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A New Vanguard for Civil Rights in 1999: "Opportunity Scholarships" and the Florida "A+ Plan"

Civil Rights Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

"In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct 686(1954).

"I had the chance to be with three parents from Pensacola, Florida, who will be using Opportunity Scholarships. By the way, the two schools there that are chronically failing are ninety-nine percent African-American. Ninety-nine percent African-American. Ninety-five percent of the kids are qualified for a full school lunch program."

Jeb Bush, 1999 speech on "Opportunity Scholarships" to the Manhattan Institute.

The American Civil Liberties Union and the National Association for the Advancement of Colored People, among others, have filed suit challenging Florida's recently enacted Opportunity Scholarship (voucher) program. Plaintiffs say that the program violates the First Amendment's Establishment Clause and similar Florida constitutional provisions. However, they have also challenged the program on the basis of Florida constitutional provisions that are separate and apart from the establishment clause issues: in short, they are engaging in a full frontal assault on Opportunity Scholarships.

It is difficult to perceive why these groups believe that they are protecting the civil rights of their constituents (if, as they claim, their constituents are students) by challenging the Opportunity Scholarship program. The overwhelming beneficiaries of Opportunity Scholarships are poor, mostly minority, students.

Opportunity Scholarships are an integral part of a larger statewide plan to improve Florida schools—"the A+ Plan." See Fla. Stat. § 229.0537. The A+ Plan was Governor Jeb Bush's principal legislative priority for the 1999 legislative session. It made a number of changes to Florida's educational system, all focusing on imposing accountability for educational results. For the first time, schools are now required to annually test the progress of Florida students in grades three through ten and inform the parents of the results. Social promotion is no longer allowed: a student may no longer advance to the next grade without mastering the skills of their grade level. In conjunction with the heightened standards, the A+ plan significantly increased funding for remediation.

The A+ plan also requires that the State rank every public school on an A-to-F scale. A school's ranking is derived primarily from its students' test scores. Schools that improve a grade, and schools that are ranked as A-schools, will receive a bonus of $100 per student. Schools that receive a D or F score will be given special assistance to help them improve. If a school receives an F grade for two out of four years, children in that school will be eligible for an Opportunity Scholarship that will allow them to attend another school of their choice—public, private or parochial. These scholarships provide children trapped in chronically failing schools with an opportunity to receive a better education. The purpose of the scholarship is twofold: to help the students by allowing them to leave the failing schools and to motivate failing public schools to improve and thereby decrease or obviate the need for vouchers.

Two elementary schools in Pensacola, Spencer Bibbs and Dixon, qualified for Opportunity Scholarships for the 1999/2000 school year. Of the approximately 860 students in these two schools, 99 percent of them were African-American. The extremely deficient performance of the students in these schools is demonstrated by the fact that 93 percent of the students at Spencer Bibbs scored below the national average on achievement tests. Certainly, preparing students to be so dismally ill-equipped for life was not the equal educational opportunity referenced in Brown v. Board of Education some 45 years ago.

Opportunity Scholarships have allowed 57 students in Pensacola to enroll in private schools and another 78 to transfer to better performing public schools. An additional number of qualifying students applied to go to the private schools, but because no other slots were available the final selection of students was made by lottery.

Because 99 percent of the students in the two failing schools were African-American, an additional consequence of Opportunity Scholarships is a more complete, but voluntary, integration of Florida's schools. Yet, at the press conference announcing the suit against the Opportunity Scholarship program, the plaintiffs claimed that the plan would lead to more segregated schools. Their logic defies description. The Opportunity Scholarship Program in fact allows students at these schools to transfer to eligible public and participating private schools, which by law must accept Opportunity Scholarship students without regard to race or prior academic performance. The net result is obvious: less, not more, racial segregation. This is one of many reasons why polls show that a large majority of African-Americans and Hispanics actually favor programs like this one.

When all the Florida schools were graded this year, an additional 78 were F schools. Eighty-five percent of the students in those schools were racial minorities—broken out as 63% Black, 20% Hispanic, 1% Asian and 1% multi-racial. In the pool of all schools tested, the racial breakdown was 44% minority, including 25% Black, 16% Hispanic, 2% Asian, and 1% multi-racial. While students in these newly failing schools are not yet eligible for vouchers—because their schools have only been on the "F-list" for one year—the vast majority of students expected directly to benefit from the Opportunity Scholarships portion of the A+ plan are minority students. This is similar to the effect of the voucher programs in Cleveland, Ohio, and Milwaukee, Wisconsin.

Yet the NAACP has joined the ACLU and teacher unions in an attempt to deny parents the choice to send their children to a school that is not failing. Whose civil rights are they really protecting? Clearly not parents, who have the right to direct the education of their children as recognized in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571(1925). Nor is it the children, who have the right to an equal educational opportunity as referenced in Brown.

Why does not the NAACP object to the "public but dismal" standard for educational opportunity in 1999, just as they objected to "separate but equal" as the standard for equal educational opportunity in 1954, when that standard provided a dismal education for black children?

While some Plaintiffs might argue that the issue today is a lack of funding for the existing public schools, increasing funding for public schools has been tried on a regular basis with minimal success. An egregious example of this is recounted in Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038 (1995). In Jenkins, funding was substantially increased pursuant to a federal court decree over a 10-year period, with minimal improvement in results. More funding alone has never equaled educational success.

Under Florida's A+ Plan—resulting in the grading of schools and the threat of vouchers as an incentive for public schools to improve—drastic steps are being taken to improve Florida schools. When was the last time school administrators actually put their salaries on the line, tying their pay to the improvement of their schools? That step is exactly what has happened in some Florida school districts, in response to the A+ Plan.

The opponents of Opportunity Scholarships may one day awake and realize what the parents of children in failing schools already realize: Opportunity Scholarships are a threat to the mediocrity of the status quo, not a threat to the civil rights of parents and their children.

To follow the continuing Opportunity Scholarship saga, log on to http://fcn.state.fl.us/eog/aplusplan/aplus.html.

Daniel Woodring is an Assistant General Counsel for Florida Governor Jeb Bush. Justin Sayfie is a Speech Writer for Governor Bush.