Law & Courts

Florida Vouchers Dealt Another Legal Blow

By Joetta L. Sack — November 23, 2004 3 min read
  • Save to favorites
  • Print

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.

A version of this article appeared in the November 24, 2004 edition of Education Week as Florida Vouchers Dealt Another Legal Blow

Events

Webinar Supporting Older Struggling Readers: Tips From Research and Practice
Reading problems are widespread among adolescent learners. Find out how to help students with gaps in foundational reading skills.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Improve Reading Comprehension: Three Tools for Working Memory Challenges
Discover three working memory workarounds to help your students improve reading comprehension and empower them on their reading journey.
Content provided by Solution Tree
Recruitment & Retention Webinar EdRecruiter 2026 Survey Results: How School Districts are Finding and Keeping Talent
Discover the latest K-12 hiring trends from EdWeek’s nationwide survey of job seekers and district HR professionals.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts 20 States Push Back as Ed. Dept. Hands Programs to Other Agencies
The Trump admin. says it wants to prove that moving programs out of the Ed. Dept. can work long-term.
4 min read
Education Secretary Linda McMahon appears before the House Appropriation Panel about the 2026 budget in Washington, D.C., on May 21, 2025.
Education Secretary Linda McMahon appears before a U.S. House of Representatives panel in Washington on May 21, 2025. McMahon's agency has inked seven agreements shifting core functions, including Title I for K-12 schools, to other federal agencies. Those moves, announced in November, have now drawn a legal challenge.
Jason Andrew for Education Week
Law & Courts A New Twist in the Legal Battle Over Trump's Cancellation of Teacher-Prep Grants
A district court judge says she'll decide if the Trump administration broke the law.
4 min read
Instructional coach Kristi Tucker posts notes to the board during a team meeting at Ford Elementary School in Laurens, S.C., on March 10, 2025.
Instructional coach Kristi Tucker posts notes to the board during a team meeting at Ford Elementary School in Laurens, S.C., on March 10, 2025. The grant funding this training work was among three teacher-preparation grant programs largely terminated by the Trump administration in its first weeks. Eight states filed a lawsuit challenging terminations in two of those programs, and a judge on Thursday said she couldn't restore the discontinued grants but could rule on whether the Trump administration acted legally.
Bryant Kirk White for Education Week
Law & Courts Educational Toymakers Sued Over Trump Tariffs. How Is the Supreme Court Leaning?
Most justices appeared skeptical of President Trump's tariff policies, challenged by two educational toymakers.
3 min read
People arrive to attend oral arguments at the Supreme Court on Wednesday, Nov. 5, 2025, in Washington.
People arrive to attend oral arguments at the U.S. Supreme Court on Wednesday, Nov. 5, 2025, in Washington. The court heard arguments in a major case on President Donald Trump's tariff policies, which are being challenged by two educational toy companies.
AP Photo/Mark Schiefelbein
Law & Courts Court Rejects Discipline of Student Whose Post Mocked George Floyd's Death
An appeals court ruled that a student's off-campus social media post is constitutionally protected.
4 min read
Illustration of the arm of Statue of Liberty with various speech bubbles coming out of the top of her torch
DigitalVision Vectors