Florida Supreme Court strikes down school vouchers.

The nation's only statewide school voucher program to date--Florida's Opportunity Scholarship Program (OSP)--violates the Florida constitution, the state supreme court held in January.

The court found that the program violates the constitution's education article, which says: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools." (Bush v. Holmes, Nos. SC04-2323 to SC-4-2325, 2006 WL 20584 (Fla. Jan. 5, 2006).)

Under the OSP, a student at a public school that fails to meet the state's minimum standards can move to another public school that is not failing or to a private school, using funds from the public treasury that would have gone to the public school district. The program was established in 1999 and applies to grades K-12.

A group of Florida parents filed suit to challenge the OSP's constitutionality, and the trial court granted the plaintiffs summary judgment. A divided appeals court panel affirmed that order, withdrew its panel opinion, and then affirmed again en banc.

The state supreme court held that "because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of 'high-quality' free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida," Chief Justice Barbara Pariente wrote for the 5-2 majority.

The court decided only state constitutional questions, although the plaintiffs originally argued that the OSP also violated the federal Establishment Clause. They dropped that challenge after the U.S. Supreme Court ruled in 2002 that a similar voucher program in Cleveland did not violate the Establishment Clause.

Ronald Meyer, a Tallahassee lawyer who represents the plaintiffs, said they proceeded under two provisions of the Florida constitution: the education article and the "no aid" provision, which says that no public funds can be given to religious institutions. The Florida Supreme Court declined to reach the latter issue, "so it left undisturbed the lower court decision, which had already found the program unconstitutional under the church-state issue," Meyer explained.

The education article requires that the school system be uniform, but private schools are not bound by the standards Florida has established for teachers and curricula. The court found that the OSP violated the uniformity requirement "because of this hodgepodge collection of private schools that were being funded with public monies that had no accountability, no standards," Meyer said.

Justice Kenneth Bell dissented, writing that "nothing in [the education article] clearly prohibits the legislature from allowing the well-delineated use of public funds for private school education." Bell noted that the article requires the legislature to make adequate provision for a system of free public schools, but that public schools are not the only way the state can fulfill its duty to provide education.

The majority disagreed. The education article shows the "clear intent that public funds be used to support the public school system, not to support a duplicative, competitive private system," Pariente wrote.

In contrast, she noted, the education article requires a state prekindergarten program to be "voluntary, high-quality, free, and delivered according to professionally accepted standards" but does not specify a means by which to provide it. Unlike K-12 education, the prekindergarten program does not need to be provided through a system of free public schools.

Robert Chanin, general counsel for the National Education Association, pointed out that since the U.S. Supreme Court upheld the Cleveland voucher program under the Establishment Clause, programs in Florida and Colorado have been struck down, and "none has been legally sustained."

The Colorado Supreme Court held in 2004 that a voucher pilot program was unconstitutional because it undermined school boards' control over education funding. (Owens v. Colo. Congress of Parents, Teachers & Students, 92 P.3d 933 (Colo. 2004).)

The Florida court's finding that the OSP violated the uniformity requirement may be significant outside the state, because "many state constitutions have similar language requiring uniformity in the creation and maintenance of public schools," Meyer said. "Under those other states' constitutions, there may be room to challenge based on the failure of a voucher program to provide uniformity."

The United States filed an amicus brief in support of the OSP, saying that finding it unconstitutional would hurt other Florida education programs that involve religious institutions, such as one that allows students with disabilities to attend the school that best meets their needs. But the OSP differs from such programs in that it "provides a systematic private school alternative to the public school system mandated by our constitution," Pariente wrote.

In a written statement, Florida Gov Jeb Bush noted that "the purpose of the Opportunity Scholarship Program is to improve public education and stimulate competition" and that "the public never benefits from the government protecting a monopoly."

Meyer said that Bush has encouraged legislators to put a constitutional amendment on the ballot to save the OSP. But other than that, he said, "we're getting the sense that this voucher movement is losing some steam."