Courts curtail school voucher movement

Florida's bold attempt to use competition and market forces to improve the state's troubled public-education system has run into a legal brick wall.

But proponents of the nation's first statewide school voucher system are vowing to overturn a ruling this week that the controversial reform violates the state's Constitution.

They say the ruling on Tuesday by a state circuit judge in Tallahassee was merely a temporary setback in a long-term legal battle. "This judge is going to find himself on the wrong side of history," says Patrick Heffernan, president of Floridians for School Choice.

The emerging legal battle sets the stage for what could become an emotional showdown next fall, only months shy of the November presidential election. It would pit low-income parents relying on voucher aid to send their children to better schools against opponents who say vouchers drain much-needed revenue from the public-education system.

Florida is only the most recent flashpoint in the national debate over vouchers. But it is viewed as a particularly significant battleground because it boasts the first statewide system ever attempted.

Opponents of voucher programs are hailing the latest major defeat of school-choice programs. "We now have a growing string of courts that have found various reasons to rule against these useless, unconstitutional voucher experiments," says Barry Lynn of Americans United for Separation of Church and State in Washington. "It is another blow against this unconstitutional approach to experimenting with the future of America's children."

With lawmakers in at least half of the states currently considering voucher plans, the debate is a dispute ready-made for the coming presidential election. Vice President Al Gore opposes voucher programs, while Florida Gov. Jeb Bush's older brother, George, favors voucher plans as a central part of his education-reform proposals.

Unless the judge's ruling is stayed pending an appeal, the parents of 52 students from two schools in Pensacola, Fla., could face the prospect of either coming up with the tuition money themselves or being forced to send their children back to chronically ineffective public schools next fall. Governor Bush says he will try to raise enough money from private sources to prevent that from happening.

The voucher program began in the 1999 school year with a handful of students from the Pensacola schools. They were the only Florida schools that failed a state grading program two years in a row. But the voucher program was expected to expand dramatically this fall, with as many as 60,000 students from 78 schools potentially eligible for vouchers worth up to $3,400.

Under voucher plans, parents of students in ineffective schools have the option of using state money to place their children in more-successful private schools - including parochial schools.

Circuit Judge L. Ralph Smith Jr. struck down the voucher program without addressing the most-frequently cited concern about voucher plans, that providing state tax money to parochial schools violates the First Amendment's separation of church and state. That issue is at the core of a legal challenge to vouchers in Cleveland, which analysts expect will soon be appealed to the US Supreme Court.

Instead of the church-state issue, Judge Smith focused on a clause in Florida's Constitution that he says bars voucher programs that benefit private schools at the expense of public schools. The clause says in part that it is the "paramount duty of the state to make adequate provision for the education of all children [through] a uniform, efficient, safe, secure, and high-quality system of free public schools...."

Voucher supporters argue that the clause says nothing about preventing parents with children in chronically failing public schools from using state money to send their children to more effective private schools.

Voucher opponents counter that the clause mandates that public money may only be used to support public schools. Judge Smith agrees with this view.

"By providing state funds for some students to obtain a K-12 education through private schools, as an alternative to the high-quality education available through the system of free public schools, the legislature has violated the mandate of the Florida Constitution," Smith writes. "Tax dollars may not be used to send the children of this state to private schools."

Matthew Berry, a lawyer with the Institute for Justice, a conservative public-interest law firm in Washington that is helping defend the Florida voucher plan, says the judge's ruling, if upheld, calls into question millions of dollars in Florida taxpayer money used to underwrite private schooling for children with disabilities.

"Where in the [constitutional] provision does it say no public funding for kids in private schools?" Mr. Berry asks. "We think if we can get reasonable judges to look at this, we will win."

Mr. Heffernan, of Floridians for School Choice, agrees. "The people of Florida elected a governor and a legislature and said, 'We want Florida's children to get a good education whether it is provided by the government or not,' " he says. "But this judge seems to be saying, 'No, they have to get a government education whether it is good or not.' "

Bob Chase, president of the National Education Association, says the judge's ruling sends "a strong signal to states across the nation that vouchers are no substitute for a quality public education." He adds, "The ruling is the sixth court decision in a row during the past year that has struck down a private- or religious-school voucher plan: twice in Maine, and once each in Vermont, Pennsylvania, and Ohio. The momentum is clearly on the side of public schools."

(c) Copyright 2000. The Christian Science Publishing Society