School Choice & Charters

Court Showdown Over Fla. Vouchers Nears

May 24, 2005 8 min read
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In a case being watched nationally and by educators and families here, the Florida Supreme Court is scheduled to hear arguments June 7 on whether the state’s original school voucher program violates the state constitution.

The court is to decide whether Opportunity Scholarships, available to students enrolled in Florida’s persistently lowest-rated public schools, run afoul of a prohibition on using public money in religious institutions. A decision could come before public schools open in August for a new year.

But it isn’t just the 720 students statewide who now opt to use Opportunity Scholarships to attend religious or secular private schools whose plans could be determined by how the court rules. Lawyers on both sides agree that if the court strikes down those vouchers, other state K-12 scholarships now being used by some 25,000 Florida students could be in jeopardy.

And the tremors would likely be felt in the school choice movement nationwide. Though the U.S. Supreme Court in 2002 upheld the inclusion of religious schools in the Cleveland voucher program under the U.S. Constitution, other states have constitutional restrictions similar to Florida’s.

Along with scrapping the Opportunity Scholarships, a decision against vouchers could lead to the demise of Florida’s McKay Scholarships, which provide state-financed tuition aid to about 14,300 special education students.

Lawyers for the state contend, though, that higher education scholarships and other types of state aid for religious colleges and hospitals could also be at stake.

A court ruling against the scholarships would allow voucher opponents “to pick up a club and attack any program” that offers public aid to religious institutions, said Clark M. Neily, a lawyer for the Washington-based Institute for Justice who will defend the state at next month’s hearing in Tallahassee.

Others cast doubt on how far such a ruling might reach. Ronald G. Meyer, a Tallahassee-based lawyer who is leading the case against the state, disputed the “parade of horribles” that Mr. Neily claims would happen if the state supreme court outlaws the Opportunity Scholarships.

The state can easily distinguish between such vouchers and other forms of state aid to religious colleges and hospitals, Mr. Meyer said. “What the constitution seeks to address is the use of public monies to support the inculcation of religious values,” he said.

Florida is one of 38states with so-called “Blaine amendments” or with similar language in their constitutions prohibiting state aid for religious purposes. The name comes from the prominent late-19th-century Republican politician James G. Blaine.

Such language was the basis for the lower courts’ rulings in Florida. Mr. Neily argues that the Blaine amendment has a “bigoted history” aimed at keeping money from non-Protestant institutions long ago. If the Florida Supreme Court upholds the lower-court rulings, the state will consider an appeal to the U.S. Supreme Court, Mr. Neily said.

Futures in Doubt

Since the Opportunity Scholarships began in 1999, students have been able to use them to transfer out of public schools that receive F ratings on state report cards two times within four years. Currently, 21 public schools across the state are in that category.

One of the most common destinations for Miami students using Opportunity Scholarships is Archbishop Curley-Notre Dame High School in the city’s Little Haiti section, near downtown.

About 72 students used the scholarships to attend the Roman Catholic school in the 2004-05 school year. The modest but bucolic campus run by the Christian Brothers order has become a welcome new home for students on the scholarships.

The school was Florida’s first to integrate black and white students in 1960, said Brother Patrick Sean Moffett, the first-year principal of Archbishop Curley-Notre Dame.

Students say it’s a calm, well-run school that’s small enough for teachers to know all their students. “What we have is parents and youngsters who want something better,” Brother Moffett said.

Because the $4,355 Opportunity Scholarships do not cover the school’s $7,000 annual tuition, the 475-student school serving grades 9-12 must raise additional money to help the voucher students attend. “Financially, it’s costing us a small fortune,” Brother Moffett said of enrolling the voucher students.

The courts should not bar the scholarships, he argued, because parents—not the private schools—decide how to use the money. He added that his school does not force its Catholic beliefs on students. The student body president is Jewish, he said, and other student officers are Muslim and Baptist.

“It’s not supporting religion,” Brother Moffett said of the voucher program. “It’s being used to support parents.”

The school allowed interviews with students who receive Opportunity Scholarships only if Education Week would not use their names. The school keeps their identities confidential to guarantee that other students and teachers will not treat them differently, Brother Moffett said.

Many of the students receiving the scholarships at Archbishop Curley-Notre Dame are from Haitian or other immigrant families. Six students spoke of how the vouchers had helped them escape public middle or high schools that they described as being overcrowded and having serious problems with teacher quality and student discipline.

“If the voucher program can change one person’s life, I think it’s done enough,” said a young man from the Bahamas, an 11th grader. “But it’s not just one person [who benefits],” he said.

“I think they should keep the Opportunity Scholarships. I have two little brothers, and I want them to have the same opportunities to come here,” said another young man, an 11th grader born in Haiti.

“I know my mom wouldn’t be able to afford” the tuition bill if not for the vouchers, said a young woman in the 12th grade.

New Lawsuit Targets?

If the state supreme court ruling goes their way, opponents of Florida’s school choice programs say they will expand their legal battle to target the other state programs that allow students to leave public schools and attend religious schools.

“Obviously, if they decide in our favor, … we’re going to probably take a look at trying to expand it to the other voucher programs,” said Mark Pudlow, the spokesman for the Florida Education Association, an affiliate of the National Education Association and the American Federation of Teachers. The FEA is a major supporter of the case against the vouchers.

But if the scholarships stand, the Florida ruling could help pave the way for programs in other states where Blaine amendments stand in the way of voucher programs, said Mr. Neily, a lawyer defending Florida’s vouchers.

“Florida really has become ground zero for the future of the Blaine amendments,” Mr. Neily said.

Already, school choice advocates in Florida and elsewhere have begun to pursue other programs that do not involve the use of state vouchers at religious institutions, as a way to get around Blaine amendments and other state constitutional provisions that could lead to cases like Florida’s.

For example, Florida’s corporate-tax-credit scholarships for low-income families now help about 10,400 students tap state-sponsored tuition aid using money that flows through nonprofit organizations collecting donations for the scholarships from businesses in exchange for tax breaks. But Mr. Pudlow said even those scholarships could be targeted.

Florida Commissioner of Education John L. Winn, who helped create the Opportunity Scholarships as a policy adviser to Gov. Bush, said he believes the vouchers are the most effective incentive the state can provide for its lowest-performing schools to improve.

“I have absolutely no doubt that public schools hate the scholarship more than they hate the F [rating],” he said.

If the supreme court rules against vouchers, Mr. Winn would not support legislation to offer vouchers only to secular private schools. “If they strike it down, then the whole program will be struck down,” he said.

McKay Users Watching

Although the thousands of special education students and their families using Florida’s McKay Scholarships are not directly covered by the Opportunity Scholarships case, they worry about losing their vouchers nonetheless.

Those concerned include parents like Deborah Kidwell and her 13-year-old son, Daniel, a quiet boy and gifted sketch artist who has been diagnosed with attention-deficit disorder. Like all McKay recipients, the family chose to leave a regular public school and apply for state aid that Daniel can use in a public or private school—secular or religious—of his family’s choice.

The amount of each scholarship varies based on a student’s disability.

“He was getting nowhere” in public school, Ms. Kidwell said during a visit to Spring Gate School, a private school that serves Daniel and 19 other students in grades 1-10 in Plantation, Fla., a western suburb of Fort Lauderdale. “Other kids [at his old school] would not accept the way he was,” she said.

Ms. Kidwell removed Daniel from the Broward County public schools last summer after constant frustrations and failing grades. Now, he’s making straight A’s.

The new school has brought Daniel out of his shell, Ms. Kidwell said. She added that other students at Spring Gate accept Daniel warmly, and he benefits from the extra-small classes that his $9,000 full-tuition voucher pays for. He also receives after-school tutoring.

Tom Ehren, who manages the McKay Scholarships for the 272,000-student Broward County schools, said that the program may work for some families, but it presents problems for others. About 1,900 Broward County students use McKay Scholarships to attend private schools, he said.

Parents cannot easily determine the quality of the private schools in the program, he said.

Others say that many families that have children with disabilities would be in trouble without the McKay program. “I think there would be plenty of parents up in arms if they did away with the McKay Scholarships,” said Debra Kern, the director and founder of Spring Gate School.

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