After all, Gambling is Inevitable

Wait, what? Gambling on ESPN?

Over the past several years ESPN has been running segments that have to do with the money lines, spreads, and even the over-under for team wins in a regular season. This seemed unusual because the act of sports gambling typically had a terrible connotation to it. Nevertheless, when Doug Kezirian debuted ESPN’s sports betting program, the Daily Wager, as a fan, I was in shock. Kezirian stated it perfectly when he said, [w]e’re really doing it here … [w]e really are doing a sports betting show at ESPN!” This led me to the landmark decision made in Murphy v. National Collegiate Athletic Association

The Birth and Demise of the Professional and Amateur Sports Protection Act ("PASPA")

In 1992, PASPA was enacted by Congress with the goal to put an end to sports betting across the United States. With Americans being so passionate and consumed with love for their favorite sports teams, the Major Sport Leagues along with Senator Bill Bradley (who the bill is nicknamed after) were looking to protect the integrity of the game and protect the youth from the corrupt stigma that came with sports gambling. However, the bill created an attitude that was similar to the Prohibition era, producing a realm of illegal sports gambling—leaving the results contrast to the bills intended purpose. As the 2010s rolled around, the bill was met with judicial scrutiny. Several states tried passing sports gambling laws, which led to an onslaught of litigation.

The Major Sports Leagues were able to fight off the resisting states in their initial battle, who claimed PASPA infringed upon their Tenth Amendment rights. The courts and the resisting states did not see eye-to-eye for several years. However, New Jersey, with the game on the line, was able to pull off the miraculous victory when the Supreme Court returned a verdict of six to three in their favor, ruling that PASPA was indeed unconstitutional. 

More Than Just Gambling

The Supreme Court’s decision reiterated the importance of states’ rights. This may seem like a victory for the average individual who wants to bet on sports, however the impact of the decision has a greater impact. Taking a closer look, the decision has given a second life to other controversial arguments that the states are making. The controversial issues include arguments about the decriminalization of marijuana, the opposition to sanctuary cities, and state physician-assisted suicide laws. The fall of PASPA also opened the door for numerous benefits that states can take advantage of, like increased employment opportunities, higher tax revenues, and let’s not forget—more excitement for fans. Now that the legalization of sports gambling is allowed, states should take full action and grasp each and every benefit it has to offer. 

Ethan Strauss is a Juris Doctor Candidate for May 2021 at the Shepard Broad College of Law. Prior to attending law school, he received a bachelor’s degree in Finance at the University of South Florida. He is passionate about the sports industry and aspires to work in it one day.

Jocelyn Rosillo: Vol. 44 Lead Technical Editor

Jocelyn Rosillo is a third year law student at the Shepard Broad College of Law and Lead Technical Editor for the Nova Law Review.  Her duties include oversight of Bluebook citations, below-the-line edits, and all technical aspects of the publication.  She also coordinates the Summer Candidacy Program to instruct incoming junior associates on the editing process and chairs the annual Bluebook Interactive Citation Workshops to reviewing citation skills with first year students.

Jocelyn is an advocate for NSU's Trial Association (NTA) and the Moot Court Society and is also a member of the Hispanic Student Bar Association.  She has competed in the Honorable E. Earle Zehmer Memorial Mock Trial Competition in 2018 and 2019, and had a stellar performance as a Semifinalist in the National Trial Competition hosted by the Texas Young Lawyers Association in 2020.

Jocelyn is interested in the field of criminal litigation.  This past summer, she interned with the Broward State Attorney's Office as a Certified Legal Intern.  Jocelyn participated in court hearings, jury trials, bench trials, and motions.  "The [internship] gave me the hands-on experience I longed for. Being able to handle real cases while actively participating in a courtroom was an invaluable and incomparable learning experience."  She has fulfilled her aspiration to become a  prosecutor once she graduates from law school by accepting a position with the State Attorney for the 17th Judicial Circuit in Broward.  Jocelyn has lived in Venezuela, Canada, and currently lives in South Florida with her family and her cat, Junior.

The Ultimate Guide to True Threat Threats and Hip-Hop

First Amendment and True Threats

Although the First Amendment does guarantee Americans the right to freely express themselves, that guarantee is not absolute. Free speech does not include inciting actions with the intent to harm others or production of obscene materials. True threats, a form of speech founded in Watts v. United States, is not protected speech because the speaker is communicating an intention to harm another. The problem with the true threat exception is that Supreme Court has consistently failed to create a test for lower courts to follow when analyzing true threats. This has led to the lower circuit courts adopting several different tests when analyzing true threat cases. There is no uniformity across the country.

Hip-Hop and Crime

Several recent true threats cases have involved the use of hip-hop lyrics penned by the defendant. Hip-hop lyrics have been used by prosecutors to help prove the defendant’s state of mind at the time of the crime. An amateur rapper named Jamal Knox was prosecuted for communicating terroristic threats after law enforcement discovered a song written by Knox. The song’s lyrics contained the names of specific Pittsburgh Police Department Officers and Knox’s desire to harm the police officers. Knox was found guilty when the lyrics were admitted into evidence. On appeal, Knox’s conviction was upheld and his appeal to the Supreme Court was rejected. The issue with allowing hip-hop lyrics as evidence is there are negative biases associated with hip-hop. These negative biases stem from negative stereotypes people have about Black people. These negative biases can result in unjust verdicts because the criminal justice system does not appreciate the art of hip-hop.

A Proper Test

A bright-line test is needed to analyze true threats to protect the First Amendment rights of the speaker and ensure the victim is protected from harm. Circuit courts have used either an objective general intent test or a subjective specific intent test. A test that is a hybrid of both a subjective and objective analysis ensures the defendant is prosecuted by requiring a guilty mind and an objective aspect ensures the full context of the threat is considered. Specifically, in hip-hop cases, courts would have to consider hip-hop’s use of literary devices when deciding if the lyrics are a true threat. The right to free speech is one of the most important rights Americans have and it should not be taken away without a proper analysis.

Zachary Stoner is a second year student at the Shepard Broad College of Law.  His article, What You Rhyme Could Be Used Against You: A Call for Review of the True Threat Standard, is forthcoming in the next issue of the Nova Law Review, Volume 44.  Prior to attending law school, he earned a Bachelor’s Degree in Criminal Justice at Florida Gulf Coast University and is a lifelong and unrelenting hip-hop fan.  His dream is to one day own several Pembroke Welsh Corgis.

A Bird, Lime, Skip, and a Jump Towards E-Scooter Regulation

“It had to happen sooner or later – someone has died riding an electric scooter on a busy Fort Lauderdale road,” so began an article in the Sun-Sentinel. This exact sentiment has been echoed across the country as thousands of dockless electronic scooters (e-scooters) have been introduced into more than 100 cities worldwide. A rough count of reports from the Associated Press indicates at least 11 electronic scooter riders who have died in the U.S. since 2018. Further, an investigation by Consumer Reports found at least 1,500 e-scooter riders have been injured since e-scooters were introduced in late 2017, by the company, Bird (the most popular ride-sharing electronic scooter company). Despite safety concerns, e-scooters have become immensely popular with consumers. According to a study by the National Association of City Transportation Officials (NACTO), riders took 38.5 million trips on shared scooters in 2018

Proponents of ride-sharing e-scooters argue that:
  • They are cheap, clean, and efficient alternative methods of transportation
  • Many cities in the U.S. have inadequate public transportation systems and roadways clogged with cars
  • E-scooters offer a viable alternative means of transportation for short trips (the average e-scooter trip lasting under 20 minutes according to the NACTO)
  • They are ideal “first-last mile” solutions. Of course, many riders also simply use e-scooters because they are fun.

Opponents of ride-sharing e-scooters contend that they are dangerous to both riders and pedestrians.  Arguing that:
  • E-scooter companies do not properly train and monitor riders.
  • People frequently ride without helmets.
  • The minimum age requirement is easily circumvented by underage riders using their parent’s information.
  • Additionally, cities have been frustrated by the “act first, ask for forgiveness later” approach e-scooters companies have taken to introducing their services to cities.

Matt Watson is a second year student at the Shepard Broad College of Law and a graduate of the University of Florida. His article, A Bird, Lime, Skip, and a Jump Towards E-Scooter Regulation is forthcoming in the next issue of the Nova Law Review, Volume 44. As a child, Matt was the proud owner of a Razor scooter. He can definitely do a 360 on a scooter, you guys just weren’t watching when he landed it earlier.

Livia Vieira: Vol. 44 Lead Articles Editor

Livia Vieira is currently a Juris Doctor Candidate for May 2020 at Nova Southeastern University, Shepard Broad College of Law. As the Lead Articles Editor of Nova Law Review, Volume 44, her responsibilities are to oversee articles for publication, coordinate final editing weekends, and manage the production efforts of the editorial staff. 

Livia earned her legal degree in 2014 from the Federal University of Rio de Janeiro, National Faculty of Law in Rio de Janeiro, Brazil.  During her time at NSU, Livia excelled, earning book awards in Contract Law (Fall 2017), Legal Research and Writing I (Fall 2017), Tort Law (Fall 2017), Property Law (Winter 2017), Civil Procedure (Winter 2017), Professional Responsibility (Fall 2018), Constitutional Law (Fall 2018), Family Law (Winter 2018), Evidence (Fall 2019), Business Entities (Fall 2019).  She also served as a teaching Assistant to Professor Douglas Donoho and Research Assistant to Professor Michele Struffolino.

While attending law school, she worked as a paralegal at Vincent Vaccarella, P.A. and Jordan Richards, PLLC, working on construction litigation and employment cases, respectively. At Fowler, White & Burnett P.A., she worked as a law clerk on various insurance issues.  She has accepted an offer at Hinshaw & Culbertson LLP, in Fort Lauderdale where she started as a summer associate, currently works as a law clerk, and will start as an Associate after taking the Florida Bar Examination.  She lives in South Florida with her husband, Nicholas. 

Florida Joins the Voter Restoration Trend: What You Need To Know About Amendment IV and The New Bill

The United States leads the world in incarceration rates.  In 1976, 1.17 million individuals were disenfranchised; this number increased to over 5.85 million in 2010.  This increase in disenfranchisement is disturbing because these people are unable to participate and be part of our democracy undermining the political process.

The majority of these individuals have completed their sentences.  As of 2016, 6.1 million people were estimated to be affected by felony disenfranchisement laws, only 23% of these people were incarcerated.  Over 75% of disenfranchised individuals had served their time, completed their sentences, and are reintegrated in their communities.

Florida's Voter Restoration Movement

Recently, Florida joined the voter restoration movement with the passage of Amendment IV in the 2018 elections.  The Amendment would restore voting rights for felons in the state who had completed all terms of their sentences.  With the exception of those convicted of murder or sexual offenses.

Over 1.5 million Floridians were estimated to regain their right to vote.  However, Florida legislators passed a repayment bill in order to continue to regulate the franchise.  The bill requires Florida residents convicted of a felony to satisfy the debt incurred as a result of their sentence before regaining the right to vote.

Amendment IV

Following the passage of Amendment IV, Florida legislators argued that the amendment was vague and needed clarification.  After months of debate, the legislators passed Senate Bill 7066 and Governor RonDeSantis signed the bill.  This bill includes a requirement in which Florida residents convicted of a felony are required to pay all Legal Financial Obligations ("LFOs") before regaining the right to vote.  Requiring payment of LFOs before restoration of voting rights means that Florida residents now have to pay hundreds of millions of dollars in LFOs before being able to vote.

For instance, in Miami-Dade County, from the year 2000 to today, there are over $278 million dollars in outstanding LFOs related to ex-felons.  In Palm Beach County, there are over $195.8 million dollars in outstanding LFOs related to ex-felons.  Over $1 billion dollars in LFOs were issued between 2013 to 2018.  In those five years, only 19% of this outstanding debt was paid per year.

Since the 1990’s, the Florida legislators have passed laws creating more than twenty categories of LFOs for different criminal offenses.  These fines serve as penalties for the crimes committed separate from court costs and restitution fees.  Concurrently, legislators have passed laws eliminating exceptions for felons unable to satisfy their LFOs.

Mandatory fines are attached to every offense, “from money laundering to driving under the influence, writing graffiti, and soliciting prostitution.”  For example, a conviction of drug trafficking is attached to a “mandatory fine of $25,000 to $500,000 per count.”  This leads to most ex-felons facing an insurmountable amount of debt upon completion of their sentences, and yet another barrier before regaining their right to vote.   Those who never pay their outstanding will be permanently disenfranchised.

Confusion & Carceral Debt

Legislators claim that the bill was necessary for clarification.  However, the bill does not address many issues which will create more confusion than automatic restoration would have.  Florida already has a very complex system for dealing with repayment of LFOs.  There is no single entity in place to track LFOs and it will be very expensive to create such a system.  Further, the process of petitioning a judge to convert outstanding LFOs into community service was not laid out in the bill.

The current system creates a cycle of debt for ex-felons attempting to reintegrate into society.  The incarcerated population is often unable to pay these fees.  In enacting this bill the legislators and the governor have failed to consider the effects of this insurmountable debt on those convicted of crimes who are attempting to re-entry society.

Further, the Florida legislation ignored the outstanding support of Amendment IV across party lines by passing this bill.  This undermines the democratic process, which should ultimately rest on the will of the people.  Many voting rights advocates are equating this bill to a poll tax because the majority of individuals with felony conviction are members of the African American population and more likely to be poor.  As a result, several voting rights groups have filed lawsuits questioning the constitutionality of the new bill.

Conditioning voter restoration on full payment of carceral debt could lead to a crisis where millions of people, majority of which likely African Americans, will be permanently disenfranchised because they are unable to pay their carceral debt.  The African American population is more likely to live in poverty and are more likely to be in the criminal system throughout their lifetime.

Right to Vote

Automatic restoration eliminates the confusion and burdens that are set with overly restrictive restoration bills.  These laws are constantly changing, vary from state to state, and create a lack of knowledge not only among ex-felons but among election officials as well.

As discussed above, the new repayment bill in Florida will create confusion because there is no one system in charge of managing carceral debt.  Thus, it will be hard to regulate who is eligible to vote, or who has satisfied their payments.  Further, there is no system in place in Florida for judges to deal with the influx of people who will petition to have their carceral debt turned into community service.  Automatic restoration would eliminate all the hurdles and confusion that arise from the passing of this repayment bill.

The right to vote is a fundamental right.  It allows citizens to play a role in the political process.  For the African American population, it is a right they have fought and died for.  Felony disenfranchisement laws after an individual has completed their sentences serves only as over-punishment.  Not allowing ex-felons to vote and restricting them from regaining their right to vote after serving their time exacerbates inequality and shows them that they are not welcomed back to reintegrate into their community.  Thus, automatic restoration of voting rights is necessary to ensure that we continue to protect the democratic process.  It is not a true democracy when millions of citizens cannot vote yet have to abide by the same laws as those who have a say in the political process.

Carol Gonzalez is a member of the NSU Honors Program at the Shepard Broad College of Law.  Her Comment, Is the Rising Trend of Voter Restoration Leading to Permanent Disenfranchisement of Felons?  Florida Joins the Voter Restoration Trend, is forthcoming in the next issue of the Nova Law Review, Volume 44.  Prior to attending law school, she earned her bachelor’s degree in Political Science and International Relations at Florida International University.  She lives in South Florida and enjoys being involved in her community.

Daniella Margetic: Vol. 44 Managing Editor

Daniella Margetic is a juris doctor candidate for May 2020 at the Nova Southeastern University ("NSU"), Shepard Broad College of Law.  As Managing Editor of the Nova Law Review, her responsibilities include facilitating the technical aspects of production, subscription updates, office oversight, and the management of this blog. 

In her first year at NSU, Daniella was elected by her peers in the part-time division as representative of the Student Bar Association and has been an incumbent for all four years.  She currently serves as the Justice of Academics over the Workshop Division for the Moot Court Society, which provides hands on training in oral advocacy from practicing attorneys and judges.  She competed in the Robert Orseck Moot Court Competition in 2018 and 2019 at the Florida Bar Convention and ended as a Quarterfinalist (2018/2019) and Preliminary Best Oralist (2019).  Daniella is also an advocate for the NSU Trial Association and Chair of the NSU Federal Bar Association Chapter.  

As a student member of the Palm Beach County Bar Association for the past three years, she has served on the Judicial Relations Committee and the Law Related Education Committee.  In this capacity, she moderated a panel discussion about professionalism at a luncheon with a group of 15th Circuit judges in the presence of many young lawyers who wanted to learn from the bench's wealth of experience.

Prior to and while attending law school, she worked as a Team Lead at Ocwen Loan Servicing, LLC.  In 2018 she worked as a law clerk at Greenspoon Marder, LLP in the foreclosure department, and currently works as a law clerk for Falcon Partners, LLC.  She has accepted an offer at the Palm Beach County State Attorney's Office and will start after taking the Florida Bar Examination.  She lives in South Florida with her husband, Samir.

Florida Sober Home Owners Cash in on the Addicted: Why They Don’t Want Change

As the opioid epidemic continues to sweep the nation, treatment centers and sober homes have proliferated.  With the marketability of sunny beaches and a relaxed lifestyle, addiction treatment has become a big business in South Florida.  Addicts from across the nation flock to Florida in seek of recovery.  However, the Sunshine State is not the recovery oasis it is perceived to be.

What Is a Sober Home?

A sober home, as opposed to a treatment facility, does not provide drug abuse rehabilitation treatment.  However, the purpose of a sober home is to provide a safe and supportive environment for those who are still vulnerable to mainstream society in the early stages of their recovery.  Once addicts receive initial inpatient rehabilitation at a treatment facility, they continue outpatient rehab while living amongst their peers in sober living houses.  This model of recovery is known as the “Florida Model”, as it advocates a slow integration back into the everyday stresses of life with the support of those who are on the same journey to sobriety.

Fraud and Corruption Create a Billion-Dollar Industry

While there are many treatment centers and sober homes that truly wish to help those in the throes of addiction, lax regulation in Florida has led to many “bad actors” opening their doors with the sole purpose of gaining access into the now billion-dollar industry.  With little-to-no government oversight and regulation in Florida, treatment centers and sober homes have used the “Florida Model” of recovery to profit at the addict’s expense.  Both operators work together by means of patient brokering, bed flipping, insurance fraud, overbilling, and other unethical practices alike to make astonishingly large profits in an unethical fashion.

Why Those Involved in the Industry Don’t Want Regulation

With such large profits to be made in the industry of addiction, it is not uncommon for those involved in the business to own both the treatment centers and sober living facilities.  Without government oversight, dual owners of treatment centers and sober homes can continue to take advantage of the addicted in an under-the-radar fashion.  For example, simple urine analysis exams conducted to ensure adherence to drug-free policies can rake in millions.  Facilities bill insurers $150 to $200 for one standard urine test that costs roughly $10 to conduct.  The facilities then send the urine samples to labs for “confirmatory” testing that can range anywhere from $1,500 to $2,000 for one sample.  With millions to be made, it is obvious that those involved in the business would be opposed to strong regulation.  If stringent regulations were to be enacted in Florida, it can be assumed that stricter policies would be implemented to oversee testing such as urinalysis.

Why Change Is Needed Sooner than Later

As urine analysis scams are only one small example of the fraud and corruption that occurs within the state, Florida needs to take greater action.  Human trafficking, drug trafficking, prostitution, and intentional drug exposure are other forms of corruptive business practices that occur within Florida’s shady addiction industry.  Without the implementation of stronger government oversight and regulation, the thousands of addicts that flock to the state for help will continue to be exploited.

Hunter Scharf is a second year student at the Shepard Broad College of Law and a Junior Associate of Nova Law Review. Her Comment, A Rising Florida Epidemic: Big Business Controls Florida’s Recovery Residence Crisis, was published in the Florida issue of the journal. Prior to attending law school, she was a student athlete at Florida International University where she received her Bachelor’s Degree in Psychology. Hunter is a native Floridian and plans to practice law in South Florida.

When You Thought Sanctuary Policy Couldn’t Get More Convoluted

When most people think of sanctuary jurisdictions, they think: New York City, San Francisco, or Chicago.  Typically, Alachua County in Florida is not what people have in mind as a sanctuary jurisdiction.  Yet, Senate Bill 168, signed into law by Florida Governor Ron DeSantis on June 14, 2019, bans sanctuary jurisdictions in Florida.  The Bill requires all local authorities to honor requests from federal immigration authorities, holding detainees so they can be picked up by an agency like Immigration and Customs Enforcement (“ICE”) and be subjected to detainment or deportation.  Minor offenses, like jaywalking or driving without a license, could be grounds for deportation for illegal immigrant aliens.

Other Mechanisms ICE is Using

In addition to Florida’s ban on sanctuary jurisdictions, ICE is also using various mechanisms to reach illegal immigrants by way of basic ordering agreements (“BOA”).  A BOA allows for a jail that is holding an immigrant on a detainer from ICE to be “reimbursed [fifty dollars] for up to [forty-eight] hours of detention.”   Another strategy ICE is using in conjunction with the Bill is the 287(g) program.  Under the program, “local law enforcement agents are deputized to work as federal immigration officials, but the program is restricted to county jails.”

So Who Cares?

The Bill will likely create a hostile environment in Florida, potentially causing contributing members of the immigrant community to leave the State as a result.  Further, it could also result in significant economic losses for the State and would also threaten key parts of Florida’s workforce in industries like agriculture and construction.  Studies have shown that crime is statistically significantly lower in sanctuary jurisdictions compared to non-sanctuary jurisdiction and economies are stronger in sanctuary jurisdictions.  There are higher median household income, less poverty, and less reliance on public assistance to higher labor force participation, higher employment-to-population ratios, and lower unemployment in sanctuary jurisdictions.  

The threat of deportation may also scare potential human trafficking victims into silence.  Lastly, there is a basis to believe that The Bill’s goal is “to prohibit local law enforcement agencies from placing any limit on their compliance with detainers and would therefore amplify the consequences of ICE’s mistakes” and may create negative health outcomes for immigrant families.

And Why Can’t We All Just Get Along?

Policymakers and lawmakers continue to question and ban sanctuary policies on the basis of public safety concerns.  One reason for this is that the “discourse has less to do with crime and safety concerns and more . . . with . . . public conceptualizations of what is means to be ‘real American.’”  This implied “manifestation of racism” becomes a shadow in the sanctuary policy oppositions’ narrative that undocumented immigrants infringe on the “‘rule of law’” and “‘law and order.’”  This is likely why many policymakers and lawmakers “continue to recycle empirically inaccurate arguments that limited cooperation policies and non-citizens, more broadly, represent public safety concerns.”

In short, while committing crime, in general, must have consequences, policymakers are using any crime, no matter how small, as a method to unconstitutionally hold and detain people for deportation.  As of now, the City of South Miami is already planning on challenging the bill and it is yet to be seen what the legal outcome will be.

Lena Abdin attends the Shepard Broad College of Law and is a Junior Associate for the Nova Law Review.  Her article, Banning Faux Sanctuary Jurisdictions, was published in the Florida Law issue of the journal, Volume 44.  Prior to law school, she completed a master’s degree from Johns Hopkins University.  Her thesis on Syrian refugee antenatal care was published by the World Health Organization.  Her passion for international law/immigration law stems from living in the Middle East.

Corey Cohen: Vol. 44 Executive Editor

Corey Cohen is in his final year of law school at Nova Southeastern University, Shepard Broad College of Law.  He serves as the Executive Editor for Nova Law Review, Volume 44.  His role as part of the executive board encompasses managing the internal operations of the organization, performance evaluations, and all the organization's fiscal responsibilities.

His article, Against All Odds: The Repeal of PASPA and the Legalization of Sports Gambling, was written after the Supreme Court ruled the ban of sports betting unconstitutional.  Corey is also an advocate for the Moot Court Society and NSU Trial Association (NTA).  As a 2L, Corey finished as a semi-finalist in the NTA Upperclassman Competition, and subsequently competed in the AAJ Student Trial Advocacy Competition in West Palm Beach, FL.   In the Winter of 2019, Corey interned for the Honorable Bruce E. Reinhart of the U.S. District Court for the Southern District of Florida.

Corey ranks in the top 10% of his class, and currently works as a law clerk at Wasch Raines, LLP, putting his skills primarily towards the firm's efforts in various business litigation, franchise law, and trademark law concerns. Prior, he clerked for the general counsel of Kolter Group, a renowned real estate development company. He earned his Bachelor’s degree in Finance from the University of Central Florida.

School Choice Lowers the Floor for the Lowest on the Ladder

From Jim Crow era segregation to Marjory Stoneman Douglas, what happens in American schools has always been at the center of policy debates.  Perhaps longest lasting of these debates is how American schools should be run.  In Brown v. Board of Education, the United States Supreme Court signaled to the nation what everyone already knew:  a quality education is fundamental to both the fabric of an individual and society.  However, in San Antonio District v. Rodriguez, the Court shifted course and encouraged competitive-based education reform that exists today.

School Choice Policies

School choice initiatives ultimately boil down to two main players.  First are charter schools, which are public schools operating under a contract with a state to meet academic and enrollment criteria.  School choice advocates and opponents alike would agree charter schools are the proverbial headlining act of the school choice portfolio.  Top performing charter schools like Alma Del Mar and the franchise of KIPP public charter schools regularly fill no less than one third of U.S. News and World Report’s top 100 high schools.  But despite providing more high performing options, many low-income students are subject to the comically bad outcomes of not only underperforming charter schools, but disastrously bad business practices.  John Oliver’s Last Week Tonight highlighted the plight many students face when attending low-end charters when he detailed the events leading up to a Florida charter closing in the middle of a school day.

Second are school choice vouchers.  While state voucher policies often allow students to freely transfer between traditional public schools, voucher proponents are far more excited about the prospect of exporting public school students into private schools.  School choice vouchers allow public education funding to follow the child away from the public system and into the private one.  Little to no research confirms or even suggests school choice vouchers are educationally beneficial to students but, like with all school choice policy, the very fact parents have a choice seems to be enough.

Market Impact on School Choice

Underpinning the entire rise of school choice is the concept of neoliberalism.  Neoliberalism instructs American values of freedom, choice, and market-based policies which create markets where they didn’t previously exist.  These concepts work well in the realm of economics, where businesses compete for customers and customers are tasked with making value propositions.  School choice advocates would argue that if the concept of market economics can make a better phone, it can make a better school.  However, market economics don’t just make better products, they also introduce more products—many of those being cheap and bad.  The worst thing for customers who buy bad phones is they need to get a new phone.  The worst thing for students who end up at a bad school is they are set back years in his or her life.

But still, few policy portfolios are more in vogue today than the cocktail of school choice programs circulating state legislatures.  Both sides of the isle enthusiastically advocate for school choice initiatives, and its perhaps the strongest thread linking the last three Presidential administrations.  But, while both George W. Bush and Barack Obama planted the seeds of school choice policies, President Trump supplies the fertilizer.  The appointment of controversial school choice advocate Betsy DeVos to Secretary of Education and Trump’s proposed billion dollar investment in spurring school choice threatens to put public education into a tailspin for low-income students.

And it’s no secret those on the lowest rung on the socioeconomic ladder suffer immensely from America’s broken education policy.  From the crumbling infrastructure of the Midwest’s urban schools, to the over-crowded classrooms and over-worked teachers of Los Angeles’ County schools, the intersection of property values and performance outcome-based funding has left the poorest students without a paddle.  Los Angeles’ teacher strike during the beginning of 2019 was less about earning more for overworked and underpaid professionals and more about combating the deleterious school choice policies that had siphoned public schools of much needed funding.  In the end, the teachers earned smaller classes, less standardized testing, and more support staff for their students while also securing a cap on Los Angeles’ ever-rising number of charter schools.  Instead of throwing low-income students a life saver, school choice policies offer a patchwork of programs meant to whet the appetite of profiteering corporations.

The Florida Model

Florida has five of the nation’s top ten largest school districts and also boasts among the nation's most robust school choice programs.  Florida already hosts one of the nation’s four statewide voucher programs and a vast network of charter schools.  Governor Ron DeSantis looks to push Florida along as a national leader in school choice by investing heavily into both.  DeSantis has already committed over $130 million into an additional voucher scholarship and has signed a bill easing the burden on charters opening in the state.  Florida, however, has become a proving ground for how school choice can lead to an increase in negative outcomes for low-income students.  A 2018 report revealed Florida charter school closures have averaged 20 per year since 1998, and vouchers will likely leave traditional public schools in increased need for financial assistance.

Countering the establishment refrain of pro-school choice rhetoric has predictably come from the progressive left.  Bernie Sanders’ aptly named A Thurgood Marshall Plan for Public Education looks to reverse the gung-ho attitude for school choice and proposes to give them a proper appraisal.  But more importantly, Sanders’ plan seeks to raise the floor of public education in the United States not through competition, but by providing public investment into known school policies which increase the engagement of the most important stake-holder in education:  the student.

Richard Sena is an honor student at the Shepard Broad College of Law and a Junior Associate of the Nova Law Review.  His Comment, Lowering the Floor: The Consequences of Competition-Based Education Reform for Low-Income Students and Families was published in the Florida Law issue of this journal.  Prior to attending law school, he served for three years as a 9th grade high school English teacher in Palm Beach County, Florida.  He lives in South Florida with his wife, Anna, daughters Penelope and Natalie, and their rescue mix, Bailey.