Judge Strikes Down Florida Vouchers

Judge Strikes Down Florida Vouchers
May 1, 2000

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)



In a decision widely applauded by school choice opponents, Leon County Circuit Court Judge L. Ralph Smith Jr. ruled on March 14 that the Florida law authorizing the nation's first statewide voucher program is unconstitutional.

According to Smith, the state constitution's directive on public education is violated when public dollars are used to pay for a child's education at a private school. On the other hand, the judge also said that using public dollars to pay for specialized educational services at private schools does not violate the constitution.

"Tax dollars may not be used to send the children of this state to private schools," declared Smith, ruling on the voucher program that has permitted 53 of the state's students to leave their failing public schools and attend private schools. These 53 students may stay in the program through the end of the school year, said Smith, but the state may not issue vouchers to additional children.

Children in failing schools may still transfer to other public schools, since that aspect of the state's program was not challenged.

Clint Bolick, litigation director for the Institute for Justice, which is representing families participating in the program, called the ruling "absurd and unprecedented."

"The public schools have failed these youngsters, and the private schools fulfill the constitutional guarantee of a high-quality public education," he said.

Dermita Merkman, the mother of a 5-year-old voucher student, couldn't understand the judge's ruling. "I'm just wondering how this is unconstitutional, us wanting a better education for our kids," she said, pointing out that the scholarship program gave her daughter a quality education now, not "at some uncertain date" in the future.

Voucher opponents were jubilant over the ruling. In Tallahassee, smiling and laughing Democratic lawmakers and teacher union officials were "giddy" over the announcement, according to the Florida Times-Union. Other voucher foes applauded the news.

"Bless his heart!" exulted Larry Davis, principal of the failing North Shore Elementary School. "Finally the laws are in favor of the schools."

"Yes!" shouted Florida NAACP president Adora Obi Nweze of Miami. "I'm so happy, I'm so proud."

Florida's statewide Opportunity Scholarship Program, the first of its kind in the nation, was designed to provide a last-ditch escape for parents who found their children trapped in schools deemed chronic low-performers by the state. Last fall, only two schools fell into that category, and 52 students took advantage of the scholarship program to transfer to secular and religious private schools. This fall, as many as 60,000 students would have been eligible to transfer from an estimated 78 failing public schools.

Judge Smith ruled the voucher program "violates the mandate of Article IX, section 1, Florida Constitution, that the State provide a free education through a system of 'public schools'. By providing state funds for some students to obtain a K-12 education through private schools, as an alternative to the high quality education available through the system of free public schools, the legislature violated the mandate of the Florida Constitution, adopted by the electorate of this state." [emphasis added]

The constitution's requirement that K-12 public education be accomplished through a “system of free public schools” is "a prohibition on the Legislature to provide a K-12 education in any other way," declared Smith. However, he continued, this prohibition does not apply if the state cannot meet a student's needs in the public schools. Thus, programs that provide specialized services at private schools, such as those for disabled, disruptive, and violent students, "do not appear to violate Article IX, section 1."

Reg Brown, Governor Jeb Bush's deputy general counsel, called the judge's legal analysis "novel but unsupported by the plain language of the constitution or sound public policy." He said Article IX, section 1 of the constitution was approved by the voters in 1998 to guarantee adequate public school financing, not to "prohibit the state from doing anything else."

Parent Tracy Richardson told a March 27 U.S. House Subcommittee Hearing in Tampa how the public school in Pensacola had failed to meet her daughter Khaliah's educational needs. There, school officials blamed Khaliah for her inability to learn and punished her for not being able to do her homework. Now a voucher student in a Montessori school, Khaliah is excelling and excited about learning.

"In the six months that she's been there, the greatest single improvement in my daughter's education is her spirit," Richardson told the Subcommittee on Oversight and Investigations of the House Committee on Education and the Workforce. "Instead of me waking her to go to school . . . she wakes me up. I see hope and excitement."

But Richardson's views don't sway the program's opponents. According to Bob Chanin, general counsel for the National Education Association, "it is irrelevant whether the parents of a voucher student are satisfied or dissatisfied with the education that their children receive."


George A. Clowes is managing editor of School Reform News.

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)