Florida S.B. 48: The Florida Senate Prepares to Historically Expand School Choice

NICOLAS BRISCOE—The school choice movement has regained steam in the midst of a pandemic that has seen schools across the country shuttered at the behest of politically powerful teachers’ unions. According to the Center on Reinventing Education, parents are struggling to adapt to the remote learning environment: they are spread too thinly and are unable to devote proper attention either to work or to their children’s education. More worryingly, children themselves often adjust poorly to their new reality, turning what was once just an average school day into a socially-isolated virtual experience.

The new reality, however, applies primarily to less affluent families who cannot afford private school. Private schools, which are generally unencumbered by teachers’ unions, are largely opening up for in-person instruction, prompting those who can afford a private education to pull their children out of public schools. However, children of families who cannot afford private school have no such recourse and are condemned to the virtual classroom for the time being; further exacerbating the educational gap between them and the children of wealthier families. This state of affairs is not particularly new—school choice, in practice, has always existed only for those families who can afford it.

Several states have adopted measures to extend that choice to lower-income families by instituting Educational Savings Accounts (“ESA”). ESAs allow parents to withdraw their children from public district or charter schools and send their children to state-approved private, religious, or charter schools using funds deposited directly into government-authorized savings accounts. These funds can cover private school tuition, private tutoring, and other alternatives to the traditional public schooling system. Today, six states—Arizona, Florida, Mississippi, North Carolina, Nevada, and Tennessee—have ESAs in place, offering choices to lower-income families who otherwise would be unable to afford alternatives to public school.

In Florida, Governor Ron DeSantis has prioritized school choice by signing the biggest private school voucher expansion in United States history. The Florida Empowerment Scholarship—which disproportionately benefits low-income, working-class, and minority Floridians—granted families private school vouchers of between $6,775 and $7,250 per student depending on their child’s grade level. Now, Florida’s legislature is on the cusp of expanding school choice yet again. The Senate is presently considering S.B. 48, which, if passed, would merge Florida’s school choice programs, converting the state’s existing scholarship infrastructure into ESAs and giving parents more options than traditional voucher and scholarship programs.

Florida’s largest teachers’ union, the Florida Education Association (FEA) has predictably been a fierce opponent to the bill, in keeping with the anti-choice tenor of teachers’ unions more broadly. The FEA alleges that SB 48 “expands education savings accounts as a back door to funnel more public dollars into private schools without the eligibility restrictions of other voucher programs.” However, this concern is somewhat unfounded. The bill specifically mandates that any private school receiving vouchers comply with Florida Statutes Section 1002.42 and 1002.421, which outline general standards for private schools and requirements for private school eligibility for state school choice programs, respectively.

The FEA’s other criticisms of the bill are similarly unsupported. For example, the FEA’s public talking points insist that teacher and staff shortages in Florida’s public schools results in larger class sizes where students lack the one-on-one attention they deserve. However, by allowing parents the option to take students out of overcrowded public schools, passing SB 48 would likely result in smaller public school class sizes, therefore achieving the FEA’s desired result. The FEA also suggests that any extra resources would be better spent supporting the existing public school system rather than private or religious schools, which already disproportionately benefit students in large and primarily urban counties. Of course, SB 48 does allocate resources to the existing public school system, authorizing salary increases in order to attract and retain more teachers (with the specific amount to be included in a subsequent appropriations bill). Finally, the FEA’s opposition to SB 48 relies on numerous mischaracterizations and insinuations that private and religious schools (and therefore school choice itself) are fundamentally unaccountable and inequitable, despite numerous studies suggesting the opposite.

In addition to teachers’ union opposition, SB 48 faces a potential hurdle in Bush v. Holmes. In Holmes, the Florida Supreme Court held that the Opportunity Scholarship Program (“OSP”), which allowed students in failing public schools to use public funds for private school tuition, violated the Florida Constitution because it diverts public funds to private schools, effectively creating a two-tracked system of state education. The dissent in Holmes strongly condemned this holding, arguing that nothing in the Florida Constitution permits a finding that the OSP is unconstitutional because the OSP program in no way prevents the Legislature from fulfilling its constitutional mandate to provide high quality education to every student.

Further, supporters of SB 48 contend that the structure of the bill, expanding direct payment to parents for use towards their children’s education, distinguishes it from traditional direct appropriations programs such as the OSP. Ari Bargil, attorney at the Institute for Justice’s Florida office, posits that the state’s funding of parents directly through ESAs severs any direct funding relationship between Florida and the private or religious schools at which parents might choose to spend the funds. The severing of that direct relationship between the state and private institutions makes ESAs far less vulnerable to constitutional challenges than traditional voucher programs.

Given the makeup of the Florida legislature, it is likely that SB 48 will pass and, if signed by Governor DeSantis, will become law. If so, it would constitute one of the most significant advancements in school choice legislation in American history. By directly funding parents in addition to public school systems, its drafters intend to give citizens, rather than the State, primary control over their children’s education. Florida’s leadership in this space will likely be a harbinger of the future of the school choice movement more broadly.