In 1999 Florida passed the Opportunity Scholarship Program (OSP), the nation’s first statewide school voucher program in nearly fifty years. Florida also became the first to have a statewide voucher program struck down in 2006 under Bush v. Holmes. More than a decade later, Gov. Ron DeSantis announced a new state-funded program called the “Equal Opportunity Scholarship,” reanimating debates about the constitutionality of vouchers in the Sunshine State.
Back-to-back Florida Supreme Court victories for “voucher” supporters suggest the Holmes ruling began to unravel well before DeSantis appointed three new justices. In fact, significant legal criticism of the ruling at the time suggest that Holmes may not have stood up to scrutiny under any court willing to rule based on legal precedent, constitutional history and empirical evidence.
The Harvard Law Review called the Holmes ruling an “adventurous reading and strained application” of Florida’s constitution.
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,” and concluded that the case was a national example of “what not to do.”
Irina Manta, writing in the St. Louis University Law Journal, believed the court produced “a decision that blatantly misunderstands basic principles of statutory construction and oversteps the boundaries of the judiciary’s role in policy matters.”
Jason Marques, writing for the Florida Law Review, concluded there was no evidence to rule the program unconstitutional, and that the “case was arguably decided on the basis of policy rather than precedent.”
Clark Neily, then a lawyer representing voucher recipients, concurred in harsher words when he described the ruling as “among the most incoherent, self-contradictory and ends-oriented court decisions in recent memory.”
The OSP was created under Gov. Jeb Bush in 1999 to give students attending, or assigned to, public schools rated “F” in two years out of a four-year period, the opportunity to transfer to another public school or to take a voucher to attend a private school. Almost immediately, a coalition of groups, led by the state’s teachers union, sued to stop the program.
Plaintiffs opposing the scholarship program argued the voucher violated three sections in the Florida Constitution and one within the U.S. Constitution.
Within the Florida Constitution, opponents targeted:
Article I, section 3, which states,
“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.”
Article IX, section 1, which states,
“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…”
And Article IX, Section 6, which states,
“The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.”
Regarding the U.S. Constitution, opponents argued the ability to take a voucher to a private religious school violated the “Establishment Clause.”
According to Richard Garnet and Christopher Pearsall, writing in Education & the Law, “In the trial court, the judge initially found – without hearing any evidence – that the Opportunity Scholarship Program violated Article IX, Section 1 of the Florida Constitution.”
The trial court reasoned the constitution made public education the “sole means” of delivering education in Florida. The District Court of Appeal reversed this decision stating, “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.”
By the time the case made its way to the Florida Supreme Court in 2005, the program had been ruled unconstitutional under “No Aid” to religious institutions clause of the state constitution. Plaintiffs had lost, or dropped, all other arguments regarding the constitutionality of the OSP.
But the latest ruling was potentially threatened by the highest court in the land.
Under the landmark decision Zelman v. Simmons-Harris (2002), the U.S. Supreme Court ruled vouchers were constitutional so long as the program was educational and parents had a diverse array of religious and non-religious educational options.
A “No Aid” ruling by the Florida Supreme Court might allow defenders of the OSP to appeal to the U.S. Supreme Court by arguing that Florida’s “No Aid” clause violated the First Amendment of the U.S. Constitution.
Instead, the Florida Supreme Court evaded the “No Aid” arguments altogether and focused on the previously rejected Article IX Section 1 arguments. According to Manta, “this move to focus on the interpretation of state law alone ensured that the United States Supreme Court would not grant certiorari and that the OSP would definitely fall.”
Weakness Within Holmes
The Supreme Court gave three reasons why OSP violated Article IX, Section 1:
- The mandate to provide a free, uniform public-school system was also a restriction that prohibited any other educational alternative
- Diversion of public funds to OSP “undermines the system of ’high quality‘ free public schools.”
- Private schools were not “uniform” because “the private school’s curriculum and teachers are not subject to the same standards as those in force in public schools.”
The courts three arguments fall apart under examination.
“There is no language of exclusion in the text,” wrote Justice Bell for the dissent. “Nothing in either the second or third sentence of article IX, section 1 requires that public schools be the sole means by which the State fulfills its duty to provide education of children.”
Garnett and Pearsall agreed, “It’s hard to see… how the creation of the OSP is an action taken ‘in lieu of’ establishing and maintaining a public school system.”
Regarding the OSP’s impact and how it “undermines,” public schools, the Supreme Court failed to examine actual evidence. Instead, “the majority conduced that a theoretical diversion constituted an inevitable injury – a tenuous claim,” wrote the Harvard Law Review.
James Dycus didn’t pull punches when he described the Supreme Court’s legal framing of the “uniformity” clause as “indefensibly simplistic.”
“In crafting its own definition,” Dycus wrote of the Supreme Court, “it ignored its own precedents on the subject, as well as relevant historical evidence.”
According to Dycus, Florida’s case law suggests “uniformity” is defined as “an equal opportunity to become enlightened citizens,” and that no case until Holmes viewed uniformity as lock-step adherence to identical regulations.
Legacy of Holmes
Ultimately, Holmes only eliminated educational options for 733 students, 94 percent of whom were black or Hispanic. It failed to upend charter schools, the Florida Tax Credit Scholarship, or McKay Scholarships, which combined serve more than 420,000 students today. Importantly, it failed to influence other state supreme courts.
The Holmes court was widely and quickly criticized at the time for good reason. The court discovered a prohibition where none existed, declared vouchers harmed public schools without demanding or even examining evidence, and it invented its own definition of “uniformity” that was neither supported by its own precedent or Florida history.
A decade ago Clark Neily predicted the flaws in Holmes would cause it to “quickly fade into the jurisprudential oblivion it so richly deserves.”
Neily, who now serves as the Vice President for Criminal Justice at the Cato Institute, remains just as hopeful that Holmes will be overturned, but noted in a phone interview that Gov. DeSantis’s proposed “education savings account” program is fundamentally different from a voucher. “It’s entirely possible for the court to uphold the new program without explicitly overturning Holmes,” said Neily.
Whether or not Holmes is overturned, a new court gives us a fresh opportunity to honestly and empirically explore how school choice fits within the state’s paramount duty to fund a system of free public schools.
ORLANDO – Florida Gov. Ron DeSantis reiterated his pledge to end the waitlist for special needs children who have qualified for a state-funded scholarship at a second school visit Monday.
Following a morning stop at North Florida School of Special Education in Jacksonville, DeSantis traveled to Pace Brantley School in Longwood, outside Orlando.
Pace Brantley, a private school situated on a sprawling, 9-acre campus, specializes in educating children with a variety of special needs including attention deficit disorder, dyslexia and other learning disabilities.
“As long as I’m governor, don’t worry about the Gardiner scholarship,” DeSantis told a group of more than 50 parents, students and educators. “We’re going to be here and support it. We’ll stand behind the parents and students, because we believe in you. You have a lot to offer this state.”
The governor was accompanied by former Florida Senate President Andy Gardiner, Gardiner’s wife, Camille, and their son, Andrew. Gardiner led the legislative effort to establish the program to honor Andrew, who has Down syndrome.
“What’s special about the scholarship is that it allows parents to (steer) their child’s education,” Gardiner said. “Whenever they’re told that their child has a unique ability, they can know the governor and First Lady supports them.”
Nearly 1,900 Florida students are on the waiting list for the scholarship in the wake of a demand that has outpaced state funding. Administered by the nonprofit Step Up For Students, which hosts this blog, the scholarship serves nearly 12,000 special needs students.
Karen Revels, whose 6-year-old son Chancellor is on the waitlist, was among those who attended the event. Revels is paying about $12,000 a year out of pocket for Chancellor, who is on the autism spectrum, to attend Walden Community School in Winter Park.
She described Walden’s environment as calming, praising the smaller class sizes and Chancellor’s opportunities to “play and wiggle” and eat lunch outdoors.
“It is not chaotic at all, and his behavior issues at home have almost been eliminated,” Revels said. “He is happy to go to school, there isn’t pent-up anxiety and anger anymore, and it is all because of his daily environment.”
Revels said the family is depending on the Gardiner Scholarship to keep Chancellor in the setting that works best for him – a small private school.
“Academically, he is at the top of his class, and now he is also there emotionally,” she said. “Our other two children have thrived in a public-school setting, but it is not a one-size-fits-all model by any means.”
Another attendee, Ashley VanHees of Longwood, said she is grateful for the scholarship. Her son, Camden, 8, was developing normally until he was bitten by a tick at age 2. Within hours, he suffered a seizure and brain swelling. He eventually was diagnosed with a traumatic brain injury due to Lyme encephalitis.
VanHees said Camden is still fighting Lyme disease but has made exceptional strides, thanks in part to the Gardiner Scholarship. He is now a second-grader at Advance Learning Academy in Fern Park.
“We were able to enroll Camden in a private school where he has thrived and shown remarkable improvement,” she said. “His IQ scores have increased by 20 points and that is just the beginning. We know that we have a long road ahead, but we feel confident in our journey knowing that we have the support from the scholarship to assist along the way.”
VanHees said she can’t imagine how the family would manage without the scholarship.
“I do know that this great education he is currently receiving would be out of reach,” she said. “My hope is that all of the families and children that remain on the scholarship waitlist are able to receive the opportunities that we have benefited from.”
JACKSONVILLE – Florida Gov. Ron DeSantis on Monday promised to eliminate the wait list for children who have qualified for a state-funded scholarship for students with special needs.
DeSantis, flanked by First Lady Casey DeSantis and Florida Education Commissioner Richard Corcoran, visited the North Florida School of Special Education where he addressed parents of students awaiting a Gardiner Scholarship, the nation’s largest education savings account program, as well as those families who have benefited from it.
“In the budget just released, I’ve allocated enough money to get rid of the waitlist for the Gardiner Scholarship entirely,” DeSantis told the crowd of roughly 150. “The Gardiner program has been a proven success, and parents need to find the right environment for their kids.”
DeSantis said he looks forward to welcoming in the next school year the nearly 1,900 Florida students currently on the list in the wake of a demand that has outpaced state funding. Administered by the nonprofit Step Up For Students, which hosts this blog, the scholarship serves nearly 12,000 special needs students.
Families can use the funds to pay for a variety of educational services, including private school tuition, tutoring and therapies, in addition to contributions to the Florida Prepaid College Program. The scholarship has enjoyed broad bipartisan support since its inception in 2014 and was expanded in 2015 to include students on the autism spectrum, who now account for 66 percent of scholarship recipients.
Corcoran praised all who champion education opportunities for Florida’s youth.
“Human dignity comes from a great education, and everyone deserves that,” he said.
Adam Blaszkiewicz, whose son Robert is a second-grader at North Florida School of Education, was one of several parents who spoke at the event. Blaszkiewicz recently moved to Florida from North Carolina and is paying out of pocket – about $7,000 for half a year – while his son remains on the waiting list.
“This program provides parents with both means and flexibility to address their children’s needs,” Blaszkiewicz said. “More importantly, it ensures that parents do not have to face a gut-wrenching decision of foregoing or delaying an intervention that could change their child’s life for the better.”
Like many parents of special needs students, Blaszkiewicz is aware that timing is critical for children like Robert.
“Those funds (would) not only allow us to place our children in an educational setting where they are most likely to succeed as early as possible, but they also free up our personal budgets to provide additional therapy services, as well as help us plan and save for the future,” he said.
Tim Crass, whose son Drew has attended North Florida School of Education for three years on the scholarship, said it has been instrumental in helping Drew, who has Down Syndrome, stay “up to speed” in school. The roughly $10,000 scholarship pays for about two-thirds of Drew’s tuition.
“The Gardiner Scholarship is a win-win for both the families who want to send their children to North Florida and the school itself, as it has been able to grow and accommodate even more students,” Crass said. “Without the Gardiner Scholarship, families who need schools like North Florida wouldn’t be able to get the education for their children that they truly deserve, and schools like North Florida wouldn’t be able to continue providing the amazing educational experience they are providing today.”
The Rev. Jose Suarez, founder and director of Hope Youth Ranch in Hudson, said after the event that the governor’s announcement “was like a breath of fresh air.”
“It just brings hope,” Suarez said. “Our parents have to make decisions on whether to use their own money. This opens up a lot of doors for possibility and relief, not just schooling but therapies as well — the total needs of their child.”
UPDATE: Gov. DeSantis continued his Gardiner Scholarship tour in the afternoon, speaking at Pace Brantley School in Orlando. You can read our coverage of that event HERE.
TALLAHASSEE — Pointing to feedback he received on the campaign trail, Gov. Ron DeSantis on Thursday said Florida will revamp education standards and eliminate “vestiges” of the politically unpopular Common Core standards.
DeSantis’ announcement came five years after then-Gov. Rick Scott took aim at the Common Core standards, which were developed by officials in 48 states and have particularly drawn criticism from Republican voters. The State Board of Education in 2014 adopted what are known as the Florida Standards, a move that involved making changes to Common Core.
DeSantis, who took office Jan. 8, said during a news conference Thursday in Lee County that parents expressed frustration to him about Common Core and issues such as standardized testing while he campaigned last year. He said he was directing Education Commissioner Richard Corcoran to undertake a process that will lead to new standards.
“I’m here to say when you complained about Common Core, I hear you, I told you I’d do something about it, and today we are acting to bring those promises into a reality,” DeSantis said.
Though Scott touted moving away from Common Core in 2014, Corcoran on Thursday said Florida has been “stuck” with Common Core and alluded to the Florida Standards as a rebranding.
“It’s all the same, it all needs to be looked at, it all needs to be scrutinized,” said Corcoran, who was a state House appropriations chairman in 2014 and later became House speaker. “And we need to sit down with the experts, the stakeholders, the great superintendents, the great leaders in the community and figure out how do we write the best, No. 1 standards in the United States of America.”
DeSantis said Corcoran will lead an effort during the coming year to develop standards and to address other issues, such as “streamlining” testing in schools. He said he expects the results of the process to go to the Legislature during the 2020 session.
The announcement drew praise from the Florida Education Association, a statewide teachers union that has frequently clashed with Republican leaders over issues such as standardized testing.
“A deliberate look at what students must know is always appropriate, and it’s very encouraging to hear that Gov. DeSantis and Commissioner Corcoran plan to bring teachers and parents to the table as they go about reshaping Florida’s standards,” Fedrick Ingram, president of the union, said in a prepared statement. “We’re also pleased to hear that the administration will look at streamlining testing. Parents and our members cite time spent on testing — as versus on genuine teaching and learning — as one of their top concerns. If all stakeholders are heard, we have confidence that this effort can improve public education in Florida.”
Kurt Browning, superintendent of schools in Pasco County, said he supports “streamlining standardized testing” and other initiatives proposed by DeSantis, such as an increased focus on civics education. But Browning expressed caution about moving away from the current standards.
“I ask Governor DeSantis and Education Commissioner Corcoran to consider the amount of time, funding, and effort teachers, administrators, and school districts have invested in professional learning, curriculum, materials and resources that align with our current standards,” Browning said. “I understand that parents have had difficulty grasping some of the standards, and there may be a need to adjust some of them. My concern is that we not lose ground in the progress we have made toward ensuring our students are prepared for the demands of college and the workforce.”
Debates about school standards and testing have repeatedly flared in Florida during the past two decades. Republican Gov. Jeb Bush, who was elected in 1998, made controversial changes to the system that included a heavy emphasis on testing and holding schools accountable for student performance.
After being developed by leaders from across the country, the Common Core standards have been adopted by 41 states and the District of Columbia, according to the Common Core website. But the standards in recent years became toxic in Republican politics, with many grass-roots voters viewing the standards as a national overreach into schools.
Education lawsuit dismissed: A nearly 10-year-old lawsuit alleging that the state has failed to live up to its constitutional duty to fund a “high quality” K-12 public education system has been dismissed by the Florida Supreme Court in a 4-3 decision. The court majority upheld a lower court ruling that the phrase “high quality education” is not defined in the constitution, and what it does mean is a political question, not a judicial one. The court “lacks the institutional competence — or the constitutional authority — to make the monumental funding and policy decisions that the petitioners (the plaintiffs) and the dissenters seek to shift to the judicial branch. And there is not a hint of any manageable judicial standards to apply in making those decisions,” wrote Chief Justice Charles Canady. The group Citizens for Strong Schools filed the suit in 2009 and lost at the circuit court and appeals court levels. News Service of Florida. Associated Press. Tampa Bay Times. Orlando Sentinel. Florida Phoenix. Politico Florida.
Choices for Florida BOE: Andrew Pollack, whose daughter Meadow died in the Feb. 14 shooting at Marjory Stoneman Douglas High School in Parkland, is one of two people appointed by Gov. Rick Scott to the Florida Board of Education. The other is Thomas Grady, a Naples lawyer and former state representative. Both will serve until Dec. 31, 2022. They were among 76 appointments Scott made last week on his way out of office. Sun Sentinel. Associated Press. Gradebook. Politico Florida.
Safety in schools: Gov.-elect Ron DeSantis’ public safety advisory team backs the conclusions of the Marjory Stoneman Douglas High School Public Safety Commission report, wants law enforcement to have more authority in schools and suggests stiff penalties for schools that miss deadlines or ignore state rules on security. “We need to be unleashed into the schools,” says Jeff Bell, president of the Broward Sheriff’s Office Deputies Association, and “show consequences to the kids so that when they grow up and turn 18, we aren’t actually creating a pipeline to the prison system.” Politico Florida. Florida Politics. The state safety commission report is in and recommendations for improving security for schools have been made. How does the Broward County School District stack up on meeting those recommendations? Sun Sentinel. Orlando area school districts will make changes based on the panel’s report. WKMG. Another Broward deputy is suspended for his actions during the school shooting. Sun Sentinel. Miami Herald.
Corcoran and accountability: In 2012, then-State Rep. Richard Corcoran supported a plan to require standardized testing for students at private schools that accept tax credit scholarships. Now that he’s education commissioner, though, he’s not commenting on that possibility. Gradebook.
School shooting report: The Marjory Stoneman Douglas High School Public Safety Commission approves a 458-page final report that calls on the state to arm willing teachers, provide more money to add school resource officers and harden school buildings and campuses, and streamline communications between schools and law enforcement agencies, among the dozens of recommendations. The report now goes to Gov. Rick Scott, Gov.-elect Ron DeSantis and Senate President Bill Galvano, R-Bradenton. Sun Sentinel. Miami Herald. Associated Press. News Service of Florida. Gradebook. WJCT. WTVJ. WTLV. Capitolist. Florida Politics. DeSantis says he’ll decide soon whether to suspend Broward Sheriff Scott Israel for the agency’s failures during the shooting at the Parkland school Feb. 14. Sun Sentinel.
Education and Legislature: State Rep. Chris Latvala, R-Clearwater, the chair of the PreK-12 Appropriations committee and vice chair of the education committee, says the Legislature is likely to tweak the significant education bills passed in 2017 and 2018, but probably won’t have any single bill that “will dramatically change the education system, as we’ve done the past few years.” Gradebook.