Florida’s uniformity clause never meant lock-step adherence to regulations

Patrick R. Gibbons

A challenge to the new Family Empowerment Scholarship voucher program will likely cite “uniformity” as a reason for the program’s unconstitutionality. But a court taking an honest look at Florida’s history might just strike down the revisionist definition instead.

Editor’s note: Misinformation abounds across the education choice landscape, adding confusion to an already complex issue. The redefinED team is dedicated to shining a light and providing the facts. Today’s post deals with the issue of uniformity and how it applies to public and private schools. You can see more myth busting here, or click the link at the top right-hand corner of this page.    

More than a decade ago the Florida Supreme Court declared the state’s first voucher program unconstitutional. The primary reason for the ruling has largely been forgotten, but the secondary reason – that the state constitution requires a “uniform” system of public schools – has become a battle cry for school choice opponents ever since.

There’s just one major problem with “uniformity.” The Florida Supreme Court simply invented its own definition in 2006.

James Dycus, writing in the Yale Law Review, argued, “the court’s cramped, simplistic definition of uniformity, unmoored from all possible sources of guidance, is impossible to justify on any terms.”

Article IX, Section 1 of Florida’s constitution does indeed require a “a uniform, efficient, safe, secure, and high quality system of free public schools,” but it wasn’t until the 2006 Holmes decision that uniformity applied to private schools as well. Even then, the court’s definition was at odds with history and precedent

In Bush v. Holmes, the court decided “uniformity” meant lock-step adherence to rules and regulations governing schools. It specifically cited school curriculum, teacher credentials and background checks as examples of uniformity.

Having determined the meaning of “uniformity,” and having applied the requirement to any school accepting public dollars, the court declared the voucher unconstitutional. “In all these respects, the alternative system of private schools funded by the OSP cannot be deemed uniform in accordance with the mandate in article IX, section 1(a),” ruled the majority.

But Florida’s Supreme Court ignored its own precedent as prior cases determined “uniformity” to mean something else entirely.

A 1937 case, State v. Holbrook, dealt with whether the legislature could establish rules governing tenure of employment for teachers in Orange County, limiting the authority of the school board in Orange County, but not elsewhere. The court ruled the law did not violate “uniformity.”

In 1939, the court ruled in State ex rel Clark v. Henderson that “the purpose intended to be accomplished in establishing and liberally maintaining a uniform system of public free schools, is to advance and maintain proper standards of enlightened citizenship.”

Although the court didn’t directly define uniformity, it suggested the purpose of education was to create enlightened citizens, and was not concerned with equal funding or requiring identical educational programs.

In State v. Board of Public Instruction of Pasco County the court upheld a state law creating a special taxing district within the county but nowhere else. Again, uniformity was not about identical operation or rules. The 1965 court argued the law was created to “make improvements to the system of schools in the rapidly growing area. Thus, the act cannot be said to affect the uniformity of the system of schools.”

Uniformity was addressed again in 1977 under School Board of Escambia County v. State, in which the court debated whether changes in state law impacting the number of school board members only in Escambia County violated the state’s uniformity requirements.

This time the court complained that prior cases had yet to define uniformity and set about to discover one. In the end, the court declared, “by definition, then, a uniform system results when the constituent parts, although unequal in number, operate subject to a common plan or serve a common purpose.”

The court went further, explaining, “Just as there need not be uniformity of physical plant and curriculum from county to county because their requirements differ, there is no compelling reason for school boards of identical size from county to county.”

A 1991 case, St. Johns County v. Northeast Florida Builders Association, declined to strike down the county’s construction impact fee as violating “uniformity” simply because the tax source was unique among school districts. The court went on to declare that uniformity, “gives every student an equal chance to achieve basic educational goals prescribed by the legislature.”

Justice Stephen Grimes added, “The constitutional mandate is not that every school district int he state must receive equal funding nor that each educational program must be equivalent.”

Justice Gerald Kogan, writing a concurring opinion in the 1993 case, Florida Department of Education v. Glasser, stated, “Florida law now is clear that the uniformity clause will not be construed as tightly restrictive, but merely as establishing a larger framework in which a broad degree of variation is possible.”

Kogan explained:

“The mere fact that one district cannot afford to provide Latin or painting classes, but another can, does not create a lack of uniformity. However, the inability of one district to pay for any instruction whatsoever in mathematics or language and writing skills would constitute a lack of uniformity if any other district is not similarly disadvantaged. The Legislature cannot allow students in one district to be deprived of basic educational opportunities while students in other districts do not suffer the same.”

Not one case examining uniformity declared it required a lock-step adherence to identical rules and regulations, until Bush v. Holmes in 2006. A challenge to the new Family Empowerment Scholarship voucher program will likely cite “uniformity” as a reason for the program’s unconstitutionality. But a court taking an honest look at Florida’s history might just strike down the revisionist definition instead.

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