Law & Courts

Fla. Court: Vouchers Unconstitutional

January 06, 2006 8 min read
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Florida’s voucher program for students in the lowest-rated public schools is unconstitutional, the state supreme court ruled last week in a 5-2 decision that friends and foes of private school choice are scrutinizing for its potential impact on voucher debates nationwide.

Chief Justice Barbara J. Pariente of the Florida Supreme Court wrote in the majority opinion that the vouchers violate the state constitution’s provision that requires a “uniform” system of public schools for all students.

Read the majority and minority opinions in the Florida voucher case, John Ellis “Jeb” Bush v. Ruth D. Holmes, posted by the Florida Supreme Court.

The court sidestepped, however, the issue of whether the program violated the state’s so-called “Blaine amendment” barring aid to religious institutions. In doing so, the justices appear to have effectively blocked an avenue of appeal to the U.S. Supreme Court by voucher supporters, who would like to challenge such language on federal legal grounds.

The decision will likely force many of the roughly 700 students who attend private schools with state money under the program, known as Opportunity Scholarships, to look for other educational options after this school year. The statewide program has provided about $4,350 per child in tuition aid for eligible students to use at secular or religious private schools.

Chief Justice Pariente wrote that the Opportunity Scholarships program “diverts public dollars into separate, private systems … parallel to and in competition with the free public schools.”

Differing Opinions

“This diversion not only reduces money available to the free [public] schools, but also funds private schools that are not ‘uniform’ when compared with each other or the public system,” she wrote.

The state court of appeals’ 2004 decision in the case, while finding that the program violated the requirement for a “uniform” school system, had also held that the vouchers ran afoul of the ban on use of public money in religious institutions. The high court, in contrast, said that because the vouchers were unconstitutional under the provision on uniformity, there was no need to address the church-state issue.

In his dissent, Justice Kenneth B. Bell wrote that the state constitution simply ensures that “every child in Florida has the opportunity to receive a high-quality education and to ensure access to such an education by requiring the legislature to make adequate provision for a uniform system of free public schools.”

See Also

Read the related story,

Table: Choosing Vouchers

“There is absolutely no evidence before this court,” he continued, “that this mandate is not being fulfilled.”

The decision in the case, John Ellis “Jeb” Bush v. Ruth D. Holmes, directly addressed only the Opportunity Scholarships, not other Florida school choice initiatives, which are aimed at students with disabilities and children from low-income families.

But lawyers and officials on both sides of the choice issue were weighing the full implications of the ruling for Florida and potentially for other states.

“I think this spells the end of this diversion of public monies to private education programs in Florida,” said Ronald G. Meyer, a Tallahassee lawyer who was hired by the Florida Education Association to argue the plaintiffs’ case. “The significance of this travels well beyond the state of Florida.”

The court decision may have an impact, he said, in future cases in other states that require “uniform” systems of public schooling.

“What this court has said is the requirement of uniformity requires accountability,” Mr. Meyer said. “It requires the same standards [for private schools] that are applicable to public schools if the public is going to support them.”

State Fallout

Leaders of the Florida Education Association will discuss in the coming weeks whether to pursue legal action against Florida’s remaining school choice programs, said Mark Pudlow, a spokesman for the FEA, a merged affiliate of the National Education Association and the American Federation of Teachers.

“It’s unfortunate it had to come to this,” said Mr. Pudlow, adding that union leaders supported the court’s decision to allow the currently participating students to finish the school year using the Opportunity Scholarships. “There was certainly evidence of the unconstitutionality of vouchers [all along].”

The Florida legislature adopted the Opportunity Scholarships program in 1999, at the urging of Gov. Jeb Bush, a Republican. Plaintiffs, including parents, educators, and others, challenged the program with the backing of a number of national advocacy groups and the FEA. The state high court heard oral arguments in the case last June. (“Justices Query Lawyers in Fla. Court Showdown Over Voucher Program,” June 15, 2005.)

Students have qualified for the vouchers if they attended public schools that received failing grades from the state for two out of four years.

Gov. Bush condemned the ruling as a step backward for minority students, who are the primary users of the vouchers, he said. He promised to work with lawmakers to find any possible legislative remedies for restoring the scholarships.

“Today marks the first time the Florida Supreme Court has struck an educational program solely because private schools participate equally in it,” he said in a written statement after the ruling was handed down Jan. 5. “It temporarily removes a critical tool for improving Florida’s public schools, and it also challenges the power of the Florida legislature to decide as a matter of public policy the best way to improve our educational system.”

Larry Keough, the education associate for the Florida Catholic Conference, lamented that about 150 students who attend Roman Catholic schools using the vouchers may not be able to continue after the current school year.

“The ruling is a setback for hundreds of families and their children, as well as the school choice movement,” he said.

State Rep. Rafael Arza, a Republican from Dade County and a former teacher and coach, predicted that the decision would force inner-city parents to provide false addresses to schools to enable their children to avoid some of the worst public schools.

“This traps children who don’t have the means to have a choice and condemns them to be in failing schools,” he said in an interview, adding that he couldn’t predict how the legislature might respond to the decision.

State school board Chairman Phil Handy released a statement saying the legislature should explore a constitutional amendment to allow for programs such as the Opportunity Scholarships.

“Calls have been pouring into the [state] department of education from concerned parents who are currently benefiting from the Opportunity Scholarship program and others like it,” Mr. Handy said.

State Commissioner of Education John Winn, who was out of the country the day of the ruling, had said previously that if the Opportunity Scholarships were struck down, the other Florida choice programs could also be affected.

The state’s McKay Scholarships help some 14,000 students with disabilities attend private schools or let them use state money to access extra educational services from private providers, including tutors and therapists.

Florida’s corporate-tax-credit scholarships allow some 10,000 students from low-income families to attend private schools using money gathered by nonprofit organizations that receive donations from corporations, which in turn receive state tax breaks.

In its decision, the state supreme court said explicitly that the ruling did not apply to the state’s partially privatized program of preschool education because it is not part of K-12 schooling.

Other States’ Programs

The national implications of the Florida decision are harder to gauge.

Milwaukee and Cleveland have well-established state voucher programs that have withstood court challenges. The U.S. Supreme Court upheld the Cleveland program in 2002, saying that its inclusion of religious schools did not violate the First Amendment’s prohibition on a government establishment of religion. Utah adopted a voucher program just last year for students with disabilities.

But the Supreme Court’s decision in the Cleveland case did not, as voucher advocates had hoped, lead to a wide embrace of voucher measures by states.

One reason, legal experts say, is that even though vouchers for religious schools have cleared the hurdle of the U.S. Constitution, most state constitutions have language against public assistance to religious institutions.

Appeal Seen Blocked

Thirty-eight states, including Florida, have “Blaine amendments” or similar language in their constitutions barring such aid. Those amendments—which opponents say were motivated at least in part by anti-Catholic bias—are named for the 19th-century Republican political leader James G. Blaine, who strongly advocated such provisions.

Some voucher supporters had hoped that if the Florida Supreme Court struck down the voucher program as violating Florida’s Blaine amendment, an appeal to the U.S. Supreme Court might result in a federal decision overturning such amendments as unconstitutional and discriminatory against religion.

Clark M. Neily, a senior attorney with the Arlington, Va.-based Institute for Justice, who helped defend the voucher program before the Florida Supreme Court, said the state high court’s decision to avoid a ruling under the Blaine amendment likely prevents lawyers for the state from having a chance to appeal their case to the U.S. Supreme Court on those grounds.

Clint Bolick, the president of the Phoenix-based Alliance for School Choice, who helped defend Ohio’s Cleveland voucher program before the federal high court, said he was working with national and Florida education groups to help develop public-policy responses to the Florida ruling.

“This decision is a travesty,” he said in a statement. “It makes a mockery of the state’s guarantee of high-quality educational opportunities.”

National groups that advocate strict separation of church and state praised the ruling.

“This is an important victory for public education and church-state separation,” the Rev. Barry W. Lynn, the executive director of the Washington-based Americans United for Separation of Church and State, said in a statement. The group helped bring the challenge against the voucher program.

“Now the state legislature can devote its attention to improving public education,” Mr. Lynn said, “rather than subsidizing religious and other private schools.”

Ralph G. Neas, the president of the People for the American Way Foundation, another Washington group that assisted the Florida plaintiffs, added that vouchers are “an expensive and ineffective distraction.”

“They deserve to be abandoned,” he said. “And now in Florida, they must be.”

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