Court rejects school vouchers

Published: Friday, January 6, 2006 at 6:01 a.m.
Last Modified: Friday, January 6, 2006 at 12:33 a.m.
TALLAHASSEE - Razing the centerpiece of Gov. Jeb Bush's educational reform legacy, the Florida Supreme Court ruled Thursday that using taxpayers' money to pay private school tuition for students was unconstitutional.
Only the smallest of the state's three voucher programs was affected by the ruling: The Opportunity Scholarship Program pays for students at failing public schools to have the option of attending a private school. Currently, only 733 students are in the OSP, with almost all of them living in the state's largest urban counties.
The court's ruling allows those students to finish the year in their current schools before returning to the public system. Bush had touted the nation's first statewide voucher program as the linchpin for a system that forced school districts to improve or lose their students. He said 94 percent of the 733 students using Opportunity Scholarships are black or Hispanic, and called it a ''sad day for those families and a sad day for accountability in our state.''
But voucher opponents, led by teachers, school administrators and the NAACP, said the ruling should refocus lawmakers on the need to fund public schools.
''We sincerely hope that the governor, the Legislature and others who have attempted in the past to justify unconstitutional voucher programs will now embrace public schools,'' said Ron Meyer, an attorney for the state's largest teachers union, the Florida Education Association.
Unaffected by the decision were two much larger voucher programs.
The McKay Scholarships provide money for more than 16,000 children with special needs or disabilities to choose a private school with specific programs.
The Corporate Tax Credit Scholarship program gives tax breaks to businesses that donate money to private scholarship groups. Currently, nearly 14,000 low-income children are involved in the program.
And the court was careful to note that the voucher ruling only applied to K-12 public schools. That seems to spare the popular Bright Futures program that pays for tuition to private universities as well as the new pre-K program that pays for 4-year-olds to attend church-run programs.
The 5-2 decision avoided taking any position on the argument that public money couldn't be spent on religious-based curriculum or in church-owned schools.
Instead, the majority ruled that the voucher program can't take money away from public schools for use in private schools with different standards and guidelines.
''The (Opportunity Scholarship Program, or OSP) diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the education of children,'' said the opinion, written by Chief Justice Barbara Pariente.
Justice Kenneth Bell called the majority decision ''flawed'' and ''inappropriate'' in the dissenting opinion.
Bell said that when voters approved a 1998 rewrite of the constitution, ''Nowhere were the voters informed that by adopting the amendments, they would be mandating that the public school system would become the exclusive means by which the state could fulfill its duty to provide for education.''
Jon Mills was a member of the 1998 commission that was charged with revising the constitution.
Mills, the former Democratic House Speaker and dean of the University of Florida law school, said Thursday's decision was the correct reading of the constitution. He said the majority opinion struck on the ''fundamental tenet'' of that clause which intends ''that money should be used to make the system better rather than take it out.''
Florida State University constitutional law professor Steve Gey said the court appeared to show an extreme political sensitivity.
Not only did the court avoid the issue of using public money in church-owned businesses, the justices protected the popular Bright Futures and McKay Scholarship programs, Gey said. And more explicitly, Pariente wrote that ''the justices emphatically are not examining whether the public policy decision made by the other branches is wise or unwise, desirable or undesirable.''
''It's very much a political opinion,'' said Gey.
Too political, said some Republican lawmakers who labeled the court's decision as judicial activism.
Rep. Dennis Baxley, an Ocala Republican who chairs the House Education Council, said voters may not rubber-stamp the retention of justices who voted to kill the voucher program.
Only three justices are up for retention this year, and all voted in the majority: R. Fred Lewis, Peggy Quince and Pariente.
''A lot of the justices are going to get a look from the public as to their policy setting,'' Baxley said. ''It's clear if you look at who voted how, you'll see very quickly where the line is.'' Bush's Democratic predecessors appointed all five justices in the majority. The dissenters were Bell and Raoul Cantero, both Bush appointees.
Within hours after the court's decision was released at 11 a.m., Bush's office had contacted a number of lawmakers to discuss the decision and options to reverse it.
Baxley said he'd had more than a dozen conversations with lawmakers and others by mid-afternoon as they discussed various scenarios.
Bush has suggested lawmakers could ask voters to change the constitution this November. He said other legislative or legal remedies may be available, including an effort to have private businesses pay for the Opportunity Scholarships, either independently or via an expansion of the existing corporate voucher program.
''I don't think any option should be taken off the table,'' Bush said. ''These are important programs to protect. As long as I'm governor, I'm going to do my best to do just that.''
Still, Bush will have to attempt the change with only a few months to go before lawmakers meet in March. In addition, it's an election year and lawmakers may be focused on their own re-election bids rather than burnishing the legacy of a governor who is leaving office next January.
Sen. Ron Klein, D-Boca Raton, faulted the governor for pushing too hard and too far on the voucher plan.
''The governor was so interested in putting this out and being the first state to do it, it was fraught with constitutional problems and the credibility of the whole program was questionable before it even got to the Supreme Court,'' Klein said, predicting lawmakers won't have the appetite to take on any plots to revive the program this year.
State Sen. Rod Smith, D-Alachua, said, ''What we must do is stop hare-brained schemes of funding (private) schools and focus on adequately funding the public schools. That's what our constitution requires of us and our taxpayers expect of us.''
Bush was proud of the plan as he discussed its defeat Thursday. He said the voucher program has forced districts to address underperforming schools.
''Apart from the stigma of the lower grade, I think there's a moral imperative that exists today,'' Bush said. ''The debate has changed in Florida.''
Setting aside legal arguments, Bush said one size doesn't fit all for Florida's parents who can't afford private schools but want that option for their children.
''School choice is as American as apple pie, in my opinion,'' Bush said.
''You walk into Publix, you don't have one alternative, you have many choices. The world is made richer and fuller and more vibrant when you have choices.''
The Associated Press contributed to this report.

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