase availability. Second, try getting planning approval for a private school when members of the planning & zoning commission also happen to work in the public school system. The conflict of interest is obvious, but because there's no direct personal benefit they don't need to recuse themselves.

[dave]

Me? Sarcastic? Of course I am, silly.

But really, why else would anyone really be against vouchers? Elitism is the only reason I can really come up with. All those other reasons they give are only to cover their real motivation. Besides, the arguements against vouchers are too weak. Monopolies and unions are protected by those who can't perform; those who don't want to be measured by merit. Instead, they opt for seniority, aka tenure. Obviously, the teachers union will be against vouchers because that means competition. Teachers and most intelligentia are against competition. Remember the breakup of AT&T. One that govt sponsored monopoly was destroyed, communication choices expolded. AT&T fought tooth and nail against deregulation to protect their monopoly. Now we have cell phones and the internet, neither of which would be here today without the destruction of the AT&T monopoly. Just think what our education system could be like in the future.

I'm sure Deborah will jump all over me now, hehe.

[Alan H.]

In the end, voters will decide this issue. So, to support my side, Deborah - Please keep talking. Go on television, talk shows, public appearances.. I can't think of a thing that would drive more people to support vouchers....

--Alan