Attorneys for both sides in Florida say they welcome the clarity the nation's high court could bring to the issue.
By STEPHEN HEGARTY
© St. Petersburg Times, published September 26, 2001
The U.S. Supreme Court agreed Tuesday to decide whether a school voucher program in Cleveland is a constitutional use of tax dollars, and the decision could have a lot to say about the future of vouchers in Florida.
One of the main issues in the Cleveland case is also at the center of the Florida case: whether the Constitution allows the use of public dollars to send children to religious schools.
Attorneys for both sides in the Florida case welcomed the prospect of the nation's highest court bringing order to the series of mixed lower court and appeal court rulings. Still both sides vow that an adverse ruling in the Cleveland case will not doom their efforts.
A ruling might be expected sometime in June.
"The Cleveland case is a tougher case for us to win than Florida," said Clark Neily, attorney with the pro-voucher Institute for Justice, which is involved in voucher litigation in Ohio and Florida. "If we win the Cleveland case, it's almost certain to have a big impact on the Florida case."
Not surprisingly, the attorney for the group challenging Florida's voucher law thought differently.
"We could win our case based on a U.S. Supreme Court ruling in the Cleveland case, but we wouldn't lose based on a ruling in that case," said Ron Meyer, attorney for the groups challenging school vouchers in Florida.
The reason, Meyer said, is that even if the court rules that the Cleveland voucher program does not violate the U.S. Constitution, that still leaves unresolved the issue of Florida's more restrictive constitutional prohibition. The issues involving the wording in Florida's constitution are central to his case against vouchers, Meyer said.
The Cleveland program started during the 1996-97 school year, and it now provides 4,000 low-income children with $2,225 toward tuition at a private school. Most of them attend religious schools.
Challenged by teachers unions, the ACLU and the People for the American way, the case has taken a circuitous route through the courts. In 1999, the U.S. Supreme Court took the unusual step of getting involved, allowing the program to continue while the courts hashed out the legalities.
Florida started the nation's first and only statewide school voucher program in 1999, allowing students at chronically failing schools to transfer to a different public school or a private school. The program has been limited to 52 children from two elementary schools in Pensacola because no new schools have been labeled as chronic failures.
Though the Florida case was filed the day after Gov. Jeb Bush signed the bill into law in 1999, attorneys have not had a chance to argue the heart of the case. Even before the issue of the separation of church and state was raised, the Circuit Court judge ruled that the program was an unconstitutional use of public money.
An appeals court overturned the judge and the Florida Supreme Court let that ruling stand; the program continued uninterrupted. Now the case is back in Circuit Court with lawyers preparing to argue the issue of the separation of church and state.
Neily said it might make sense to postpone the Florida litigation because a ruling in the Cleveland case might shed light on some of the issues at stake in Florida. But he said he would have to see how the state feels about a delay.
A spokeswoman for Bush said the governor was pleased to see the nation's highest court taking up the issue of vouchers and school choice. But she said the governor and other defendants have not decided whether the Cleveland case will affect their strategy or schedule.
Meyer said he would oppose a delay. Plaintiffs in the case against vouchers include the state's teachers union, Florida PTA, the National Association for the Advancement of Colored People, the League of Women Voters and a handful of families and educators.