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Published in Print: June 15, 2005, as Justices Query Lawyers In Fla. Court Showdown Over Voucher Program

Justices Query Lawyers in Fla. Court Showdown Over Voucher Program

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Florida’s Opportunity Scholarships faced their most crucial test last week, as the state supreme court heard arguments in a case about the constitutionality of the voucher program.

In more than an hour of oral arguments in Bush v. Holmes, held June 7 in Tallahassee and shown live on the Internet, lawyers sparred over the implications for school vouchers of language in the Florida Constitution that bars religious institutions from receiving state money.

Plaintiffs’ lawyer John M. West said that religious schools using the vouchers are involved in “the religious indoctrination of young children,” suggesting there is no way to square the program with the state constitution.

School voucher supporters rally outside the Florida Supreme Court in Tallahassee as oral arguments are presented in the closely watched <i>Bush</i> v. <i>Holmes</i> case on June 7.
School voucher supporters rally outside the Florida Supreme Court in Tallahassee as oral arguments are presented in the closely watched Bush v. Holmes case on June 7.
—Phil Coale/AP

But the state’s lawyers asked the court to keep the vouchers, which they argued are no different from other common forms of public aid that go to religious colleges, hospitals, and other entities. They also stressed that the vouchers primarily help poor and minority students.

“The Opportunity Scholarship program is in aid of Florida’s children—period,” Florida Solicitor General Christopher M. Kise said. “It’s not a clandestine way to fund religious or sectarian schools. … This program is constitutional.”

A decision in the 4-year-old lawsuit challenging the vouchers, which about 720 students statewide used to pay school tuition in 2004-05, could determine the future of vouchers in the state, and slow or fuel the growth of private school choice nationwide.

Two lower courts have ruled the Opportunity Scholarships unconstitutional, citing the state’s so-called Blaine amendment on funding for religious institutions.

Although the U.S. Supreme Court has ruled that the Cleveland voucher program, which includes religious schools, passes muster under the federal constitution, other state constitutions also include Blaine-style language that voucher opponents argue prohibits state tuition aid for such schooling.

Courtroom Drama

Justice Kenneth B. Bell wanted to know last week why the U.S. high court’s 2002 decision in the Cleveland case, Zelman v. Simmons-Harris, didn’t trump the Florida Constitution. He also suggested that overturning the Florida program might show hostility toward religious institutions, which federal law prohibits.

Mr. West, a private lawyer hired to represent the plaintiffs by the Florida Education Association, responded that the state constitution’s Blaine amendment contains “a far more specific restriction on the use of public funds than does the federal establishment clause [of the First Amendment].”

The Florida justices weighed other factors, including whether the Opportunity Scholarships affect the state constitution’s pledge to provide a uniform public education system for all students.

Justice Harry Lee Anstead asked why the court should leave the vouchers in place. “Wouldn’t that basically, completely, undermine the system that has been provided in the [state] constitution, for the free system of public schools?” he said.

Mr. Kise argued for the state that the vouchers are designed only to help students leave the lowest-rated public schools. “That is very, very different than a wholesale abdication of the public education system,” he said.

The court hearing also focused on whether the vouchers have improved education in Florida. “In 1999, there were 78 failing schools, and last year there were 14,” Justice Bell pointed out.

“That may be, sir, but … their assertion that that result was linked to the Opportunity Scholarship program is not supported,” Mr. West replied.

Lawyers defending the Opportunity Scholarships said last week that if the Florida Supreme Court rules the program unconstitutional under the Blaine amendment, they will appeal the decision to the U.S. Supreme Court.

Bush v. Holmes, which takes its name from Gov. Jeb Bush, a Republican who first proposed the Opportunity Scholarships, and retired educator and teachers’ union official Ruth D. Holmes, could affect more than 25,000 Florida students’ ability to leave public schools through a variety of state-sponsored tuition programs.

Ripple Effect

The 700-plus students who used the Opportunity Scholarships in the past school year were eligible to leave public schools that had received F’s on their state report cards in two of the previous four years. Judges in the lower courts have allowed students to keep using the vouchers until the court case is settled.

If the state supreme court rules the Opportunity Scholarships unconstitutional, the state’s McKay Scholarships, which allowed 14,300 students with disabilities to attend religious or other private schools in the 2004-05 school year, likely would face an immediate legal challenge. Other Florida school choice programs also could be at legal risk. ("Court Showdown Over Fla. Vouchers Nears," May 25, 2005.)

Florida’s Blaine amendment—a reference to James G. Blaine, the nationally prominent Maine Republican who pushed for such constitutional language in the late 1800s—says in part that “no revenue of the state … shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination.”

Such amendments were seen as a way to keep public money from going to non-Protestant religious institutions.

A State Issue

The Blaine amendments or similar provisions in 37 state constitutions have been challenged before.

In 1998, the Wisconsin Supreme Court ruled that its state constitution did not prohibit the Milwaukee voucher program. ("Court Allows Vouchers in Milwaukee," June 17, 1998.)

And in 1999, the Arizona Supreme Court ruled the state’s individual-tax-credit scholarships, which rely on private donations to help finance tuition at secular and religious private schools, did not violate the state constitution. ("Tax Credits Pass Muster In Arizona," February 3, 1999.)

But in 2004, the Colorado Supreme Court overturned that state’s vouchers, which were aimed at helping low-income students in urban areas. The suit against Colorado’s vouchers was a Blaine-related challenge, but the ruling avoided the church-state issue, citing local-control provisions instead. ("Colo. Vouchers Now Back In Political Arena," July 14, 2004.)

Then the U.S. Supreme Court, in its 2004 Locke v. Davey decision from Washington state, allowed state aid to religious colleges—except for scholarships to students majoring in theology. ("High Court Upholds State's Bar On Aid to Theology Majors," March 3, 2004.)

Outside the Florida court last week, an estimated 2,500 marchers braved the Tallahassee heat and humidity to show their support for the Opportunity Scholarships and other forms of school choice in the state, voucher supporters said.

Taking Sides

Among them was Howard L. Fuller, the national board president of the Black Alliance for Educational Options and the director of the Institute for the Transformation of Learning at Marquette University in Milwaukee.

Mr. Fuller, a former superintendent of the Milwaukee schools, said after the march that the court should allow the voucher program to continue.

“After 15 years [in Milwaukee], we can clearly say that people have not been indoctrinated, people have not been intimidated” if they use vouchers to attend religious schools, he said.

John McKay, a Republican and former Florida Senate president who helped enact the McKay Scholarships for students with disabilities, said if the state high court rules against the Opportunity Scholarships, he hopes state legislators will move to protect the McKay program from litigation.

“I fortunately was able to pay for private school for my daughter after a public school didn’t meet her needs,” added Mr. McKay, the father of a grown daughter who was diagnosed with learning disabilities, in an interview after the march. “We have developed an education system where only those of means have choices.”

National opponents of school vouchers also monitored last week’s arguments.

“A decision to end this voucher program and presumably other programs would be a major blow to groups who want to promote the use of public dollars in private schools across the country,” said Marc Egan, the director of the voucher strategy center for the National School Boards Association, based in Alexandria, Va.

The court could issue a decision before most Florida schools reopen in August.

Vol. 24, Issue 40, Pages 1,20

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