Florida School Choice - Op-Ed: Berry

The ACLU vs. Parental Choice

By Matthew Berry

Last year, only seven percent of fourth graders at Spencer Bibbs Elementary School in Pensacola were able to score above the national average on a standardized reading comprehension test. Fully two-thirds of these students ranked in the lowest 25 percent nationally, while, amazingly, not one Bibbs fourth grader was able to place among the top 25 percent. Plainly, something is terribly wrong at Bibbs.

For the predominantly African-American parents of modest means whose children are assigned to Bibbs, our nation's promise of equal educational opportunities at times must appear to be little more than a cruel hoax. These parents see their children fall farther and farther behind, trapped in a school that is clearly failing to teach them even the basics.

Fortunately, however, the State of Florida is now offering Bibbs parents hope. Because of Governor Bush's recently enacted A+ Plan for Education, students assigned to Bibbs and other "F"-rated schools will be eligible for an opportunity scholarship, which they may use to escape from a failing school and attend a better public school or a private school. This year, students at Bibbs and one other low-performing Pensacola elementary school will be eligible for the program. Next fall, it is estimated that the list of failing schools will number between 150 and 300.

But just as many underprivileged children finally appear to have a good education within their grasp, the ACLU, teachers' unions, and the NAACP are poised to snatch it away from them. These organizations have announced that they will sue in a misguided attempt to block the opportunity scholarship program from taking effect. They claim that the program is unconstitutional because scholarships may be used at religious schools and are at odds with the state's constitutional duty to maintain a high-quality system of public education.

Neither of these arguments have any merit. An unbroken line of U.S. Supreme Court cases over the past 16 years establishes that religious schools may participate in programs providing educational assistance so long they are neutral, treating religious and non-religious schools equally, and all funds are directed by the private and independent choices of individuals. Opportunity scholarships, which are structured in a similar manner as Pell Grants and the G.I. Bill, are entirely consistent with these principles.

The ACLU and its allies went to court to challenge similar programs currently operating in Milwaukee and Cleveland, and their claim that scholarships violate the First Amendment's establishment clause was flatly rejected by both the Wisconsin and the Ohio supreme courts. Seeking to distinguish Florida from these past defeats, scholarship opponents argue that the Florida Constitution poses a strict bar against any public funds flowing to religious organizations.

They conveniently ignore the fact, however, that billions of state dollars are annually spent at religious institutions. State Medicaid money is used to treat low-income patients at religious hospitals and to care for elderly Floridians at religious nursing homes. Millions of state day-care dollars are used at religious child-care centers. And, thousands of Florida college students use Florida Resident Access Grants and Bright Futures Scholarships to attend religious colleges.

Even more absurd is the ACLU's claim that opportunity scholarships are inconsistent with the Florida Constitution's guarantee of a high quality education. Last fall, Florida voters amended the state constitution to make it a paramount duty of the state government to adequately provide for the education of all Florida children. Far from violating this provision, opportunity scholarships are a practical method of implementing this new obligation. When children are assigned to schools that are clearly failing to adequately provide a high quality education, parents and children must be given other options to fulfill this constitutional mandate.

The ACLU claims that scholarships will drain resources from public schools, but its concern for public education budgets rings a bit hollow. The ACLU routinely files lawsuits against Florida school districts, soaking up money that could otherwise be spent on educating public school students. In one particular case, it sought $5.5 million in punitive damages from the Polk County school district on behalf of two high school students given voluntary lie detector tests during disciplinary proceedings, a far greater sum than will be spent on opportunity scholarships during the program's first year.

Forty years ago, civil rights activists across the country went to court so that minority schoolchildren would no longer be denied access to good schools by the color of their skin. Soon, however, many aspiring to the legacy of these courageous litigators will go to court to keep African-American children trapped in failing schools, such as Bibbs. For the sake of these children, let's hope they don't succeed.
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Matthew Berry is a staff attorney with the Washington, D.C.-based Institute for Justice, a civil rights law firms that litigates nationwide to advance parental school choice.

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