Florida governor signs statewide voucher program

Tuesday, June 22, 1999

Merely a day after Florida's governor signed into law an expansive education bill that included a statewide voucher program, a large group of civil rights and public education organizations filed a suit challenging the vouchers on state and federal constitutional grounds.

Within Gov. Jeb Bush's “A+ plan for education” is a section that provides “opportunity scholarships” for students statewide who are attending failing schools. The education program was passed by the Florida Legislature at the end of April.

Bush and Lt. Gov. Frank Brogan announced the signing of the program at Augusta Raa Middle School in Tallahassee.

“When I was running for governor of this state, Frank Brogan and I visited over 200 schools and saw with our own eyes the improvements that needed to be made in our public school system,” Bush said. “This is a historic day for education reform in Florida and the nation. By signing this plan into law, we are honoring our commitment to ensure that every child in the state can learn.”

Bush, however, did not address the most controversial part of the education program – the vouchers that would provide eligible students with government funds to attend private schools, including religious ones. That portion of the program has been attacked as unconstitutional since its inception in the Bush program by the state affiliate of the American Civil Liberties Union as well as public education lobbies such as the National Education Association.

This morning a lawsuit was filed in state court against Bush, the Florida Commissioner of Education, the state attorney general, comptroller and department of education, alleging the voucher part of Bush's A+ education plan runs afoul of both state and federal constitutions. The Florida ACLU was joined by national civil rights groups, including the People for the American Way, Americans United for Separation of Church and State and the American Jewish Congress.

The Florida Constitution states: “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

The lawsuit asks the circuit court in Leon County to declare the voucher program unconstitutional and issue an injunction against its operation. The complaint alleges that the vast majority of private schools in Florida are sectarian and that the Bush voucher program contains no safeguards to ensure that tax dollars would not be used promote the schools' religious missions.

“Most private schools in Florida are affiliated with a religious group, institution, or organization, or include a religious component in their educational program,” the complaint states. “The educational programs at these pervasively sectarian schools include religious indoctrination, worship, and the inculcation of religious benefits, and are designed to advance the religious missions of the schools and their sponsoring churches.”

Andrew H. Kayton, legal director for the ACLU of Florida, said he feared state lawmakers passed the voucher program with no thought of the state Constitution.

“The politicians have enacted the voucher legislation only by ignoring the clear language of the state constitution,” Kayton said. “If they were being forthright with the electorate, the first thing they would have addressed was a change in the Constitution instead of enacting a law providing massive funds to sectarian schools.”

In yesterday's signing ceremony, the only state constitutional provision Bush or Brogan addressed was a revision that state voters approved last year making education of children a top state priority.

“Today we begin to fulfill the obligations of Constitutional Revision 6, approved by Floridians in the November 1998 elections, which declares the education of children a 'fundamental value' of the people of the state of Florida,” Brogan said. “With record funding, increased accountability, and unprecedented steps to improving struggling schools, we are fulfilling the promise to students, parents, teachers, and taxpayers, to make quality education the paramount duty of the state.”

Bush's signing of the law follows a string of recent state high court decisions on voucher programs.

In May, the Ohio Supreme Court ruled that a Cleveland voucher program did not violate the separation of church and state. The Ohio court's decision was similar to a ruling last summer by the Supreme Court of Wisconsin that found Milwaukee's voucher program to be based on secular reasons and not an advancement of religion. However, in April and June, the Vermont and Maine supreme courts struck down voucher programs on separation of church and state grounds.

Some constitutional law scholars, such as Professor Eugene Volokh of the UCLA law school, argue that the federal Constitution mandates equal treatment among secular and religious institutions. “The government may choose to fund only government-run schools and not private ones, because such a distinction would be based on government control, not religiosity; but any choice programs that help secular private schools may not exclude religious ones,” Volokh states in an article to published in the forthcoming Notre Dame Journal of Law, Ethics, and Public Policy.

Volokh states that an equal-treatment view is, in part, supported by the U.S. Supreme Court's interpretation that “at a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.”

Kayton said that “such arguments reflect a belief that the free-exercise clause takes precedent over the establishment clause.”

“I believe, however, when you get into an area of large-scale monetary support and subsidization of religious schools, at some point there would occur establishment-clause violations,” Kayton continued. “In Florida, this voucher program would be the first of its kind to apply statewide and would involve a massive shift of public resources to private parochial schools. It is not advocating religious discrimination to challenge this type of law; it is simply supporting a priority that government not be in the business of subsidizing our religious institutions.”

As a matter of common sense, Kayton said, “no one should be forced to pay for a religious education for their neighbor's children.”