WASHINGTON -- The nation's only statewide school voucher program -- in its first year in Florida -- failed its first test in court yesterday as a state judge struck it down under the Florida constitution.
In a case that appears headed for an appeal to the state supreme court, Circuit Judge L. Ralph Smith Jr. of Tallahassee nullified the program because it allows public money to pay tuition at private, including parochial, schools for students who want to leave subpar public schools.
Smith said that though the state must provide education to every child, that must be done only through "a system of free public schools. Tax dollars may not be used to send the children of this state to private schools."
Because the ruling was based only on the state constitution, the case cannot be appealed to the U.S. Supreme Court. Challengers had raised federal constitutional issues, but Smith did not rule on those.
The U.S. Supreme Court has refused to rule on the constitutionality of school vouchers.
Florida's "opportunity scholarship program," championed by Gov. Jeb Bush, has been monitored closely by educators, school lawyers and advocacy groups across the nation.
Under the program, the state will pay up to $5,000 to parents for a child's tuition at a private school if the student has been attending a public school that falls below state performance standards for two years and thus qualifies as a "failing" school.
Only students from two elementary schools in Pensacola are eligible for the voucher aid; 53 students are taking part. Smith allowed them to stay in their private schools for the rest of the school year.
By summer, 60 to 150 other public schools around the state may be declared failing, potentially widening the program significantly.
Clint Bolick, litigation director for the Institute of Justice, who is acting as the lawyer for parents with children in the program, said, "We hope this will be only a temporary setback."
He said lawyers for parents and the state will discuss in the next few days whether to take the case directly to the state supreme court, bypassing an intermediate appeals level. In the meantime, Bolick said, Florida court rules will put Smith's ruling on hold.
The case is important, Bolick said, because "this is the first program that explicitly links public school accountability to private school scholarships."
Ralph G. Neas, president of the People for the American Way Foundation, one of the groups that have challenged the Florida program and other voucher plans, said Smith's decision "underscores that the legal momentum in this country is against vouchers."
"The road to increasing voucherization of education has turned into yet another blind alley," Neas said.