We had always heard complaints about outrageous judicial activism, where judges essentially operate as lawmakers, inventing convoluted legal rationalizations to produce their preferred policy outcome. But not until the Florida supreme court struck down one of the state’s school-voucher programs on a strictly party-line vote last week did we see up close just how outrageous judicial activism can be. Let this be a warning to all of those who, like ourselves, doubted the dangers of judicial activism; the law is whatever a group of people in robes say it is, even if what they say makes no sense.
The Florida court offered three arguments for striking down the Opportunity Scholarship program, which provided vouchers to students at chronically failing public schools with which they could attend a private school. All three involve interpretations of the state constitutional requirement that Florida provide “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.”
First, the majority found in this requirement an implied prohibition on providing education in any way other than through public schools. They asserted that the state constitutional provision quoted above had to be interpreted as saying that public schools were the “sole means” by which education could be provided. The invention of this prohibition on using public funds at private schools in addition to the required public system is like finding that a constitutional requirement that states maintain public roads prohibits the building of public airports or trains.
The dissenting opinion points out that when the constitutional amendment was presented to voters for approval, the ballot summary made no mention of any implied prohibition on alternatives to the public school system. In fact, the constitution-revision committee that drafted the amendment considered and rejected proposals that the amendment explicitly prohibit or explicitly require vouchers. The drafters of the amendment did not intend it to be a prohibition on public funding of private schools; the voters who approved it were not told that it would prohibit public funding of private schools; and a plain reading of the text does not call for a prohibition. To paraphrase Lewis Carroll, the majority decided that the words of the constitution meant whatever they wanted them to mean–neither more nor less.
The majority took their convoluted reasoning further down the rabbit’s hole. The justices wanted to be sure that their declaration of an implied prohibition on the use of public funds in private schools did not apply to the private placement of disabled students. When a school does not have the facilities necessary to instruct students with disabilities, it will often contract with an area private school to provide those services. But, despite the opinion’s earlier strong statement that public schools were the “sole means” for providing education with public funds and that they “make no distinction between a small violation of the Constitution and a large one,” the majority ruled that private placements were just fine under the constitution. Why? Because ending the placement of students with disabilities in private schools would have angered a larger and better organized political constituency than the few hundred largely minority and poor students using the Opportunity Scholarship vouchers. Apparently the invisible ink in the state constitution that contained the prohibition on private schools had an additional clause stating that the prohibition only applied to the politically weak.
Second, after the majority went out of its way to assure that “the justices emphatically are not examining whether the public policy decision made by the other branches is wise or unwise, desirable or undesirable,” it then went on to make empirical claims about the program’s effectiveness. The justices asserted that the voucher program violated the requirement that the state offer “high quality” public schools because by moving resources away from public schools “the OSP by its very nature undermines the system of ‘high quality’ free public schools.”
Not only was the majority opinion’s promise to avoid empirical questions clearly insincere, but its stray into policy was in opposition to the evidence. The justices were shown several studies, including one we conducted, which found that student achievement at Florida public schools improved when faced with voucher competition. In fact, no study in Florida or anywhere else has found that a voucher program has harmed public-school outcomes. Further, that the program would improve failing public schools through increased competition was an important reason that the policy was adopted by the legislature in the first place. Only people with strong prior opinions about the desirability of this public policy could claim that placing funding for public schools in jeopardy with vouchers “by its very nature” hinders public-school quality when neither the people’s representatives nor the evidence agree.
Third, the majority found that the voucher program violated the requirement that schools be “uniform.” They observed that private schools participating in the voucher program, unlike traditional public schools, could hire uncertified teachers, need not conduct background checks when hiring, and were not obliged to follow the state curriculum. In these and other ways, the majority argued that private schools are “not ‘uniform’ when compared with each other or the public system.”
But the majority failed to describe what having “uniform” schools requires. If it requires that they be governed by an identical set of rules and regulations covering their operating procedures and pedagogical techniques, then school districts themselves, each of which has its own board determining many of its own policies, are not uniform and should also be held in violation of the constitution. If, on the other hand, uniform means that all schools are expected to help students reach the same state standards for academic achievement, then the private schools in the voucher program satisfy that definition. Voucher students, like students in public schools, were required to take the state accountability test. While consequences for failing differed–private schools risked losing students if they failed and public schools risked sanctions from the state–all were uniform in the expectation that they meet state standards and in the method by which these standards were measured.
By now it should be obvious that the decision of the Florida supreme court had more to do with finding a way to rationalize the justices’ preferred policy outcome that it had to do with upholding the state constitution. And we should be clear that we do not believe that upholding the voucher program was the only reasonable outcome that the judges could have delivered. In fact, the Opportunity Scholarship program may well have been in violation of a straightforward reading of the state’s Blaine amendment prohibiting the direct or indirect use of public monies to support religious institutions. But if the Florida Supreme Court had struck down the program on that basis, there would have been grounds to appeal to the U.S. Supreme Court to learn if the Blaine amendments in Florida, and in many other states, are consistent with the federal constitution. The Florida court avoided these more reasonable grounds for challenging the program, ensuring the demise of the program without the possibility of appeal.
The basis on which they did choose to strike down the voucher program was lacking in textual support and logical consistency The Florida voucher ruling reveals that judges need not be guardians of logic, but can simply be political actors pursuing desired policy outcomes. Can’t we just cut out the middleman and ask judges to formulate policy without having these pesky legislatures?
–Jay P. Greene is a senior fellow and Marcus A. Winters is a senior research associate at the Manhattan Institute for Policy Research