Amendment 8 and the future of school choice

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Absent a crystal ball, government at all levels will have to be nimble and flexible in accommodating new ideas when it comes to school choice.

The Florida Supreme Court may have struck down a proposed education amendment to the state’s constitution, but the issue the measure raised can’t be easily dismissed.

In a 4-3 decision, the court last week removed from the November ballot Amendment 8, which would have given the state the authority to establish and operate public schools, bypassing local school districts. The four justices affirmed a lower-court ruling that the amendment’s language was misleading because it “fails to inform voters of the chief purpose and effect” of the measure.

Although Amendment 8, which was placed on the ballot by Florida’s Constitution Revision Commission, bundled three different education-related proposals into one ballot item, opponents objected to the part that would permit the state “to operate, control, and supervise public schools not established by the school board.” Critics argued that the vagueness of that statement was meant to obscure its real purpose: to transfer the power to create charter schools from local school districts, where they often encounter opposition, to the state, which has been more receptive of charters.

Charter schools initially were part of the public discussion in drafting Amendment 8. However, both its sponsor, Erika Donalds, a CRC commissioner who is a prominent charter school advocate, and Blaine Winship, the state’s lawyer who defended the measure in court, explained that the word “charter” was not included in the final language because no one can predict the innovations in school choice, and the commission didn’t want to constitutionally limit future education opportunities.

“In another five years,” Winship argued before Leon County Circuit Judge John Cooper, “who knows what the nomenclature will be?”

The courts didn’t buy that argument with regard to the legality of the ballot language. But that shouldn’t invalidate the underlying truth.

The CRC meets every 20 years.  The last time the panel convened, in 1997, school choice in Florida looked nothing like it does today. The state had just enacted a law authorizing charter schools. In 1997, there were five such schools serving 574 students; today there are more than 650 charter schools educating nearly 300,000.

The McKay Scholarship for children with disabilities wasn’t created until 1999. The Florida Tax Credit Scholarship (which are administered by nonprofits such as Step Up For Students, which hosts this blog) didn’t exist until 2002. Florida Virtual School, an online learning site, was established in 1997 with only 77 students; today, it’s the largest state virtual school in the nation.

In 2002, the U.S. Supreme Court handed down its landmark decision in Zelman v. Simmons-Harris, which upheld the constitutionality of public funding of private school vouchers and opened the door for greater expansion of those programs. The Florida Supreme Court struck down a state-funded voucher program in 2006, while lower courts have affirmed the FTC scholarship.

Clearly, school choice is constantly evolving, being shaped by technology, politics and the courts while being driven by parental demand. Absent a crystal ball, government at all levels will have to be nimble and flexible in accommodating new ideas.

Amendment 8 attempted to address a contradiction in the Florida Constitution. Although it holds the state responsible for providing a “high quality” system of free public schools that allows students to obtain a “high quality” education, it gives local districts substantial control over that process (school boards “shall operate, control and supervise all free public schools within the school district”). Sometimes their goals conflict, stifling innovation and choice.

More collaboration between the state and school districts, and more avenues to pursue change, would increase opportunities for families to customize education to fit their children’s needs.

In striking down Amendment 8, Judge Cooper wrote that it “invents a category of school — those ‘not established by the school board’ – that is undefined in Florida law.” The wording may not have passed legal muster for a ballot measure (the so-called “truth in packaging” accuracy requirements). But just as the Founding Fathers wisely refrained from defining “speech” and “press” in the First Amendment – generalities that have served the nation well through more than two centuries of technological change – Florida would be justified in keeping open its options on what constitutes a school.

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