When lawyers and judges start talking in Latin, you know it’s going to be expensive. It’s just a question of how much and who has to pay.
The recent decision by the Florida Supreme Court on school vouchers had Latin in it, but it is still not clear who will pay the most. The court recently decided that Florida’s Opportunity Scholarship Program violated the state constitution, and must therefore be discontinued. Sorting out who gains and who loses by this decision, though, isn’t easy.
At the center of the court’s decision was the phrase expressio unius est exclusio alterius, for which it provided its own translation, “the expression of one thing implies the exclusion of another.” And it chose to interpret the Florida constitution as mandating “a system of free public schools” to the exclusion of all and any other state-sponsored educational activities, programs or methods to meet its obligation to educate the children of the state. In other words, ixnay on the ouchervay.
The court’s decision in this matter is an interesting one for anyone interested in education, vouchers, economics or the law. It was not, for example, a decision based on church-state separation – as many had expected and, in fact, the plaintiffs had argued. The Opportunity Scholarship Program voucher system did allow students to use the vouchers to attend private schools, including those affiliated with religions, but that turned out to be a nonissue for the court, and the plaintiffs eventually withdrew that argument.
The court’s focus on the constitutionality of the voucher system process itself does toss a monkey wrench into Florida’s school works. The Opportunity Scholarship Program, which subsidized the transfer of children from “failing” public schools, was actually the smallest of three voucher programs in the state, involving only 700 children.
The largest is the Mackay Scholarship voucher program, which helps pay tuition for some 16,000 special-education students to attend private schools. Another voucher program, with more than 12,000 students, provides tax subsidies for corporations supporting nonprofit groups that provide funding for low-income students to attend private schools.
The Opportunity Scholarship Program is clearly history, and its participating students will transfer back to their local schools in the fall. The legal status of the other two programs, however, isn’t certain, although the court decision has ominous implications for them also.
The court’s opinion expressed considerable deference to the state Legislature and, among other things, declined to investigate or consider what role motivation might have played in the wording of the laws covering the Opportunity Scholarship Program. But this type of self-imposed restraint is not widespread among supporters or opponents of the voucher system.
There is little doubt that, in theory at least, voucher systems represent a frontal assault on the public schools’ monopoly on public education funding. Supporters see vouchers as a healthy introduction of competition. Opponents see vouchers as gutting the public school system and the educational opportunities it offers for children.
Mixed in with the fully committed supporters and opponents are most of the rest of us. We have concerns about the possible “double costs” of funding both public and private education. We are worried that the private schools will “cherry pick” the good students, and the public schools will be left with the special-education students, the academically challenged and the discipline cases – which, for different reasons, cost more to educate. At the same time, we are worried about a deteriorating school system that exhibits much skill at resisting change.
While the Florida State Supreme Court decision might seem to hinge on a fairly narrow interpretation of the state constitution, it also opened the door to a broader set of questions about what “uniform” schooling – also a state obligation – really means, since no reasonable person can believe that all public schools deliver anything resembling a uniform education.
The Florida decision will also probably have some unintended consequences. It does, after all, effectively shut down the ability to transfer kids out of a failing public school into a better one.
The most serious consequence, though, will likely be to drive parents and students into charter schools, considered public schools under Florida law and presenting their own set of regulatory and funding problems.
From an economics standpoint, given the small size of the Opportunity Scholarship Program voucher system in Florida, it seems unlikely that the public school system was going to be gutted any faster than it is gutting itself.
For that reason, and the fact that we have no solid evidence on whether voucher systems actually work, it would be a good thing if the Florida Legislature was able to rewrite what is necessary to reinstate the program. It’s hard to see how it could hurt.
James McCusker is a Bothell economist, educator and consultant. He also writes “Business 101” monthly for the Snohomish County Business Journal.
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