The pre-kindergarten program speeding through the Legislature will fail without religious schools, even though involving them could open the program to legal challenges.
Florida courts consistently have found that giving tax dollars to religious schools violates the state Constitution. The issue, now focused on vouchers, is headed to the Florida Supreme Court after Gov. Jeb Bush and others filed appeals on Tuesday.
The prekindergarten plan could face the same fate as the voucher program, suggested Sen. Dave Aronberg, D-West Palm Beach.
Even Republican Sen. Jim King, the former Senate president, questioned whether the bill is constitutional because it does not address whether Bible study can be part of the prekindergarten curriculum.
But like other top Republicans, King said such concerns can be left to another day.
"There are questions that have been asked here that I'm not sure will ever be answered by anybody other than the Supreme Court of the country or the state," King said near the end of a committee meeting where the bill passed unanimously. "But at least we're on track."
House Speaker Alan Bense said the pre-K plan depends heavily on religious schools because public schools cannot accommodate all the pre-K students expected to enroll. "If we don't have the faith-based providers, we don't have the capacity statewide," he said.
Legislators estimate 100,000 to 140,000 4-year-olds could be enrolled, and a large percentage would go to religious schools. How many is unclear.
Bush said the bill is grounded in the reality that private schools, many of them religious, would comprise the majority of schools offering prekindergarten.
But if the Supreme Court finds that the state Constitution prohibits spending tax dollars on religious institutions, Bush said, the state also will have problems with its support of church-run hospitals and subsidized day care.
"I haven't heard an outcry," Bush said. "Not one person says that's inappropriate."
The bill's House and Senate architects see no constitutional problem. The prekindergarten amendment voters approved in 2002 contemplated parental choice, said Rep. Dudley Goodlette, R-Naples, and religious schools represent a choice.
Besides, he said, the Legislature can't assume how the Florida Supreme Court will rule.
The Senate's leader on the pre-K bill, Republican Lisa Carlton of Sarasota, insisted the bill would not allow providers to violate constitutional provisions regarding religious freedoms, even though the bill allows schools to choose their own curricula.
Such responses did nothing to alleviate the concerns of Democrats, who want to assure the separation of church and state. Nor did it appease some religious school operators, who want to continue teaching religion.
The issue dominated discussion in several committee hearings Tuesday.
"I hear contradiction," said Ellen McKinley, founder of the Childhood Development Educational Alliance, a Jacksonville organization representing about 700 faith-based providers across Florida. "I hear there is nothing to preclude you, but on the other hand, you can't teach faith."
McKinley said the schools, which use the Bible to teach moral and spiritual values, have worked hard to prepare for universal prekindergarten.
"Until now, I didn't realize there could be a problem with this for our people," she said.
She planned to advise her members that they might find themselves investing in additional college education, and improvements to their centers, only to end up unable to participate in the state program. She hopes the lawmakers were not relying on religious schools just to start the program.
Hers were not the only concerns.
Rep. Eleanor Sobel, D-Hollywood, cautioned at a news conference that religious schools might reject some students who do not share the schools' religion. The bill allows private providers to turn away students.
Carlton said students who are turned away would have the public summer school program as an option.
"This is their attempt to get taxpayer dollars with no accountability, and they don't want accountability," Sobel said. "We get into trouble every time we give money and there's no accountability."
Democrats pointed to the McKay Scholarships for disabled students as an example of accountability gone awry. Employees from seven Christian schools were charged with defrauding taxpayers by misusing money from that voucher program.
Rep. Dan Gelber, D-Miami Beach, and Sen. Ron Klein, D-Delray Beach, contend the pre-kindergarten bill does not include sufficient safeguards to avoid similar problems on a much larger scale.
"We are taking public dollars and giving the lion's share to the private sector, to be watched by nonpublic watchdogs," Gelber said. "It's a recipe for fraud and abuse."
He suggested the bill be amended to give program overseers the power to walk into a prekindergarten provider and demand to look at the books related to prekindergarten. The bill gives the Agency for Workforce Innovation power to remove providers that fail or defraud the system, and to look at attendance records, Gelber noted.
"The right to punish is meaningless if you can't detect fraud in the first place," Gelber said. "Money is going to be stolen, and it's not going to be simply through attendance records."
Klein worried about a section of the bill allowing schools to collect tax money while failing for as long as four years.
"I would argue that is too long," Klein said. "I don't think the state should be writing checks to failing institutions."
Goodlette and Carlton said they saw merit in firming up accountability standards. But they were skeptical that changes would come during the special session. They said the legislation can be improved later.
Bense was less giving, though.
"I think our bill adequately covers it," he said. "I think what we have in our bill is sufficient to make sure our pre-K programs are quality."