Flunked out in Florida
Arizona Republic
Feb. 15, 2006

A court decision there on school choice sets nerves a'twitching in Arizona advocates

A Florida Supreme Court decision last month presents a legal and political quandary for Arizona's school-choice movement.

Florida has a program in which students attending failing schools can use their share of state funds to transfer to private schools. The Florida Supreme Court struck that down as violating a state constitutional requirement that the Legislature provide for a "uniform" system of public schools.

Private schools in Florida don't have to adhere to the same requirements as public schools, went the reasoning, so providing public assistance to attend them breached the requirement to maintain a uniform system.

A dissent in the case pointed out that, after a uniform system available to all children is established, providing other options doesn't mean that the uniform system has suddenly ceased to exist. In other words, the duty to establish a universally available uniform system doesn't preclude providing other options for parents and students who prefer them.

Arizona also has a constitutional requirement that the Legislature provide for a "general and uniform" public school system. If the majority logic in the Florida decision should become contagious, it could have a devastating effect on school choice in Arizona.

Such an interpretation would clearly preclude the enactment of private school vouchers in Arizona. In fact, even charter schools would arguably be unconstitutional, according to the Florida court's logic.

In the decision, the court lists several requirements imposed on Florida's public schools that don't apply to its private schools, such as hiring only state-certified teachers. A similar list could be produced to show a lack of uniformity between Arizona charter schools and traditional schools. In fact, permitting such differences is precisely what charter schools are all about.

In Florida, school-choice advocates are working on a state constitutional amendment that will clearly establish the ability of the Legislature to permit options to traditional public schools.

In Arizona, the instinct of school-choice advocates is to stand pat politically and legally.

The Wisconsin Supreme Court has considered a similar uniformity challenge to Milwaukee's private school voucher program and rejected it. So, precedent in other states is divided.

Moreover, the current choice programs in Arizona do not appear in jeopardy. The Arizona Supreme Court has already upheld the tuition tax credit law, which provides an offset to state income taxes for contributions to organizations that provide scholarships to private schools, though it did not consider a uniformity challenge. And it would be an extreme step for the state Supreme Court to declare charter schools, the preference now for more than 80,000 Arizona students, unconstitutional due to such a constipated reading of the uniformity clause.

A direct voucher program, in which state funds would be used to pay the private school tuition of eligible students, would undoubtedly be challenged as violating another Arizona constitutional provision prohibiting state aid to private or sectarian schools. Given the Florida decision, undoubtedly a uniformity challenge would be tossed in.

So long as Janet Napolitano remains governor, however, no such voucher program is likely to be enacted. To the extent she has to give on school choice, it's clear she prefers to give on expanding tuition tax credits rather than establishing vouchers.

So, tactically, standing pat has some merit. Nevertheless, the legal foundation for school choice in Arizona is far from stable.

All of these decisions have been very narrow. The Florida decision was 5-2. The Wisconsin decision going the other way was 4-3. The Arizona Supreme Court decision upholding tuition tax credits was 3-2, and not a single justice that participated in that decision is still on the court.

Moreover, the general and uniform clause has been the source of legal mischief beyond school-choice issues. That was the clause the Arizona Supreme Court used to require the state to basically take over school construction from local school districts, which has cost billions with no discernable improvement in student achievement.

The school-choice movement in Arizona appears stuck at present. Charter schools receive, on average, $1,650 per pupil less than traditional schools, but there is no serious push for funding parity.

The tuition tax credit, while it has expanded opportunities for some students, is bad tax policy and not a systemic solution. Direct vouchers are far preferable but faced substantial state constitutional challenges even before the Florida decision.

Perhaps it's time to clear the legal underbrush with a constitutional amendment that clarifies that funding decisions are to be made by the Legislature and not the courts, and that options that permit parents and students to choose what they regard as the most beneficial educational setting are constitutionally permitted not prohibited.

Reach Robb at robert.robb@arizonarepublic.com or (602) 444-8472. His column appears Sundays, Wednesdays and Fridays.