With a school-choice voucher initiative a likely possibility for California's November ballot, legal developments in states with voucher programs take on increased significance. Recently, Florida lower-court judge L. Ralph Smith invalidated the state's new school-choice program. In response, Bob Chase, president of the National Education Association, the nation's largest teachers’ union, gleefully opined, "This ruling puts a stake in the heart of the voucher movement." Mr. Chase's gloating, however, is both premature and misleading.

First, Judge Smith based his ruling on Article IX, Section 1 of the Florida state constitution, which says that "Adequate provision shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools that allows students to obtain a high quality education…" According to Judge Smith, a voucher program "supplants the system of free public schools mandated by the [state] constitution" and is therefore invalid. Such a conclusion is at odds with the evidence.

Rather than supplanting or harming the public schools, evidence shows that vouchers actually strengthen and improve the quality of the public school system. In Milwaukee, city school board member John Gardner has pointed out that when faced with competition from voucher-receiving private schools, the school board closed failing schools and created new high-quality public schools in low-income areas. They also expanded art and foreign language programs, decentralized the fiscal process to allow individual schools more control over their own budgets, and terminated more incompetent teachers in one year than in the previous 20.

Harvard economist Caroline Minter Hoxby notes that "public schools that face a disproportionate increase in competition because of the vouchers will disproportionately improve their productivity." In other words, Florida's voucher program, rather than violating Article IX, Section 1 of the state constitution, may actually contribute to its full implementation.

Since Judge Smith's ruling is based on Florida state law, it will have little national impact. The future of vouchers really turns on federal constitutional questions involving the First Amendment's establishment-clause restrictions on public aid to religion. Although a mixed bag, the recent trend in case law in this area appears to favor the validity of vouchers. Using the rationale of the U.S. Supreme Court in a string of recent establishment-clause cases, the Wisconsin Supreme Court found that the Milwaukee voucher program was constitutional under the First Amendment because vouchers were "made available to both religious and secular beneficiaries on a nondiscriminatory basis" and were directed to religious schools "as a result of numerous choices of the individual parents of school-age children." The U.S. Supreme Court let the Wisconsin decision stand.

An adverse ruling by a federal district judge against the Cleveland voucher program is expected eventually to reach the U.S. Supreme Court. The Court will then likely settle the federal constitutionality of vouchers once and for all. The outlook, based on the Court's rulings over the past two decades, is that vouchers stand a good chance of passing constitutional muster.

Bob Chase and his allies in teacher cartels across the nation had better not fool themselves. Whether they like it or not, competition is coming, and it will drive a stake through the heart of a failed educational status quo.

— Lance T. Izumi