Wednesday, January 11, 2006

Somewhere a dog is barking (Florida voucher ruling)

Posted by Craig Westover | 11:04 AM |  

Some feral pup is yapping at the Captain’s heels over the decision by the Florida Supreme Court that threw out the state's voucher system, which allowed some children to attend private schools at taxpayer expense. The FSC held that the Opportunity Voucher Program violates the state constitution's requirement of a uniform system of free public schools.
First, a big shout out to Craig Westover, a/k/a Captain Fishsticks. Sticks is the unctuous columnist for the St. Paul Pioneer Press who never met a privatization scheme he didn’t like. Sticks is so allergic to the notion of the common good that he breaks out in hives if you just say We’re all in this together to him. Sticks is so . . . well, you get the idea. It won’t surprise you that Sticks thinks that school vouchers for religious schools are a great idea.

Spot has written several times about the unconstitutionality under Article XIII, Section 2 of the Minnesota Constitution of a scheme for school vouchers. You can read those posts here, here, and here. Oh, and maybe best here, in Vouchers Smouchers on Spotty’s other blog Retire Geoff Michel. Gentle readers, you are really, really going to have to read those posts to follow along. Spot is sorry.

Anyway, some time ago, before Spot was born into the blogosphere actually, Captain Fishsticks wrote a post entitled School Vouchers: Constitutionality is a False Issue. In it, Sticks writes that while Article XIII, Section 2 does admittedly bar the use of public funds for sectarian schools in plain language, we should just ignore it because it is the legacy of religious bigotry against Catholics. This is the same argument that Spot’s correspondent Lee McGrath makes, and which Spotty slices and dices with actual principles of constitutional interpretation in the posts referred to above.
Spotty, go back and lay down by your dish. Your barking about the Florida voucher decision may amuse you, but to sentient beings, it‘s just a lot of noise.

Unfortunately, before we get to it, it’s necessary to clean up a few of your messes. “Privatization,” outsourcing government functions to private business has nothing to do with limiting government. If government has legitimate authority to perform a function it should perform it. If it does not have the authority to perform the function, outsourcing it to a private company does not solve the problem nor limit government.

Regarding “Blaine Amendments”: They did indeed grow out of a legacy of bigotry against Catholics, but that has nothing to do with legal constitutionality, nor did I say they should be ignored. Aside from bigotry, the historical reason for Blaine amendments arose when Catholic, protesting the Protestant curriculum of public schools, petitioned to have government funding of a separate Catholic school system (Ontario has such a system today). Blaine amendments prohibit such a system of direct funding to religious schools, for obvious reasons. They are mute on the issue of vouchers.

Ohio and Wisconsin, with which (unlike Florida) Minnesota shares a legal heritage via the Northwest Ordinance, have already ruled that vouchers provided to parents that freely make the choice of where to send their children to school do not violate Blaine Amendments. They are not direct aid to a sectarian school. If that is, as Senator Kelley would say, “money laundering,” then so to are Pell Grants used at Notre Dame or Marquette, food stamps redeemed at church-sponsored food shelves and numerous other examples of tax dollars that find their ways into religious organizations.

That brings us to Florida.

Although Florida has a different legal heritage than Minnesota -- Minnesota courts would look to the Ohio/Wisconsin precedents before Florida law -- the dissenting argument in the Florida case of Justice Bell can be applied to Minnesota.

Like Florida, Article XIII, Section 1 of the Minnesota Constitution quoted by Spotty describes the requirement for a Uniform System of Public Schools.
Section 1. UNIFORM SYSTEM OF PUBLIC SCHOOLS. The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.
As in the Florida Constitution, there is no stated exclusivity requirement in the provision, nor is one implied. Meeting this constitutional mandate must be on the merits of the school system in place independent of whether other government funds are going to a voucher program, into health care, or building ballparks. If the state is providing a system that meets the “thorough and efficient” constitutional mandate, any other education program is irrelevant to the mandate. If it is not meeting the mandate, any other program simultaneously in place is still irrelevant.

The constitutional mandate is only that the system of free public education be "uniform," "thorough and efficient" -- not education across the state.

This view is consistent with my contention that “public education” consists of education in the public interest and includes government run schools, private schools, religious schools, cyber schools, home schools and forms of education not yet created. Market forces, parent desires, will coalesce the seeming chaos of diversity into those types of education that enable children to become educated, discerning, productive citizens in the way a single system cannot -- whatever that system.

I agree with the dissenting opinion in the Florida case that the majority read an exclusivity into the Florida constitution that, in plain language, is not there. The dissenting opinion further supports that notion by looking at 1998 revisions to the section in question that did not refer to exclusivity when broadening Florida’s education mandate.

So, Spotty, before you bark that what is ruled unconstitutional in Florida applies to Minnesota, understand the differences in case law and constitutional history of each state and how the dissenting argument in Florida might well, and by precedent ought to be, the ruling opinion in Minnesota.

Update: I'm getting old. It is Ottawa, not Ontario, with a government funded Catholic school system. I originally posted on Ottawa here.

Catergory: Education, School Choice, Vouchers