Will Florida’s School Choice Program Be Expelled?
An Attorney Defends Opportunity Scholarships

Florida’s Supreme Court recently heard oral arguments in the case challenging the state’s school voucher program.  Clark Neily, a senior attorney with the Institute for Justice, joined the Center’s Corporate Counsel Renee Giachino to discuss the case on the radio show “Your Turn — Meeting Nonsense with Common Sense,” heard on WEBY 1330 AM Northwest Florida’s Talk Radio.

What follows are excerpts from the interview.

GIACHINO:  My next guest has been on the program with us before and was a wonderful interview.  He is at the airport in Tallahassee, Florida, awaiting a flight back to Washington, D.C.  He joins us this afternoon to talk about Florida’s Opportunity Scholarship Program — what most of us call school vouchers.

Let me welcome back to the program, Clark Neily, who is an attorney with the Washington, D.C.-based Institute for Justice, a libertarian law firm which represents, among others, Pensacola families who are using Opportunity Scholarships or school vouchers and battling in the Florida courts for school choice.  You can learn more about Clark and his organization by visiting them at www.ij.org.

Thanks for visiting with us, Clark.

NEILY:  My pleasure.  Thank you for having me on again.

GIACHINO:  Clark, I understand that you are in Florida today because the Florida Supreme Court heard oral arguments in the school voucher case.  If you will, please set up the case for the listeners who may not have been following it in the news?

NEILY:  Sure.  The Opportunity Scholarship Program is the first state-wide voucher program in the country.  What Florida does is it gives parents whose children happen to be in failing schools a life-line to get those children out of those schools and into schools of their choice, whether that is another public school or, as it was in this case, a private school.  It is a wonderful program that has given these parents for the first time in their lives the ability to choose where their children go to school instead of having to put them in whatever school happens to be in their neighborhood, which are often some of the worst schools and the worst performing schools in the state.

There is a lot at stake in this case and there is a lot at stake for the 700 parents and children who are using Opportunity Scholarships in Florida.

GIACHINO:  What sense did you get from the justices today?  What types of questions were asked?

NEILY:  They asked a lot of tough questions of both sides, and I think that means that they are really trying to engage on the issue and figure out what kind of legal issues this program involves.

One of the issues at issue in the court today was whether or not the fact that parents have the full range of religious and non-religious options in this case violates the Florida Constitution or a provision of that Constitution.  Our response to that is that, of course, it does not because there are over three dozen public and educational aid programs in this state that give recipients of state aid money the same choice of religious and non-religious options that Opportunity Scholarship parents enjoy.  There is absolutely no reason to single them out and tell them that they are not entitled to the same privileges as other aid recipients in this state and the same range of choices.

GIACHINO:  Who participated in the oral arguments?  Please give us a snapshot of the lawyers who were arguing the case on both sides.

NEILY:  The state was represented by lawyers both from the governor’s office and from the attorney general’s office.  The Institute for Justice, actually I, personally, argued on behalf of the families who were actually receiving these scholarships.

On the other side of the aisle arguing the program was invalid were lawyers paid by the National Education Association — the largest teachers’ union in the country.  They have paid the lawyers to attack this program as they have every other school choice program that has been introduced around the country over the last 15 years.  They stand against school choice — which is not an issue about constitutional principles or separation of church and state.  For them, all they care about is making sure that the public schools can continue to do business as usual and that there is no school choice in this country.  So they are the ones paying for the lawyers who are attacking this program.

GIACHINO:  The lawsuit, as I understand it, was filed by a coalition of organizations and individuals.  You have mentioned the state teachers’ union.  What is the motivation for other groups listed like the Florida PTA, the NAACP and the League of Women Voters?

NEILY:  Unfortunately, these are all basically liberal groups that march in lock-step together and that are all essentially beholden to the teachers’ union both at the state and national level that often call the tune on issues that are important to liberals.  And, one of those issues is to make sure that public schools continue to do business as usual and that we don’t have any reform in public schools that this kind of choice and the Opportunity Scholarship Program provides.

So what you have here is really just a coalition of special interest groups who essentially do not want parents to have the ability to choose what schools their children can attend.

GIACHINO:  Do you have any predictions?

NEILY:  No, it is impossible to predict because the argument in this case is really all over the map.  As I said, the justices asked hard questions of the lawyers on both sides of the case, and I think they are genuinely grappling with the issues in this case.  I think we are just going to have to wait a couple of months — maybe weeks, but probably months — to see whether the Florida Supreme Court will take away this life-line for these children and deny these parents the only choice they have ever had as to where to put their children in school.

GIACHINO:  So there is no definite timeline for when the Florida Supreme Court needs to issue a ruling in this case?

NEILY:  There is no definite timeline.  They can take as long as they need to decide this case and to answer the questions as best as they are able to.  I think that it is more important that they get it right rather than that they try to rush an opinion.

GIACHINO:  So it is a little bit different than, for example, the U.S. Supreme Court that finishes its term and typically issues rulings in all of the cases heard that term?

NEILY:  That’s right.  Generally the U.S. Supreme Court is on more of a predictable schedule, but in this case the Florida Supreme Court will take as long as it needs to figure out the issue and resolve it in a way that is appropriate.  That could be weeks or months.

GIACHINO:  We are talking with Clark Neily, an attorney with the Institute for Justice.  He is in Florida today because the Florida Supreme Court heard oral arguments about the Florida Opportunity Scholarship Program.

Clark, we have a caller on the line with a question, is that okay?

NEILY:  Sure.

GIACHINO:  Go ahead caller, it’s your turn.

CALLER:  Why don’t you school yourself into using the phrase “government schools” instead of “public schools”?  The reason why I am posing this question is because isn’t the government mandating what schools should do — the curriculum and other things, aren’t they mandated by the government?

NEILY:  Yes, that is absolutely correct.  Some people do use that term “government schools,” and it certainly is a fair way to describe what is going on in this country.  That is, that the government forces you to put your children into school and oftentimes they force you to put them into a school that is failing to get the job done and failing to give your child any meaningful moral education or inculcate them with any kind of values whatsoever.  You are absolutely right to say that parents are being forced by the government to put their kids into sub-standard schools and this program is all about breaking up that cycle.

CALLER:  Sure.  Again, mandates from the government, so they are government schools.  I am just being a little bit facetious, but see if you can school yourself because there are a few words in my vocabulary that I use and I schooled myself into not using some other words.  So I think the appropriate phraseology is that these are “government schools.”

NEILY:  Well, you certainly make a fair point.

CALLER:  Okay, thank you very much.

GIACHINO:  Clark, it is my understanding that Florida is the only state right now with a current program like this.  I know that we are very fortunate here in Santa Rosa County, where this station is located, to have wonderful schools.  In fact, I know that we have folks from Harvard and all around this country coming here to look at our Santa Rosa County Public Schools to be a model for education in other places.  So I know we are very fortunate, and I would highly doubt that any children here in our area — at least in Santa Rosa County, I know that in Pensacola they are taking advantage of the Florida Opportunity Scholarship Program.  Is it true that Florida is the only state with such a program?

NEILY:  Yes, it is the first state to have a state-wide program.  There are some states where this has been done on a city-by-city basis.  The thing that is so wonderful about this program is that it really targets the schools that are failing to get the job done.  This is absolutely not an attack on the public school system as it has been mis-portrayed by others in the past.  This program only becomes available to people if the public school where their children are enrolled is designated by the state as a failing school.

Essentially what the state has said is that, if we cannot get the job done, we will not force your child to stay in a failing school.  We are going to give you a life-line and make sure you are able to get your child out of that school and into a school that can get the job done while we continue to work to fix the system.  We understand that your child only has one life to live and if they don’t get educated the first time then they never will.

GIACHINO:  Was Governor Bush present at the arguments?  I know he has a very strong interest in this case — at least it is portrayed that way in the media.

NEILY:  Yes, Governor Bush is absolutely committed to this program and to the basic proposition that parents should be able to choose what schools their children are in.  I just admire the way that he has been incredibly tenacious in defending not only this program but other school choice programs, as well.  That really is why Florida is at the cutting edge of school choice for all of the states in this country.

The results really have been borne out by how enlightened the Governor has been.  The achievement gap between minority students in this state has narrowed dramatically since the program has been on the books.  Graduation rates across the board are up dramatically.  These programs are working just as the legislature had intended — it is spurring the public schools to compete and it has been handing a life-line to these kids trapped in a failing public school.  It really has been a win-win situation all the way around.

GIACHINO:  Was Governor Bush present today?

NEILY:  Unfortunately, he was not able to be at the argument.  As I understand it he had a conflict that took him down to south Florida.  But the Commissioner of Education was there as were a number of high ranking individuals from the Governor’s office, so there is absolutely no question that this case was very, very much on their radar and that it is something that the Governor cares about very deeply.

GIACHINO:  Is it on the radar of the U.S. Supreme Court?  Let me phrase that a different way.  Regardless of the outcome, do you think this is a case that will ultimately have to be decided by the U.S. Supreme Court and, if so, what would be the path to get it there?

NEILY:  You know that is a tough question because there are two different issues being argued in this case.  One of them has to do with whether or not the state must exclude religious options in order to continue the program.  If the Florida Supreme Court decides that religious schools must be excluded or that the program must be shut down in order to prevent them from participating — absolutely, that decision could be appealed to the U.S. Supreme Court, and it would be.

There is another issue in the case, however, that frankly, as far as I am concerned, is a completely baseless claim and is a completely spurious argument.  That has to do with whether the state, in addition to setting up the system of assistance in public schools, can offer scholarships to students where they can go to private schools.  People attacking this program have made an argument under a different provision of the Florida Constitution to try to say that the state cannot supplement the public education system with private school scholarships.  That argument has never been accepted by any other court around the country.  They have tried this in other states and it has never been accepted in any other court.  They could not cite a single case in support of the argument.  But, unfortunately, if the Florida Supreme Court were to accept this argument, becoming the first supreme court of any state to ever accept that argument, that issue would not be reviewable by the U.S. Supreme Court and, unfortunately, we would be stuck with it.

GIACHINO:  Am I right, Clark, that just because a program has a secondary effect of benefiting a religious school it does not necessarily mean that it violates the Establishment Clause?

NEILY:  Absolutely.  The Establishment Clause of the U.S. Constitution certainly does permit school choice programs of this kind.  That issue has been litigated all the way to the U.S. Supreme Court in 2002, when the Court said it does not present any problem whatsoever under the U.S. Constitution.  That is when school choice opponents took the fall-back position and started to say that there was a state constitutional provision that prevents these kinds of programs.

Interestingly, the Florida Supreme Court has interpreted this exact provision four different times in the past and every single time it has said exactly what you just said.  That is, as long as the state is trying to promote the general welfare — in other words, not trying to single out churches and trying to benefit them — then the mere fact that religious options are available or that religious interests might benefit incidentally presents no problem whatsoever.

In fact, we see that throughout the State of Florida.  Florida has over three dozen social and educational aid programs — everything from Medicaid to Bright Futures Scholarships for college students to the McKay Scholarship program for disabled students — every single one of those three dozen programs allows participants to have the full choice of options of religious and non-religious providers.  And that is exactly what the Opportunity Scholarship Program does, as well.

GIACHINO:  Well then, give me your thoughts about what is going to happen to those other state programs if, in fact, the Florida Supreme Court should strike down the school voucher program?

NEILY:  It is interesting that you should ask that because we have warned all along that if they were to strike down this program, it will merely be the first of many to go down the tubes.  And for a time our opponents were dismissing those warnings as mere scare tactics.  But interestingly, in the last week or two, they have finally begun admitting that, if the Florida Supreme Court strikes the Opportunity Scholarship Program, they do, in fact, intend to go after the McKay Program for students with disabilities and they will go after the voluntary pre-kindergarten program.  So they have finally begun to admit that this is part of a larger agenda to begin unraveling the very fabric that exists here in Florida and by which Florida provides social and educational aid.  So they are really trying to open a can a worms here that once it is opened there is no closing it and all of these programs are essentially going to be vulnerable to a constitutional challenge.

If you are receiving a scholarship at a college level, K-12 level, if you want to put your child in the voluntary pre-K program coming this fall, every person in every one of those situations has reason to be worried because those programs could be on the chopping block.

GIACHINO:  I read a report — in fact, it might have even been in the paper this morning — that as many as 3,000 people were expected to rally at a park across the street from the Supreme Court in support of school vouchers.  What was the atmosphere like outside of the courthouse?

NEILY:  You know it was wonderful.  There was so much positive energy there at the capitol, and there were probably about 3,000 people.  These were the people who have the real human face of school choice in Florida.  You know when you look inside the court it is really basically a bunch of lawyers and representatives of special interest groups and a couple of well-off families whose children had gone to wonderful public schools and they had never ever even set foot in a failing public school in their entire life.  But when you looked outside the court you saw who was rallying in support of the program.  It was the people who are most served by this program — it was minority families mostly from places like Miami and Pensacola, from the places where the schools have been designated as failing and where they are most in need of these opportunities.  They are the ones who are going to be affected by this decision, and they turned out in droves to support school choice as a principle and to drive home the point that they are the faces of school choice in the State of Florida and that a decision against the program by the Florida Supreme Court would be a decision against them.

GIACHINO:  If the Florida Supreme Court rules against the Opportunity Scholarship Program, how quickly could the hundreds of, as you mentioned, mostly minority children be pulled from the only decent schools they have ever known?

NEILY:  Unfortunately, it is going to happen right away.  There are 741 children who are receiving Opportunity Scholarships right now.  If the Supreme Court rules against this program before September when school starts, then those scholarships will unfortunately not be available to those kids.  I am sure there will be efforts to find support for those children through other means, but unfortunately they are going to lose those scholarships.  And, based on what I said earlier about our opponents finally admitting that they are going to go after other programs, as well, it could be just a matter of time before the McKay Program, the voluntary pre-K program and some of the other scholarship programs come under attack, as well.  So this is a very, very dire situation for anyone who is receiving educational aid here in the State of Florida or expects to in the future.

GIACHINO:  Okay, well, we will watch for the news reports.  Clark Neily, thank you very much for joining us.  Clark is an attorney with the Institute for Justice, and you can learn more about his organization and about this lawsuit by visiting them at www.ij.org.

I need to take a break and I know that you need to catch a plane.  Thank you very much for joining us.

NEILY:  My pleasure.  Thank you very much for having me on.

GIACHINO:  We’d love to talk with you again after we get a decision.

NEILY:  That would be great.