Courts and choice: testing the constitutionality of charters and vouchers.

Teacher unions and allied opponents of school choice persist in searching for support in state constitutions, with mixed results. In Florida they won a victory early in 2006 when that state's supreme court struck down a voucher program on the grounds that the constitutional command of a "uniform ... system of free public schools" prohibited any alternative. A challenge to charter schools in Ohio went the other way in October, when a four-member majority of the supreme court ruled that the state's charter law, enacted in 1997, did not violate the constitution's decree that the General Assembly "secure a thorough and efficient system of common schools throughout the state."

We surmise that the different outcomes turned less on differences in constitutional language than on political differences between the courts. Florida's court has a Democratic majority, whereas Ohio's contained only one Democrat--a lame duck who protested that the charter law produces "a hodgepodge of uncommon schools financed by the state." One Ohio Republican wrote separately in dissent, and another dissented on procedural grounds, objecting that the trial judge had erred in bifurcating the suit into constitutional issues and others that alleged statutory violations in particular schools. The court decided only the constitutional questions.

Popularity may also have buttressed Ohio's charter program. Ohio has more than 300 charter schools, with 72,000 students. Five of the biggest cities--Cleveland, Cincinnati, Dayton, Toledo, and Youngstown--have charter enrollments of 16 to 28 percent of the student population, putting them among the top ranks of the country's charter-school cities. The voucher program that was invalidated in Florida enrolled barely 700 students. A second voucher program--Florida's McKay program for disabled students--is less vulnerable to attack because it is much bigger (17,000 students).

Rather than proceed with the second half of the suit, which rested on claims that charter schools had failed to comply with statutes and sponsorship contracts, their opponents withdrew it in December and instead appealed for regulatory help from a newly-elected Democratic governor and a legislature whose Republican majority had been reduced.

Litigation will continue nonetheless, because Ohio's unions have also filed a suit in federal court charging that the charter school law increases local districts' reliance on the local property tax, which increases inequalities in school funding, which leads to violation of the equal protection clause of the Fourteenth Amendment. This argument is a modified reprise of the argument in the state.

State aid in Ohio depends on enrollments. Any student who is schooled elsewhere--at home, in a private school, in a charter school--"deprives" the local district of aid, but with charter enrollment the aid follows the student to the charter school. Plaintiffs claimed that this particular diversion of funds deprives school districts, poor urban ones especially, of the ability to provide a "thorough and efficient educational system." Though rejected by the majority, this argument resonated with a liberal Republican on the court, Paul Pfeifer. While conceding that the Ohio constitution does not prohibit charter schools, he cited the court's previous rulings in DeRolph v. State, Ohio's adequacy lawsuit, holding that the constitution does prohibit "excessive reliance on locally raised funds to finance public schools."

In Ohio, the long-running DeRolph suit is closed to further litigation, and in their federal suit, the unions will be going headlong against San Antonio School District v. Rodriguez (1973), in which the Supreme Court declined to invalidate educational inequalities resulting from reliance on the local property tax. Thus, the unions face the challenge of overturning more than 30 years of settled precedent before courts that are increasingly hesitant to tackle large-scale institutional reform.

Nonetheless, finding some way to overturn Rodriguez is a gleam in the collective eye of all those litigants who want to use courts both to increase school spending and to equalize it within states and even nationally. This is a liberal project for the long run, nurtured in state-level adequacy lawsuits and law school seminars. Project proponents can take comfort in the way Judge Pfeifer cast his dissent.

Josh Dunn is professor at the University of Colorado-Colorado Springs. Martha Derthick is professor emeritus at the University of Virginia.