Law & Courts

Florida Voucher Ruling Roils School Choice Waters

By Erik W. Robelen — January 17, 2006 7 min read
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The Florida Supreme Court’s decision striking down a statewide voucher program has sparked speculation that the ruling will aid efforts to battle other voucher initiatives, and could even pose a threat to charter schools.

The predictions come as Florida Gov. Jeb Bush, a Republican, and other voucher supporters are exploring ways to keep the affected program afloat, including by attempting to amend the state constitution. By a vote of 5-2, the Florida high court ruled Jan. 5 that a voucher program there violates the state constitution’s provision requiring a “uniform” system of public schools for all students. (“Fla. Court: Vouchers Unconstitutional,” Jan. 11, 2006.)

While the victorious plaintiffs say no firm decisions have been made on future litigation, some analysts predict that Florida’s other school choice programs will face similar legal challenges. At the same time, opponents of publicly financed private school vouchers are saying the new ruling will help their side beyond the Sunshine State.

“We believe that if litigation is undertaken in [other] states, this will be a tremendous asset to us,” said Robert H. Chanin, the general counsel of the National Education Association and a lawyer for the plaintiffs in the Florida case. “If the [constitutional] language is like Florida, we will say you should be persuaded and heavily influenced by the Supreme Court of Florida.”

Joseph P. Viteritti, a critic of the ruling who is a public-policy professor at Hunter College of the City University of New York, noted that more than a dozen states have the sort of “uniformity” clauses on which the Florida decision turned.

“It kind of points in a direction of future litigation, not only with regard to vouchers,” he said, “but more importantly, charter school programs, [which] are much more common.”

‘Common’ Language

Clint Bolick, the president and general counsel for the Phoenix, Ariz.-based Alliance for School Choice, pointed out that the Wisconsin Supreme Court in 1998 upheld that state’s voucher program for Milwaukee in a ruling that also examined uniformity provisions in the state constitution.

The U.S. Supreme Court rejected an appeal of the Wisconsin decision and later upheld Ohio’s voucher program for Cleveland in 2002, saying that its inclusion of religious schools did not violate the First Amendment’s prohibition on a government establishment of religion.

“In a certain regard, this is business as usual,” Mr. Bolick, who helped defend the Cleveland vouchers before the Supreme Court, said of the Florida case. “This isn’t the first time that the [teachers’] unions have challenged school choice programs, and it’s not going to be the last. The litigation is a permanent part of the landscape.”

At issue in the case, John Ellis “Jeb” Bush v. Ruth D. Holmes, is Florida’s 6-year-old Opportunity Scholarships program, which currently provides roughly $4,350 per child in tuition aid to more than 700 students from the state’s lowest-performing public schools, allowing them to attend secular and religious private schools.

Chief Justice Barbara J. Pariente wrote in the majority opinion that the voucher program “diverts public dollars into separate, private systems … parallel to and in competition with the free public schools.”

Plaintiffs, including parents, educators, and others, challenged the program with the backing of national advocacy groups and the Florida Education Association, a merged affiliate of the NEA and the American Federation of Teachers.

A state appeals court in 2004 found that the program violated the “uniform” school system provision in the state constitution and ran afoul of a separate provision banning use of public money for religious institutions. But the state’s highest court said that since the vouchers were unconstitutional under the uniformity provision, there was no need to address the church-state issue.

As a result, analysts on all sides agree, the defendants lack an issue on which to appeal the case to the U.S. Supreme Court. But that’s about all they agree on.

“This is an argument that will not have significant traction,” said Clark M. Neily, a lawyer for the Arlington, Va.-based Institute for Justice who represented the defendants. “It’s too loopy. … How can states be innovative if you’ve got this hyper-literal interpretation of ‘uniform’?”

He noted that the sentence in the state constitution calling for “uniformity” in schools goes further. It says: “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools.”

Mr. Neily argues that the low-performing schools that voucher students left did not meet those requirements.

That may be, but vouchers are not the answer, suggested Ronald G. Meyer, a Tallahassee lawyer hired by the Florida Education Association for the case. “Instead of fixing the shortcoming, they take the money away from the public school and give it to an unregulated private school,” he said.

“There’s clearly room for innovation within uniformity,” he added. “All public schools have to meet certain standards, but this hodge-podge collection of private schools have no standards to meet.”

In at least one key way, the Florida ruling has echoes of a 2004 decision by the Colorado Supreme Court. Both decisions invalidated voucher programs on grounds unrelated to the use of public funds for religious schooling. The Colorado court, by a vote of 4-3, said a state voucher law was unconstitutional because it interfered with local control.

“Florida again is a departure from the typical church-state ruling,” said Mr. Chanin of the NEA. He said the Florida ruling could help more than Colorado’s, though, because uniformity language “is very common throughout the country.”

Mr. Bolick said a “uniformity clause” appears in 15 state constitutions, including in Arizona, Minnesota, and North Carolina.

Charters Vulnerable?

Charter schools, which get public funds but operate independently, could be vulnerable to the kind of reasoning used in the Florida ruling, some analysts suggest.

“The word ‘uniform’ is obviously quite broad,” said Andrew J. Coulson, the director of the center for educational freedom at the Cato Institute, a free-market think tank in Washington.

In a Jan. 9 opinion piece for The Wall Street Journal, he predicted further challenges to choice programs, including charters. “Every other state with a school choice program and a uniformity clause untested in its courts can expect to feel the heat,” he wrote. “Arizona, which has education tax credits and charter schools, is apt to be a prime target.”

But Nelson Smith, the president of the Washington-based National Alliance for Public Charter Schools, said charters are clearly public schools, and that school districts are rife with nonuniform programs, such as magnet schools and schools-within-schools.

“It wouldn’t surprise me if someone tried to capitalize on this,” he said. “But the case would be transparently bogus. … They shouldn’t waste legal fees trying to export precedent out of this decision.”

Mr. Meyer, the lawyer for the FEA, said he sees key differences between charters and vouchers. “We certainly don’t believe that in the state of Florida, the charter school program creates the same constitutional havoc that this system of unregulated private schools does,” he said.

As for future litigation in Florida, he said, “there are a number of other voucher programs which appear to have some of the same constitutional infirmity. We are going to discuss and analyze them.”

The state’s McKay Scholarships provides vouchers to some 14,000 students with disabilities to attend private schools or obtain services such as tutoring and therapy. The state’s corporate-tax-credit scholarships permit about 10,000 students from low-income families to attend private schools using donations from corporations, which in turn get state tax breaks.

In the meantime, Gov. Bush and other backers of the Opportunity Scholarships program mean to preserve it.

“Right now, we’re evaluating our options to determine whether a legislative fix will be able to bring the program into compliance, or whether it would be necessary to put in a constitutional amendment,” said Russell Schweiss, a spokesman for the governor.

Rep. Dennis K. Baxley, the Republican chairman of the state House education committee, said the strategy for the short term was to find alternative funding to help keep voucher students in their schools beyond this school year. Longer term, he said, “we’re going to have to do a constitutional amendment that clarifies that Florida citizens are telling the court they want these options.”

To get a proposed constitutional amendment on the ballot would require a three-fifths vote by both chambers of the legislature or the gathering of a set number of signatures from the public.

“The school choice movement has known for a long time that there would be states in which judicial obstacles might force us to go to the initiative-and-referendum process,” said Mr. Bolick of the Alliance for School Choice. “Florida might very well be that first state.”

Mr. Chanin of the NEA described efforts to amend the Florida Constitution as “bizarre to the point of being absurd.”

He noted that Florida created a commission in the 1990s to examine the education article of the constitution, which was successfully amended in 1998.

“The constitution is not like a suit of clothes that you change every five or 10 years,” he said, “nor is this an archaic provision that has outgrown its time.”

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