Rattling the constitutional cage

Jon East

Ron Meyer is the longtime attorney for the Florida Education Association who has succeeded in getting Florida’s original school voucher program and an independent charter school authorizing panel thrown out in the courts. So when he threatens to sue two other voucher programs if the state moves forward with an even larger plan to provide stipends to any public school student who switches to private school, his warning begs an obvious question. Why hasn’t he sued already? The other two programs have existed for a decade.

Welcome to the constitutional cloud through which most ambitious states are now flying as they try to square a 21st century education with what in most cases are largely 19th century constitutional scripts.

Meyer is a smart and experienced attorney who is earning his pay when he says, as he did Sunday to Leslie Postal of the Orlando Sentinel, that: “If we go back to court now – and I think we would go back to court if there were this voucher-for-everybody concept – these other programs would be impacted.”

So let’s put aside the bravado and look through his constitutional lens. Like many states, Florida has a provision for a “uniform” system of public schools. A variation first appeared in 1868, as a call for a “uniform system of Common Schools” aimed at establishing the ambition that all schools would possess similar resources. But in 2006, the Florida Supreme Court threw out former Gov. Jeb Bush’s Opportunity Scholarship Program because “it diverts public dollars into separate private systems parallel to and in competition with the free public schools.”

The state’s high court went so far as to describe “uniformity” as the need for a uniform approach in: school accreditation; teacher certification and education qualifications, including a college GPA of at least 2.5; background screening for employees; and academic standards, reading curriculum and the provision of courses that teach “the contents of the Declaration of Independence, the essentials of the U.S. Constitution, the elements of civil government, Florida state history, African-American history, the history of the Holocaust, and the study of Hispanic and women’s contributions to the United States.”

We don’t need much imagination to suggest that if uniformity means that only schools managed by county school boards are permissible, as an appellate court reasoned in stripping an independent charter schools authorizer of its power, then the separately governed Florida Virtual School must be shut down. If “uniformity” means no “parallel” systems, as the high court said in the voucher case, then all charter schools are unconstitutional since they operate under different rules and regulations. Certainly private schools serving pre-kindergarten, disabled, or low-income students would be viewed as alien.

The two limited voucher programs that Meyer included in his threat may well enjoy constitutional protection because one augments services for disabled students and the other uses tax-credited funds that are arguably no different than a contribution to the American Red Cross. But that’s not really the point here. The point is that, in this world of constitutional roulette, the education options that are being promoted because they in fact do different from the norm are the ones that tend to be most suspect. Hence, Meyer is smart to rattle cages. If status quo is your ambition, 1868 works just fine.

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