Charting a Course for School Choice Under a Trump Administration

IAN CAMPA—On February 7, 2017, Betsy DeVos was sworn in as the eleventh United States Secretary of Education following a historic confirmation vote in the Senate. Although it was perplexing to some that President Trump would nominate someone without any experience in public education to head the federal department charged with overseeing the nation’s educational institutions, Secretary DeVos does have experience championing policies aimed at expanding what conservatives call “school choice.” Like many school choice advocates, Secretary DeVos enthusiastically supports initiatives to fund vouchers for children to attend private schools and expand access to charter schools. But as Florida and other states face the possibility of a national push for vouchers and charter schools, they must consider the limits that their state constitutions and statutes place on these programs.

School vouchers and charter schools are not new to the Sunshine State. Since Jeb Bush was Governor of Florida, state legislators have heavily pursued both policies. First, the Florida Legislature created the nation’s first statewide school-voucher program, the Opportunity Scholarship Program. But in 2006, the Florida Supreme Court held that the program was unconstitutional because it used public moneys to fund “separate private systems parallel to and in competition with the free public schools.” In that case, Bush v. Holmes, the court read Article IX, Section 1 of Florida’s Constitution—which establishes education as a “fundamental value” and requires a “uniform” system of free public schools—as prohibiting the creation of a private system of schools with state revenues. Florida’s other school-voucher program, the Florida Tax Credit Scholarship Program, however, has remained in place since its creation in 2001. Now this program is being challenged in Florida’s courts for redirecting public money to religious schools and funding a parallel system of education.

Florida’s legislators have also increasingly supported the expansion of charter schools in the state for ideological and personal reasons. Charter schools are often touted as alternatives to traditional public schools and used to give credence the “school choice” buzzword spoken by many charter-school proponents. In Florida, many charter schools are run by for-profit management companies. Insofar as these corporations are receiving public funds to establish an alternative system of education, these schools may arguably run afoul of the Bush v. Holmes decision. In anticipation of that argument, the Florida Legislature has statutorily defined charter schools as public schools, thereby grafting charter schools onto the public educational system.

Still, this statutory definition may not be sufficient to prevent a state constitutional challenge to charter schools. For example, the Supreme Court of the State of Washington found a provision creating and funding charter schools to be unconstitutional. There, Washington voters approved of the establishment of charters schools by voter initiative. The subsequent implementing act by the state legislature defined charter schools as “common schools” and funded the construction of charter schools with moneys from the state’s “common school construction fund.” But Washington’s constitution contained a similar provision requiring a “uniform system of public schools” and limiting the fund for common schools. Because Washington’s supreme court determined that charter schools were not common schools, the act was held to be unconstitutional.

Similarly, the Florida Statutes’ definition of charter schools as public schools may not be dispositive on the constitutionality of school choice programs. In Florida, charter schools not only form an alternative system of public education, they also compete with traditional public schools for taxpayer funding. For the state’s 2016 fiscal year, capital funding for charter schools totaled $48 million, but capital funding for Florida’s public schools totaled only $6 million. While public schools do receive support from property taxes and bond issues, the state budget process evidences the direct competition between charter schools and public schools. It is possible that a state court would be amenable to hearing a challenge to the state’s charter-school funding policies under Bush v. Holmes. Moreover, although challenges to Florida’s surviving school-voucher program have met resistance, those dismissals have largely been based on procedural or standing grounds rather than the merits of the causes.

To be sure, the fanfare and contentiousness of Betsy DeVos’s nomination and confirmation have pushed the issue of school choice to the forefront of the political discourse. Regardless of the heated political rhetoric and contested efficacy surrounding school vouchers and charter schools, a federal pursuit of the policies may ultimately be tempered by the state constitutions and courts. States like Florida seem ripe for challenges to these issues on state-law grounds, and successful challenges may result in either a dismantling of the expansive charter-school apparatus, significant reform to voucher and charter-school statutes, or state constitutional amendment.

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