Voucher issue to play out in court

The Supreme Court is expected to schedule oral arguments this spring.

Published: Monday, January 17, 2005 at 6:01 a.m.
Last Modified: Sunday, January 16, 2005 at 11:47 p.m.
TALLAHASSEE - For retired teacher Ruth Holmes, vouchers are about the future of the public education system that takes all children who walk in the door.
To single mother Brenda McShane, it's about giving her daughter a private education in a school that offers more programs and more attention.
Their interests are at stake as the Florida Supreme Court prepares to take up a challenge of a 1999 law that provides tax-funded vouchers to students enrolled in public schools that earn failing grades two years out of four.
The case has bounced between two trial judges and the 1st District Court of Appeal for nearly six years - landing in court the day after Gov. Jeb Bush signed the state's original voucher program into law. Four of the five rulings issued so far have concluded the law is unconstitutional.
The end may be in sight. The Supreme Court is expected to schedule oral arguments this spring. The state's first brief is due Tuesday.
''This is really going to be the showdown,'' said Clark Neily, a Washington lawyer with the Institute for Justice who is defending the law on behalf of parents, such as McShane, whose children receive vouchers.
Neily thinks the case has national significance even though the U.S. Supreme Court has recently issued two key rulings on voucher laws in other states. A central issue is separation of church and state - a legal doctrine that was the subject of the rulings from the U.S. Supreme Court.
In Florida, Bush and other supporters of school vouchers are focused on the potential consequences to a myriad of scholarship and social service and health care programs that are provided by religious organizations.
''It's a big issue,'' Bush said. ''A ton of money, state money, goes through faith-based organizations.''
But voucher opponents say they're fighting for the integrity of public schools.
''I strongly believe - strongly - that public education is the best thing that ever happened to this country,'' said Holmes, a retired elementary school teacher participating in the lawsuit.
Holmes, who worked in public schools for three decades, said that she fears vouchers undercut funding for public schools and will lead to a two-tier education system with public schools left with the students private schools reject.
Opponents include the state's teachers union, the Florida PTA, the League of Women Voters and the National Association for the Advancement of Colored People in addition to Holmes.
Although courts have ruled the program unconstitutional four times, the state has been permitted to carry out the law during appeal. Nearly 700 students attend private schools under the law - and more than half are enrolled in a religious school. The law specifies they cannot be forced to pray or profess a religious belief.
In June 2002, the U.S. Supreme Court upheld a voucher program in Cleveland, ruling it did not violate the First Amendment's ban on any law ''respecting an establishment of religion.''
But the ''Establishment Clause'' is only one part of constitutional promise of religious freedom. The First Amendment also includes the ''Free Exercise Clause,'' which bans any law ''prohibiting the free exercise'' of religion.
And just a couple of years after the ruling in the Ohio case, the U.S. Supreme Court ruled the state of Washington was not violating the ''Free Exercise'' clause by refusing to give a scholarship to a college student who wanted to train for the clergy.
The bottom line, according to Tallahassee attorney Ron Meyer, who represents the voucher opponents, is this: Just because vouchers to religious schools are permitted under the ''Establishment Clause'' doesn't mean that the federal constitution's ''Free Exercise Clause'' requires states to send tax dollars to religious schools.
''We're a tolerant society but our tolerance doesn't mean we have to compel everyone to support one particular view or sect,'' Meyer said.
The church-state debate is front and center in the Florida case. But it's not the only constitutional issue: A second dispute involves the use of public money going to private schools, regardless of whether they're religious or nonsectarian.
Both issues are based on provisions in the Florida Constitution.
One provision - the religious freedom section - includes language not in the U.S. Constitution. It goes further than the First Amendment by banning the use of state money ''directly or indirectly in aid of any church, sect or religious denomination or in any sectarian institution.
That language dates back more than a century and in the minds of some - including Bush - its past is stained because it was passed at a time in history when anti-Catholic bigotry was a force in society. Others disagree that prejudice played a role in putting the language in the constitution - or in keeping the provision three decades ago when the constitution was modernized.
The other state constitutional provision at stake in the case is the mandate that the state provide a public education - a section that voters expanded just a year before Bush was elected to require that the public education provided by the state be ''efficient, safe, secure and high quality.''
Like Holmes, McShane's name is part of the legal briefs - she's one of several voucher parents represented by the Institute of Justice. Her daughter, now a sixth-grader, has attended Montessori School in Pensacola for the last six years.
McShane, a single mother with two older children who graduated from public schools and are now in college, said she thinks her youngest child is getting a better education and is safer in a private school.
''My daughter has really experienced some things academically that I know she wouldn't have had an opportunity to experience in the public schools,'' she said.
Bush believes vouchers have not only helped hundreds of students but that they have fueled the drive for improving the public school system.
To Neily, the key issue is discrimination. He argues it's as wrong to discriminate based on religion as it is on race.
''Imagine that you had a state constitutional provision in Florida that said no public aid shall ever go directly or indirectly to any institution run by an African-American,'' he said.
''There's no question whatsoever that that would violate the nondiscrimination principles of the federal constitution.
But Meyer said the case boils down to a question of forcing people to support religions they might be opposed to.
''And the state is free to say we're not going to do it,'' he said.

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