- The Washington Times - Monday, August 16, 2004

A Florida appeals court ruled yesterday that Gov. Jeb Bush’s school voucher program violates the state’s constitution, which bars using tax dollars to send students to religious schools.

The 2-1 decision by a three-judge panel of the 1st District Court of Appeals in Tallahassee upheld a 2002 opinion that the Opportunity Scholarship Program violated the Florida Constitution’s ban on spending taxpayer funds on sectarian institutions.

The two judges in the majority said the “central issue” in the case was whether the OSP “violated … the so-called ‘no-aid’ provision [of the Florida Constitution], which mandates that ‘no revenue of the state … shall ever be taken from the public treasury directly or indirectly in aid … of any sectarian institution.’”

“There is no dispute in this case that state funds are paid to sectarian schools through the OSP vouchers. Thus, we hold the OSP unconstitutional under the no-aid provision to the extent that the OSP authorizes state funds to be paid to sectarian schools,” wrote Judge William Nortwick, supported by Judge Larry Smith.

Judge Ricky Polston dissented, saying, “The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion.”

Mr. Bush said he was “disappointed by the court’s opinion regarding Florida’s Opportunity Scholarship Program. We will appeal the ruling. I continue to support the program … that gives parents the opportunity to choose the best education for their children.”

The case goes to the Florida Supreme Court.

The 1999 program, which allows students attending failing public schools to go to private schools at taxpayers’ expense, has remained in effect during the state’s appeal and will continue for the 732 students already participating, until the high court rules.

Frances Marine, a spokesman for the Florida Department of Education, said the decision overreached, even granting the religion argument.

“The court said funding religious schools is illegal under the state constitution. Yet they’ve stricken the entire program, even though half of the participants don’t attend religious schools,” she said.

Mr. Bush and Ms. Marine said that if the appellate court’s decision is upheld, it could invalidate other state scholarship programs for the disadvantaged that can be used at private institutions.

The governor said striking down OSP also could threaten “noneducation programs such as Medicaid funding to hospitals with religious affiliations.”

Because the case challenges a state law under the state constitution, there is no possibility of a federal appeal, and the Florida Supreme Court decision will be final.

The OSP is a centerpiece of Mr. Bush’s educational policies and is linked to his State School Accountability Program.

Under OSP, students in kindergarten through the 12th grade attending public schools that receive failing grades from state observers for two out of four years can receive scholarships to attend private or parochial schools that their parents choose. Ms. Marine said the average amount of an OSP scholarship this year is $4,241.

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