By George F. Will
Thursday, March 23, 2006
MIAMI -- What Florida's teachers unions consider a menace, and what Florida's Supreme Court considers an affront to the state's constitution, weighs 105 pounds, smiles shyly, speaks softly and wants to be a nurse. Octavia Lopez, 17, an 11th-grader at Archbishop Curley-Notre Dame High School in the heart of this polyglot city, was enabled to come to this school because of the smallest of three school-choice programs enacted under Gov. Jeb Bush.
The Opportunity Scholarship Program (OSP) serves just 733 children statewide, 62 of whom are at this school of 416 students. The OSP provides vouchers, redeemable at private as well as public schools, to students at schools the state says are failing. Archbishop Curley, which in 1960 -- just its seventh year -- became the first Florida secondary school to be racially integrated, has grades nine through 12 and sends more than 98 percent of its graduates to college.
But Florida's Supreme Court fulfilled the desires of the teachers unions, and disrupted the lives of the 733 children and their parents, by declaring, in a 5 to 2 ruling, that the voucher program is incompatible with the state constitution. Specifically, and incredibly, the court held that the OSP violates the stipulation, which voters put into the constitution in 1998, that the state shall provide a "uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education."
The court wielded the first adjective as a scythe to cut down the OSP. It argued that the word "uniform" means that the state must utilize only public schools in providing "high quality education."
This even though many public schools are providing nothing of the sort; the public school that Octavia would have to attend were she not at Archbishop Curley has been rated a failing school for three consecutive years by the state . And even though the state can continue to utilize private schools for educating some disabled students. And even though, by the court's reasoning, it is unconstitutional for the state to use the OSP to help Octavia receive a fine education at Archbishop Curley, the constitutional mandate about "high quality education" requires consigning her to a failing school. And even though there is no evidence that the drafters of the constitution's language or the public that ratified it thought it meant what the Supreme Court now says it means -- that in providing quality education, the state must enforce a public school monopoly on state funds. Actually, the legislature's committee that drafted the "uniform" language rejected a proposal to prohibit vouchers.
The court's ruling was a crashing non sequitur: that the public duty to provide something (quality education) entails a prohibition against providing it in a particular way (utilizing successful private educational institutions). The court's ruling was neither constitutional law nor out of character, and it illustrates why the composition of courts has become such a contentious political issue.
This court last seized the nation's attention when, after the 2000 election, it acted legislatively, rewriting state election laws in ways helpful to Al Gore's attempt to erase George W. Bush's slender lead. Back then, all the court's seven members had been nominated by Democratic governors. Since then, the court has acquired two justices nominated by Gov. Bush. They were the two dissenters from the court's "uniformity" ruling. Elections can slowly turn tides.
All of Archbishop Curley's 43 Opportunity Scholarship children who are not graduating in June are going to stay in the school. The voucher is worth about $1,800 less than the school's $6,400 tuition, and about $3,400 less than the $8,000 cost of educating a pupil. But Brother Patrick Sean Moffett, the head of the school, says, "We're going to keep them all, somehow."
It is stirring to see the quiet tenacity of people whose lives are disrupted by other people's political struggles. When Octavia and her mother -- and David Hill, 14, a ninth-grader, and his parents, and several other parents and relatives of students -- recently gathered around a table at the school to discuss the end of the OSP, there was no rancor. The children and parents at the table were black. None were Republicans. The NAACP, as usual, is in lock step with the Democratic Party, which is in lock step with the teachers unions. But the people at that table spoke only words of gratitude for the school -- its small classes and respectfulness. All displayed the dignified patience that ordinary people often display when they are buffeted by the opaque storms of politics.