After setback, what's next for vouchers?

It wasn't that her son was getting bad grades at school. It was the fact that he wasn't getting any grades at all that bothered Angela Mack.

She moved him out of Booker T. Washington Senior High, one of Miami's lowest achieving public schools, and into the private Lincoln-Marti school, thanks to a state-funded voucher program. Now, not only does Jeffrey Mack complete his assignments, he scores A and B grades.

But in paying to give more than 700 underprivileged students like Jeffrey a private legup, Florida has breached its own constitution, which mandates a "uniform" system of public schooling, the state Supreme Court ruled last week.

The judges' order that the Opportunity Scholarship Program - a cornerstone of Gov. Jeb Bush's education reforms and the first statewide voucher system in the nation - must be dismantled this fall has dealt a bitter blow to families like the Macks and to school voucher advocates nationwide.

Opponents are delighted, however, believing that it brings legal force and impetus to their efforts to fight the growth of voucher systems elsewhere.

"For the last five or six years, Florida has really been the center of the school voucher universe," says Marc Egan, director of federal affairs at the National School Boards Association (NSBA), which opposes the diversion of public dollars into private-sector schools. "Having been such a flagship, the fact that it is going to lose one - or possibly all - of its voucher programs blows a major hole in the national voucher movement."

The Opportunity Scholarship Program was enacted in 1999. It permits students at "failing" schools - defined as schools that have received two F grades from the state within a four-year period - to switch to a higher performing school, either public or private.

Currently 733 pupils are enrolled in it, 64 percent of them African-American and 30 percent Hispanic, at an annual cost of $3 million.

Two additional voucher programs have been introduced in Florida since 1999, covering nearly 30,000 more pupils. One is funded through donations from corporations, which receive tax credits in return, and the other is for disabled children.

Last week's 5-to-2 ruling focused only on the Opportunity Scholarship Program, which the majority of the judges found "diverts public dollars into separate private systems parallel to and in competition with the free public schools," and runs counter to the uniformity requirement.

Private schools are not uniform when compared with each other, or with the public system, and are exempt from certain standards imposed on public schools, such as mandatory testing, they added.

Publicly funded voucher programs currently exist in various forms in six other states, though most are not statewide.

The NSBA and other groups involved in the Florida lawsuit say their case sets a legal and legislative precedent.

Those on the other side say the court's reasoning was flimsy and cannot be assumed to be a template for justices in other states.

About a dozen other state constitutions have "uniformity" clauses. In Wisconsin, the state high court upheld vouchers in 1992. In Ohio, the state Supreme Court ruled in favor of vouchers in 1999.

"There's no question that this decision will embolden the school choice opponents to throw the uniformity argument against the wall and see if it sticks in other states," says Clark Neily, attorney with the Institute for Justice, who helped argue for the voucher system in Florida. "But Wisconsin has already resolved the issue the other way. I would feel comfortable going into any court and reading both decisions - I have no doubt the courts would pick the Wisconsin decision."

There is also public opinion to contend with. In the two most recent ballot initiatives on the issue, held in Michigan and California, voters rejected vouchers, the NSBA points out.

Voucher programs in Milwaukee and Cleveland, meanwhile, have expanded, says Professor Lawrence Kenny, a University of Florida economist who has studied the issue. "With vouchers now in place in several states, I think a growing amount of evidence will show the public school system is not threatened, and that vouchers can help students learn more," he says.

Opponents fear that vouchers allow authorities to sidestep the issue of why failing schools are failing. The Florida Education Association complains that the state has spent at least $400 million on vouchers instead of raising standards by adequately addressing issues such as school underfunding, overcrowded class sizes, and teachers' salaries.

They and their allies have not ruled out a fight to try to dissolve Florida's other two voucher systems. Bush, meanwhile, says he is considering options to save the OSP, including a constitutional amendment or raising the money privately, though an appeal to federal court is unlikely.

Ms. Mack is praying that alternative private funding can be found to help Jeffrey through his final year of school in 2006-07.

She is a full-time student, and her husband a supermarket supervisor, meaning that they do not have the income to pay their son's private school fees. They are determined not to put him back in a public school system that they say failed him.

"Those judges didn't see what a difference it made," she laments. "They don't know how many lives they changed."