Every twenty years, a commission meets in Florida to consider changes to its constitution.  The last time it met the commission proposed important improvements to the state constitution's education clause, specifically adding that the public school system should be "high quality."  This language situated Florida's education clause as one of the most forceful in the country (even thought its courts have not seen fit to enforce the clause).  This education clause, however, caused some problems for school choice advocates.  In Bush v. Holmes in 2006, the state supreme court struck down the state's school voucher program, finding that the education clause prohibited the state from using public education dollars to fund private vouchers.

Now, the commission is proposing constitutional changes to eliminate that limitation.  The old constitutional mandates are left in place, but the commission would add one important sentence: "Nothing herein may be construed to limit the legislature from making provision for other educational services that benefit the children and families of this state that are in addition to the system of free public schools."

This precise language is interesting and somewhat of an odd fit.  Appreciating the oddness requires a little background on why Florida and a few other courts have struck down voucher programs.  The reason is not that they or the constitutional language are anti-voucher. The reason is that the constitutions are so pro public education.  As of today, all fifty state constitutions protect education.  The specifics of each differ, but the general thrust is the same in all of them: the state has an absolute duty to provide an equal and/or adequate system of public education.  In this respect, education holds a unique place in state constitutions.  It is the singular thing that states must do.  Unlike roads, health care, parks, and jobs programs, they have no choice in the matter with education.  And as such, they cannot put other policy agendas before public education, nor can the rob Peter (with Peter being education) to pay Paul.  There are, of course, caveats, but this general idea is rule through which all education conflicts must run.  Thus, the Florida Supreme Court held that a voucher program that siphoned public education dollars out of the public education fund was unconstitutional.

At first blush, the Florida commission's new proposal would seemingly allow Florida to do what its Supreme Court previously indicated it could not.  If so, it is a dangerous provision indeed.  The public education system might loose its first order status.  The state could enact any additional education systems it saw fit, so long as they were in addition to rather than in place of public education.  Recent events in Florida would suggest that this is exactly what the power brokers in Florida want.  But is this what the people of Florida want?  I doubt it.  They have a public education clause in their constitution for a reason.

A more technical read of this provision, however, might render it pointless unless the state of education in Florida changes substantially in the coming years.  This technical reading appreciates that there is a relationship between the "addition" and "the system of free public schools."  Logically speaking, an addition can only occur when the system of public education schools is in place.  The question then becomes whether the appropriate system is in place.  Not just any old system will do. 

The constitution still provides that funding the system is "a paramount duty of the state."  And the system has to be "uniform, efficient, safe, secure, and high quality."

It stands to reason that if the state is not providing sufficient funds for an efficient and high quality education, this new proposed constitutional language would not allow the state to fund voucher programs.  It is not until the state meets its paramount public education duty that it can do something in addition to it.

Current data strongly suggests Florida is not anywhere close to meeting its obligation.  Its funding levels are 41st in the nation and its funding mechanisms are regressive--meaning it gives more money to the students and districts who need it the least.  Districts serving larger shares of low-income students actually have less money per pupil that their sister districts.  And as I detail in Preferencing Choice (forthcoming Cornell Law Review), Florida has been running choice programs at the expense of the public education system for several years now.  Its charter and neo-voucher tax credit system have rapidly expanded each of the last several years while the commitment to public education dwindles.  At the statewide level, one might dismiss the trend as minor, but these programs do not really operate on a statewide level.  They are heavily concentrated in a handful of districts like Broward County.  These districts were already struggling and now the effects of choice are heavy concentrated there.  The practical result is often to create new constitutional deprivations in educational opportunity, not cure old ones.

If Florida is sincerely interested in updating its constitution, it should save school choice for another day.  Its prior commission specifically refrained from addressing the question of whether courts can enforce the education clause against the state legislature.  It was, in short, agnostic.  This agnosticism, however, has been treated as a negative and courts have refused to require the state to live up to its constitutional obligations.  What is the point of a constitution if the state can breach it at will?  Recognizing the problem, most state courts have enforced their education clauses.  The best thing this commission could do is make clear that Florida's constitution gets with the times. It is twenty years overdue.