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    Appeal court finds school voucher law constitutional

    By STEPHEN HEGARTY

    © St. Petersburg Times, published October 4, 2000


    A state appeal court ruled Tuesday that Florida's voucher law is constitutional and that the state Legislature may use public dollars to send children to private schools.

    Though the case is far from over -- it could be headed back to trial court or up to the Florida Supreme Court -- voucher advocates cheered the unanimous ruling by the 1st District Court of Appeal in Tallahassee.

    "The kids won a big one today," said Clint Bolick, director of litigation for the Institute of Justice, which has defended voucher programs nationwide. "This ruling dealt with the threshold issue -- whether public funds can be used in private schools, and the court definitively answered that question with a resounding "Yes.' "

    The decision may save lots of devoted voucher advocates some money. In March, when a Leon County judge declared the voucher law unconstitutional, Gov. Jeb Bush and others, fearing that the court might put the brakes on the fledgling program, vowed to keep it alive somehow using private dollars.

    Voucher opponents warned Tuesday that it is much too early for celebrations: The case is just getting started.

    "This probably will be, we hope, their last celebration -- so let them enjoy it," said W. Dexter Douglass, one of the lawyers challenging vouchers.

    It's unclear where the case is headed next. The appeal court sent it back to the trial court to deal with other legal issues, such as whether the program violates the separation of church and state.

    But Douglass said as far as he's concerned the next step is to get the public-dollars-private-schools issue resolved once and for all by the Florida Supreme Court.

    "If we're right on that issue, and I believe we are, that's the end of it," Douglass said.

    Voucher advocates want the case to go to trial and will try to block attempts to send it to the Florida Supreme Court. One reason they want to go back to the trial court is that even if voucher advocates prevail before the state's highest court on the issue of using public dollars at private schools, the case still will head back to trial on other issues.

    In a press conference Tuesday, Lt. Gov. Frank Brogan said he would be shocked if the appeal court sent the case on to the Florida Supreme Court. He lamented the inevitability of continued court battles.

    "The reality of the thing is the plaintiffs are suing mothers and fathers" simply trying to find the best education for their children, Brogan said.

    The ruling has little effect on the Opportunity Scholarship Program, which was allowed to continue even after the trial judge declared it unconstitutional.

    Only 51 students from two elementary schools in Pensacola qualified for vouchers last year. Schools qualify if they are judged to be failing schools two out of four years under the state's school accountability system. If a school is declared voucher eligible, parents have the option of having their child remain at the school, transfer to another public school or transfer to a private school willing to take their child.

    The program failed to expand this year because the number of failing schools statewide shrank dramatically and no new schools qualified for vouchers. The Pensacola students have continued to attend nearby private schools.

    Voucher advocates in California and Michigan must have breathed a sigh of relief at the Florida ruling Tuesday. Both states have voter referendums on the November ballot, which if successful, would create statewide voucher programs. A setback in Florida -- the only state with a statewide voucher program -- would have had no direct impact on those state's ballot questions, but voucher advocates don't need any bad news right now.

    While the court battle over Florida's controversial Opportunity Scholarship Program continues to draw attention, a new statewide voucher program for disabled students is slowly taking hold.

    Under a new state law, disabled students may seek to transfer to a private school if their needs are not being met in the public schools. Thus far, 639 students have applied to participate in the program. The state still must decide which students are eligible for the program.

    -- Staff writer Shelby Oppel contributed to this report.

    From the court's decision

    Some excerpts from Tuesday's ruling by the 1st District Court of Appeal that state-funded private school tuition vouchers do not violate the state Constitution's requirement that education be provided "through a system of free public schools":

    Although, in establishing the Opportunity Scholarship Program, the Legislature recognized that some public schools may not perform at an acceptable level, the Legislature attempted to improve those schools by raising expectations for and creating competition among schools, while at the same time not penalizing the students attending failing schools.

    * * *

    We note that the Legislature has, in the past, established a program providing public funds for certain students to attend private schools.

    (In an earlier case) the Supreme Court upheld a legislative program authorizing the payment of private school tuition for students whose needs could not be met in the public schools and specified that, in implementing this program, students could not be deprived of "a right to a free education." By analogy, the Opportunity Scholarship Program statute does not deprive students of "a right to a free education" and requires participating private schools to "[a]ccept as full tuition and fees the amount provided by the state for each student."

    * * *

    The trial court did not find that (the Constitution) expressly prohibits state-funded scholarships for children to attend a private school; instead, the trial court found an implied prohibition. Specifically, the trial court found that "[b]ecause Article IX, Section 1 directs that public education, K-12, be accomplished through a "system of free public schools,' that is, in effect, a prohibition on the Legislature to provide a K-12 public education in any other way." Despite the fact that the Constitution does not, by its terms, expressly direct that the state may only fulfill its obligation to provide education "through" the public school system, the trial court arrived at the "evident" negative implication.

    * * *

    In this case, nothing in Article IX, Section 1 clearly prohibits the Legislature from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary.

    We therefore reject the trial court's finding that the Constitution not only mandates that the state "make adequate provision for the education of all children" in Florida, but that it also prescribes the sole means for implementation of that mandate. Contrary to the conclusion of the trial court, and the argument advanced by appellees, Article IX, Section 1 does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system.

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