Myth Busters

Busting myths of 20 years ago

Patrick R. Gibbons September 27, 2019

Patrick R. Gibbons

Florida’s then-Gov. Jeb Bush testifying before a U.S. House committee Sept. 23, 1999.

Twenty years ago this week, Gov. Jeb Bush spoke before the House Education Budget Committee about Florida’s recently passed A+ Plan and the state’s first voucher, the Opportunity Scholarship Program.

“It’s been fun, in all honesty,” Bush said with a smirk, “to watch the myths that have been built up over time when you empower parents.”

Those myths were shattered, Bush said, though he admitted the program was only just a few months old at that point. Nevertheless, two decades of evidence have proved him correct.

By the time of Bush’s presentation, the Opportunity Scholarship had awarded scholarships to 134 students at two schools in Pensacola. Seventy-six of those students used the program to attend another higher-performing public school, while 58 used the voucher to attend a private school, according to Bush’s testimony.

The first myth Bush called “the brain drain,” which occurs when only the high-achieving kids leave public schools. But according to Bush, the students on the program were no more or less academically advantaged than their peers who remained behind.

The second myth was that vouchers would only benefit higher-income students. “Eighty-five percent of the students are minority,” Bush said. “Eighty-five percent qualify for reduced and free lunch. This is not a welfare program for the rich, but an empowerment program for the disadvantaged.”

The third and final myth he called “the abandonment myth” — schools where students leave will spiral ever downward.

Twenty years later these myths remain busted.

Eleven years of research on the Florida Tax Credit Scholarship show the critics’ claims ring hollow.

• Students attending private schools with the help of the scholarship are among the lowest-performing students in the public schools they leave behind.

• Today, 75 percent of scholarship students are non-white, 57 percent live in single-parent households, and the average student lives in a household earning around $27,000 a year. Researchers at the Learning Systems Institute at Florida State noted that these students are also more economically disadvantaged than their eligible public-school peers.

• More importantly, scholarship students are achieving Jeb Bush’s goal of gaining a year’s worth of learning in a year’s time.

• Even the abandonment myth remains untrue. Overall, public schools with large populations of potentially eligible scholarship students actually performed better, as a result of competition from the scholarship program, according to researchers David Figlio and Cassandra Hart.

When Jeb Bush took office just 52 percent of Florida’s students graduated. Today 86 percent of students graduate. According to the Urban Institute, students on the scholarship are more likely to graduate high school and attend and later graduate from college. State test scores on the Nation’s Report Card are up considerably since 1998 too. And when adjusting for demographics, Florida, which is a majority-minority state, ranks highly on K-12 education compared to wealthier and whiter peers.

There’s still room for improvement. But the naysayers at the turn of the century have been proven wrong.

September 27, 2019 0 comment

Courts Faith-based Education Florida Education Revolution Know Your History Myth Busters Private Schools School Choice Vouchers

Florida’s Blaine amendment leaves many unanswered questions (Part 2)

Patrick R. Gibbons September 19, 2019

Patrick R. Gibbons

Florida’s First District Court of Appeal

This is the second of two posts on the judicial history of Florida’s Blaine Amendment with regard to public aid to private religious institutions. Part one can be read here. The U.S. Supreme Court is expected to weigh in on the constitutionality of state Blaine Amendments in 2020.

Lawyers defending Florida’s first school voucher program in Bush v. Holmes demonstrated the state historically allowed public funding to flow to many religious organizations providing public services, including through the McKay Scholarship for children with special needs. The First District Court of Appeal refused to acknowledge these programs.

Supporters of the Opportunity Scholarship program also cited several Florida Supreme Court cases which upheld aid to religious institutions as constitutional. But the appellate court found a way to ignore this precedent too.

Koerner v. Borck (1958) dealt with the last will and testament of Mrs. Lina Downey, who had donated a parcel of land to Orange County for use as a county park, but with the provision that Downey Memorial Church be granted a perpetual easement to access the lake for the privilege of baptizing members and swimming.

The court upheld the will, concluding,

“to hold that the Amendment is an absolute prohibition against such use of public waters would, in effect, prohibit many religious groups from carrying out the tenets of their faith; and, as stated in Everson v. Board of Education, supra, 67 S. Ct. 504, 505, “State power is no more to be used so as to handicap religions, than it is to favor them.”

In 1959 the Florida Supreme Court heard Southside Estates Baptist Church v Board of Trustees, a case in which the court ruled religious institutions could use public buildings (in this case a public school) for religious meetings.

The court was not persuaded that minimal costs associated with the “wear and tear” of the building constituted aid from the public treasury, and concluded there was “no evidence here that one sect or denomination is being given a preference over any other.”

In Johnson v. Presbyterian Homes of Synod of Florida, Inc. (1970), tax collectors for Bradenton and Manatee County challenged a law that gave property tax exemptions to non-profits operating homes for the elderly after a religious organization applied. Presbyterian Homes of Synod, a religious non-profit operating homes for the elderly, maintained a religious atmosphere, offered religious services and employed an ordained Presbyterian minister who conducted services every day except Sunday. Most residents were even practicing Presbyterians.

The Florida Supreme Court determined the tax exemption benefit was available to all, not just Presbyterians, and ruled:

“A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited.”

Nohrr v. Brevard County Education Facilities Authority (1971) dealt with the issue of government issue bonds potentially being received by religious schools. The Florida Supreme Court found no problem here either.

In all four cases the Florida Supreme Court held the law did not violate the constitutional prohibition on direct or indirect aid to religious institutions. In all instances, the court examined who benefited from the aid, and required that the aid benefit the general public and/or required that no religious group be favored over the other.

The appellate court majority brushed aside these arguments, noting that the Opportunity Scholarship was different because the financial aid came directly from the state treasury, making the scholarship “distinguishable from the type of state aid found constitutional.” In fact, it appears the appellate court restricted Florida’s “no aid” provision to “payment of public monies,” though it failed to consider other similar programs such as McKay.

Having crafted itself exemptions to prior state Supreme Court precedent, the appellate court cited cases in Washington (2002), South Carolina (1971) and Virginia (1955) where state supreme courts held that direct subsidies to students were, in effect, benefits to religious schools.

This directly contradicted the U.S. Supreme Court decision in Zelman v. Simmons-Harris (2002), which determined the benefit to religious institutions from school vouchers were merely “incidental.”

The Florida Supreme Court had even weighed in on whether these benefits were direct or incidental during a 1983 case, City of Boca Raton v. Gilden, which upheld the city’s subsidy to a religiously affiliated daycare provider. The court declared:

“The beneficiaries of the city’s contribution are the disadvantaged children. Any ’benefit‘ received by the charitable organization itself is insignificant and cannot support a reasonable argument that this is the quality or quantity of benefit intended to be proscribed.”

The appellate court in Bush v. Holmes failed to understand that the constitutional question hinged not on the method of aid, but who was the intended beneficiary of the aid. Though Florida’s constitutional language may appear clear, its longstanding history of neutrality in funding medical and educational services at secular and religious institutions, has muddied the waters.

September 19, 2019 0 comment

Courts Faith-based Education Know Your History Myth Busters School Choice

Florida’s Blaine amendment leaves many unanswered questions (Part I)

Patrick R. Gibbons September 18, 2019

Patrick R. Gibbons

On June 7, 2005, opposing sides met for the final time to argue before the Florida Supreme Court over the constitutionality of the state’s first voucher program, the Opportunity Scholarship. Supporters of the program for low-income students had won several important victories, forcing opponents to abandon all but one remaining argument — that the voucher violated Florida’s “Blaine Amendment.”

Florida’s Blaine Amendment, Article 1, Section 3 of Florida’s constitution, is one of the most restrictive in the country. It reads:

“No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

Just seven months earlier the First District Court of Appeal issued an “en banc” decision, with eight of the justices declaring the program violated Article 1, Section 3.*

A ruling by Florida’s Supreme Court on the matter could have sent the case to the U.S. Supreme Court to resolve, once and for all, how state Blaine Amendments could be applied to restrict or support state-funded scholarships to attend religious schools. But the Florida Supreme Court ducked the issue altogether. In a stunning move, the Court reversed course and resurrected two arguments it had rejected just four years before.

The U.S. Supreme court isn’t expected to resolve the lingering questions over state Blaine Amendments until 2020.

Florida’s First District Court of Appeal had the last word on the matter, but despite claiming a “clear meaning” and “unambiguous history” of Florida’s no aid clause, the court’s decision left gaping holes and many unanswered questions.

Lawyers defending the voucher program argued the scholarship did not violate the Florida Constitution because the benefit was to the student and the general public, and not intended to aid religious organization. In fact, the entire program was neutral with respect to religion because the vouchers were issued to parents who could use them at any private religious or non-religious school of their choosing.

Furthermore, the Opportunity Scholarship forbid private schools from selecting students on a religious basis and stated that scholarship students could not be compelled to pray, attend worship or even take religious courses.

Supporters noted several state programs benefiting Florida residents were provided at religious or religiously-affiliated institutions. Programs included Florida Bright Futures Scholarship, John McKay Scholarships, Florida Private Student Assistance Grant Program and eight other scholarship programs, along with the 23 private religious colleges accepting them. Supporters pointed to direct financial support for religiously-affiliated colleges, including $8.9 million in 2002 for libraries at Bethune-Cookman, Edward Waters College and Florida Memorial College.

Attorney General Robert Butterworth pointed to other direct appropriations, such a rent paid to churches used as polling places and subsidized pre-K at religious preschools.

Butterworth even noted that state funds provided subsidized medical care at religiously affiliated hospitals such as St. Mary’s in West Palm Beach or Baptist Medical Center in Jacksonville.

A direct taxpayer subsidy to a sick patient to attend any hospital, religious or non-religious, of their choosing, should not be treated any differently under the law that a scholarship to attend a religious or non-religious school, the Attorney General argued.

The appellate court majority responded to these arguments with deafening silence, with no mention of the McKay Scholarship, the state’s only other K-12 voucher program funded by direct appropriations at the time. The ruling was narrowly tailored to only one single K-12 scholarship program.
Even Judge Wolf, who concurred in part, criticized the majorities incoherent constitutional interpretation stating,

“In order to avoid catastrophic and absurd results which would occur if this inflexible approach was applied to areas other than public schools, the majority is forced to argue that the opinion is limited to public school funding and article 1, section 3 may not apply to other areas receiving public funding.”

The court would not only fail to grapple with these important constitutional questions, it would end up ignoring Florida’s own legal precedent on the matter.

Coming Thursday: Florida has a long history of court cases that upheld the constitutionality of providing aid to religious institutions.

*Seven justices ruled the OSP should be struck down entirely for violating the state’s “Blaine Amendment.” Just one justice ruled the OSP should be partially struck down by requiring religious schools to be excluded from the program. Five justices ruled the program should be upheld.

September 18, 2019 0 comment

Education and Public Policy Education Legislation Education Politics Myth Busters School Choice Testing and Accountability Vouchers

Accountability comes in different forms

Scott Kent June 25, 2019

Scott Kent

Editor’s note: One of the most pervasive of all education choice myths is the one that claims schools that accept scholarships are not held accountable to the public for their success — or failure. We looked at the “no accountability” myth last week but take a deeper dive in today’s post. You can see more myth busting here, or by clicking the link at the top right-hand corner of this page.

Many cultures around the world have a common trope: a mythical creature parents invoke to scare their children into behaving. It goes by different names – the bogeyman, Baba Yaga, El Coco – but the admonition is usually the same: “If you don’t do as I say, so-and-so is going to get you!”

Critics of education choice deploy their own bugbears to frighten the masses.

For years these critics have argued that voucher programs divert tax dollars from public schools to “unaccountable” private schools. That’s been a popular talking point for opponents of Florida’s new Family Empowerment Scholarship:

“There are no systems in place for accountability.” “A wild west of unregulated, unaccountable voucher schools.” “Tens of millions of public dollars each year for primarily religious private schools that have no public accountability.”

(This is on top of other terrifying rhetoric such as, “The way Florida sells ‘choice’ relies heavily on gaslighting its citizens.”)

Cue the spooky organ music.

In reality, voucher schools are subject to two forms of accountability: the top-down regulatory model, albeit with a lighter touch than what public schools receive; and the kind you get from the bottom-up through parental choice, something few public schools face.

The debate shouldn’t be whether voucher schools should be regulated and held accountable (they are). Rather, it should be about finding the right mixture of different methods.

Public schools face large degrees of government regulatory accountability, from standardized testing, to curriculum, to teacher certification, to restrictions on how they can spend funds, and on and on. Private schools aren’t “unregulated,” as many critics claim. Florida law, for example, includes nearly 12,000 words of regulations governing schools that participate in the state’s tax credit scholarship program.

Those schools must provide parents information about teacher qualifications; test students in grades 3-10 in reading and math on state-approved national norm-referenced tests; and conduct annual financial reports if the school receives more than $250,000 from any scholarship source, to name just a few. Schools are also subjected to health, safety, fire and building occupancy inspections. Starting in 2019-20, new participating schools must be inspected by the Florida Department of Education before accepting any scholarship students.

Regulations that are burdensome can deter private school participation in voucher programs, which limits choices (and the quality of those choices). Making private schools subject to the same regulations as public schools would defeat the purpose of choice, which is to eliminate sameness and encourage diversity and innovation, allowing parents to customize their children’s education.

There’s a compelling argument that district schools are overregulated, often made by the stakeholders themselves. Teachers and parents complain about too much testing, too much paperwork, too much programmed instruction. “Just let me teach!” is the cri de coeur of many educators.

Like private and charter schools, public schools should be allowed more flexibility to operate, so they can better meet the needs of their students. It’s not about favoring one system over another. It’s about choosing students over systems, and allowing their families to seek the best options.

Putting that choice in the hands of parents represents the most direct and effective form of accountability. Their decision to attend or not attend a school serves as the ultimate oversight. If a school fails to deliver, it loses students and resources as dissatisfied parents look elsewhere.

This form of accountability is in short supply in public schools, particularly in low-income areas, where parents generally can’t afford to move to a neighborhood with a better school or pay tuition for a private school. They are stuck attending the school they are zoned for, regardless of whether it is working for their child.

These district schools are supposed to be accountable to their government overseers, but the consequences can’t match the immediacy of a parent’s decision to act now. How many public schools are closed for non-performance? How long does the process take? When public schools are deemed to have performed poorly, the response often is to advocate spending more money on them, in the misguided correlation between inputs (dollars) and outputs. What kind of accountability is that?

Letting parents decide has demonstrable benefits. For 10 consecutive years, Florida Tax Credit Scholarship students – who are among the most economically disadvantaged and lowest- performing students in the public schools they leave behind – have achieved the same solid test score gains in reading and math as students of all income levels nationally. In addition, an Urban Institute study released earlier this year found that students using the scholarship are up to 43 percent more likely to enroll in four-year colleges than their peers in public schools, and up to 20 percent more likely to earn bachelor’s degrees.

Regulatory accountability can be a blunt instrument. A school’s overall positive grade can’t account for the individual students who aren’t benefiting, for whatever reason. It may not even be related to academics. Parents evaluate their children’s success and satisfaction with schools on far more criteria than test scores. They need a variety of options, and the means to exercise that choice.

To make informed choices, parents need as much knowledge about schools as possible – relevant data (graduation rates, curriculum, turnover in students and faculty, etc.), as well as consumer feedback, i.e., a Yelp or TripAdvisor for schools.

But they already know better than any technocrat what makes their child tick. Self-interest is a powerful motivator – and an effective antidote to the hobgoblins and phantasms aimed at undermining it.

June 25, 2019 0 comment

Education Politics Education Reporting Family Empowerment Scholarship Myth Busters School Choice

Debunking the ‘no accountability’ myth

Scott Kent June 19, 2019

Scott Kent

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 debunks an oft-repeated misconception: Private schools that accept scholarships are not held accountable. You can see more myth busting here, or click the link at the top right-hand corner of this page.

Education choice critics have argued for years that voucher programs divert tax dollars from public schools to “unaccountable” private schools. That misperception has now become a popular talking point for opponents of Florida’s new Family Empowerment Scholarship.

A recent opinion piece in the Orlando Sentinel implies that voucher schools fail to hire qualified teachers, that they are unable to prove they’re educating students, and that they are not transparent with their finances.

The Ocala Star Banner opined that the FES “opened the door” to spending tens of millions of public dollars on schools with “no public accountability, no common testing procedures and generally no teacher certification parameters.”

Meanwhile, the Florida Education Association in a recently released report warns that the state’s new education bill could cause public schools to lose almost $1 billion in the next five years and references an Orlando Sentinel series that “revealed the lack of oversight and accountability over private schools operating in Florida.”

In truth, voucher schools are subject to two forms of accountability: the top-down regulatory model, albeit with a lighter touch than what public schools receive; and the kind you get from the bottom-up through parental choice, something few public schools face.

Florida devotes nearly 12,000 words of regulations governing the Tax Credit Scholarship. Among them: Schools must provide parents information about teacher qualifications; they must test students in grades 3-10 in reading and math on state-approved national norm referenced tests; and they must conduct annual financial reports if the school receives more than $250,000 from any scholarship source.

Schools also are subjected to health, safety, fire and building occupancy inspections. Starting in 2019-20, new participating schools must be inspected by the DOE before accepting any scholarship students. Read more here.

In addition to these external regulations, parents who are dissatisfied with their private schools can vote with their feet and take their scholarship students elsewhere. That ability represents the most immediate and direct form of accountability: If the schools can’t deliver, they lose students and the money that follows them.

That kind of accountability is in short supply in district schools, particularly in low-income areas, where parents generally can’t afford to move to a neighborhood with a better school or pay tuition for a private school.

June 19, 2019 3 comments

Education Politics Family Empowerment Scholarship Myth Busters School Choice

Invisible gorillas aplenty in Florida education debates

Ron Matus June 11, 2019

Ron Matus

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 debunks an oft-repeated misconception: The manner in which the new Family Empowerment Scholarship is funded is unprecedented, unconstitutional, and at odds with how the state defines public education. You can see more myth busting here, or click the link at the top right-hand corner of this page.

In the famous “invisible gorilla” experiment devised by research psychologist Christopher Chabris and experimental psychologist Daniel Simons, viewers were asked to count how many times people in a video passed basketballs to each other. As it turned out, half were so focused on the task they failed to see somebody in a gorilla costume walk into the middle of the scene, turn to the camera and thump his chest.

At the risk of being an armchair psychologist, I wonder if some of this “inattentional blindness” is at play in Florida’s debates over public education. For example, a stack of evidence shows Florida public schools have made significant progress over the past 20 years – yet so little of that evidence makes its way into the news.

I think I see a particularly big gorilla walking through the scrum over Florida’s newest choice scholarship. You wouldn’t know it from the criticism and coverage, but taxpayers in the Sunshine State have, for years if not decades, been spending billions of dollars for tuition at private and faith-based schools. How odd that most of these school choice programs are peachy and popular complements to public education, but a few are somehow accelerants for the apocalypse.

The general drift of opposition to the new Family Empowerment Scholarship, which Gov. Ron DeSantis signed into law May 9, is this: It’s unprecedented, unconstitutional, and at odds with how we’ve come to define public education. What DeSantis proposed, reporters at one paper wrote, was “a major departure from the way the state has funded public schools for generations.” “A dramatic — and some say illegal — shift of taxpayer money from public schools to students bound for private or parochial classrooms,” wrote another. “A completely different animal from the other voucher programs,” wrote one opinions editor.

Maybe they missed the gorilla?

Since 2005, Florida has spent $5.4 billion on its Voluntary Pre-Kindergarten program. Over the years, about 80 percent of participating schools have been private; about 17 percent have been faith-based. Assuming the students are proportionally divided, that’d be $4.4 billion in state money that ended up at private schools, with more than $900 million to faith-based schools.

Since 2006, Florida has spent more than $2 billion on McKay Scholarships, private school scholarships for students with disabilities. (McKay started as a pilot in 1999 and went statewide in 2001.) About 63 percent of schools participating in McKay are faith-based. Assuming McKay students are proportionally divided, that’d be $1.3 billion in state money that ended up at faith-based schools.

Since 2001, Florida has spent $1.5 billion on its Effective Access to Student Education grant (formerly known as the Florida Resident Access Grant). That’s a 40-year-old scholarship for students who choose to attend private colleges and universities. I didn’t catalog which EASE-accepting institutions are faith-based. But Ave Maria University, The Baptist College of Florida and Southeastern University (formerly South-Eastern Bible College and Southeastern College of the Assemblies of God) are among them.

About 1 in 10 Bright Futures Scholarships, established in 1997, go to private colleges and universities, too. Since 2007, $396 million worth. My gut tells me some of these institutions – Hobe Sound Bible College, Trinity Baptist College, St. John Vianney College Seminary, etc. – might be a wee bit religious.

Some choice critics still argue the new Family Empowerment Scholarship is a dangerous precedent. Why? Because, they suggest, it’s the first to be funded from the Florida Education Finance Program, which the Legislature uses to allocate money to school districts.

But, no. The McKay Scholarship is funded out of the FEFP. It has been for nearly two decades.

So what gives?

I’m no legal expert. But if it’s a matter of principle, it doesn’t make sense for choice opponents to blast some state-funded private school scholarships as unconstitutional atrocities – and perhaps file suit to kill them – but shrug at others.

If it’s the Florida Constitution’s “no aid” provision/Blaine Amendment they think is being trampled, then wouldn’t VPK, McKay, EASE, Bright Futures and other “vouchers” also be unconstitutional?

If they think Article IX is at stake – the section that says it’s a “paramount duty” of the state to make “adequate provision” for a “uniform, efficient, safe, secure, and high quality system of free public schools” – then why haven’t they filed suit to kill McKay?

Ditto for the Gardiner Scholarship Program, created in 2014 for students with special needs like autism and Down syndrome. It’s state funded; big and getting bigger; and being used by thousands of parents to pay tuition at private and faith-based schools. Total appropriations now top $500 million, and at the current rate of growth, will be at $1 billion in three years.

Goodness. Where’s the outrage?

Maybe it’s thumping its chest next to the gorilla?

June 11, 2019 0 comment

Courts Education and Public Policy Education Legislation Education Politics Myth Busters Policy Wonks School Choice

‘Paramount duty’ never intended as weapon against school choice

Patrick R. Gibbons June 6, 2019

Patrick R. Gibbons

school choice

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 debunks a long-standing misconception: The state constitution says free public schools are the sole means for the state to provide education in Florida. You can see more myth busting here, or click the link at the top right-hand corner of this page.

The primary reason the Florida Opportunity Scholarship program was struck down 13 years ago was noticeably absent from recent news coverage of a potential lawsuit over Florida’s newest voucher program. Instead, discussions focused on issues of regulatory “uniformity,” and “separation of church and state,” the latter of which wasn’t part of the Florida Supreme Court’s ruling at all.

The primary legal reasoning, which is based on the “paramount duty” clause of Article IX Section 1 of the state constitution, isn’t easy to understand. The court had to invent prohibition where none existed, and it did so after misinterpreting another legal case.

Ironically, the Florida Supreme Court initially rejected the “paramount duty” argument before reversing itself five years later in what the Harvard Law Review called an “adventurous reading and strained application” of Florida’s constitution.

In Bush v. Holmes in January 2006, the Florida Supreme Court struck down the Opportunity Scholarship, reasoning it “diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children.”

But how did the court determine public schools were the sole means by which the state could provide education?

The court relied on the second and third sentences of Article IX, Section 1(a) of the state constitution:

It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools that allows students to obtain a high quality education…

No one is likely to read the language above and conclude vouchers are unconstitutional.

Most of Article IX, Section 1 was added to the state constitution by Amendment 6 in 1998, which was a response to public school advocates losing a funding adequacy lawsuit. As Justice Kenneth Bell noted in his dissent in Bush v. Holmes, there is no historical evidence the amendment was ever intended to be weaponized against school vouchers.

To justify prohibiting vouchers and declaring public schools the “sole means” of education, the court invoked “expressio unius,” which means, “the expression of one thing implies the exclusion of another.”

According to Irina Manta, writing in the St. Louis University Law Journal, the Florida Supreme Court, “appears to base its entire understanding of expressio unius on a quote from a statement in the 1927 Weinberger v. Board of Public Instruction decision.”

The Weinberger case dealt with constitutional language that specified “any bonds” issued for the purpose of funding public education “shall become payable within thirty years from the date of the issuance.” Similar language still exists today.

But in Weinberger, a school district had issued bonds that matured after the maximum 30-year period prescribed by the constitution. The 1927 court struck down the district’s bonds as unconstitutional, noting that the constitution mandated a maximum date by which bonds must be payable. Anything later than 30 years was thus prohibited.

According to Manta, “the relevant provisions in Holmes contain no prohibitions; in fact, they contain no language whatsoever that even comes close to Weinberger’s ‘any bonds.’”

The prohibition is clear in Weinberger, but not at all clear in Article IX, Section 1.

Justice Bell concluded in his dissent, “The clear purpose behind Article IX is to ensure that every child in Florida has the opportunity to receive a high-quality education and to ensure access to such an education by requiring the Legislature to make adequate provision for a uniform system of free public schools. There is absolutely no evidence before this Court that this mandate is not being fulfilled.”

Sadly, for the nearly 800 students on the Opportunity Scholarship at the time, the Florida Supreme Court invented a prohibition where none existed and did so entirely by misunderstanding a legal case from nearly a century before. Given this, it is easy to see why school choice critics omit the “paramount duty” clause when discussing the constitutionality of vouchers in Florida.

June 6, 2019 0 comment