“Jeb!” Doc screams, leaping from the time machine. “You’ve got to come back with me!”

“Where?!”

“Back to the Future!” Doc replies as he scrambles through Jeb’s trash. “It’s the kids Jeb, something has got to be done about the kids!”

After completing a hovercar retrofit to his DeLorean in 2015, Doc travels back to 2006 for what he thought would be a relaxing Florida vacation. Instead, he discovers a surprise Florida Supreme Court decision that overturned his friend’s 1999 voucher program, the Opportunity Scholarship.

Having explained the future to Jeb, they would travel  to 2001 to create a new scholarship program to evade the flawed but inevitable 2006 ruling.

Of course, this is nonsense, but many school choice opponents make a very similar argument.

But the ruling didn’t kill vouchers,” Frank Cerabino wrote of the 2006 Supreme Court cases in a Palm Beach Post column.  “It just made voucher entrepreneurs more crafty and meant that the public dollars being siphoned to private — and often religious — schools would have to be managed with the same bit of clever opacity that drug dealers employ when laundering their riches.”

Somehow, a 2006 Florida Supreme Court ruling caused “voucher entrepreneurs” to get “more crafty” when they created the Florida Tax Credit Scholarship back in 2001.

Florida’s collective memory on Bush v. Holmes apparently has been lost. Here’s what actually happened.

Bush v. Holmes, a widely panned ruling, was decided on Jan. 5, 2006. The ruling struck down the Opportunity Scholarship, a private school voucher that served 734 students, 86% of whom were Black or Hispanic.

The Florida Tax Credit Scholarship, which was known as the Florida Corporate Income Tax Scholarship at the time, was pre-filed by the Florida House of Representatives on January 25, 2001. Gov. Jeb Bush signed it into law on June 13, 2001.

Not only was the program created years before the Florida Supreme Court ruling, but the program was debated and passed at a time when it was 100% constitutional!

In fact, school choice opponents actually were losing in court.

On Oct. 3, 2000 (114 days before the tax-credit scholarship was pre-filed with the House), the Florida Court of Appeal overturned Judge Smith’s lower court ruling. In a unanimous decision, the justices declared, “Article IX does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system.”

This was a rejection of the future Supreme Court’s 2006 ruling that the state’s paramount duty to public education meant the Legislature could provide no alternatives.

Best of all, the Florida Supreme Court actually agreed.

On April 24, 2001, by a 4-1 decision, it declined to hear the case and allowed the Court of Appeal ruling to stand. That was 10 days before the Florida Legislature passed the scholarship bill and 50 days before Jeb Bush signed it into law.

Ironically, Justices Pariente, Wells, Anstead and Lewis were the majority in 2001. Five years later, they’d make a surprise reversal by declaring the program unconstitutional on the very same constitutional issues they rejected years before.

Yes, you read that right.

The very constitutional issues that overturned the Opportunity Scholarship in 2006 were not even in play when the new scholarship was created because the courts had tossed those arguments out.

Maybe Jeb knew this would happen because the Doc’s mindreading machine actually worked.

But that’s a conspiracy for another day.

After a one-year hiatus, Florida's public school choice program for students in schools with low academic ratings is active again.

The Opportunity Scholarship Program allows students in schools that received an F or three consecutive D's under the state's A-F grading system to transfer to another, higher-performing public school.

It was suspended during the 2015-16 school year, as the state made a transition to a new school accountability system, though students who had previously changed schools under the law were allowed to remain in place. (more…)

An expansion of what remains of the Opportunity Scholarship in Florida gives us an opportunity to highlight a report that has been largely overlooked but is notable for its implications of how Florida public schools once responded to the threat of vouchers.

As newspapers in Florida reported today, a bill is advancing in the Legislature that expands the definition of a "failing" public school for the purposes of allowing students to transfer to a different school. While most papers called this an expansion of a "voucher" program, the program offers choices only among public schools; the Florida Supreme Court in 2006 ruled that the OSP's private school option violated the state Constitutional provision for a "uniform" system of public schools.

But it is that now-defunct private option that piqued the interest of a researcher with the Federal Reserve Bank of New York. In a paper the Federal Reserve released this month, economist Rajashri Chakrabarti reported on her findings from the earliest years of the Opportunity Scholarship  after then-Gov. Jeb Bush persuaded the Legislature to establish the program in 1999. Chakrabarti wanted to see how public schools responded to the threat of a voucher in an "accountability regime." Specifically, she wanted to know if F-graded schools faced with the threat of losing students were tempted to "manipulate their test-taking population."

Under Florida's accountability plan, two "F" grades within a four-year period meant that students were eligible for a school voucher. But test scores of special-education and limited-English-proficiency students were exempted from the computation of school grades. Chakrabarti asked, "Did this rule induce the threatened schools to reclassify some of their weaker students into these 'excluded' categories so as to remove them from the effective test-taking pool?"

The answer, she found, was a qualified "yes." She did not find evidence that the voucher led schools to reclassify students into excluded special-education categories. But, she said, "I find evidence in favor of strategic reclassification into the excluded LEP category in high-stakes grade 4 and entry-grade 3." In other words, before the Opportunity Scholarship was in place, Chakrabarti found that schools that would eventually be threatened by the voucher behaved no differently when they classified students in those grades. But in the first year of the program, there was a "statistically significant increase" in the percentage of students classified as having limited English proficiency. 

She writes:

These findings have important policy implications. They suggest that schools facing vouchers tied to accountability regimes might choose to behave strategically to classify their low-performing students into excluded categories in an effort to remove them from the effective test taking pool. It follows that when designing policies that incorporate vouchers (or sanctions) tied to accountability regimes, policymakers should be wary of creating exemptions for certain groups of students as they might create adverse incentives to game the system.