From the Education Law Prof Blog
By Derek Black
May 29, 2018
Florida’s system of public school alternatives should serve as a warning, not a national model as Betsy DeVos argues. And that warning flashes brighter red by the day.
It all started with the state’s willingness to take money directly out of the general public education appropriation and spend it on vouchers. The Florida Supreme Court declared that practice unconstitutional in 2006.
Then, the state cooked up a complicated tax credit system to achieve the same result through a different means. That system has been alive, well, and growing dramatically for a decade. This is what DeVos calls the “awesome [Florida] example.”
The flashing red danger sign is that the state does not want any constitutional oversight of this system. State legislators recently packed a constitutional revision commission with people who support changes the state’s constitutional education obligations. Those changes would remove almost any limits on legislators when it comes to education.
More specifically, the proposed changes could drastically undermine the state’s obligation to its public schools by giving the state free reign to act as it wishes with charters.
A limitless charter school system is troubling based on what is already happening in the state. Take the news out of Flagler County.
According to the Palm Coast Observer,
"Several days before the Florida Standards Assessments began near the end of the school year, 13 third-grade students suddenly transferred from the Palm Harbor Academy charter school to a newly created private school on the same school campus, run by Palm Harbor Academy governing board chairman the Rev. Gillard Glover.
With one exception, all of those 13 students had one thing in common: They were at least one full grade behind grade level. Many of the children were multiple grades behind grade level. Another five students in other grades, all at least two grades behind grade level, were also transferred out of Palm Harbor and into the private school at around the same time.
The students’ transfer to a private school meant that they didn’t take the state assessments required of public school students — and, therefore, didn’t drag down the school’s state scores and school grade. A failing school grade would have meant shuttering the school, School Board Attorney Kristin Gavin said, because the school got a D last year.
The school district has portrayed the moving of the students as an attempt by Palm Harbor to skirt the school grade process, at a cost to the students: Those with disabilities who were moved were not being provided state-mandated support, district officials said, at the newly created private school, the Academy of Excellence."
This is the system that the legislature voted to radically expand just a year ago. And this is why education clauses exist in state constitutions—why we need them.
Florida legislators, through their deeds and experiments, have shown they cannot be trusted to protect public education, to protect students, to put public education first. Florida legislators have shown that the only thing that limits them in playing with children’s educational futures is the state constitution. And that state constitution is in their crosshairs right now.
Currently, the state constitution obligates the state to provide for “a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Art. IX, § 1(a), Fla. Const. This is no passing fad or aspirational platitude.
Rather, the constitution indicates that “It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” And as early at 1848, the state constitution sought to ensure that certain money would be set aside for public education.
Florida, like most other states, has what is called a “common school fund.” Those funds are to be used for public schools and public schools only. So it was no surprise in 2006 in Bush v. Holmes that the Florida Supreme Court held that the state constitution prevents the state from raiding the public school piggy bank to fund vouchers.
Unhappy with that result, the state devised a tax credit system work around. As far as students are concerned, it is no different than the prior voucher system, except that the tax credit system ironically covers a much larger percentage of their tuition now. But like any great tax scheme, it includes technicalities that violate the spirit of the law without violating the letter.
All Bush v. Holmes technically prohibited was taking money out of the common school fund. The tax credit system fixed that barrier by making sure tax revenues never gets to the common school fund to begin with. That way, no one can claim the state took the money out and spent it on something else.
Under Florida’s new system, corporations and individuals donate money into a scholarship fund. That scholarship fund then pays for the vouchers. Now, why would anyone put their hard earned profits into this fund? Because they get a great tax credit. For every dollar they donate, they can get one dollar back from the state.
Some actually get more than that because they can also write off the donation to the voucher fund just like they would any other donation. That means that they not only get a state tax credit, they get a deduction on their federal taxes. So for every dollar they donate, they can get more than a dollar back.
Voila! Florida has a publicly funded voucher program without taking any money out of the common school fund.
This new charter school story in Flagler shows, however, that vouchers may be the least of the worries. Overall school “grade fixing” presumably not a common practice among charters, but nothing would seem to prevent it.
Charters like those in Flagler can create shell-private schools (or some other machination) and move weak students into them so as to game the accountability and rating system.
The state might very well shut these charters down, but what they did was probably not technically illegal. A privatized education system, you see, has few boundaries.
Public schools certainly engage in their own shenanigans at times, but this type of grade fixing is not one of them. All public schools have an obligation to their students. None can escape scrutiny. So playing musical chairs with students among public schools does not make sense. This is not the case with private-shell schools. They do not have that type of accountability. Constitutions simply do not bind them.
So riddle me this. What is the end to be achieved by undermining the constitutional guardrails that support public education in Florida?