Constitutional confusion in 46 words

The Indiana State Teachers’ Association filed suit last week over the state’s new school voucher law, and we are about to be treated to a familiar constitutional showdown. The lawyers will dig deep into sometimes arcane and often dated legal scripture, but the policy question boils down to whether our collective educational covenant is to children or educators.

The teacher’s association is understandably worried that an estimated $65.8 million could be redirected to children whose schools are not part of the system in which its members work. As ISTA vice president Theresa Meredith put it: “My concern is for my own children, that this voucher program could drain their schools and harm their futures.”

The ISTA term “drain,” though, stems from a worldview that sees public dollars as owed primarily to public educators and the classrooms in which they currently work. If those dollars were instead owed primarily to public schoolchildren, then they could not be drained as long as they were being directed to children for their education. The Indiana voucher, in fact, is available only to a public school student who wants to try a private school. It is not available to students who are already in private schools.

The court battle, though, is supposed to turn on constitutional phrases and their meaning, which makes it brittle and at times unpredictable. Indiana’s Article 8 offers less than most states by way of defining the state’s public education mission. But it does say that: “It shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.”

Both sides read support for their cause into those 46 words – “all suitable means” could refer to vouchers or “uniform system of Common Schools” could be intended to restrict other approaches. Unfortunately, this confusion is common. In most states, the constitutional framework for public education is intended to be speak to aspirations, not methods. As such, it can’t be expected to spell out whether charter schools or magnet schools or neighborhood schools or school vouchers are the appropriate strategies to meeting the goal of educational opportunity.

Even more disconcerting, the constitutional language in most states has not changed demonstrably in the past century even as public education itself is in a state of rapid evolution. Take the Florida Virtual School as an example. Most people consider FLVS to be the national leader in online learning, but astute constitutional lawyers here worry if it could be dismantled by a court because the Florida Constitution grants to school boards the right to “operate, control and supervise” all schools within their districts and FLVS is operated on its own. Their concerns stems from a peculiar Florida Supreme Court ruling in 2006 that outlawed Opportunity Scholarships and went so far as to suggest that the way education is delivered must be “uniform.” That ruling was then cited in a 2008 appellate court ruling that overturned a statewide charter school authorizer.

In today’s world, political change is often challenged in the courts, and ISTA has every right to do so. Indeed, no one wants an education strategy that would truly undermine learning and drain resources from children. But if we are to keep our covenant with each new generation, we can’t spend too much time dwelling on imprecise words written by generations in the distant past.

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BY Jon East

Jon East is special projects director for Step Up For Students. Previously, he was a member of the editorial board and the Sunday commentary editor at the St. Petersburg Times, Florida’s largest daily newspaper, where he wrote about education issues for most of his 28 years at the paper. He was also a reporter and editor at the Evening Independent and Ocala Star-Banner. He earned a journalism degree from the University of North Carolina at Chapel Hill.