If they played word association with “Jeb Bush” and “education,” many conservatives would immediately respond “Common Core” — referring to Bush’s recent and unpopular support for the controversial and heavy-handed federal education standards. There was a time, however, when conservatives would have responded with “school choice.” And thanks to the Florida courts, that time may come again.
It is forgotten that Bush invested enormous political capital in, and staked much of his reputation on, an aggressive plan to introduce competition to Florida’s public-school monopoly. For a decade, the nation’s largest school-choice program has been embroiled in court battles. With those battles now nearing an end, the courts may yet redeem Bush’s long-held reputation as a champion of conservative education reform.
The founding father of the modern school-choice movement — and Jeb Bush’s “hero” — is Milton Friedman. Friedman understood that the public-school monopoly had little incentive to serve its customers (students and parents) and every incentive to serve and advance the interests of the government that funded it. The solution was simple in concept but difficult in execution: Introduce competition, mainly through “vouchers” that would allow parents to use public funds to pay private-school tuition. As Friedman noted, “you cannot make a monopolistic supplier of a service pay much attention to its customers’ wants. . . . The only solution is to break the monopoly, introduce competition and give the customers alternatives.”
Bush was an early, enthusiastic proponent of school choice and campaigned for it aggressively in his first, failed gubernatorial run in 1994. Undeterred by his defeat, he campaigned on vouchers again in 1998, and soon after his election began implementing a series of landmark school-choice programs. Key bills passed in 1999, 2000, and 2001 awarded vouchers or tax-credit scholarships to students at failing schools, special-needs students, and students from low-income families. By 2005, the school-choice program included pre-K families, who became eligible for vouchers to attend private preschools.
As Bush recently explained to me, he aimed to achieve large-scale choice as early as possible. “Scale was key,” he says. The more people who benefited from school choice, the harder it would be for opponents to repeal or otherwise eliminate the programs. In other words, the famed liberal “one-way ratchet” — by which government programs, once implemented, are difficult to repeal because the public comes to depend on them — would now be applied in a conservative way to increase competition, choice, and the power of parents and students.
The strategy worked. A group of parents — supported by a broad leftist coalition — quickly filed suit, but their complaint challenged only the first and smallest of the Bush plan’s programs, the Opportunity Scholarship, which at first served only a few dozen students fleeing failing schools. The plaintiffs claimed that the scholarships violated two sections of the Florida constitution: the state’s odious, anti-Catholic “Blaine Amendment,” which prohibits the use of state funds at religious schools, and a provision stating that “adequate provision shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools.”
Even as the Bush administration fought for the Opportunity Scholarships, it pushed forward with additional school-choice programs, important among them the Florida Tax Credit Scholarship. Under this program, corporations receive a dollar-for-dollar tax credit for donations that fund scholarships to private schools.
Florida is not the only state to have implemented a tax-credit scholarship program, but it’s one of the few to have done so on a significant scale. The program now funds 77,090 students in private schools. The vast majority — 68 percent — are Latino or African American, and most — 58 percent — live in single-adult households. The average household income of scholarship recipients is just 7 percent above the poverty line. In other words, the program benefits those students who are most likely to suffer from the achievement gaps that mar much of American public education.
In 2006, the leftist, teachers’-union-backed coalition won its lawsuit, and the liberal-dominated Florida supreme court struck down the Opportunity Scholarship. The court held that the program
diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. . . . This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system.
But despite the ruling, Florida’s school-choice program — including private-school choice — continued to grow. Because Florida had launched multiple, distinct programs, a court ruling on one program could not kill them all. Bush’s multi-front strategy kept school choice alive. By 2014, more than 200,000 Florida students were attending private schools — many of them religious private schools — through tax-credit scholarships, the McKay Scholarship for special-needs students, and Florida’s pre-K program.
As more and more families benefited, Florida’s teachers’ unions approached the point of no return. The facts on the ground, combined with the potential shifting of the Florida supreme court’s composition, meant that the teachers’ unions and their allies had to strike at once. As Bush says, “There is no kumbayah with teachers’ unions.”
So last year the Florida Education Association (FEA) sued, challenging the tax-credit scholarship program. It was an odd choice of target. Beginning with the United States Supreme Court’s ruling in Arizona Christian School Tuition Organization v. Winn (2011) and continuing through state supreme-court rulings in Alabama and New Hampshire, courts have regularly upheld tax-credit plans. For the Florida Education Association to win, it would have had to overcome considerable legal precedent.
On May 18 of this year, a Florida trial court tossed out the lawsuit. Yet even before the ruling, there was evidence that the union and its allies had gone too far politically. African-American pastors, who saw the programs’ positive effects, mobilized in opposition to the NAACP, which opposed the program, while in his tough reelection bid Florida governor Rick Scott doubled his share of the black vote — from an abysmal 6 percent in 2010 to a still-modest but electorally significant 12 percent in 2014 — by advocating school choice. In raw numbers, his increase in the black vote accounted for about 61,000 of the roughly 66,000 votes that made up his margin of victory. Yet the FEA was undeterred. On the very day that Bush announced his candidacy for president, the union announced its intention to appeal the trial court’s ruling and continue its legal campaign to destroy school choice in Florida.
Bush, though, is confident that his reforms will stand. The programs are simply too important to too many families to go quietly. Public schools in low-income neighborhoods would be overwhelmed by the influx of students from private schools, and costs would rise considerably. “People would be in the streets,” he says — marching for their kids.
In Florida, Bush applied the adage “Go big or go home,” pitting large-scale school choice against the educational establishment. If choice wins in Florida, it may well be because, 16 years ago, a governor and his team designed a program that was too popular to fail.