Florida decision hurts the case for school vouchers


When a Florida judge declared last week that giving students taxpayer-financed vouchers for private-school tuition violated that state's constitution, he bulldozed an important national testing ground for school choice and posted a reminder that the legal landscape for vouchers included several potential pitfalls.

For years, advocates of vouchers have watched enthusiastically as the U.S. Supreme Court chipped away at the wall separating church and state.

The Florida ruling suggests, however, that even if the Supreme Court upholds vouchers under the First Amendment -- as is expected -- vouchers could still be blocked by state constitutional promises of a free public education.

"The strongest policy objection to vouchers is that it would undermine the system of public education," said Laurence H. Tribe, a constitutional scholar at Harvard University. "What's interesting about the Florida decision is it identifies a state constitutional problem in that policy objection."

The Florida ruling, which is being appealed, sets no precedent for judges elsewhere but it might dim enthusiasm for voucher bills pending in more than 20 state legislatures, as politicians already wary of the heat surrounding the issue worry about passing programs only to have them killed by the courts.

"Given the political fallout on either side of this issue," said Eric Hirsch, an education analyst at the National Conference of State Legislatures, "to go through this and not be sure it can be implemented is going to be a difficult decision for legislators."

As vouchers gain in popularity, backed by a growing coalition of poor inner-city parents and conservative philanthropists who share a concern about failing public schools, their legal prospects are unclear.

Last week's ruling by Judge L. Ralph Smith of the Circuit Court in Tallahassee was the seventh in a string of victories for opponents of vouchers in court cases around the country. "We're on a roll," said Robert Chanin, a lawyer who has led the legal challenges.

But advocates of vouchers have kept a different tally, pointing to five Supreme Court cases over the past two decades that suggested a 5-4 majority supporting some use of public money in parochial schools.

They also noted that a Wisconsin ruling similar to Smith's was overturned by that state's Supreme Court, leaving a mixed record on even the narrow state issues.

"There is no way on earth that I would trade places with the other side as far as jurisprudence is concerned," said Clint Bolick, litigation director of the Institute for Justice in Washington, which has helped defend most of the court cases. "Everybody understands that the court that matters most is the United States Supreme Court."

Smith's ruling turned on a provision of the Florida Constitution guaranteeing a "uniform, efficient, safe, secure and high-quality system of free public schools."

Almost every state added a similar promise of public education to its constitution during the Progressive Era early in the 20th century, but the language varied widely, as has the litigation history in each state.

That is why the fate of vouchers is more likely to be decided by federal church-state questions, largely the interpretation of the First Amendment's assertion that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The Supreme Court has declined three times to review voucher cases in recent years, but is widely expected to accept either the Florida case -- should Smith be overruled by the state Supreme Court -- or an Ohio case in which a federal judge declared in December that Cleveland's voucher program illegally mixed government and religion.

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