Blame the Legislature for ruling on vouchers

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Editorial: Blame the Legislature for ruling on vouchers

Awwk! Activist judges! Awwk!

Palm Beach Post (Palm Beach, Florida), January 13, 2006

Awwk! Activist judges! Awwk!

That accusation, which the losing side spouts after court rulings, fast is becoming the most parroted and least merited of political charges. Like so many other labels, it substitutes for reasoned criticism. School voucher proponents have lined up to declare that the Florida Supreme Court, which last week struck down Gov. Bush's first voucher program, is packed with "activist judges." Awwk!

But if the five justices in the majority are such activists, why did they leave so many programs in place that, like vouchers, spend state money on private schools? It's clear from reading the ruling - which perhaps some of the critics didn't do - that the five justices carefully preserved programs that don't violate the state constitution. That's not activism; it's their job.

The justices ruled that disabled students who can't get appropriate services from public schools can use state money to attend private facilities that provide special care. The court didn't specifically rule on McKay vouchers that can provide money for disabled students to attend private schools. There is a good chance that private McKay vouchers won't pass constitutional muster because they are available to any student in a special education program, regardless of whether public schools offer the same or better services. The Legislature easily could address that problem. In any case, separate programs allow the state to help such students.

It should be noted that reporting by The Post has exposed abuses in the McKay program, just as the paper revealed problems with the so-called corporate voucher programs. In one case, "consultants" charged a fee to help home-schoolers get McKay vouchers. There also were cases of fraudulent billing. The Legislature's refusal to correct double standards in voucher programs has led to a system of private voucher schools that don't have to meet the same standards as public schools. The justices ruled that such schools aren't "uniform," as the constitution requires.

In addition to providing for disabled students, the Supreme Court ruling allows the state to continue paying for pre-K instruction at private schools as well as for aid to private colleges. Why? Because the constitutional provision under which the justices ruled applies only to K-12 education. Moreover, the justices declined to rule on the constitutionality of using tax money for vouchers at private religious schools. If the court had outlawed that practice, the pre-K voucher program might have been affected.

Nothing in the ruling requires students to remain in "failing" schools. Students can't get vouchers, but they can transfer to a better-performing public school. Nothing in the ruling forces disabled students to stay in a school that isn't meeting their needs. The ruling simply says that state money can't be diverted to private schools exempt from financial and academic standards that govern public schools. That's not judicial activism, no matter how much critics squawk.

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