In what is at least a temporary victory for advocates of private school vouchers, a Florida appeals court ruled last week that the state’s voucher program does not violate a key state constitutional provision establishing a public school system.
A three-judge panel of the state’s 1st District Court of Appeal in Tallahassee unanimously overturned a trial judge’s March ruling that the Opportunity Scholarship Program violated on its face the constitutional requirement for a “uniform” system of free public schools. (Read the opinion of the 1st District Court of Appeals in John Ellis “Jeb” Bush, et al. v. Ruth D. Holmes, et al..)
But the latest ruling does not mean an end to the legal challenge to the program, which was enacted last year as part of Gov. Jeb Bush’s “A+ For Education” plan.
The program allows children in public schools that receive failing grades two years in a row to transfer to other public schools or use publicly funded tuition vouchers to attend private schools, including religious schools. Neither court has addressed challengers’ arguments that the program also violates state and federal constitutional prohibitions against government support for religion.
The program “isn’t in the clear yet,” acknowledged Matthew Berry, a staff lawyer for the Institute for Justice, a Washington advocacy group that is representing voucher families in the litigation. “There’s a long way to go, but it is good to have a victory under our belts.”
Church and State
The appeals court held that Judge L. Ralph Smith of Leon County Circuit Court was wrong to rule that the legislature lacked authority under the Florida Constitution to enact the voucher program.
Nothing in the constitution’s provision about a free, uniform public school system “prohibits the legislature from allowing the well-delineated use of public funds for private education,” said the Oct. 3 opinion by Appeal Court Judge Charles Kahn. He noted that the legislature has established, and the state supreme court has upheld, a program under which special education students attend private schools at public expense.
The court declined an invitation from the challengers, led by teachers’ unions and civil liberties groups, to decide whether the program is an unconstitutional establishment of religion. It sent the case back to Judge Smith to determine that issue.
But a leading opposition lawyer said the challengers would first ask the Florida Supreme Court to take up the case and to decide the religion question as well as review the appeals court’s conclusions.
“It’s unfortunate the court of appeal was unwilling to strike down this program and put it out of its misery,” said Robert H. Chanin, the general counsel of the National Education Association, who has argued against voucher programs in courtrooms across the country.
“We will urge the state supreme court to overturn the appeals court ... and to address whether the program violates the separation of church and state,” Mr. Chanin added.
But Mr. Berry said he doubted the supreme court would address issues that have yet to be ruled on in the lower courts. Voucher proponents are eager to compile a factual record in defense of the program in the trial court, he said.
Florida’s program has been allowed to continue operating during the legal challenge. So far, however, only two Pensacola elementary schools have received F’s on state evaluations for two years, thus making their students eligible for the program. About 50 students from those schools last year began using vouchers worth about $4,000 to attend private schools.
In a surprise to both sides of the voucher debate, other low-scoring public schools improved their performance sufficiently on state tests last spring to avoid meeting the program’s provisions. (“Vouchers Stall as Fla. Schools Up Their Scores,” July 12, 2000.)
