MIAMI — A few weeks after the Supreme Court upheld the use of school vouchers, a Florida judge ruled Monday that the nation's only statewide voucher program violates the Florida Constitution because it gives tax money to religious schools.
The decision was a major setback for Republican Gov. Jeb Bush, who had numbered the 1999 voucher law among the greatest achievements of his governorship. Bush, who is running for reelection this year, vowed immediately to appeal "to fight for the rights of Florida's parents and students."
Opponents of the voucher system hailed the judgment as a victory for public education.
"Vouchers violate the Florida Constitution by taking taxpayer dollars from our struggling public schools and [diverting] them to private and overwhelmingly religious schools," said Maureen Dinnen, president of the Florida Education Assn., a 122,000-member teacher union. She called on the governor and Legislature now to "get on with the business of making every public school the best it can be."
In his ruling, state Circuit Judge P. Kevin Davey in Tallahassee declared that the Florida Constitution is "clear and unambiguous" in its prohibition on the use of public funds to aid any church, sect, religious denomination or sectarian institution. The constitution specifically prohibits any such use of money from the state treasury, "directly or indirectly."
"There is scant room for interpretation or parsing," Davey ruled.
According to education specialists, Florida's 1999 law attempted to circumvent the constitutional strictures by making the issuing of vouchers a two-step process. The vouchers, officially called "Opportunities Scholarships" and worth an estimated average of $3,500 annually, were given to parents, who then were supposed to endorse the checks over to participating religious and other private schools. The Bush administration could therefore contend that if religious institutions ended up with the vouchers, it was because of the action of parents, and not of the state.
Davey said this was the equivalent of deleting the ban on indirect aid from the constitution.
It was uncertain whether the judge's ruling would have any effect outside the state, or would even stand up on appeal. Davey's argument was built on Article 1, Section 3 of the Florida Constitution, while the U.S. Supreme Court, in its June 27 ruling upholding an Ohio voucher law, decided it was not a violation of the U.S. Constitution to expend state money on religious schools provided parents could freely choose the school their children attended.
"Obviously you can't take the Florida Constitution and apply it to New Jersey," said Tony Welch, a Florida Education Assn. spokesman. Davey ruled after the FEA moved for a summary judgment in a lawsuit against the vouchers brought by one of its members, a teacher with 35 years' experience.
Chester Finn, president of the Fordham Foundation, a private Washington-based think tank involved in education research, said Davey appeared to apply a different standard than the one used by the Supreme Court in its narrow 5-4 ruling. He predicted the Tallahassee judge would be overruled.
"The question is whether the Florida program aids the sectarian institution, or whether it aids the education-deprived student who then has a wide variety of school options that he can take his voucher to," Finn said. In their ruling, involving a voucher program in Cleveland, the majority of the Supreme Court justices decided it was the students who were being helped, he added.
Florida's 1999 law permits students at public schools that are given a failing grade by the state for two years out of four to obtain vouchers to pay for tuition at a private school. Relatively few families have taken advantage of the program, according to statistics provided by the state Department of Education. Forty-four students who received vouchers last year were planning to continue in private schools when school resumes in a few weeks, department spokesman Bill Edmonds said. In addition, 659 new students qualified for the Opportunities Scholarships for the 2002-03 school year.
"Parents in Florida should not lose the right of choice," said Bush, who said his administration is prepared to search for private funding to help children attend private schools.
"Today's ruling puts in jeopardy the education of hundreds of children in Florida," the governor said. "It is my hope that those children will be able to continue to attend the schools their parents have chosen."
Ruth D. Holmes, the Pensacola teacher who brought the lawsuit, said she had gone to court on behalf of every pupil she had taught in the last 3 1/2 decades. "Our public schools are the lifeline for these children, and I could never stand aside and watch our public schools be taken away from them," she said in a statement released by the FEA.