Florida Vouchers Dealt Another Legal Blow

State Appeals Court Finds Opportunity Scholarships Violate Fla. Constitution

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For the third time, a Florida court has struck down the state’s best-known voucher program, calling it unconstitutional because it allows students to attend religious schools with taxpayer money—a violation, the court said, of the state constitution.

The latest blow to the 5-year-old Opportunity Scholarship program was dealt Nov. 12 by the full panel of the 1st District Court of Appeal in Tallahassee, which voted 8-5, with one abstention, to uphold an August decision by a three-member panel of that court that found the program unconstitutional. ("Florida Weighs Impact of Ruling Against Voucher Program," Sept. 1, 2004.) The latest ruling puts the future of the voucher program, which now gives state-financed tuition vouchers of up to $3,900 to about 690 students, in further doubt.

The ruling disappointed Gov. Jeb Bush, a Republican who has been the program’s chief proponent. Although he plans to appeal the decision to the Supreme Court of Florida, it is unclear whether that highest state court will hear it.

Jacob DiPietre, a spokesman for Mr. Bush, said that the governor was committed to fighting for the program, and was heartened by the votes of the five judges in the minority.

“It’s unfortunate that there are those who continue to try to deny the predominantly poor and minority parents the rights to choose the schools that their children attend,” Mr. DiPietre said.

But the state’s main teachers’ union and advocates for strict separation of church and state were happy.

“This is now the third court that has shown that the voucher law that was passed is unconstitutional; it’s to the point where the governor seems to be delaying the inevitable,” said Mark Pudlow, the spokesman for the Florida Education Association, a 122,000-member affiliate of both the National Education Association and American Federation of Teachers.

“I hope Governor Bush and state legislators get the message that you can’t force Florida taxpayers to support religion,” Barry W. Lynn, the executive director of the Washington-based Americans United for Separation of Church and State, said in a written statement.

Mr. Pudlow said his union is concerned that more students each year are receiving the vouchers and enrolling in private schools while the case goes through the court system. The students have been allowed to continue receiving and using the scholarships while the case is under litigation. That could cause significant upheaval, he said, if the final verdict strikes down the law, a decision he said he expects in the coming months.

Awaiting Final Ruling

“That’s part of [Gov. Bush’s] strategy, to string this out in courts as long as possible,” Mr. Pudlow added. “It doesn’t seem like it’s very responsible governing.”

In the most recent decision, the judges writing the majority opinion held that a 1885 provision in the Florida Constitution prohibits taxpayer funds from going toward the direct or indirect aid of any religious institution.

But the dissenting judges argued that the state constitution does not set a higher bar than the U.S. Constitution, in a reference to the 2002 U.S. Supreme Court decision upholding the Cleveland voucher program, which provides publicly financed tuition aid that students can use at religious and other private schools.

The Florida appellate judges in the majority saluted the voucher program’s goal of giving better educational opportunities to “children trapped in substandard schools.”

“Nevertheless, the courts do not have the authority to ignore the clear language of the [state] Constitution, even for a popular program with a worthy purpose,” the majority wrote in its decision this month.

State legislators enacted the Opportunity Scholarship program in 1999 to offer tuition aid to help students in failing public schools transfer, whether to religious schools, other private schools, or out-of-district public schools. About half the recipients have enrolled in religiously based schools.

The program is open to students who attend schools that receive two failing grades on state report cards within a four-year period. That criterion means that only students from a handful of schools are likely to be eligible. Participation in the program increased slightly to some 690 students in about 20 failing schools this year, according to the governor’s office. About 660 students received the vouchers last year.

An ultimate decision in the case by Florida’s high court could also affect the state’s McKay Scholarships, which go to about 12,000 special education students. Many education groups expect that voucher foes could use a final ruling against the Opportunity Scholarships to challenge the constitutionality of the McKay program as well.

Vol. 24, Issue 13, Pages 20, 24

Published in Print: November 24, 2004, as Florida Vouchers Dealt Another Legal Blow
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