The National Pulse

Vouchers Tested

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It’s been four years since the U.S. Supreme Court ruled that providing parents with vouchers to pay tuition at private schools does not violate the First Amendment’s ban on mixing church and state. Zelman v. Simmons-Harris, 536 U.S. 639.

But since then, plaintiffs have successfully challenged voucher programs in at least two states, Colorado and Florida. And, some observers say, the nature of those legal challenges could throw another roadblock in the way. Rather than invalidating voucher programs on the basis of religion, courts are striking down those laws on other state constitutional issues.

In January, the Florida Supreme Court sidestepped the religion question—in this case, whether the program violated a state constitutional ban on funding religious schools. Holmes v. Bush, 919 So. 2d 398.

Instead, Chief Justice Barbara Pariente wrote that the program violated a separate provision of the Florida Constitution, the “uniformity” clause, which requires the government to provide for a “uniform, efficient, safe, secure and high-quality system of free public schools.”

The case is significant because it moves the argument over vouchers out of the realm of religion and into hard-edged policy issues, says Goodwin Liu, an education law expert at the University of California at Berkeley’s Boalt Hall.

“By not relying on the establishment clause provision of the state constitution and instead talking about the impermissibility of vouchers in purely secular terms, the Florida Supreme Court has latched onto the type of reasoning that most opponents of vouchers on a policy or political level typically raise,” Liu says.

Colorado’s Supreme Court shot down a similar program in 2004 for violating the local control provisions of the state constitution. Owens v. Colorado Congress of Parents, Teachers and Students, 92 P.3d 933. The state’s high court, like Florida’s, managed to sidestep the question of whether such vouchers meshed church and state.

Instead, writing for the majority, Justice Michael Bender wrote that the voucher program “violates the local control requirements of our state constitution because it directs the school districts to turn over a portion of their locally raised funds to nonpublic schools over whose instruction the districts have no control.”

Other states, including Vermont and Maine, have voucher programs but say that the vouchers can’t be used for religious schools. In Maine, families are challenging the 1981 law establishing the program. The case, Anderson v. Town of Durham, No. Civ. A. CV-02-480 (2003), was argued before the Maine Supreme Judicial Court, the state’s high court, this spring. The state high court already ruled the law constitutional in a 1998 case brought by a different group of families.

Florida Decision’s Impact

Regardless of whether courts follow the same reasoning as the court in Florida, Liu and others stress that Pariente’s decision gives legislators a new rationale for rejecting voucher programs.

Florida’s program, dubbed the Opportunity Scholarship Program, would have allowed students from public schools rated as failing to pay tuition for private schools directly from the government.

Pariente wrote that the program was impermissible because “it diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the constitution for the state to provide for the education of Florida’s children.”

She continued that the private schools that could be funded under the program couldn’t be considered as uniform compared with public schools when the private schools had their own curricula and accreditation standards for teachers.

Pariente’s opinion specifically noted that public schools require teachers to have bachelor’s degrees, state certification and a background check, while a private school might only require its teachers to have three years’ experience or special skills. Public schools also must adhere to a curriculum set by the state’s board of education, while a private school needs only to be “academically accountable to the parent” and must adhere to the curriculum “adopted by an appropriate nonpublic school accrediting body.”

While the decision isn’t binding elsewhere, opponents say they hope the case will influence other states—though, to date, only a handful of jurisdictions have voucher programs similar to Florida’s.

In all, about 15 states have similar uniformity clauses. But other courts have reached different conclusions. The Wisconsin Supreme Court found in 1998 that a voucher program started in Milwaukee in 1990 did not violate that state’s uniformity provision or the state or federal mandate separating church and state. Jackson v. Benson, 578 N.W.2d 602.

In Ohio, the state legislature voted last year to expand the voucher program to 14,000 additional students statewide. That move came in the wake of the U.S. Supreme Court’s ruling in Zelman that a voucher program in Cleveland didn’t violate the First Amendment’s establishment clause. The court found that the plan was constitutional because it didn’t favor any particular religion; families also could use the vouchers for secular schools.

Nevertheless, advocates who oppose tax dollars going to religious institutions applauded the Florida court’s ruling.

“Public funds should be used to subsidize public schools and not private schools,” says Judith Schaeffer, deputy legal director at the Washington, D.C.-based People for the American Way, which was one of the groups to file suit in the case.

But advocates who favor parents’ rights to send children to private religious schools were furious with the Florida court. They argue that public schools aren’t uniform in any sense of the word.

“You have such a spectrum of public schools already, it’s tough to know what is uniform about that,” says Shaka Mitchell, associate director of policy at the D.C.-based Center for Education Reform, a nonprofit group favoring vouchers. The group filed an amicus brief in the case.

In fact, a qualification for the program is that children attend a school that’s been rated as failing—meaning, say its proponents, that the program takes for granted that there is a huge variety of public schools.

Clark Neily, a senior attorney with the D.C.-based libertarian Institute for Justice—which also argued on behalf of the state—says the Florida court wrongly interpreted the state’s uniformity clause.

“From any reasonable perspective, it was a surprise because it was such a completely outlandish argument,” Neily says.

What about the Blaine Amendment?

The case had been pending since the late 1990s, but the uniformity clause argument hadn’t been a major factor since early in the case. The first trial judge ruled that the program was unconstitutional because of the uniformity language in the state constitution, but an appellate panel rejected that argument the following year. Since then, advocates on both sides mainly focused on two issues: whether the program violated the federal mandate of separation of church and state, and whether it ran afoul of a separate state constitutional provision known as the Blaine Amendment, which bans giving money to sectarian institutions.

After the U.S. Supreme Court ruled that vouchers don’t violate the federal Constitution, advocates expected the Florida court to focus on whether the program violated the Blaine Amendment, which states: “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination, or in aid of any sectarian institution.”

Had the Florida court ruled that the Blaine Amendment prohibited the voucher program, the Institute for Justice was prepared to seek review in the U.S. Supreme Court on the grounds that the amendment itself violated the federal Constitution by discriminating on the basis of religion. Most states have a Blaine Amendment, named after the 19th-century congressman James Blaine, who led a movement to ban the funding of religious schools that is today perceived by voucher advocates as a reactionary and bigoted response to a wave of Catholic immigration in the 1800s.

Though the Florida court sidestepped the Blaine Amendment with its decision, the decision might have some unforeseen consequences, says Neily of the Institute for Justice. Florida’s charter schools and magnet schools—“in every sense of the word, nonuniform”—Neily says, might conceivably be in jeopardy.

“The judges opened a giant can of worms, and it’s going to be very difficult for them to put the lid back on it now,” he says.

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