In May, Florida legislators approved a bill that would dramatically expand the nation’s first statewide voucher program to include some 350,000 students who have learning disabilities, mental or physical handicaps, or other exceptional needs.
Under the plan, the special-needs students could transfer to private schools–secular or religious–if the students fail to make adequate progress toward their individual educational goals in the public schools. Governor Jeb Bush is expected to sign the legislation, which was sponsored by Republican Senator John McKay.
In the state’s Opportunity Scholarship Program, vouchers are school-based and triggered when a school has been designated as failing for two consecutive years. By contrast, in the new program for disabled students, vouchers are student-based and would be triggered when a student fails for two years to meet the goals specified in his or her Individual Education Plan.
Although the original 1999 Opportunity Scholarship law approved a trial of vouchers for disabled students in Sarasota County, McKay’s bill expands that trial to a statewide program where vouchers could be worth up to $25,000 per student per year.
The new program would be phased in over a four-year period. In the first year, only 5 percent of a district’s disabled students would be eligible to receive vouchers; the cap would be raised to 10 percent in the second year, 20 percent in the third, and 100 percent in the fourth year.
The expansion measure appears to be a thoughtful response to an opening presented on March 14, when Leon County Circuit Court Judge L. Ralph Smith Jr. ruled that the voucher law violates Article IX, section 1, of the Florida Constitution. That provision, determined Smith, requires the state to provide a free education through a system of public schools. But Smith also declared that the prohibition does not apply if the state cannot meet a student’s needs in the public schools–for example, in the case of students with specialized needs. (See “Judge Strikes Down Florida Vouchers,” School Reform News, May 2000.)
The servicing of special-needs students at private schools had been noted during the trial by the Institute for Justice, a Washington, DC-based law firm representing families participating in the voucher program. The Institute presented data obtained from school districts and the state showing that more than 8,500 school children already are being educated in private schools at public expense at a cost exceeding $45 million annually–a substantial expenditure that no one has challenged as unconstitutional. The students currently in these publicly funded programs include 3,825 in dropout prevention programs for at-risk students; 3,459 in juvenile justice programs; and at least 1,347 in programs for disabled students.
“The point is that sometimes we have to go outside public schools to fulfill the goals of public education,” argued Clint Bolick, the Institute’s litigation director.
While Smith accepted Bolick’s argument about the occasional need for the state to pay for outside educational services, he maintained that such a need arises only when public schools are not equipped to provide the services. This would include services for disabled children, special-needs children, violent and disruptive children, and children in trouble with the law.
“These programs do not appear to violate Article IX, section 1,” argued Smith, “because they provide specialized services to some of Florida’s students who cannot readily be served in the system of free public schools envisioned by Article IX, section 1, and thus do not ‘defeat the purpose of the constitutional provision.'”
According to Smith, the state may send certain disabled students to specialized private schools if it is not equipped to meet their special needs in the public schools. However, this situation does not apply to students who are eligible for vouchers.
“The Opportunity Scholarship Program does not relate to special-needs children,” ruled the Judge. “The recipients of the Opportunity Scholarship could have their needs met at a public school rated higher than the one to which such student is assigned.”
“The Opportunity Scholarship Program is not one under which the State pays for specialized services,” wrote Smith. “Rather, the statute provides that all students at designated schools who wish to do so may leave the public school system and instead receive their publicly funded education in private schools that offer the same services as do the public schools. This program supplants the system of free public schools mandated by the Constitution.” [emphasis added]
Although voucher opponents have not challenged that part of the 1999 law applying to vouchers for disabled students, the new law expanding the eligibility of special- needs students is unlikely to go unchallenged for long, according to Education Week reporter Darcia Harris Bowman. The state’s two teacher unions and the Florida School Boards Association all are opposed to the measure, contending it is unconstitutional and would drain resources from public schools.
George A. Clowes is managing editor of School Reform News.
George Clowes is former Heartland senior fellow addressing education policy. He served as founding managing editor of School Reform News between November 1996 and January 2005.
