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Updated: Jun 19th, 2005 - 20:05:13 |
The fate of Gov. Jeb Bush's controversial school-voucher law could hinge on how the Florida Supreme Court interprets a single sentence in the state constitution.
The 1999 law created the first statewide voucher program in the nation and allows students at failing public schools to use state scholarships, or tuition vouchers, to attend private schools, including religious ones. It has spurred a long fight about public education, separation of church and state, and religious freedom.
But does the program constitute an expenditure of public money "in aid of" religious institutions, which the constitution prohibits?
As lawyers file briefs and prepare for oral arguments, which could be held this spring in Tallahassee, the case of John Ellis "Jeb" Bush, et al., v. Ruth D. Holmes, et al., is being watched by legal scholars and school advocates nationwide.
"This is an incredibly important case," said Mark DeForrest, a professor at Gonzaga University School of Law in Spokane, Wash. Florida's 1st District Court of Appeal cited DeForrest's research when it ruled in November that the voucher law violated the "in aid of" provision.
Florida's case, in DeForrest's view, could end up at the U.S. Supreme Court, although others think the Florida Supreme Court will have final say.
Whatever happens, Florida's case will get "major league" attention, DeForrest said, because it falls into a "broader argument about how government should treat religious entities."
The case applies only to the state's smallest voucher program, known as "opportunity scholarships." Still, some think the court decision could affect the other two voucher programs, the Bright Futures college scholarships and the pre-kindergarten program, because they also let state money be used at private, religious schools.
The voucher law was the centerpiece of Bush's education reforms. Advocates said it would offer parents with little money an option to get their children out of failing public schools.
"I think it's been a wonderful opportunity for them," said Yvonne Toro, principal of St. Andrew Catholic School in Orlando, which has two voucher students.
The law was challenged in court the day after the Legislature approved it. Those who sued, including the Florida PTA, the teachers union and the National Association for the Advancement of Colored People, argued it would hurt public education.
"I don't think the public wants public dollars going to private schools," said Ruth Holmes, a retired teacher from Escambia County who joined the suit.
Judges have let the program continue while the court fight proceeds. This year, 710 students, including 73 in Orange County, are using vouchers to attend private schools, according to state and local officials. Nearly 60 percent of those schools are religious.
Students are eligible for the vouchers if their public school earned two F's in four years on Florida's annual school report card. Last year, 21 public schools fell into that category, including Evans, Jones and Oak Ridge high schools in Orange County and a charter school in Polk County. No Polk students opted for vouchers.
Mollie Ray Elementary in Orlando was the region's first double-F school in 2002. Mollie Ray has since improved to a B, but students who took the vouchers three years ago still are eligible for them.
Rosanie Vilbrun's son Christomane is one of them. He is in second grade at Academie Chretienne Haitienne d'Orlando, a Christian-based school for students of Haitian background. That is fine with Vilbrun.
"I am a Christian," she said
The voucher is worth what the state pays to educate a child at public school. In kindergarten to third grade, for example, private schools get $3,400 to $4,000 a year.
Ohio made vouchers a hot and divisive topic with the launch of Cleveland's program in 1995.
Now, eight other states and Washington, D.C., have voucher programs or similar tax-credit or refund programs to pay for private education, though most are not statewide, according to the Education Commission of the States.
Colorado adopted a statewide voucher plan in 2003, but it was put on hold after a state court declared it violated that state's constitution.
Besides Florida, programs in at least two other states, Arizona and Maine, are in court, according to the Institute for Justice, which represents voucher advocates.
The U.S. Supreme Court upheld the Cleveland program in 2002, ruling vouchers were constitutional, even if they paid for education at religious schools.
But Florida's Constitution contains more specific language than the federal one about aid to religion. The state's justices will focus on the last sentence of Article 1, Section 3, which forbids taxpayer money going "directly or indirectly in aid of any church, sect, religious denomination or in aid of any sectarian institution."
According to some historians, that provision, made part of the document in 1885, is rooted in bigotry. They argue it wasn't meant to separate church and state -- Protestant teachings were common then in public schools -- but to keep out the religions of immigrants, particularly Catholicism.
The provision is called a Blaine amendment, named after U.S. Sen. James Blaine of Maine, who tried to add such language to the U.S. Constitution in 1875. He failed, but about 30 states adopted similar amendments.
Some legal experts and religious-rights groups think the amendment itself violates the U.S. Constitution by letting states discriminate against religion or religious beliefs. Some state leaders have suggested the amendment be removed from the state constitution.
For voucher opponents, and Florida's lower courts, however, the provision's history doesn't alter its meaning because voters approved it in 1968 as part of the modern revision of the Florida Constitution.
To Ron Meyer, lead attorney for the voucher opponents, that proves "the people of the state of Florida have concluded they shouldn't spend general-revenue funds in supporting religious institutions."
Voucher students who enroll in religious schools cannot be compelled to pray. But they can be expected to take part in religious teachings and practices. Gov. Bush thinks that's OK because the choice of sending a child to such a school is up to parents.
Laura Underkuffler, a law professor at Duke University, disagrees, saying the program is bad public policy because it forces taxpayers to pay for religious teachings with which they might disagree.
The program, she said, essentially "launders public money through parent choice" to religious schools.
Seminole County Watch.com
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