Florida voucher ruling could have nationwide implications

“It is certainly a huge win for public education,” says Marc Egan, director of federal affairs and the Voucher Strategy Center at NSBA. “Florida has been the crown jewel of the voucher movement for the last five or six years, so if this program ends, you have a potentially huge hole in the voucher landscape.”

Although the ruling only applies to Florida, other state courts might find the decision “persuasive” in future legal challenges to voucher programs, says Judith Schaeffer, deputy legal director of the People for the American Way Foundation, which was co-counsel for the plaintiffs in the Florida voucher case.

“The decision wouldn’t be binding,” she says. “But another court could look to it in a state with a similar constitutional provision. . . . It also shows what’s wrong with vouchers in terms of giving public funds to private money. That there’s no uniformity [of education], no accountability.”

Yet proponents of vouchers are not giving up. “Nothing in [this] decision will stop the nationwide march toward greater educational opportunity,” says Chip Mellor, president and general counsel of the Institute for Justice, a libertarian public interest law firm.

Florida officials already are talking of strategies to sidestep the 5-2 court ruling against the Opportunity Scholarship Program, which helps about 730 students at low-performing public schools pay the tuition costs for religious or other private schools.

Florida Gov. Jeb Bush has vowed to “explore all legal options” and will ask state lawmakers to “enact any available legislative fixes.”

The court ruling will “greatly alter the voucher debate in Florida for the next few months and also escalate the debate in the gubernatorial campaign this year,” says Florida School Boards Association Executive Director Wayne Blanton. “The legislature has made it very clear that it intends to pass another voucher program.”

One option under consideration is a statewide referendum next November asking voters to amend the state constitution to allow taxpayer dollars to flow to private schools.

Also under consideration is a proposal to expand the state’s $88 million Corporate Income Tax Credit Scholarship program to cover the students who will lose their vouchers. This program gives companies tax credits for providing private school vouchers.

Another proposal would model a new voucher program on this approach. State officials are looking at this strategy because it diverts potential tax income to nonprofit groups -- and the money never comes under the state’s control. That would avoid the legal issue that arose in the state voucher case, in which plaintiffs argued that diverting state money to private schools violated the “uniformity clause” of the state constitution.

That clause states that “adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public schools.”

It is unclear whether anti-voucher groups will launch a new legal challenge against the tax-credit program or the state’s McKay Scholarships, a voucher program for disabled students that relies on state money. These two programs -- unaffected by the recent court ruling -- place more than 30,000 children in private schools annually.

Such a lawsuit is under consideration, says Mark Pudlow, spokesperson for the Florida Education Association, one of the plaintiffs in the case.

The Florida ruling could inspire court challenges in other states with similar constitutional language and perhaps discourage some legislative proposals by voucher advocates, Egan suggests.