Court Upholds Florida Voucher Program

Published November 1, 2000

In a landmark decision handed down October 3, a three-judge panel of the Florida State District Court of Appeals ruled unanimously that the state constitution allows children to attend private schools using tax dollars.

The decision reversed a March ruling issued by L. Ralph Smith, judge for the Circuit Court for Leon County. Smith had ruled that Florida’s tax-supported Opportunity Scholarship Program was unconstitutional because the state constitution bars the legislature from using public funds to aid private school students.

“[N]othing in [the Constitution] clearly prohibits the Legislature from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary,” stated the court.

Indeed, determined the appeals court panel, the state constitution anticipates that lawmakers will experiment with different ways of working “for the common good.” The document “does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system.”

Patrick Heffernan, president of Floridians for School Choice, said the court’s ruling was significant in that the appeals court had unanimously brushed aside the centerpiece of the argument against the program.

“The opponents of the school choice program have been insisting that public dollars may go to preschoolers and university students, but not K-12,” he explained. “What our district court has just said is, ‘It makes no difference.'”

The ruling, written by Appellate Judge Charles Kahn Jr., is an important victory for the school choice movement. Florida’s scholarship program is the nation’s first statewide voucher program. It was signed into law on June 21, 1999 as an integral part of the A+ Plan for Florida Education, spearheaded by Governor Jeb Bush and Lt. Governor Frank Brogan.

Under the Opportunity Scholarship Program, parents with children in persistently low-performing public schools are given access to a scholarship, or voucher, to pay for education at another public, private, or religious school. To date, only 52 students have received the vouchers.

Opponents filed an almost immediate challenge to the voucher law, alleging it violated four constitutional provisions:

  • the Florida constitution’s bar on direct or indirect aid to sectarian institutions;
  • the Florida constitution’s requirement that the state make provision “for a uniform, efficient, safe, secure, and high quality system of free public schools;”
  • the Florida constitution’s bar on using the state school fund for anything but “the support and maintenance of free public schools;” and
  • the Establishment Clause of the United States Constitution.

When the matter was presented to the Circuit Court, Judge Smith took up only the second challenge, since if the voucher law were unconstitutional on its face, the other challenges were moot. Smith subsequently upheld the second challenge, ruling that the state constitution’s directive on public education is violated when public dollars are used to pay for a child’s education at a private school. He also ruled that using public dollars to pay for specialized educational services at private schools did not violate the constitution.

The Appeals Court panel noted that Smith’s argument rested on very weak ground: He had found in the constitution only an implied prohibition on tax-funded scholarships for children to attend private schools. The Appeals Court tartly reminded everyone that the dominant role of the constitution was to promote the general welfare and that it “contemplated experimentation for the common good.”

In fact, noted the panel, the legislature already had established other programs that provide public funds for certain students to attend private schools.

In developing a program for exceptional students, lawmakers were aware that “the state is responsible for providing adequate educational opportunities for all children” and that “all Florida residents have the right to attend this public school system for free.” But lawmakers also realized that “the public schools may not have the special facilities or instructional personnel to provide an adequate educational opportunity for the exceptional students,” and so they “allowed the school boards to make contractual arrangements with private schools.”

In Scavella v. School Bd. of Dade County (1978), the Florida Supreme Court reviewed the exceptional students program, which authorized the payment of private school tuition for students whose needs could not be met in the public schools. The state high court upheld the program and specified that, in implementing the program, students could not be deprived of “a right to a free education.”

By analogy, the present Appeals Court determined that the Opportunity Scholarship statute does not deprive students of “a right to a free education,” and requires participating private schools to “[a]ccept as full tuition and fees the amount provided by the state for each student.”

“Nothing in [article IX, section 1] prohibits the action taken by the Legislature,” concluded the court.

The remaining three challenges were sent back to the trial court for review. Opponents of the program vowed to appeal.

Matthew Berry of the Institute for Justice, a Washington, DC-based group representing the parents using vouchers, called the ruling “a tremendous victory for the children of Florida and a tremendous defeat for the teachers unions and other defenders of the status quo.”

“A very powerful ruling,” said Lt. Governor Brogan, adding, “It continues to support the notion that parents deserve more choice in their child’s educational opportunity.”

George A. Clowes is managing editor of School Reform News.

For more information . . .

The decision of the District Court of Appeal for the First District of Florida is available on the Internet at the court’s Web site, at