Vouchers head to court again

Plaintiffs want a circuit judge to find that Florida school vouchers conflict with the state's Constitution.

By ALISA ULFERTS, Times Staff Writer
© St. Petersburg Times
published July 10, 2002

TALLAHASSEE -- Two weeks after the U.S. Supreme Court upheld the constitutionality of school vouchers, the issue was back before a Florida judge who was urged to declare them unlawful.

At issue is a provision in the Florida Constitution prohibiting the use of public money to aid a religious institution directly or indirectly.

That should prohibit vouchers, according to a lawsuit brought by a handful of parents and teachers along with the state teachers union, with legal backing by the American Civil Liberties Union.

But the state argued that vouchers don't violate the state Constitution because parents, not the government, choose where to send their children.

"The vouchers in this case go directly to the parents or the guardians," said Barry Richard, the Tallahassee lawyer who represented George W. Bush during his Florida election fight in 2000 and now is defending the state's voucher law.

"There is nothing that requires or encourages them to use it for religious schools," he said.

The plaintiffs have asked Circuit Judge Kevin Davey to toss out Florida's law, but all they got Tuesday was a promise to "issue a decision in quick order."

Davey was scheduled to hear the case earlier this year but waited to hear from the U.S. Supreme Court, which decided June 27 that vouchers do not violate the separation of church and state.

John West, the attorney representing the voucher opponents, told Davey that parochial schools are an "extension of the religious ministries of the churches that operate those schools." That means vouchers can't be used at religious schools, he said.

Voucher opponents lost the first round in April 2001 when the Florida Supreme Court upheld an appeals court ruling that the law did not violate the state Constitution by spending public dollars on private schools.

Now the case focuses more narrowly on the question of public dollars going to religious schools.

Florida's voucher law is a cornerstone of Republican Gov. Jeb Bush's education reform, which includes grading schools based on students' standardized test scores and awarding vouchers to students in failing schools.

The case is so important to Bush and state education officials that they hired Richard to argue the case instead of the Attorney General's Office, which normally defends the state in lawsuits.

"We're glad to have him on board," said Jim Peters, who represented the Attorney General's Office even though he didn't argue the case.

Lt. Gov. Frank Brogan, who sat in on Tuesday's hearing, said Richard "made more than a compelling case that opportunity scholarships are constitutional."

Richard argued Tuesday that if Davey tossed out Florida's voucher law he would also invalidate other state programs in which Floridians have choice in schools, such as college financial aid programs.

He also said the question of whether Florida's voucher program is constitutional should not center, as West suggested, on whether the law "indirectly" benefits religious institutions but rather whether the program was intended to be "in aid of" them, in violation of the state Constitution.

Because parents decide where to spend their vouchers, opponents can't argue that the law was intended to benefit certain schools, Richard said.

He also argued that a voucher program that excluded religious schools would be unconstitutional because it would prohibit the free exercise of religion.

The case is expected to eventually wind up at the Florida Supreme Court. Both sides have said they plan to appeal if Davey rules against them.

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