F.A.C.E. to FACE   F.A.C.E. BULLETIN 2/24/06   Dear Friends,   Note mention of rally, in Governor Jeb Bush’s, Big Week for Education in Florida - Update on Education News.     Reject Officeholders Who Would Deny True Opportunity In Education by Lincoln J. Tamayo, Special to The Tampa Tribune, Published: Feb 16, 2006   The Florida Supreme Court's School Voucher Decision: Not Only Incorrect, But Also Unprincipled, a devastating criticism of the Florida Supreme Court decision, by Shavar D. Jeffries, an Associate Professor of Law at Seton Hall Law School.     Thank you for Stepping Up For Students,   Michael A. Benjamin Executive Director, F.A.C.E. Florida Alliance for Choices in Education Big Week for Education in Florida - Update on Education News Dear Friends,   This week we unveiled several important education initiatives that will enable us to continue in our efforts to reform our state education system.  On Tuesday, Lt. Governor Jennings and I announced our A++ Plan for Education.  Building on the progress we have made since 1999, the middle and high school reforms we proposed will offer Florida students more choices, more opportunities and a more rigorous education.   Reading is the key to learning. I’m recommending the state automatically increase funding for reading each year by at least the same increase in public school funding.  Additionally, middle and high school students performing below grade level on the FCAT will receive intensive instruction.   A rigorous curriculum in middle school builds the foundation for success in high school.  I’m recommending we require middle school students to earn 12 credits – three credits each for language arts, math, science and social studies – to graduate from middle school or enter high school. Middle schools will also offer at least one course for high school credits to challenge students excelling beyond their grade level.  To encourage career exploration at a younger age, middle schools will provide greater exposure to different career opportunities.   At the cornerstone of this week’s announcement are sweeping reforms for high schools.  We must raise the standards in our secondary schools to ensure our students will be competitive in Florida’s growing marketplace.  I’m recommending Florida’s high schools offer students the opportunity to graduate with a major or minor area of study – just as college students do – following the completion of a core curriculum. To make this curriculum more rigorous, Florida’s high school requirements will include four years of mathematics, including algebra I and geometry.  Additionally, I’m recommending updating the high school diploma to recognize achievement such as a high grade point average or successful completion of honors courses.   It is important to provide additional training for students who choose to enter the workforce after high school rather than pursue higher education.  To ensure high school students have the skills to successfully transition to the workforce, I’m recommending the creation of a $50 million, multi-year “Ready to Work” certification program.  The program will create a job skill assessment-based training and credentialing program for high school students who choose to major in career and vocational programs.   These recommendations will hopefully join the many education reforms we have successfully implemented since the advent of the A+ Plan for Education in 1999.  Today, student achievement in Florida is on the rise, and more students than ever are reading on their own, taking college entrance exams, graduating from high school and earning college degrees.     Yesterday, I had the honor of attending the Save Our Students rally in the courtyard of the Capitol.  Over 4,000 students, parents, and supporters of the Florida’s three scholarship programs were in attendance, and I made the commitment to them that we would continue the fight to ensure that parents have choices in their children’s education. Families of means have school choice.  They can afford to move to a “good” school district or send their children to a private school.  All of Florida’s families, including those who may be low-income or disabled,  should have the same choices.  School choice is a fundamental right – a civil right – that I will continue to support. Along with President Lee and Speaker Bense, I promised to help take this issue back to the voters this November so that Florida’s families will have a voice on the critical issue of school choice.   We will continue to keep you informed of the exciting progress our state continues to make in the area of education.  In the interim, thank you for your continued support and friendship.   Sincerely,   Jeb Bush Reject Officeholders Who Would Deny True Opportunity In Education Skip directly to the full story. By LINCOLN J. TAMAYO Special to The Tampa Tribune Published: Feb 16, 2006   If we sincerely care whether all of Florida's schoolchildren are afforded equal educational opportunity, we must pay close attention to the people our politicians align themselves with on school voucher issues. The attention is particularly important this election year as we choose a governor who, like Jeb Bush for the past seven years, will frame and lead our education debate.   One should be wary of candidates who praise the Florida Supreme Court's recent ruling killing Opportunity Scholarships, the voucher program allowing children in failing public schools to attend private schools. These candidates cozy up to those who led the charge to destroy these scholarships: the teachers unions and myriad other constituencies that make up the public school educationist conglomerate. These are the groups that shed crocodile tears for the plight of underprivileged schoolchildren but are in fact terrified by competition and the light of accountability in schools. Instead of standing up for a parent's most basic right to avail her child of the best possible education, these politicians shamelessly curry favor with those they believe will enhance their chances for election. I suppose courage wanes when one wants to soar politically.   I wholeheartedly agree with the pols - even of the shameless variety - who implore us to tackle the tough job of improving our public schools, especially those in our urban centers and poor rural communities.   But many of these politicians, like me, are fortunate to live within the right ZIP codes, allowing us to send our children to the best public schools in Florida. When the parents in these schools talk, educators listen and respond. And when the parents don't like what they hear, most can send their children elsewhere.   Do these politicians honestly believe that union-dominated public schools with a stranglehold monopoly on the education of poor, disenfranchised and captive children will actually do anything meaningful to improve on their own? Can they honestly tell the families of the children they casually condemn back to lousy public schools that they'll ensure those schools get it right before it's too late for their kids?   There are few more public and noble purposes for the use of tax revenues than providing for real education opportunity, in any venue, for all of our children. This is the spirit of uniformity so horribly mangled by our Supreme Court in its Opportunity Scholarship reversal.   We should be so committed to uniformity of opportunity as a vital education and public end that it renders irrelevant the question of where education takes place. Our public dollars should follow children wherever they may best learn - it's as simple as that.   And when we encounter schools - public or private, secular or religious - that abuse the public trust, our corrective action should be swift and forceful. Isn't our society's continued preservation through our precious children and grandchildren worth such a stand?   If the Supreme Court refuses to take this stand, then we should demand that our legislative and executive branches do so. Apparently this is lost on politicians concerned with protecting their political flanks above all else.   I'm not the least bit comforted by candidates - especially those of the gubernatorial variety - who stand with interest groups like the Florida Education Association and the American Civil Liberties Union, which are now training their legal sights to kill the McKay, Bright Futures, voluntary prekindergarten and corporate tax credit scholarship programs, which benefit tens of thousands of needy students throughout the state.   I'm not the least bit comforted by candidates who stand with the likes of teacher Ruth Holmes Cameron, one of the principal plaintiffs in the Opportunity Scholarship case, who actually made the following statement relative to vouchers: "To say that competition is going to improve education? It's just not gonna work. You know competition is not for children. It's not for human beings. It's not for public education. It never has been; it never will be."   Did Holmes graduate from the Karl Marx School of Education?   How can any politician stand with such absurd thinking? I don't know about you, but I wouldn't let my children within a country mile of this teacher's classroom, and I definitely wouldn't want an ally of such a teacher within a country mile of the corner office in Tallahassee.   Most politicians begin their careers inspired to serve others, but too many lose their way as they seek greater glory. I don't believe the "others" any politician serves should be lobbies like teachers unions pining for a world where they account only to themselves, and whose sole purpose in life seems to be to consolidate their political power.   The tragedy of such alliances is that important things like educational opportunity, in the form of vouchers and true and healthy school competition, fall prey to political ambition.   We must demand that our politicians, and especially those seeking our highest state office, stand instead with our marginalized schoolchildren who need our help the most. We should not stand with any candidate who lacks the political courage to serve those least likely to scratch political backs. The Florida Supreme Court's School Voucher Decision: Not Only Incorrect, But Also Unprincipled   By SHAVAR D. JEFFRIES ---- Thursday, Jan. 26, 2006   A few weeks ago, in Bush v. Holmes, the Florida Supreme Court struck down the State's Opportunity Scholarship Program (OSP). The OSP had provided private-school vouchers to about 750 children - most of whom were African-American or Hispanic -- in failing public schools. The Court based its holding on the state constitution's Education Clause, which requires the state to provide "for a uniform, efficient, safe, secure, and high quality system of free public schools." The Florida court's interpretation of the Education Clause may provide a reference point for other courts throughout the nation - for many other state constitutions or statutes include provisions with similar language. And that's quite unfortunate, for the Florida court's reading of the clause is deeply flawed and fundamentally incompatible with even a charitable reading of applicable legal standards.   The Florida court gave three principal reasons to support its holding. All three are unpersuasive, as I will explain. The Court Grossly Misread the Education Clause as Not A Guarantee, But A Limit   First, the Florida court held that the Education Clause not only places a positive obligation on the State to provide for a system of free, public schools, but also places a negative limit on the State's capacity to support education outside the context of public schools. Put another way, according to the court, the constitutional mandate to provide for a system of free public schools prescribes the exclusive means by which the State may support public education   There's simply no support in the Education Clause for this interpretation. The Clause's language affirmatively obliges the State to make "[a]dequate provision . . . for a uniform, efficient, safe, secure, and high quality system of free public schools." That is all.   The Education Clause, plainly, is a guarantee - of access to high-quality public schools. And it is no more than that. It says what the state must provide for, not what it is forbidden from doing. As long as the State provides such high-quality schools, whatever else it does in the area of education is unencumbered by the Education Clause.   There was no basis, then, for the Florida Supreme Court's holding that this affirmative obligation precluded the State from supporting any educational services that were not provided uniformly in public schools. This interpretation not only invalidates the OSP program but also suggests a broader, and detrimental, principle that may be applied in future cases: The principle that government support for education may be provided only if such support is provided in traditional public schools -- even if an alternative kind of support does not at all encumber the quality and uniformity of traditional public schools.   Why did the Florida court twist what was plainly a guarantee, into a prohibition ? The answer may lie in the court's limited powers. Unlike in the federal system, where Congress has only those powers constitutionally enumerated, the Florida Legislature possesses general legislative authority. It is thus constitutionally empowered to legislate in any manner not explicitly prohibited by the State Constitution.   Thus, in order to strike down the OSP, the Florida Supreme Court had to find an express constitutional prohibition of the program. Since no such prohibition existed, the court had to, in effect, invent one.   The Court Held the OSP Unconstitutional Without Any Empirical Basis To Do So   Perhaps realizing that its first holding was on shaky ground, the court reasoned, in the alternative, that the OSP is unconstitutional because it "undermines" the quality of public schools by "divert[ing]" funds to private schools that otherwise would be used in public schools. The Florida court, however, so concluded without any explication of its reasons, or any reference to any empirical support for its claim. That's especially troubling because the court entertained a facial challenge to the OSP - that is, a challenge to a wide range of applications of the program, not just one. That meant that, under well-settled law governing facial challenges, the court could strike down the program only if its constitutionality could be sustained under no set of possible facts.   In fact, there are a host of reasons to doubt whether the OSP in any way compromises the capacity of Florida to ensure high-quality public schools:   First, fewer than 800 students participate in the OSP program. And spending on the program amounts to approximately $3.1 million - a mere drop in the bucket, barely more than .001% of Florida's total education budget of $27.6 billion. This is hardly an amount that would or could, empirically, compromise the efficacy of Florida's public schools.   Second, the amount of money diverted from public schools constitutes less than the marginal cost of educating each child in the OSP program; public schools thus experience no financial loss, on a per-pupil basis, by virtue of the OSP program.   Third, let's assume that some future, maximum-capacity OSP generated some financial loss to public schools in light of fixed capital expenditures. That wouldn't matter for the purposes of this facial challenge; for those purposes, if the current program is constitutional, that's good enough. And in any event, there is no evidence -- and the Florida Supreme Court did not cite any -- that even this increased amount to fund some future, hypothetical maximum-capacity OSP would inhibit, in any meaningful way, the capacity of Florida to provide high-quality public schools.   Fourth, it's important to recognize - as the Florida court did not - that state budgets are varied instruments, containing revenues and expenses concerning a wide diversity of subjects. There is thus absolutely no need for the Florida court to view education finances narrowly as a zero-sum game: Even making the extravagant assumption that a maximum-capacity OSP would divert essential resources away from public schools, that predicate would simply require the Florida Legislature to find the resources necessary for compliance with the Education Clause -- wherever those resources might be found in the total state budget.   The Education Clause, therefore, would prohibit the OSP only if the state budget could not accommodate both the State's constitutional obligations under the Education Clause and its statutory responsibilities under the OSP. On the facts I've cited above, that is plainly not the case. And, as noted above, the court did not cite any facts at all in support of its holding.   The Court Argues Unpersuasively that OSP Violates the Uniformity Requirement   Finally, the Florida Supreme Court concluded that the OSP violated the uniformity requirement of the Education Clause, because OSP-participating schools were not governed by the same teacher-qualification, teacher-certification, and curriculum standards as public schools.   This interpretation seems to be made up out of whole cloth. The Court cites neither prior caselaw, nor legislative history, in reaching this unyielding conclusion.   As a threshold matter, the uniformity requirement does not speak at all in terms of the particular bureaucratic inputs of schools. Rather, the Education Clause articulates broad, philosophic norms requiring the State to provide "for a uniform, efficient, safe, secure, and high quality system of free public schools."   Given the level of generality at which this language is articulated, the more reasonable interpretation is that schools must be uniform in terms of the "high quality" of the education provided, not necessarily in terms of the particular operational and pedagogic means by which that education is achieved.   Indeed, there is a broad consensus in educational practice that schools should be governed, managed, and designed flexibly in order to respond appropriately to the varied educational needs of diverse student populations. In fact, it is significantly because of this desire for flexibility in approach that the Florida Legislature enacted the OSP. The Court's rigid interpretation of uniformity not only unjustifiably illegitimizes the OSP, but also hamstrings the State's capacity -- whether through charter schools, magnet schools, or other sorts of creative programs -- to adapt to particular student needs the means through which high-quality educational services are provided.   The Florida Court Should Have Deferred to the People's Judgment In sum, the Supreme Court of Florida disrespected settled precedent requiring it to find legislative acts unconstitutional only if that conclusion was unavoidable. It transformed the affirmative requirement to establish quality public schools into a negative ban on government support for anything other than public schools. And it contorted the state constitution's vision of uniform, high-quality schools into a bland inflexibility concerning the substantive means through which effective education is attained. The Constitution simply does not prescribe - as the Court seemed to think - a "one-size-fits-all" education.   The Court's strained logic not only does a disservice to the needs of thousands of children, disproportionately poor and minority, ineffectively served by public schools, but also flouts longstanding rules of law admonishing courts to defer to the people's judgment, unless specifically and unambiguously compelled by constitutional mandate to do otherwise.   Shavar D. Jeffries is an Associate Professor of Law at Seton Hall Law School.

 

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