Florida lawmakers pass statewide voucher plan

Friday, April 30, 1999

As expected, the Florida Senate today approved Republican Gov. Jeb Bush's sprawling education plan that would provide tax dollars for students statewide to attend private schools, including religious ones.

The Florida Legislature, controlled by Republicans, placed Bush's “A+ plan for education,” on a legislative fast track when it was introduced in early February. The legislation states that “parents of students attending failing schools may receive a state-funded scholarship for their children to attend a public or private school of their choice.”

The state will assign every public school a grade, A, B, C, D or F, based on scores of standardized tests. Students in the failing public schools would be eligible for the “opportunity scholarships.” The voucher plan, which has already won approval of the House, is now set for Bush's signature.

Several civil rights groups, nationwide and in the state, have already announced they will challenge the plan in court on the grounds it violates the state constitution and the First Amendment.

Larry Helm Spalding, legislative staff counsel for the Florida affiliate of the American Civil Liberties Union, said that Bush's voucher plan could not pass constitutional muster under the state's constitution, which flatly bars government from funding religious schooling.

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.”

Barry Lynn, executive director of Americans United for Separation of Church and State, a group that has challenged voucher programs nationwide, said Bush's “A+ plan” would be the next to be challenged.

“This legislation ignores the U.S. Constitution, the state constitution and several court rulings that clearly say that taxpayers cannot be forced to finance private religious education,” Lynn said in a prepared statement. “I read in the papers that Gov. Bush said he will be smiling when he signs his voucher bill into law. I wonder if he'll be smiling when a judge tells him that this legislation is unconstitutional.”

Voucher proposals have not fared well when faced with First Amendment challenges.

The U.S. Supreme Court ruled in 1973 that a New York state program that provided tuition reimbursements to poor parents whose children attended private schools, including religious schools, flouted the establishment clause of the First Amendment.

Justice Lewis Powell, writing for the majority in Committee for Public Education v. Nyquist, said that “it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools.”

An array of state court decisions have invalidated similar voucher proposals on the same religious-liberty grounds. The Maine Judicial Supreme Court recently ruled that the state did not have an obligation to fund sectarian education as it does public education.

However, last year the Wisconsin Supreme Court became the first state high court to uphold a city program that granted state-funded vouchers for students to attend private religious schools. The Wisconsin high court ruled 4-2 in Jackson v. Benson that Milwaukee's voucher program did not offend church-state principles of the federal or state constitutions.

“The purpose of the program is to provide low-income parents with an opportunity to have their children educated outside the embattled Milwaukee Public School system,” Judge Donald Steinmetz wrote for the majority. “The propriety of providing educational opportunities for children of poor families in the state goes without question.”

Bush and Lt. Gov. Frank Brogan have argued their voucher plan is similar to Milwaukee's and has nothing to do with religious education and everything to do with helping students escape inadequate public schooling.

“I am grateful for the courage and leadership that state legislators have shown by giving final passage to our A+ plan,” Bush said in a prepared statement. “Today Florida is sending a message – improving our public schools is without a doubt our top priority. This is truly a great day for public education in our state, all children in Florida are now one step closer to getting the education they deserve.”

Brogan has called the ACLU and Americans United characterization of the federal and state constitutions “radical” and “extreme.”