Florida's Supreme Court recently ruled 5-2 to strike down the state's Opportunity Scholarship Program, more commonly referred to as school vouchers, which are continually given to students in the state's failing schools.  Florida Supreme Court Sends Students Back to (Public) Schools

Florida's Supreme Court recently ruled 5-2 to strike down the state's Opportunity Scholarship Program, more commonly referred to as school vouchers, which are continually given to students in the state's failing schools.  CFIF Senior Vice President & Corporate Counsel Renee Giachino recently spoke with Clark Neily, one of the attorneys who argued the case before Florida's high court, about the impact of the decision on 733 schoolchildren at 53 schools statewide.

What follows are excerpts from the interview that aired on "Your Turn - Meeting Nonsense with Common Sense" on WEBY 1330 AM, Northwest Florida's Talk Radio.

GIACHINO:  My first guest this afternoon may now qualify as a regular - considering this is his third visit to the program "Your Turn."  He's always a great guest and so it is my pleasure to welcome back Clark Neily, who serves as Senior Attorney for the Institute for Justice.

Clark, thank you so much for joining us again.

NEILY:  My pleasure.  Thank you so much for having me back on the show.

GIACHINO:  Clark, I have invited you back on the program to discuss the same case that we have following with you - that is the case that you helped argue before Florida's highest court, the case commonly referred to as the school voucher case -- although I think the technical term for the program is the Opportunity Scholarship Program.

Before we turn to that subject, can you please share with the listeners some information about the Institute for Justice?

NEILY:  The Institute for Justice is a libertarian public interest firm based near Washington, D.C. and we basically sue the government to try to secure the right for people to engage in the occupation of their choice, to own and enjoy private property, to express themselves under the First Amendment and, of course, also to send their children to schools of their choice and not where somewhere bureaucrat tell them where they should send their children.  If people want more information we have a website and it is ij.org. We would love to have you check out the website and we would love to hear from you if you have any questions or if you have anything that you want to talk with us about.

GIACHINO:  Clark, you mentioned that one of the missions of the organization is to sue the government.  But in the case that we are going to discuss, am I right that you were actually on the same side as the Florida state government?

NEILY:  Yes.  This is one of the settings in which the Institute for Justice does actually end up on the same side as the government. The reason for that is that there are some state governments and even local governments that have been very forward looking on the issue of school choice.  Florida is frankly the most forwarding-looking state in the country - they have the highest number of school choice programs and the broadest applicability of such programs.  So really Florida is delivering school choice to the most number of people in the country.  The good news, that is the silver lining of this case, is that continues to be true even in the wake of this very unfortunate Florida Supreme Court ruling striking down the Opportunity Scholarship Program.  There are just over 700 kids in that program.  They want to be able to finish up the school year.  But the program is going to be over as of the end of this school year.  The good news is that there are over 30,000 children in other school choice programs in the State of Florida and those have not been challenged yet so they are going to continue to go on.

GIACHINO:  Clark, before we talk more specifically about the ruling in the voucher case, I want to back up a little bit for the benefit of some of the listeners who might not have tuned in during either of your two previous appearances with us.  If you would please describe for the listeners what we are talking about when we say school choice and school vouchers here in the State of Florida.

NEILY:  Sure.  There is a basic philosophical difference there.  Some people believe that the government is in the best position to tell you where your kids should go to school.  Then there are people who believe that the parents are best situated to make that choice.  And what really is going on here in Florida is that the governor decided that the best way to make sure that kids are getting a good education in the State of Florida was to say to parents, "look if your child is trapped in a school that is not getting the job done, if your child has been trapped in a school that has been rated by the state as failing, we are going to give you the option of taking your child out of that school and either sending them to a higher performing public school or to a private school of your choice. And the state is willing to give you a voucher so you can send that child to a private school." 

It is a wonderful, wonderful program and it has had a wonderful impact both on the children who have been receiving the state aid to go to the private schools and also on the schools that have been forced now to compete for the students and recognize that they cannot just keep going on as business as usual.  There have been four different independent studies of the program and every single one of those studies shows that public schools exposed to competition from this program improved dramatically and it is very, very unfortunate that the program is not going to be around much longer to spur that kind of improvement.

GIACHINO:  Am I right - I think that the last time that you joined us you explained that these vouchers don't just come into play after the school has received its first failing grade but that they are given multiple opportunities to improve that grade before the voucher program may be invoked in their physical school?

NEILY:  Yes, that is true.  To become eligible for the voucher program, a school has to have gotten two "F" grades - two failing grades, within any two consecutive years.  So, yes, you are right, it is not as if the state just steps in out of the blue and says that all of the kids here qualify to transfer out.  Instead it is targeted at schools that have a chronic problem and just are not able to get the job done.

It is a common myth that this is some how an attack on the teachers or the people who work at this school.  It is no such thing.  There are a lot of basic structural problems in our public education system that would prevent even very effective teachers from being able to really educate the kids in their classroom.  My father is a public school teacher.  I know this for a fact and have seen it in his job and he has told me of the things that he faces that prevent him from doing an effective job in his classroom. 

So really all this program says to parents is that we are not going to demand that you leave your children trapped in a failing public school - this chronically failing public school, while we tinker with it and try to straighten it out.  Which who knows how long that might take - a year or five years or even ten?  Even one day in a chronically failing school is too long for anybody's child and I think the only way that anybody would put up with that is if it were somebody else's child who is going to be trapped in that failing public school.  I have never met a single person in the whole State of Florida with a child trapped in a failing public school who wasn't a supporter of this program.

GIACHINO:  When the parents then make it known that they want to be a recipient of the voucher or that they want to be a part of the Opportunity Scholarship Program, the state doesn't dictate which schools that they go to right - it is up to the parents?

NEILY:  That's right.  It is up to the parents.  And of course they have a choice of remaining in the public school system and transferring to a higher performing school if that is at all an option.  But of course one of the problems there is that the higher performing public schools are more popular and will not have the class size to accommodate these new kids.  So sometimes the only real option for these parents is to transfer into a private school and the state would pay at least a portion of the tuition - they get a voucher and there is a maximum cap on that voucher.  Of course these parents are able to take their children out of that failing public school and enroll them in a private school of their choosing.

Of course I should add that this is a form of school choice that wealthier parents exercise every single day throughout this country.  People with enough money to do it exercise school choice either by putting their children into private schools or by moving to school districts where they have good public schools.  We believe that everybody in the State of Florida should have the same ability to exercise school choice and to ensure good educational opportunities for their children, regardless of whether they have the money to afford private school or to afford living in fancy school districts.  That is what this case is all about and that is what this program is all about.  I am sad to say that the Florida Supreme Court really turned its back on that in this case.

GIACHINO:  They turned their backs on a lot of students too, some of whom are located right here in the Pensacola area.  Is that right?

NEILY:  Yes, in fact the first two schools to qualify for the Opportunity Scholarship Program and the only two schools for a couple of years were right there in Pensacola and we actually represent in this lawsuit a number of parents whose children were able to make the leap from the failing public schools to private schools that were able to get the job done.

I wish that I had more time to share with you some of the wonderful, wonderful stories that these parents have about how their children's whole attitude toward the educational experience and educational process changed.  They look forward to going to school.  There was a young girl who had been passed all the way up to the fourth grade and could not read.  At the private school that she was in they managed to get her to read.  There is a young man who was able to make up a full year of achievement for every year that he was in that private school.  It was just incredibly gratifying to work with these parents and to see what amazing changes in their children's lives these programs had made.  And of course that is no longer going to be possible because of what the Florida Supreme Court has done to the program.

GIACHINO:  Okay, the Supreme Court's decision came out just two weeks ago.  What will happen to these students?

NEILY:  Well, the good news as I said before is that the court has decided that the program can continue until the end of this school year so there is no immediate threat to these students being carted back into the failing public schools that they were able to escape through the program.  My expectation is that through a variety of means most of these children will - I'm hoping, be able to remain in the good schools that they are in now.  I think this could take a number of forms.  I think there is going to be some private philanthropy.  I suspect that some of the private schools will just dig deep and find a way to keep these kids even if no one is able to pay their tuition any more.  Those are two real possibilities.

And then there is also a lot of talk about an attempt to fix this problem legislatively or through a constitutional amendment.  I think that those are further down the road but in the near term what we are going to see is both schools and individuals who step up to keep these kids from being sent back to the failing public schools that were destroying their future.  And I hope, but cannot promise, but am hopeful that that is what is going to happen to them.

GIACHINO:  If there are listeners who want to help these students in the Pensacola area, can they visit your website - is there a place on there where they can contact somebody to offer assistance?

NEILY:  Absolutely.  Go on the website ij.org and you will find my e-mail address.  That is Clark Neily.  Or you can just send it to our general mailbox and the link is right there on the website.  Just get a hold of us if that is something that someone is interested in doing and we will absolutely help you to help some child remain in a good school instead of getting sent back to a failing school.  Yes, that would be wonderful if somebody wanted to step up and help out.  We invite them to do that.

GIACHINO:  Now, I don't want to get too legalize but I do want to get a better understanding of the ruling. As I understand it, the decision was made in part because they refer to state requirements that call for a "uniform system of free public schools."  What do they mean for that?

NEILY:  Well, there is a part of the Florida Constitution that says that the legislature has to establish a school system that is "uniform, safe, secure and high quality."  And what five justices of the Florida Supreme Court did was focus on that word "uniform" and interpret it to mean that essentially the only thing that the state can do is deliver public education through the traditional public school system and  that prevents the legislature from doing anything more than that.  Once it has established the public education system it cannot go any further than that.  Unfortunately that is a completely unprecedented interpretation of the word "uniform."  Both here in Florida, and there is only one other state supreme court in the country that has considered that same argument and that was Wisconsin in 1992. That court completely rejected the argument that was based on very similar constitutional language.  So this is really an unprecedented decision by the Florida Supreme Court and one that has in it very important unresolved tensions and conflicts that were dramatically and persuasively pointed out by the two justices who dissented from that opinion and who made it clear that the majority had gotten it wrong in this case.

GIACHINO:  So you mention that there are these conflicting opinions out there - you mention the one in Wisconsin and I think maybe there is one in Ohio as well.  And now we have this case which sets up a conflict in our state courts.  So how likely is it then that this case or one of the voucher cases may ultimately end up at the U.S. Supreme Court?

NEILY:  Well, I think it is likely that one day a voucher case will end up there.  Of course it has already happened once when the U.S. Supreme Court decided that these type of voucher programs do not violate the federal constitution.  So now we are slugging it out over various provisions contained in state constitutions.

That being said, I doubt it is going to be on this issue because these are questions of state constitutional law and these are things that normally the U.S. Supreme Court would not get involved in -- even when there is conflict among the states.

That being said, opponents of school choice have also been continuing to raise the sort of religious idea that school choice programs allow people to choose religious and non-religious schools and that somehow violates a state constitutional provision about religion.  They argued that in this case.  The Florida Supreme Court chose not to address that issue so it is still in play and my expectation is that if a state supreme court resolves a case on that ground and strikes down a school choice program on grounds that it violates a state constitutional provision about religion that will eventually get to the U.S. Supreme Court.  That implicates very important questions of non-discrimination under the federal constitution.  I realize that is a little complex and legalistic - the short answer is that I don't think that the uniformity issue that was at issue in this case is likely to get to the Supreme Court but I do think that voucher programs likely are headed back there one day on another issue.

GIACHINO:  I don't entirely expect you to have the answer to my next question because I know that you don't live in the state and you may not be familiar enough with the A-plus money program.  Let me set this up a little for you.  As I understand this uniformity clause, the court's ruling said that because of the uniformity clause that provides for a uniform system of free public schools, they had to strike down this program in order to have a uniform system.

Yet, we also have in the state an economic system under our A-plus money that allows schools to receive different amounts of state money based on their test scores.  So if you are a B school or a C school you get less money than an A school.  I think under the same argument that they used to strike down the state's Opportunity Scholarship Program, couldn't the same argument be made to strike down this merit based system of money going to schools in varying amounts if it has to be uniform?

NEILY:  Absolutely.  The whole idea that you can rigidly interpret uniform in the way that they have is completely absurd.  You bring up an excellent point - the funding is not uniform.  Just think about it from the standpoint of the parent trapped in Miami - all or virtually all public high schools in that area have been rated as failing.  Does that parent really see the public education system in the State of Florida as being anything that remotely even approaches uniform?  Of course not.

Another point, for example, is that the state has for years spent public money to educate students in private schools - these have been primarily students who have certain disabilities or behavioral problems.  But again it is nothing new or unusual.  If that is acceptable then why in the world can we not do the same thing with students whose needs are not being met in the traditional public school system because the schools are not getting the job done?

This whole attempt to take uniformity and say that it commands the result that was reached in this case is ludicrous.  It is a giant can of worms as you have suggested that really has no logical ending point.  The dissent pointed this out and explained how ridiculous it was to say that you can use public money to save disabled kids or kids who have certain categories of special needs - to save them from a bad public school and put them in a private school, but you cannot do the same thing for poor kids.  It does not make any sense.

And to add just one more thing, it completely ignores the rest of the language of that sentence which says not only uniform, but also efficient, safe, secure and high quality.  You think parents in these places like Pensacola and Miami think that their school system is safe, secure and high quality?  Not the schools that I have been in.

So again, this is a total situation of elevating form over substance and focusing on that one word in a sentence and giving it meaning that it was never meant to have and ignoring all of the other language in that sentence.  I am sorry that it was a very results-oriented decision and I think that the consequences for the State of Florida are going to be terrible.

GIACHINO:  We have been now to Florida's highest court.  Some will say that people have had their day in court although obviously you have just pointed out several ways that you could pick apart the basis for the 5-2 decision in this case.

I think that I recently read that this was the centerpiece of Governor Bush's education package that he championed back in 1999.  He obviously still remains committed to the program.  You've also mentioned that there may be a plan in the works to get the support of voters in November to change our state constitution to allow taxpayer money to flow through to these private schools.  Does that essentially mean to do away with this uniformity clause?

NEILY:  Well it certainly means at least clarifying the uniformity clause and making clear just what is going on here.  It is like that court that I mentioned in Wisconsin that said that the reason for having a provision like that is to get the legislature to establish the public school system, it is not to keep them from going further and creating programs like the Opportunity Scholarship Program that spur the public educational system to do better - which is exactly what Opportunity Scholarships did.

And I should add that whatever happens - whether there is a constitutional amendment or there isn't or there is a legislative fix or there isn't, school choice is the wave of the future.  It is the civil rights issue of the 21st Century.  The idea of being able to choose where your child goes to school should not be something that only parents with a lot of money get to be able to do.  It is the wave of the future and it's one of the dirty little secrets of school choice opponents that all of the polling numbers - when you look at the polls that have been done, all of the polls done on the parents who need this the most, the parents of minorities and children, the poll numbers get to 80% in support of school choice, from this exact group of people who are supposed to be the constituents of the Democratic Party.  They have really been sold out by their supposed political leaders on this issue and one day that is going to come back to haunt those political leaders.  I am firmly convinced that school choice is the wave of the future because it is a moral issue, it is a civil rights issue and it is something that these parents need and want when they find out about it.

GIACHINO:  Well thank you very much for taking time this afternoon to join us to discuss this decision.  Again, if you would like to learn more about the Florida Supreme Court's decision or what you can do to help in this situation, please visit the Institute for Justice's website at ij.org.  We've been talking with Clark Neily, a senior attorney for the Institute for Justice.  Thanks Clark, we will talk with you soon.

NEILY:  Thank you.

January 25, 2006
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