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© St. Petersburg Times, published August 11, 2002
TALLAHASSEE -- Gov. Jeb Bush, patron of the school voucher law that a state judge declared unconstitutional last week, said he thinks the case "may end up in the United States Supreme Court." That's quite possibly so. But in that event, the governor would find himself in the uncomfortably awkward position of arguing that his own state's Constitution should be set aside. Conservative governors do not commonly disparage states' rights.
No other argument could get the case to Washington. By long and firm tradition, the Supreme Court defers to each state's highest court on what the state's Constitution means. So if the Florida Supreme Court eventually decides that Circuit Judge Kevin Davey correctly interpreted the church-and-state clause of Florida's Constitution, the only avenue of appeal would be to attack that Constitution as incompatible with the U.S. Constitution.
Davey complicated that strategy, however, by striking down the entire voucher statute, affecting secular private schools as well. If Florida subsidizes no private schools, it can hardly be accused of discriminating against those that are religious.
Voucher forces nationwide are itching to make Florida a test case. The Wall Street Journal signaled the attack last week in an editorial blasting Florida's Constitution as a "century-old relic of religious bigotry" comparable to the poll taxes and grandfather clauses that disenfranchised blacks after Reconstruction.
Florida argued precisely the other way, however, in successfully defending its constitutional ban on voting by ex-felons whose civil rights have not been restored. Though that has transparently racist roots, the state held that any original sin was washed clean by re-enactment in 1968 and 1998, long after the segregation era. U.S. District Judge James Lawrence King bought that argument, among others. His July 17 decision to dismiss the suit is being appealed.
So what of the contention that the state Constitution is fatally infected with anti-Catholic bias?
The disputed provision, Section 3 of Article I, says in part, "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution."
Florida's fifth Constitution, adopted in 1885, was the first to say so. Ten years before, James G. Blaine, a Republican congressman from Maine, had tried to write similar language into the U.S. Constitution. At the time, Roman Catholics were seeking (and sometimes getting) public money for their own schools. Their rationale was that many public schools were forcing Catholic children to say Protestant prayers, sing Protestant hymns and read the King James Bible.
Blaine failed, but many states swiftly incorporated his example. Florida's version was strengthened in 1968 to make sure that it applied to county school boards as well as to the state.
What was wrong, of course, was not the Blaine amendment, however biased its sponsor might have been, but the religion being forced upon Catholic children -- and Jews and other non-Protestants -- in the guise of public education. With that having finally been stopped, it would be paradoxical for any court to say now that the American people are required to subsidize private religious education.
Some of the pro-voucher people think they have a precedent in a 5-4 U.S. Supreme Court decision in 1995 that the University of Virginia could not discriminate against a Christian newspaper that wanted student government funds available to secular publications.
Steven Gey, a constitutional law professor at Florida State University, asserts the Virginia precedent does not apply because it was decided as a freedom of speech issue.
"It's one thing if you create a public forum and invite everybody in. That's not what's going on here," he said. "The state (Florida) is financing religious activity."
Gey rattled Tallahassee cages nine years ago when he wrote that he considered it unconstitutional under Section 3 of Article I for Florida to award historic preservation grants to churches. But while he applauds Davey's decision, the first in Florida to interpret that section, he does not agree with critics of the decision that it also imperils Medicaid payments to religious hospitals or state tuition grants to college students attending such religiously affiliated schools as Eckerd College and Stetson University.
The critical difference, Gey maintains, is that the hospitals are saving lives, not souls. They don't proselytize with Medicaid funds. The college curricula are overwhelmingly secular.
"If it's a hospital affiliated with a church but it does not in any way foist its religion, it is not a sectarian institution for the purposes of the federal Constitution," says Gey. Therefore, it would not be sectarian under the Florida Constitution either.
However, the religious issue is not the only constitutional case against the voucher alternative. None of Florida's voucher programs holds voucher schools to the accountability standards that apply to public schools. This is arguably a violation of Article IX, Section 1, which requires a "uniform" system of free public schools. The 1st District Court of Appeal overruled another circuit judge's finding that vouchers did not inherently conflict with that, but it did not address the specific issue of the disparity of standards.
Lawyers for the National Education Association, which took the lead in attacking Bush's vouchers, have not argued that point so far. Robert Chanin, the chief counsel, says he expects that they will argue it now "as a backup." That would be prudent. It may not be as newsworthy as the religious issue, but it gets to the fundamental hypocrisy of the entire A+
The one certainty is that there will be a lot more arguing, a lot more lawyering, and too little time or money invested in making the public schools as good as they could be.