Florida’s original school-voucher law violates the state constitution because it allows tax dollars to be spent on religious schools, the full 1st District Court of Appeal ruled late last week.
The Nov. 12 decision is the third such ruling against the 1999 law, which lets students attending public schools that earn failing grades two years out of four attend private schools on state vouchers.
“This is a big win for the people of Florida who believe in separation of church and state,” said Ron Meyer, a lead attorney for voucher opponents.
A spokesman for Gov. Jeb Bush said the governor was disappointed and believed the law was constitutional.
“The governor believes that we should honor the choice that these parents have made for their children,” Jacob DiPietre said.
In the 8-5-1 decision, the 1st DCA called the voucher law “a popular program with a worthy purpose” but said it violates a sentence in the “religious-freedom” provision of the Florida Constitution. That sentence bars any state money going “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”
A three-judge panel of the 1st DCA had issued a similar ruling in August, but the state asked the full appellate court to review that decision. A trial judge had found the law was unconstitutional in August 2002.
In the Nov. 12 decision, the 1st DCA asked the Florida Supreme Court to review the issue as one of great public importance. There was no immediate indication that the high court would take the case.
The state has been allowed to issue vouchers during its appeal.
The program is the centerpiece of Bush’s education program and is the first and smallest of Florida’s three school-voucher laws. Supporters call the voucher grants in the 1999 law “opportunity scholarships.”
This school year, nearly 700 students in seven districts filed to attend private schools under the law, up about 100 students from last year. More than half will attend a religious school, according to the state.
Opponents, including the state’s teacher union, the Florida PTA, the Florida League of Women Voters and the National Association for the Advancement of Colored People, challenged the law in court the day after Bush signed it in 1999.
Under the law, voucher students can be taught about religion but cannot be made to pray, worship or profess a religious belief.
The provision at the heart of the case was added to the Florida Constitution in 1885. Some historians and legal commentators have concluded the language stemmed from anti-Catholic bigotry in the late 19th century.
But, wrote the 1st DCA, that point is disputed by other scholars and there was no evidence that the language was added and then retained because of religious bigotry.
In its conclusion, the court’s majority acknowledged “the salutary public policy” goals of the law, which was to give students trapped in substandard schools a better education.
“Nevertheless, courts do not have the authority to ignore the clear language of the Constitution, even for a popular program with a worthy purpose,” Judge William Van Nortwick wrote for the court. “If Floridians wish to remove or lessen the restrictions of the no-aid provision, they can do so by constitutional amendment.”
Seven judges fully concurred in the majority opinion, which also dismissed as “pure speculation” state warnings about the legal threat to a wide range of other programs, ranging from the use of church buildings for polling places to hospitals owned by religious groups getting Medicaid payments.
Van Nortwick said the ruling leaves such issues for the future.
Five judges in the majority also signed another opinion, written by Judge Robert Benton, that suggested the law could also be unconstitutional under a provision that makes it a “paramount duty” for the state to provide a “uniform, safe, secure and high quality system of free public schools.”
Another five judges dissented.
“The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion,” Judge Ricky Polston wrote in an opinion signed by the other four dissenters.
The executive director of the American Civil Liberties Union of Florida praised the ruling.
“This is what we’ve been waiting for,” Howard Simon said. “We have said all along that the problem with the governor is that he’s chosen to simply ignore the plain words of the Florida Constitution that prohibits government funds to religious schools.”
The Institute of Justice, a Washington law firm that defends school-choice programs around the country, released a statement calling the development a blow.
“The Florida Constitution declares education to be of fundamental importance,” said Clark Neily, an attorney for the group. “It is up to the Florida Supreme Court to put teeth into that provision by upholding the Opportunity Scholarships, thereby vindicating the rights of parents to equal educational opportunities.”
Meyer said he hoped the final decision would be issued by the start of the 2005-06 school year.
Florida’s other voucher programs are larger than the 1999 law. One offers vouchers for children with disabilities, the other is a corporate income-tax credit program that funds private scholarships for poor children.
Both are open to religious schools, but neither was added to the lawsuit against the original.
Meyer said his clients opted to stay focused on the 1999 law, which presented a legal issue most clearly and cleanly. But he added that it was fair to assume someone might challenge the others once the Supreme Court rules on the original law.