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Published in Print: March 22, 2000, as Voucher Plan Struck Down In Fla. Court

Voucher Plan Struck Down In Fla. Court

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Advocates on both sides of the ideological divide over vouchers are bracing for yet another protracted legal fight, following a court ruling last week invalidating a taxpayer-financed program in Florida that pays private school tuition for students from low-performing public schools.

In a March 14 ruling, a state judge said that the nation’s only statewide voucher program violates a provision in the Florida Constitution that requires the state to provide students with a "uniform ... and high-quality system of free public schools."

Judge L. Ralph Smith, a circuit court judge in Leon County, did not address whether religious schools’ participation in the program goes against federal and state constitutional bans on a government establishment of religion—a central question in the broader national debate over vouchers.

Both voucher supporters and opponents agreed that, by itself, the decision did not change the national legal landscape on vouchers. But they view it as underscoring the need for the U.S. Supreme Court to rule definitively on the highly contentious issue. Still, voucher opponents cheered the decision as a victory for public schools, saying the ruling was significant when seen alongside a string of other recent court rulings against state-paid tuition for religious schools.

"This is just one more in a long line of decisions that suggest there are a lot of reasons why vouchers are a bad idea," said Barry W. Lynn, the executive director of the Washington-based Americans United for Separation of Church and State. "Sooner or later, voucher advocates will just have to give up."

Gov. Jeb Bush of Florida said he had no such plans. He vowed to fight for the voucher program as long as necessary, telling state reporters the ruling was merely "the first inning" in what will likely be a drawn-out legal battle.

He said he planned to appeal the ruling directly to the state supreme court, a move that his lawyers say would have the effect of keeping the program going while the matter is pending. And Mr. Bush, a Republican, noted that the state spends "millions of dollars" each year, unchallenged, to send special education students to private schools.

"The judge’s decision in this case is at odds with all relevant case law," the governor said in a statement. "This is a gross distortion of the Florida Constitution and will be reversed by the higher courts."

Poised To Expand

Judge Smith held that after this school year, the state must stop paying for the 53 students in Pensacola who are currently receiving vouchers to attend private or religious schools.

The voucher program is part of a larger school-level accountability program that grades schools on an A-to-F scale based on their state test results. Under the program, students from schools that receive failing grades two years in a row are eligible for vouchers. The students now receiving vouchers attended the only two elementary schools in the state—both in Pensacola—that were judged to be failing for two successive years. ("Schools Hit by Vouchers Fight Back," Sept. 15, 1999.)

The ruling came just as state officials were gearing up to expand the voucher program. Before the ruling, some observers had estimated that tens of thousands of students in as many as 78 schools would qualify when state test results are released in June.

Following the ruling, Mr. Bush vowed that he would raise the money needed to allow the current voucher recipients to continue in private schools.

He may not need to, however. Theodore J. Forstmann, the New York City businessman who heads up a charity fund that last year awarded 40,000 scholarships for low-income students around the nation to attend private and religious schools, came forward just one day after the decision and offered to pay for scholarships for the students.

Mr. Forstmann is still in discussions with Mr. Bush, and has not yet specified whether he will offer the scholarships for more than one year, said Kim Delaney, a spokeswoman for the New York City-based Children’s Scholarship Fund. Even without the scholarships, the voucher program could continue and even expand as soon as the state appeals the decision, said Clint Bolick, the vice president of the Institute for Justice, a Washington-based legal organization that helped defend the state in the lawsuit.

Under Florida law, when any law is declared unconstitutional, the state is entitled to an immediate stay of that ruling as soon as it files an appeal. It would then be up to the plaintiffs to ask for an injunction, Mr. Bolick said.

Definitive Ruling Awaited

Both supporters and opponents of vouchers agree that the tug-of-war nature of this type of legal fight will no doubt take its toll on participating Florida students, as it has during voucher battles in Cleveland and Milwaukee. The situation, they say, underscores the need for the U.S. Supreme Court to agree to review and rule on a voucher case.

"We need a ruling as quickly as possible," Mr. Bolick said. "The federal constitutional cloud has got to be removed. We’re facing a multiplicity of lawsuits that wreak havoc on these programs and their participants."

The Supreme Court has declined to hear appeals of decisions by three state supreme courts—in Maine, Vermont, and Wisconsin—involving publicly financed tuition for religious schools. In Maine and Vermont, the courts came down against allowing public dollars to pay for such tuition.

The Wisconsin Supreme Court, however, upheld the program that gives low-income Milwaukee students publicly funded vouchers to attend private and religious schools. Since the federal high court allowed that decision to stand in 1998, the Milwaukee program is the only one not currently under a legal cloud.

In Ohio, meanwhile, a federal judge ruled in December that the Cleveland voucher program was unconstitutional. The case is now pending in a federal appeals court. The program’s 3,800 participants so far have been allowed to continue attending religious schools at taxpayer expense as the case wends its way through the appeals process.

Voucher opponents say that they’re confident the U.S. Supreme Court will eventually find that state-paid tuition for religious schools is unconstitutional, but they believe that the justices are seeking to rule on a more straightforward case.

"Some of these cases have been kind of nuanced," Mr. Lynn said. "I think they want something like what this Florida program would have been."

For now, though, most observers agree that the Florida ruling will have limited national impact. Because the judge chose to rule on a narrow state constitutional provision, rather than basing his decision on the First Amendment to the U.S. Constitution, federal courts will likely shy away from considering it, said Joseph P. Viteritti, a professor of public administration and law at New York University who recently wrote a book on school choice.

"I don’t think there are any national legal implications," Mr. Viteritti said. "This keeps it in the state courts for now."

Ronald C. Meyer, one of the lawyers representing a coalition of plaintiffs in the Florida case, including the two state teachers’ unions and the National Association for the Advancement of Colored People, argued that the ruling’s narrow grounds increased the likelihood that the voucher program would not be permanently revived on appeal.

If last week’s decision is overturned, he said, the plaintiffs can always return to court and argue that the voucher program violates other provisions in the state and federal constitutions.

"Judge Smith wrote a comprehensive decision we think will be bullet-proof on appeal," Mr. Meyer said.

Mr. Bolick countered that the state would have an easier time shooting holes through Judge Smith’s decision than in any other ruling to date on voucher issues.

"Funds are used for private schools in all 50 states for students in exceptional circumstances," Mr. Bolick said. "This would be the first interpretation of a state constitution that would effectively turn the [state] education guarantee into a ceiling rather than a floor."

Vol. 19, Issue 28, Pages 1,33

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