Florida Court Rules
Against Religious School Vouchers
By GREG WINTER • The NY
Times • Published: August 17, 2004
Florida appeals court ruled yesterday that a voucher
program for students in failing schools violated the state's
Constitution because it sent public money to religious
institutions.
In a 2-to-1 decision, the First District Court of Appeal
in Tallahassee found that the "vast majority" of students
with vouchers used them to enroll in the kind of "sectarian
institutions," or religious schools, that are barred from
receiving state money under the Florida Constitution.
Most state constitutions prohibit or restrict state
money from being spent on religious institutions, and that
remains one of the principal legal barriers to the
widespread adoption of school vouchers.
The United States Supreme Court has said the nation's
Constitution does not bar school vouchers. But it also ruled
this year that states that gave money for secular education
were not compelled to support religious instruction as well,
essentially leaving the issue to state courts.
That has placed a focus on the battle over Florida's
voucher program. Not only does it take place in a populous
state, but it is also one of the first legal contests since
the Supreme Court affirmed the role of state constitutions
in deciding the fate of vouchers.
"The Florida case is really the bellwether that everyone
is looking at," said Mark E. DeForrest, an assistant
professor at Gonzaga University School of Law, whose
research was cited by the Florida appeals court. "It's
something that almost all the other states will look at
closely. They're not going to be bound by it, but they're
definitely going to be influenced by it."
Gov. Jeb Bush, a Republican who has proposed using
vouchers to ease crowding in public schools, said he would
appeal the decision. Unless it is overturned by the Florida
Supreme Court, Mr. Bush warned, the ruling could invalidate
other scholarship programs in the state, including those
serving college students and children in special
education.
"Today, thousands of children attend private schools,
including hundreds of nonreligious schools, under Florida's
choice programs," the governor said in a statement. "Their
parents have chosen these schools, and we should honor that
choice."
The governor's office said it expected students to
continue receiving vouchers while the case moved forward on
appeal, prompting critics to attack the governor as basing
his decisions on politics, not law.
"The unconstitutionality of the program is a fatal flaw
that the governor has been aware of from the beginning,"
State Senator Frederica Wilson, the Democratic whip,
said.
Though the focus of the case has been a relatively
straightforward provision of the state's Constitution that
prohibits spending on religious institutions, directly or
indirectly, the efficacy of Florida's voucher program has
been less clear.
Passed in 1999, the Florida Opportunity Scholarship
Program allows any student who attends a public school
considered failing because of low student test scores to
switch to a better public school or use a voucher for
tuition at a private institution, religious or
otherwise.
Researchers at the Manhattan Institute, a conservative
policy group, contend that the threat of vouchers has placed
so much pressure on poor-performing schools that they have
made the greatest gains on state tests. "If the voucher
programs in Florida were to go away, it would be harmful to
the educational outcomes to students in Florida," said
Marcus A. Winters, a research associate at the
institute.
Critics of the program condemn the research as sloppy
and unsubstantiated, arguing that vouchers have failed to
help students in most places they have been tried.
"Vouchers don't really provide significant opportunity
for low-income kids," said Elliot Mincberg, vice president
and legal director of the People for the American Way
Foundation, which has long opposed vouchers. "They drain
money and resources from sometimes the most needy public
schools."
In its decision, the Florida court acknowledged that the
voucher law barred religious schools from forcing voucher
students to pray or "profess a specific ideological belief."
And the court said it recognized the need to do something
for "children trapped in substandard schools."
"Nevertheless," the majority ruled, "courts do not have
the authority to ignore the clear language of the
Constitution, even for a popular program with a worthy
purpose."
The constitutions of some other states, like Michigan's,
are just as stringent, Mr. DeForrest said. Others are much
vaguer, the legacy of a 19th-century effort to stem the
growth of Roman Catholic schools without infringing upon the
religious sentiment of Protestant ones.
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