"And what school choice brings to that mix is that is creates an incentive for public schools to respond and to get better... we have seen that in every single state where school vouchers have been introduced..." Center’s General Counsel Discusses Florida’s School
Voucher Program With Institute for Justice Attorney

Last week, the Center for Individual Freedom’s Renee Giachino, who hosts the radio talk show "Your Turn — Meeting Nonsense with Common Sense" on WEBY 1330 AM in Northwest Florida, spoke with Clark Neily, an attorney with the Institute for Justice, about school choice and the Florida voucher program.

What follows are excerpts from the interview.

GIACHINO: As many of the listeners know, earlier this summer a Florida appellate court declared Florida's Opportunity Scholarship Program, which most of us in the area refer to as "school vouchers," in violation of the state Constitution's strictures on spending because, in the judge’s opinion, the program benefits religious institutions.

On the line with me this afternoon is my first guest, Clark Neily, who is an attorney with the Institute for Justice, a Washington-based libertarian law firm, which represents, among others, Pensacola families who are using Opportunity Scholarships and battling in the courts in Florida for school choice.

Thank you for joining us this afternoon. Clark, are you there?

NEILY: I am here, thanks for having me.

GIACHINO: Before I begin, I want to let the listeners know that they can learn more about IJ and you by visiting www.IJ.org. It’s a great website. On it is a great biography about you that I think will also help to set up this interview a little better for the listeners. If it’s okay, I just want to read from it — it is one that is written by one of your colleagues. It says: "If there were a black belt in litigation, Clark Neily would own one. This is one hard-charging, take-no-prisoner, lay-it-on-the-line kind of guy."

Clark, I’m sure those attributes have certainly come in handy as you have litigated to advance school choice.

NEILY: That’s right. Well, I did not write those words, but I do appreciate them. You know there is no issue that is more important to the future of our country than education and improving our education system. It has been proven time and again that simply pouring more money into the public school system is not going to bring about the improvement that we so desperately need. What we need is for every parent to have the ability to choose and vote with their feet when the program is not working for them — whether it’s public or private, or anything else. And that’s exactly what this program, the Opportunity Scholarship Program, does. It gives every parent a chance, and that is why it is so important to defend the Program and take it up to the Supreme Court and get a ruling putting it back on the books — which is what we intend to do.

GIACHINO: Am I right about this? It was passed in 1999 by Governor Jeb Bush and what he said was that the voucher program is set up for students in "chronically failing" schools. Is that right, Clark?

NEILY: Yes, that’s right. Essentially what it does is give the State the ability to declare that a school is failing to get the job done. And when that happens, the parents of the children at that school have the option to either transfer those kids to another public school or they can take a scholarship from the state to put the children into the private school of their choice. It’s a wonderful program and it works very, very well, and the parents who have been sending their children to private schools in the program are very, very happy with it.

GIACHINO: How many families do we have here in Pensacola who are taking advantage of the Opportunity Scholarship Program?

NEILY: It’s about 45 families and the program has actually expanded so that families in other parts of Florida, including Miami, West Palm Beach and Ft. Lauderdale, are eligible, and there are over 600 kids in the program now.

GIACHINO: Is it if the school fails — is it one failing "F" grade and kids are marching out the door or is there a different criterion?

NEILY: No, it’s actually two failing grades in the same four year period so the school actually has multiple chances to turn things around and improve. But if the school is chronically failing — you know, two "Fs" in the same four year period — then what happens is that the parents are not forced to leave their children in that school while the school continues to try to improve. They have the ability to vote with their feet — take their children to a school that can get the job done, whether that’s another public school or private school. And that’s an option that most people already have — people who are wealthy enough to move to a good suburb or to take their children out and put them in private school — and this program really isn’t that radical. The only thing it says is: "everybody in this country should be able to have school choice, not just people who are rich enough to afford it for themselves."

GIACHINO: And what if that school then falls out of the "chronically failing," do the parents have to bring their children back or is it that once you are in the Opportunity Scholarship Program the children can remain? I can imagine that it can be a little disconcerting for these children to be moved from school to school to school. Do they allow them to stay in the program?

NEILY: Definitely, once you get in the program, you are allowed to stay in it because the State understands that continuity of education is important and so you don’t have children getting bounced back and forth among schools like ping pong balls. Again, the school has the ability to buckle down, and it actually gets additional assistance from the State to improve to pull itself up out of that "F" category. And once it does, children in the school no longer become eligible to move out of the school into other schools unless it gets that second "F" during the same four year period.

GIACHINO: So what happened this summer at the appellate court level?

NEILY: Well what happened was that the Court ruled that because some of the schools that are participating in the Opportunity Scholarship Program are religious schools that the use of a scholarship at some of these religious schools violated a provision in the Florida State Constitution that says that no aid can ever go, either directly or indirectly, to religious organizations. We think the Court could not have been more wrong in that decision, and one of the reasons that we think that is because we already know that this has been going on for decades in Florida. Florida has higher education scholarships, Bright Future Scholarships, with about 100,000 students receiving these scholarships, many of them use them at religious colleges and this has been going on since 1930, and no one has ever said anything to suggest that these scholarships are unconstitutional. And it was only when a program came along that threatened the monopoly of the teachers’ union over the public school system that someone essentially dusted off this provision and said: "Oh, using scholarships at religious schools violates the Florida Constitution."

As I said, this is a completely remarkable program and it is no different from other programs that have been going on in Florida for a number of years and no one has ever suggested that they are unconstitutional. So we believe that the program is perfectly consistent with the Florida Constitution, both historically and according to the Florida Supreme Court’s interpretation of the Florida Constitution, and we are going to make that argument in the Florida Supreme Court this fall.

GIACHINO: Well I know that my organization, the Center for Individual Freedom, filed a brief several years ago before the U.S. Supreme Court in a voucher case and, essentially, the argument we made against their argument that it was an Establishment Clause violation, or rather one of the points we made in our brief was that, yes, a lot of the money does go to parents of children who attend private religious schools, but it’s because they are the only ones who are willing to open their doors and take these kids.

NEILY: Yes, that’s right. The religious schools have a wonderful track record, particularly in inner cities. It does not mean that it is the parent’s only option — in that case you are referring to (the scholarship program in Cleveland) they had other options besides religious schools just like they do in Florida — but what I think the position that your organization took and certainly that the Institute for Justice took is once the government decides to give people a scholarship it is really not the business of the government where they decide to use the scholarship as long as they're getting the services that they are contracting for with that scholarship. In other words, as long as the school is getting the job done, it is not the business of the government, whether it is a religious school or non-religious school, and once the government makes it their business and tells religious schools, for example, that they cannot participate, it becomes discrimination. It is discrimination against religious schools in exactly the same way that it would be if, for example, the Florida Constitution said you can’t use public money to send your children to schools run by African-Americans. Everybody would know that that was blatantly discriminatory if that’s what the language said. And our argument is that it is no different when you try to single out religious schools and exclude them from the program.

GIACHINO: Well, I understand that the state tried to argue that it is a different situation here because the money is technically given to parents, not to the school. Why does this make a difference? Is it because the parents have more control when they take the money and give it to the school versus it going directly to the school? Does it make a difference?

NEILY: It can make a big difference, particularly in some of the U.S. Supreme Court case law. The decision that you mentioned a minute ago is the Zelman decision, involving that program out of Cleveland, and one of the things that was very important to the Court in that case was that any money that flowed to religious schools only did so as a result of the independent choices of the people. And so in that way it was very much like, for example, the Pell Grant Program, those are federal scholarships for college students, or the GI Bill. In both of those programs students have been able to choose religious schools and even religious training for years without any problem or any suggestion that it violated the so-called separation of church and state. And giving scholarships to grade school kids is really no different than giving scholarships to college students when it comes to deciding where they can use them because it is the independent decision of the parents to decide where to use that scholarship. And that breaks any link between the government and the religious organization that might otherwise give rise to an establishment of religion problem.

GIACHINO: All right, let’s say I’m a parent but my children are off already in college and I think I don’t need to pay much attention to what is happening with these vouchers — I believe differently, Clark, and I am hoping that you can help my audience understand why. You already mentioned the Promise Scholarships and that there are college scholarships that are given, Pell Grants and others, if the voucher opponents are successful have you identified other programs that are going to be at risk that would affect the general population, not just school children?

NEILY: Definitely. Probably the biggest program that would be immediately at risk is the McKay Scholarship Program. There are about 13,000 disabled kids receiving scholarships through this program, some of them attend religious schools, and that would definitely be in jeopardy if this ruling is upheld. Even those Bright Future Scholarships that I mentioned before and any other college scholarship program that allows college students to choose religious schools, I think, will definitely be in jeopardy if this program is struck down. And it goes even further than that — I mean the State of Florida provides Medicare payments to people, and they can choose to use those at religious hospitals, so there is really a huge array of public programs in Florida where individuals can use public support to get particular services, whether its medical or educational or any other kind of service, at all kinds of different institutions, including religious institutions. Every one of those programs could be in jeopardy if that decision is upheld, and that is why it is so important — not just for the kids who are in the program but for everybody in Florida who cares about public education — to make sure that this decision gets reversed.

GIACHINO: Do you think the Florida Supreme Court is going to be the end of the road for this case or is this something that we the voters are going to have to consider?

NEILY: Well I think it could go either way. Hopefully the Florida Supreme Court will recognize that, according to its own precedent as it has interpreted this particular state constitutional provision, it is perfectly fine for public benefits to flow to religious institutions as long as that’s an incidental result of an otherwise neutral program. So, I think as long as the Florida Supreme Court does the right thing, it should end there. If the Supreme Court does the wrong thing and strikes down this program based on the misconception that it constitutes the support for religion when in fact it is just support for education, then it could be in the hands of the voters. I suppose, depending on how many programs get struck down and fall by the wayside as the result of this decision, enough people could get riled up about it and seek to amend the Florida State Constitution to make it clear that there was never any intent to tie the State’s hands and prevent it from having generally available welfare programs like this one and make it clear that there was never any intent that the State has to treat religious organizations like pariahs and tell them that they can’t ever participate in any kind of public program. I don’t think that was the intent of the people who enacted this provision, and if that’s the Florida Supreme Court’s interpretation they could certainly amend the Constitution to make that clearer.

GIACHINO: Which would take a vote of the general public?

NEILY: That’s what would happen, yes.

GIACHINO: Clark does President Bush’s No Child Left Behind program address or support vouchers in any way?

NEILY: It doesn’t. It reflects some of the idea of vouchers. There is this provision in No Child Left Behind that says if a school has been designated as not getting the job done then, at least in theory, children have the right to transfer into another public school that is doing better. The problem with that is that there is often not space in the really good public schools. The word gets out about them and there are just not seats there for these children. So the result is that they unfortunately remain trapped in the failing public schools. What’s the big difference between that and vouchers is that parents don’t have to wait around for public schools that are good schools to have an opening — they can take that scholarship, that voucher, and go and pick out the private school that works best for them and use that to have a full range of choices — the same full range of choices that is enjoyed by wealthy parents and that they use everyday, and it now becomes available to other parents and that’s really the critical distinction.

GIACHINO: How would you respond to the voucher critics who say that vouchers are destroying sound public education?

NEILY: Well, there is a lot of empirical evidence that says exactly the opposite. If you think about our country and our economy, we are the most prosperous and the richest in the world, and the reason for that is that our economy is based on competition; it is based on the idea that people who do a good job and provide a great service prosper and those who don’t fall by the wayside. The only major sector of our economy or major social fabric that is different than that is our public school system. And what school choice brings to that mix is that is creates an incentive for public schools to respond and to get better and to improve, and we have seen that in every single state where school vouchers have been introduced, starting in Milwaukee, in Cleveland and even in Florida, there is actual hard evidence that schools that are exposed to the actual competition improve and they don’t get worse, they improve. And so school choice works for everybody — it works well for the schoolchildren who get to use these vouchers, and it works well for the schools that improve as a result of being forced into competition given these choice programs.

GIACHINO: I visited your website, IJ.org, and I see that you are involved in several battles throughout the country involving school choice, and I would recommend to anyone in the audience who wants to learn more that they visit your website and even consider making a financial contribution to help with your efforts and to better understand that even though it is not happening in Florida they should follow it, because isn’t it true that if a decision should come out somewhere else across the country it could ultimately affect Florida as well?

NEILY: Yes, it could because there are both federal constitutional issues and state constitutional issues, so this is a battle that is far from over, and anybody who really cares about school choice, I would really encourage them to make that clear, to make that known both to their local representatives, their local newspapers and to organizations like IJ. And if you have money you want to contribute, we will use that money and put it to good use fighting for school choice all over the country. And, as you said before, you can get on our website at IJ.org and read about us, and if you choose to support our work, we’d love to have that. This is a battle that is not going to be over for a long time. The teachers’ unions have really made this a number one priority. They are very threatened by the idea of school choice. They have fought it every time it comes up all over the country. But we have pledged to always be there on the other side, to fight to let people have the ability to choose the schools their children go to.

GIACHINO: One of the issues I have seen come up in this election cycle, and we have our primary here today, relates to school vouchers. Certainly people are asking questions, "Are you for or against vouchers?" But even those folks who are for vouchers, I have heard them say that they think the private school voucher program needs to be closely monitored and that the state needs to impose stricter oversight and standards on these private school corporate voucher programs. What do you think about that Clark?

NEILY: You know what’s funny is that I didn’t really hear any voice of dissent about that when it was going through the legislature the last time. I think pretty much everybody agreed that there was work that could be done to increase certain levels of accountability and make sure that the program is working in the way that it was intended to, so I think that’s likely to happen and I don’t think anybody really has a big beef with that. What you want to be careful of is that one of the tricks that school choice opponents use is they use the word accountability as a kind of Trojan horse, and they keep beating on this accountability drum until they get enough laws in place that the program just has no distinction between the people who participate in the choice program and the public schools that they were meant to essentially transform. So you have such a web and a layer of regulation that these schools really can’t operate as private schools — they can’t bring to the table the freedom and flexibility that they do, and essentially you have gained nothing in the process, you have essentially smothered a bunch of schools with layers of regulation. I have no problem with accountability when that’s what it is. But certainly there is a huge problem when accountability is just a kind of catch phrase that is really designed to stifle and smother these schools.

GIACHINO: Alright, so we need to play close attention to this. It is far from over. Clark, I need to take break. I want to thank you for being on the show with us. Clark Neily, a senior attorney with the Institute for Justice. Will you promise to let me know when you will be back in town? I assume as we get closer to having this case before the Supreme Court there will be some rallies and things, and maybe even here in Pensacola, and I want to advertise that to the people.

NEILY: Absolutely, there will be a rally when this case is argued in the Florida Supreme Court and we will help you get the word out about that.

GIACHINO: Well, thank you very much. I appreciate your time and all of your efforts on behalf of the people who are in support of school voucher programs and school choice. Thank you again, Clark, for your hard work.

NEILY: Thank you.

September 9, 2004
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