Accountability’s rocky legal road, Part 1

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Gov. Bush’s “A+ Plan” for accountability faced a long road of legal battles as soon as it began 20 years ago

Editor’s note: March 2 marked the 20th anniversary of the legislative session in which Florida Gov. Jeb Bush launched a number of K-12 reforms that transformed education throughout the state. With the start of the 2019 legislative session earlier this month, redefinED embarked upon a series of articles that examine aspects of Bush’s K-12 education revolution and how it continues to reverberate. Today’s piece is the first of two retrospectives that chronicle the plan’s legislative roller coaster ride. Part II is available here.    

OPPORTUNITY AWAITS

In January 1999, Gov. Jeb Bush’s recently announced “A+ Plan” was generating bipartisan praise. Democrats, school district leaders, and even the teachers union said positive things about letter grades for schools, annual testing, and increased accountability.

“The only negative is the voucher piece,” said Florida Education Association spokesman David Clark.[1]

That “voucher piece,” the Opportunity Scholarship Program (OSP), never served more than 57 students during its first three years, and never more than 788 students in any year. But as the first statewide voucher program in nearly a half-century, it also became the most controversial educational program in Florida’s history. Despite the tiny size, the stakes were huge. Supporters and opponents alike spent millions to sway public opinion while the nation watched a titanic legal battle rage for nearly seven years to decide the fate of the little scholarship program.

The program as initially envisioned had critics and opponents at every level.

“It’s a great plan – except for the opportunity scholarship,” said Connie Milito, a lobbyist for Hillsborough County.[2]

“I can’t complain if Bush is supporting Democrat proposals,” said Senate Minority Leader Buddy Dyer from Orlando, who supported everything in the A+ Plan except the opportunity scholarship.[3]

Private schools remained skeptical, too. The Miami Herald surveyed 300 schools in South Florida in 1999 and found only three willing to participate. A follow-up survey would find only 50 the next year. Private schools seemed to think the law came with too many strings attached.

Eligible students would come from public schools receiving two “F” grades within a four-year window. Private schools would get between $3,400 and $3,800 and couldn’t charge more to cover tuition. Schools could not use academic or religious admission requirements, and oversubscribed schools required a lottery to admit scholarship students. Students also could not be compelled to attend religious classes or prayer.

“I think the only schools that are going to take these students are schools that are badly under-enrolled or schools that are already low-performing,” Sherry Ryan, the owner of Vista School in Coral Springs, told the Herald.[4]

Sister Mary Caplice, the superintendent for the Diocese of Pensacola-Tallahassee, was a little more optimistic. “There continue to be things that we have to work out, but there’s room for negotiation in the law,” she told the Herald.[5]

Newspapers were split, too.

The Orlando Sentinel complained the voucher program would “ultimately steal money from public schools and punish public schools for conditions over which they have no control.”[6]

But the Florida Times-Union in Jacksonville editorialized in favor of the voucher program, though it called the concept “embarrassingly modest” when compared to Ted Forstmann’s and John Walton’s $100 million Children’s Scholarship Fund.[7]

By mid-March 1999 supporters had raised $1.3 million to help push for vouchers, while the Florida Education Association, the state’s teacher union, had already spent more than $1 million on an advertisement campaign to derail vouchers in the Legislature.[8]

GETTING STARTED

On March 26, 1999, the House passed the “A + Plan” 71-49, with seven Republicans breaking ranks to vote “no” while seven Democrats voted in favor

“This is the day that will go down in the annals of Florida history as the day we abandoned the public schools and the day that we abandoned, more importantly, our children,” complained then-Rep. Debbie Wasserman Schultz.[9]

Rep. John Cosgrove of Miami called the program “a grand theft of public education dollars,” while House Democratic Leader Lesley Miller of Tampa worried the voucher would become “a fast track toward resegregation.”[10]

Passage in the Senate would take a bit longer, passing 25-15 on April 30, 1999. Critics fumed again.

“Vouchers are the 20th-century equivalent of ‘Let them eat cake’,” said Latha Krishnaiyer, president of the Florida PTA.[11]

“Vouchers in this bill are the lynchings of the civil-rights movement,” claimed Sen. Betty Hozendorf of Jacksonville.[12]

Jeb Bush would sign the A + plan into law on June 21.

Students at two elementary schools, Spencer Bibbs and A.A. Dixon Elementary, in Escambia County were the first to be eligible for the Opportunity Scholarship. That first year just 57 students attended one of four Catholic Schools and one Montessori school.

THE LAWSUIT

“This will kill public education, and we’re not going to let it happen,” Leon Russell, chairman of the Florida Chapter of the NAACP, said after the voucher passed the Senate. “We’ll go to court. We’ll fight on every battlefield there is.”[13]

The day after Bush signed the bill, opponents sued as promised. Opponents included school board members, Citizens’ Coalition for Public Schools, the Florida Chapter of the NAACP, a teacher, and parents of three students in Escambia County. Opponents claimed the voucher program violated three sections of the Florida Constitution and the U.S. Constitution.

The lawsuit would last nearly seven years and result in a contentious ruling that was widely criticized by legal scholars at the time.

While the lawsuit continued, opponents ran a public relations campaign under a group calling itself “Citizens Committee for Public Information on School Vouchers.” With backing from mystery donors, the group spent $75,000 on full- and quarter- page ads in several newspapers around the state, ran the website www.stopvouchers.org, and encouraged visitors to call a toll-free number, “1-877-901-OUCH,” to learn more.[14]

Lawyers for both sides met to discuss the case in Leon County Circuit Court under Judge Ralph Smith on Feb. 24, 2000. Smith’s remarks spelled immediate trouble for the voucher program.

“All children aren’t entitled to a private education,” he said. Smith even seemed to blame struggling students for public school failures when he remarked, ”The students who have been at the school and who may be the reason that the school has failed are now going to get a private education.”

In early March, lawyers from the Institute for Justice (IJ) representing scholarship parents moved to have Judge Smith removed from the case, noting his son was engaged to the daughter of Jack Carbone, deputy chief of staff for the Florida Education Association. Carbone and his daughter denied the engagement, and Judge Smith remained on the case. Smith’s son and Carbone’s daughter later wed on Oct. 9, 2000. The First District Court of Appeal later removed Judge Smith from the case on Sept. 4, 2001.

But back on March 14, 2000, without hearing any evidence, Judge Smith ruled the program unconstitutional under Article IX, Section 1 of the Florida Constitution. Smith reasoned that because the constitution mandated that funding free public schools was a “paramount duty,” it was “in effect a prohibition on the Legislature to provide a K-12 public education in any other way.”

“The ruling sent teachers unions and other voucher foes to their fax machines declaring victory,” wrote Miami Herald reporters Lesley Clark and Analsia Nazareno.[15]

But Dermita Merkman, the mother of a 5-year old daughter on the scholarship, took the judge’s remarks personally. “I’m just wondering how this is unconstitutional, us wanting a better education for our kids?” she told the Miami Herald.[16]

Lawyers representing scholarship parents appealed the decision.

Supporters remained hopeful. John Kirtley, now chairman of Step Up For Students, which runs four scholarship programs and hosts this blog, donated $500,000 to the Children’s Scholarship Fund to provide grants to inner-city private schools willing to accept students from the Opportunity Scholarship Fund.[17] Billionaire Ted Forstmann offered to pick up the $185,000 tuition tab for the 52 students remaining on the scholarship program.[18]

Both donations came within a week of Judge Smith’s ruling.

By the end of May, the number of schools willing to participate in the scholarship program jumped nearly fourfold to 101 private schools across the state.[19] However, the number of eligible students did not expand, as many public schools saw sufficient improvement on the writing portion of the state test.

While scholarship opponents breathed a sigh of relief, Gov. Bush touted the results as proof that competition worked. Indeed, multiple studies over the next few years showed that the threat of a voucher alone was enough to modestly improve the lowest performing schools in the state.

However, a research paper in 2013 would later reveal that at least some of the improvement was due to schools gaming the system by reclassifying the lowest-scoring students as “limited-English proficiency,” which exempted the scores from the school’s letter-grade evaluation.

On Oct. 3, 2000, a unanimous decision by the District Court of Appeal reversed Judge Smith.[20]  “Article IX does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system,” wrote the justices.

Opponents appealed to the Florida Supreme Court, but on April 24, 2001, the court declined to hear the case on a 4-1 vote, thereby upholding the Court of Appeal’s decision. The voucher program was constitutional.[21] For now.

 

SOURCES

[1] Silva, Mark and Daniel de Vise. “Bush Plan For Schools Draws Praise,” Miami Herald, January 26, 1999.

[2] Talev, Margaret and Marilyn Brown. “Bush unvels lesson plan for schools,” Tampa Tribune, January 26, 1999.

[3] Ibid.

[4] De Vise, Daniel. “Voucher Plan Finds Limited Support 24 Private Schools Willing to Commit,” Miami Herald, January 30, 2000.

[5] Ibid.

[6] Editorial. “Opportunity For Whom?, There Are Plenty of Things Wrong With an Education Plan Zipping Through the Florida House of Representatives,” Orlando Sentinel, March 7, 1999.

[7] Editorial. “Education Help for the need,” Florida Times-Union, March 5, 1999.

[8] Pedreira, David. “Pro-voucher group not short on cash,” Tampa Tribune, March 12, 1999.

[9] Saunders, Jim. “House gives Bush big win,” Florida Times-Union, March 26, 1999.

[10] Kaczor, Bill. “House passes school voucher bill in partisan vote,” Associated Press, March 26, 1999.

[11] Kleindienst, Linda. “Florida became the first state to approve vouchers to attend private schools. Critics vow to fight in court,” Orlando Sentinel, May 1, 1999.

[12] Ibid.

[13] Ibid.

[14] Nazareno, Analisa. “Tuition voucher foes launch pricey campaign to sway public opinion,” Miami Herald, February 16, 2000.

[15] Clark, Lesley and Analisa Nazareno. “School voucher program ruled unconstitutional Gov. Bush’s private tuition benefit diverts public money, judge decides,” Miami Herald, March 15, 2000.

[16] Ibid.

[17] Hegarty, Steven. “With money and fight, Kirtley pushes for school choice,” St. Petersburg Times, May 21, 2000.

[18] Clark, Lesley. “Billionaire offers to pay way for voucher students,” Miami Herald, March 18, 2000.

[19] Mark, David. “School Choice Group Raises $2 Million,” Tallahassee Democrat, April 21, 2000.

[20] Hagarty, Steven. “Appeal court finds school voucher law constitutional,” St Petersburg Times, October 4, 2000.

[21] O’Connor, Lona. “All Sides Welcome Voucher Decision,” Sun-Sentinel, April 26, 2001.

 

COMING UP: The court’s ruling paved the way for scholarship expansion throughout the state, but also saw a doubling down of voucher opponents. A surprise Supreme Court decision ensued. Read Part II here.

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