Sunday, January 08, 2006

Michael: Florida's Vouchers Defeat Bodes Well for Arizona


The Florida Supreme Court (FLSC) overturned the Republican sponsored statewide educational voucher system. This is a blow to the effort to privatize schools nationally, including here in Arizona, where GOP politicians passed a voucher program through the legislature last year to expand upon the inroads made into the public education system with charter schools and tuition tax credits. Governor Napolitano vetoed the Arizona program, in part because she felt it violated the Arizona constitutional ban on funding private religious schools. Incidentally, this case is also a political body blow to the President's brother JEB, destroying what had been one of his hallmark achievments as Governor of Florida.

The provision the FL SC hung their ruling (PDF) on was the FL constitutional mandate for a uniform public school system. A similar mandate is present in the Arizona Constitution, Article 11, Section IA, which reads, “[t{he legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system.”(emphasis added) Note the mandatory “shall” which clearly indicates that the legislature must provide such a uniform public school system.

The heart of the FLSC’s reasoning is:
“[the voucher system] diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the [voucher system] the state is fostering plural, non-uniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.”


It should be carefully noted that the FLSC declined to rule on the issue of whether the voucher system, which did have the effect of diverting public taxes to parochial schools, was an unconstitutional establishment of religion under the Florida Constitution. Instead, the court chose to strike down the voucher system only based on non-uniformity. I think this was an astute political and jurisprudential choice by the FLSC. It prevents the Right from flogging the fiction of judicial hostility to Christianity as a rallying cry by taking the establishment issue off the table. This makes it both harder to sneak through vouchers in through a devious non-religious back door and easier protect statewide curricula from any magical thinking under the aegis of uniformity.

‘Uniformity of public education’ will, I predict, become the new rallying cry of those seeking to protect free public schools with secular curricula. I haven’t actually done a survey of state constitutions, but I’m willing to bet that a substantial number contain similar language about uniform public education.

Arizona’s Constitutional provisions regarding education, taken together, also make a very strong plain meaning case that the framers intent was to not allow the state to fund religious education in any way.

From the Arizona Bill of Rights:
Article 2, Section 12: … “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”


From the Education Section:
Article 11, Section 1.A.: “The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system”

Section 6.: “The legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years.”

Section 7.: “No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil…”


Taken together, the proper effect of these clauses is to forbid any sort of funding to sectarian instruction and to make it perfectly clear that a uniform free system of public schools is the sole means constitutionally permissible for carrying out the State’s mission of educating Arizona’s young. The Florida court has interpreted broadly similar language in their constitution to be a constraint on the way that the legislature may reform and provide for education, and our own courts, when inevitably faced with this same issue, should show the same deference to the plain meaning of our Constitution.

So far, efforts toward privatization have avoided serious constitutional problems in Arizona by making private schools receiving public funds (i.e., charter schools) meet the same state criteria as public schools, teaching to the same core curricula, taking the same tests, and by mandating that charters not charge more than the state per child allotment for in-district enrollment. The most significant difference between public schools and charters is that there are no state mandated standards for teachers at charter schools. Arguably, charter schools thereby violate the constitutional mandate of a uniform system of public education. However, there has not been any direct challenge to the constitutionality of charter schools, mainly because they are considered privately run public schools and treated as public entities under state educational law.

Arizona’s program of voluntary tax credits for both individuals and corporations for gifts to private scholarship foundations that support private schools seems also to run afoul of our constitutional language and intent. However the Arizona Supreme Court upheld such tuition tax credits in Kotterman v. Killian in 2000; an opinion that many legal commentators held uncharacteristically failed to give appropriate significance to the Arizona Constitution's emphatic and unqualified disapproval of State financial support for religious - and, indeed, all non-public - education. The opinion also split semantic hairs by finding that such tax credits were not properly ‘expenditures of public funds’, even though the clear intent and effect of the tax credits is to divert state tax revenue into the coffers of sectarian educational institutions.

In contrast, the FLSC determined that a private system of schools funded by diversion of public funds to the districts was in fundamental conflict with the goals of the constitutional design for education.

“In sum, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida’s children—through a system of public education. The [voucher system] contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the “uniformity” requirements for public schools. Thus, in two significant respects, the [voucher program] violates the mandate set forth in article IX, section 1(a). We do not question the basic right of parents to educate their children as they see fit. We recognize that the proponents of vouchers have a strongly held view that students should have choices. Our decision does not deny parents recourse to either public or private school alternatives to a failing school. Only when the private school option depends upon public funding is choice limited. This limit is necessitated by the constitutional mandate in article IX, section 1(a), which sets out the state’s responsibilities in a manner that does not allow the use of state monies to fund a private school education. As we recently explained, “[w]hat is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone.” Bush v. Schiavo.”


I suspect that closing with a quote from the case Bush v. Schiavo, in which the religious right so famously over-reached in their religiously inspired crusade to control end-of-life decisions, is not a co-incidence, but a carefully crafted signal that the Court was not insensible to the religious import of their decision. By basing their reasoning on other grounds but referencing a terrible defeat for the religious right, the court signaled that they still had the issue of establishment in their quiver, and they wouldn’t hesitate to use it if needs be.

8 Comments:

At 8:10 PM, Blogger shrimplate said...

Well, at first glance that only seems fair to me.

When private schools agree to uniform teacher standards and agree to accept, as public schools routinely do, all comers without regard to income class nor ability to pay, and to accept these students at the same rate of reimbursement as do the public schools, well then there you go.

As long as my tax dollars do not go to support religious institutions such as school-sponsored sectarian prayer. That would be unconstitutional.

 
At 1:24 PM, Blogger Jane Arizona said...

I was thinking... if private schools take public funds, do they have to allow military recruiters on campus like public schools do?

It's only fair, after all...

 
At 4:59 PM, Anonymous Anonymous said...

FYI: The Arizona School Boards Association (who, incidentally, was a plaintiff in Kottman) will be suing Arizona on Sept. 19 challenging the constitutionality of corporate tax credits. A libertarian group called the Institute for Justice will defend it, most likely.

Again, FYI...

(source: Ahwatukee Foothills News from Friday, 9/15)

 
At 2:06 AM, Anonymous Utah colleges said...

Well, at first glance that only seems fair to me. When private schools agree to uniform teacher standards and agree to accept, as public schools routinely do, all comers without regard to income class nor ability to pay, and to accept these students at the same rate of reimbursement as do the public schools, well then there you go.As long as my tax dollars do not go to support religious institutions such as school-sponsored sectarian prayer. That would be unconstitutional.

 
At 10:02 PM, Anonymous Anonymous said...

I have read that it costs about $9500 per student (per year) at our public schools. But it only costs about $6500 per student at charter schools. The biggest reason is the pensions and retirement packages the unions negotiated. I bet the results are the same or better at charter schools for alot less cost.

 
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