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Court rules against vouchers

An appeals court calls them unconstitutional, but sends the case to Florida's high court.

Published August 17, 2004


Key dates in the debate over Florida's first voucher law:


JUNE 21: Gov. Jeb Bush signs the first statewide voucher law in the nation. Only two elementary schools in Escambia County are immediately eligible.

JUNE 22: Voucher critics file a lawsuit in Tallahassee challenging the law's constitutionality.


MARCH 14: Circuit Judge L. Ralph Smith Jr. rules that the law violates a provision of the state Constitution that bans the use of public dollars on private schools.

OCT. 3: The 1st District Court of Appeal overturns Smith, finding the law does not violate the ban on public money's use on private schools.


JULY 9: Circuit Judge B. Kevin Davey hears arguments over claims that the law violates the state Constitution's ban on state aid to religious institutions.

AUG. 5: Davey rules the state law violates that provision.

AUG. 9: Davey rules the state can continue to implement the voucher program while appealing his ruling.


MARCH 18: The 1st DCA hears oral arguments.


AUG. 16: The 1st DCA upholds Davey's ruling.

TALLAHASSEE - A state appeals court Monday declared Florida's original school voucher program unconstitutional, saying it violated the state's ban on using public money to benefit religious institutions.

In a 2-1 decision, the 1st District Court of Appeal upheld a lower court ruling, but forwarded the case to the Florida Supreme Court for a final decision.

The ruling is "a monumental win for taxpayers," said Ron Meyer, lead attorney for the Florida Education Association and a host of other groups who filed the suit in 1999. "It means they'll no longer be forced to pay tax money for unaccountable schools."

Gov. Jeb Bush, who made vouchers a key component of his education overhaul, called the decision "disappointing." He questioned the court's logic.

If upheld, Bush said, the ruling could affect Florida's hugely popular Bright Futures college scholarships - which can be used at private schools - and even Medicaid funding, which is used at hospitals with religious ties.

"I think there's a moral question here," Bush said. "Why is it that people of lower income don't have one of the most fundamental choices that should be made, which is where your child goes to school?"

No date has been set for the Florida Supreme Court to hear the case.

Monday's ruling applies only to the state's Opportunity scholarship program, which allows students in struggling schools - many of them in high-poverty, high-minority areas - to attend private schools at state expense.

This year, 732 students are taking advantage of the program, more than half of them in faith-based schools.

The decision does not apply to the state's two other voucher programs, one for disabled students and another funded by corporations that get tax breaks in return.

But voucher opponents have raised a related argument in challenging the Opportunity scholarships - that public money should not be used for private schools in any case.

They plan to use that argument when they address the Supreme Court.

Together, more than 25,000 students use the other voucher programs, at a cost to the state of tens of millions of dollars.

"After the Florida Supreme Court rules, we're going to, of course, look at the whole broad range of options of how we can stop taxpayer money from continuing to be paid over to these unaccountable schools," Meyer said.

Bush launched the original voucher program in 1999 to give parents choices and to spur improvement in public schools by forcing competition with their private counterparts.

But opponents have blasted the state for failing to hold voucher schools accountable for performance. And Tom Gallagher, the state's chief financial officer, has criticized the governor's oversight of the programs, saying lax rules and instability have led to abuse and criminal investigations.

A number of groups opposed to vouchers joined forces in the legal case, including the NAACP, the American Jewish Congress, the AFL-CIO, the Florida PTA and the American Civil Liberties Union.

They hailed Monday's ruling.

"Public schools are struggling to educate Florida's children and these schools need our financial support," said state Rep. Curtis Richardson, D-Tallahassee. "I urge Gov. Bush to heed the court's decision."

"The authors of the Florida state constitution were very clear," said Judith Schaeffer, deputy legal director for the People for the American Way Foundation. "Public funds cannot be given to religious institutions."

The pivotal issue in the case involves a section of the Florida Constitution that says "no revenue of the state ... 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."

In the majority opinion, Judge William Van Nortwick Jr. wrote the court was not blind to the good intentions behind the voucher program.

"We recognize the salutary public policy supporting the legislation to enhance the educational opportunity of children trapped in substandard schools," he wrote. "Nevertheless, courts do not have the authority to ignore the clear language of the Constitution, even for a popular program with a worthy purpose."

If Floridians disagree, the judge continued, they can amend the Constitution.

Under state law, voucher students can be taught about religion but cannot be forced to pray, worship or profess a religious belief.

In a dissent, Judge Ricky Polston said the majority decision opened the door to discrimination against faith-based groups.

"The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion," Polston wrote.

One leading voucher proponent, Tampa businessman John Kirtley, took Monday's decision in stride, saying it was just a stepping stone to a state Supreme Court review.

His thoughts were of the low-income students who are the program's biggest users.

They are "on their way to a better life because of it," he said.

Until the Supreme Court rules, vouchers can still be used. But Meyer, the attorney, said it would be "irresponsible" for the state to expand the program.

That would "result in students and their families being subjected to needless disruption when vouchers are no longer available," he said.

* * *

Times staff writer Steve Bousquet contributed to this report.

[Last modified August 17, 2004, 00:03:17]

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