January 05, 2006
No Tax, Large or Small
The Florida Supreme Court has just issued an opinion striking down a small Florida voucher program as unconstitutional. Because the Court was eager to duck any risk of a cert. grant, they struck the program down on wholly state grounds-- i.e., the claim that the state constitution forbids the state to fund private schools with money that might otherwise have gone to public schools. This is the key holding:
The OSP violates (the Florida constitution) by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.
This is the provision that the Court claims was violated:
The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.
Now, to the naive reader of the constitution it might be a mystery how the "paramount duty" to provide "uniform, efficient, safe, secure, and high quality . . . free public schools" forbids the government from also sending some money to follow students to private schools. The Florida Constitution also contains a clause that forbids money from the "state school fund" from being spent on things other than public schools, but the money spent in this program wasn't from the state school fund. The majority commits the usual trick of announcing that a provision has a purpose that justifies creating a new but clearly different provision that resembles the old provision only with a newer, broader swathe.
The Institute for Justice (who was involved in the case, and whose views, of course, are not necessarily mine) has a response here. There is also a dissenting opinion (for two justices) that runs through the plain meaning, drafting history, historical development, and other evidence of original meaning for the provision. With state courts like these, it's no wonder that Crescat commenters are so skeptical about state courts.
Comments are once again open.
UPDATE: The New York Times reports on the case; as the reporter seems to acknowledge, as a legal matter religion is not involved in the case at all, since the Florida Supreme Court didn't want to risk 1, jeopardizing some college scholarship programs, and 2, getting hauled up into the Supreme Court on a case challenging the constitutionality of Florida's constitution.
While this is still an egregiously wrong decision, at least this will help to show that the fight about whether to relax the government monopoly on indoctrination of the young is not just a front in the religious wars.
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