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Some vouchers out, but the rest?

Legal experts for and against school vouchers say the ruling against one program could be used to knock out two others.

By RON MATUS and MELANIE AVE
Published January 7, 2006

Darius Way floundered in public school. According to his mother, classes were too big, teachers had too many other students with special needs and Darius was ignored.

Now, as a fifth-grader in a private school in Brandon, Darius is thriving. Classes are smaller and he gets therapy for his autism.

"He's not sitting there stagnant," said his mother, Karen Way of Plant City.

Way credits a private school voucher for her son's turnaround. And in the aftermath of this week's landmark Florida Supreme Court ruling, she and thousands of other voucher-using parents are suddenly very nervous.

Hailed by voucher critics as a victory for public schools, Thursday's ruling knocked down Opportunity Scholarships, which allowed children at failing public schools to attend private schools at taxpayer expense. Only about 700 students use those vouchers and none are in the Tampa Bay area.

But legal experts on both sides of the ruling say it could be used to eliminate two other voucher programs: McKay Scholarships for disabled students - the kind that Darius uses - and another funded by corporate tax credits that benefits low-income students. Together, about 30,000 students use those vouchers, including about 3,500 in the Tampa Bay area.

"It is naive to think that yesterday's ruling is only going to apply to (Opportunity Scholarships)," said Howard Simon, executive director of the American Civil Liberties Union in Florida.

Despite the potential for negative headlines, the ACLU is considering a legal challenge to McKay vouchers. So is the state teachers union, the group that filed the 1999 suit that led to the ruling against Opportunity Scholarships.

Meanwhile, the state's new prekindergarten program has dodged a bullet - at least for now.

The court sidestepped the question of whether vouchers cross the church-state line drawn in the Florida Constitution - a question that continues to dog the pre-K program, which relies on hundreds of private religious schools to educate tens of thousands of 4-year-olds.

Simon said an ACLU challenge to pre-K on the church-state question is "likely." But like the voucher case, a pre-K lawsuit likely would take years to wind through the courts.

The fallout for other vouchers will become more clear in the months ahead.

Gov. Jeb Bush signed Opportunity Scholarships into law in 1999, making it the centerpiece of his education platform and the only statewide voucher program in the nation. Supporters said vouchers would benefit the handful of students who use them - almost all of them black or Hispanic - and introduce competition, motivating struggling schools.

Critics saw a blatant attempt to tar public schools and polish private ones.

In striking down the program, the Supreme Court ruled 5-2 that vouchers violate a state constitutional provision for a "uniform, efficient, safe, secure and high quality system of free public schools." It sided with voucher opponents who said Opportunity Scholarships drain money from public schools.

The ruling also countered an argument raised by voucher supporters that similar programs would fall like dominos.

But recipients of the other vouchers are not comforted.

The tax-credit program offers businesses credits for donating their state corporate taxes to scholarship funding organizations that provide vouchers. Because of that funding structure, some legal observers say the program may be harder to overturn.

But McKay vouchers are funded just like Opportunity Scholarships.

When Linda Frantz heard about the ruling, she said, "Oh no."

"I feel the door is now opened up for the McKay Scholarships to be taken away," said Frantz, director of operations for the Fourth Dimension Academy, a private school for disabled children in Tampa. "That would be such a tragedy."

McKay vouchers are available to students who are physically, emotionally or developmentally disabled. This year, some 16,000 students statewide took advantage - at a cost to the state of more than $100-million.

At Frantz's schools, 24 of 29 students are on McKay vouchers, most of them low-income.

Given the numbers, some voucher supporters questioned whether critics would ever file suit.

"Throwing a bunch of disabled kids back into schools they were desperate to get out of?" said Clark Neily, a lawyer for the Washington, D.C.-based Institute for Justice, a provoucher group. "Boy, you got to believe the PR consequences" would deter a challenge.

"If they take (the voucher) away I don't care if I have to work five jobs," said Way, the Plant City mom. "Come hell or high water, my son will not be back in public school."

Simon, with the ACLU, said his group is more likely to file suit against pre-K than the McKay program.

"We have to choose our battles carefully," he said.

Other observers said Thursday's ruling might veer unexpected directions.

Voucher supporters said one of the court's arguments - that private schools violated the constitutional mandate for a "uniform" school system - could also apply to charter schools. Private schools, the decision noted, don't have to follow state standards for teacher certification, curriculum and testing.

"Certainly some or all of those considerations apply to charter schools," said Neily, who helped argue the voucher case before the Florida Supreme Court in June. "I happen to think that by interpreting the uniformity clause in a way that, in my view, was never intended, the court has opened a can of worms."

The state's more than 330 charter schools get public money, but do not have to follow all the rules that apply to school districts. They are run by private entities, have their own boards of directors and can offer their own curriculum.

On the other hand, they operate under a contract with the public school system and must adhere to all of the accountability, hiring, teacher certification, safety and welfare laws.

Charter schools are "still creatures of public bodies," Simon said. "The supporters of vouchers have been reduced to scare tactics."

Times staff writers Jeffrey Solochek and Donna Winchester contributed to this report. Ron Matus can be reached at 727 893-8873 or matus@sptimes.com

[Last modified January 7, 2006, 01:15:51]