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Education | Florida voucher decision is no death-blow to school choice

Issue: "Five-man legacy," Jan. 28, 2006

When the Florida Supreme Court tossed the state's Opportunity Scholarship program out on its ear on Jan. 5, some called the decision the beginning of the end of school vouchers. A 5-2 majority ruled that the nation's only statewide voucher plan undermined the Florida Constitution's "uniformity" clause, which requires the state to create a "uniform, efficient, safe, secure, and high-quality system of free public education." Opportunity Scholarships disrupt uniformity, the court held, because they rob public schools of resources.

Florida School Boards Association executive director Wayne Blanton, who opposes school choice, called the ruling a "killing blow" to voucher expansion in Florida and other states.

American Enterprise Institute education fellow Adam B. Schaeffer wondered, "Has the age of vouchers ended?" Writing in National Review Online, he said that education tax credits are "the last, best hope for school choice in most of the country."

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But both men may be reading more into the Florida ruling than is warranted, some school-choice experts say.

"In my opinion, the decision will have a limited impact," said Robert Enlow, executive director of the Friedman Foundation, a school-choice information clearinghouse in Indianapolis. He noted that only 15 states have uniformity clauses similar to Florida. Courts in two of those states, Wisconsin and Ohio, have already rejected the argument that vouchers disrupt uniformity in public schools.

The demise of Opportunity Scholarships affects about 700 low-income kids-95 percent are African-American and Hispanic-whose parents had used the program to escape schools rated as failing under Florida's A+ school accountability plan. By the end of this school year, their families will either have to find new ways to pay private-school tuition or return their children to public schools.

"Losing his scholarship will be devastating to my grandson," said Ramona Nickson, whose grandson uses an Opportunity Scholarship to attend Monsignor Edward Pace High School in Miami. "I can't take him out of his school, and I just don't know what I will do. I have no means to keep him in his private school."

Aided by National Education Association lawyers, the Florida union affiliate successfully challenged the Opportunity Scholarship program on the grounds that it violated separation of church and state. On appeal, though, the Florida Supreme Court sidestepped that argument and hung its ruling on the state constitution's uniformity clause. In doing so, the court avoided the First Amendment considerations originally at issue in the case-and closed the door on any federal appeal. That may have been the court's intention, as federal judges would almost certainly have upheld the voucher program in light of a 2002 U.S. Supreme Court decision that found it constitutional for parents to use state funds to send their children to religious schools.

The Florida case did not affect the state's McKay voucher program, which serves 16,000 disabled students. But the decision places McKay vouchers at risk, prompting Gov. Jeb Bush to direct his staff to explore converting the plan into one supported by education tax credits (ETC).

Currently, 11,000 Florida students exercise choice under a Florida ETC program that allows corporations a dollar-for-dollar tax credit in return for donations to private, scholarship-granting organizations. Clint Bolick of Phoenix-based Alliance for School Choice called ETC programs a "safe harbor for school choice in Florida," but cautioned that vouchers are still viable elsewhere based on varying constitutional and legislative climates in the states.

Mr. Schaeffer, meanwhile, argues that ETC plans are easier to pass and more legally bulletproof.

Tax-credit plans do offer distinct advantages. Because funding flows from corporate and individual donors through private scholarship-granting organizations to parents, ETC programs have survived every court challenge, and none has been challenged since 2001. Meanwhile, schools accepting ETC-funded scholarships avoid the state meddling that comes with state money. Today, as many as 200,000 kids benefit from ETC programs in Arizona, Florida, Pennsylvania, and Minnesota.

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