University of Chicago law professor Richard Epstein weighs in on the Florida voucher decision earlier this month with an analysis of the state constitution’s uniformity clause, the issue the case was decided on.

He writes:

The battle between these two points of view, and the interest groups that they represent, took an odd turn recently n Bush (as in Governor Jeb) v. Holmes. There the Florida Supreme Court held that the state constitutional provision requiring the state to 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” knocked out the state’s Opportunity Scholarship Program that allowed students in failing schools to use state funds to pay for a private education. The case shows what bad interpretation can do for unwise constitutional provisions.

On the question of constitutional design, Florida’s uniformity clause teaches many unhappy lessons. The first of these illustrates the danger of adopting hortatory constitutional provisions that promise particular level of state services as opposed to the allocation of powers and responsibilities that are the traditional fare of most constitutions. These Soviet-style provisions of positive rights are always honored more in the breach than in the observance, for there is no way that any constitutional document can guarantee the supply of the need level of resources or expertise, let alone the desired level of services. Here it seems evident that the ostensible state law requirements are all in tension with each other, for one sign of an efficient and high quality system is a level of flexibility and decentralization that cut against the demands of uniformity.

Second, the Constitution provides no hint of what should be done in the event that this guarantee is not kept, so that in most cases it operates solely on a precatory basis. That approach makes relatively good sense. Since these provisions are not capable of direct enforcement in any obvious sense, then by all means do not enforce them selectively. It would be bizarre if the Florida Supreme Court decided to throw the entire state system into receivership because it failed systematically to reach the standards set for it. So why then police other breaches.

Unfortunately, the Florida Supreme Court did not absorb these lessons when it decided Bush v. Holmes. Instead the majority of the Court held that the demand for uniformity precluded any experimentation in state vouchers which would drain off money from public schools. That conclusion seems odd in the extreme. First, the general rule in Florida requires deference to the legislature, which surely makes sense in connection with these provisions that seek to mandate public services as opposed to protecting individual rights. Second, it is unclear just how much intervention its constitutional approach would require. Is a system of public schools “uniform” if it has different graduation requirements in different schools? Different courses offered to students? Different hours for the school day? Different salary scales or conditions of employment for teachers? The logic of the argument could go that far, but so long as a threat to the state monopoly is kept safely in the distance it won’t happened.

…and to show how this was a partisan attack on vouchers by liberal judges, professor Epstein also gives this interesting commentary:

Worse still, there really was no need to insist on substantive uniformity in order to make sense of this provision. The United States Constitution contains two uniformity provisions in article I, Section 8, the first of which calls for uniform taxation and the second for uniform rules of naturalization and bankruptcy. In these contexts it is easier to supply rules with substantive uniformity than it is with educational services, even so the uniformity requirement has been held to demand at most geographical unity, which is easily satisfied by the this state-wide Florida program. And even on these geographical matters, the Supreme Court has held (more dubiously) that this requirement of uniformity allows for regional deviation from the uniform standard for reasons that meet the weak rational basis standard. Hence the windfall profit tax survived an exemption for Alaskan oil, and Amtrak did not have to operate uniformly on a nationwide basis. That geographical sense of uniformly could have been pounced on in the Florida case, but the federal analogies were not mentioned let alone discussed in either the majority or dissenting opinions.

Uniformity is ignored when it comes to liberals cherished government programs, but when it comes to poor minority kids getting a proper education, liberals fight to the end to prevent it.

He continues:

The last feature of Bush v. Holmes that is so distressing is its ready embrace of the story that the use of voucher programs necessary diverts needed resources from the public school system. That view of the world is hopelessly static, especially in connection with a constitutional provision that actually cares about efficiency and high quality education. Viewed dynamically, the removal of children from public schools has at least two effects above and beyond the simple diversion of resources. The first of these is that it reduces the obligations of the public school systems, especially when the per pupil cost of education within the state system is higher than the cost of education within the public system, as I suspect it is in Florida. What is so horrible about a higher level of funds on a per capita basis for the students left behind. In addition, the private school options, secular or religious, injects a measure of competition. The public school teachers and their unions now realize that they are in competition with a nameless set of some and versatile institutions that they cannot control with the drop of a hat. The only way they can maintain their market share is to provide, as the Florida Constitution requires, a high quality education in an efficient fashion.
For all its blunders, Bush v. Holmes has this silver lining. It is likely that this decision will be followed in other states whose constitutions contain similar language. Too bad that this won’t help the hundreds of kids who deserve better than being trapped in state run system that has proved itself, even after strenuous efforts of Jeb Bush, to be so unresponsive to its needs.

As the Wall Street Journal wrote on the anniversary of Martin Luther King Jr, “Today it’s liberal Democrats who stand in the schoolhouse door”.