Public funds to private school: A test emerges

Florida is emerging as the next major constitutional battleground over whether using public tax dollars to pay for parochial school tuition is a violation of the separation of church and state.

In late April, the state legislature in Tallahassee adopted the nation's first statewide school-voucher program, and Gov. Jeb Bush (R) is expected to sign the measure into law by early June.

It will become the most ambitious school-voucher program adopted so far, expanding on a similar voucher plan already under way in Milwaukee.

"This is probably the most important piece of education-reform legislation that the country has ever seen," says Pat Heffernan, president of Floridians for School Choice.

But critics are asking, is it constitutional?

Florida's so-called "A-plus" plan for education sets up a grading system for public schools throughout the state. Parents of students at a school receiving a grade of "F" for any two years in a four-year period would be eligible to transfer their children to a better school - including private, parochial schools. The plan awards such parents state-issued vouchers to cover tuition costs.

The central concern is that under the First Amendment of the US Constitution, government money cannot be used to support parochial schools.

Voucher programs like the one in Milwaukee and the proposed Florida plan attempt to avoid this constitutional prohibition by having the state turn over voucher checks directly to parents. The idea is that technically the money is no longer public money but becomes the private property of the parents to pay for their child's education at a school of their choice.

Parents can use the funds to send their children to another public school, a private, nonreligious school, or a private, parochial school. Leaving the decision to the parents, proponents say, insulates the government from involvement in making payments to religious schools.

Critics say this is little more than a legal fig leaf. The money is still public money, they say, and the voucher program constitutes an illegal endorsement of religion by the government.

Supporters of the plan disagree. They say it enables low-income parents to choose the school that is right for their child, rather than encouraging the spread or practice of religion.

It injects a level of accountability and competition into the education system, they say, granting parents the power to withdraw tuition dollars from failing schools and spending them instead in better schools.

"The public funds that we have contributed for the education of children belong to the children, not the system," says Mr. Heffernan. "If the system is failing them then we are happy to have the children take those funds elsewhere to secure an education."

The US Supreme Court has never addressed the issue of school vouchers directly. Last fall, the high court declined to hear arguments on both sides of the Milwaukee voucher program. By refusing to hear that case, the justices let stand a Wisconsin Supreme Court decision that found the voucher program did not violate First Amendment principles.

Legal experts are divided over the significance of the US Supreme Court's decision not to hear the case last fall. Voucher supporters see it as a green light to expand voucher programs nationwide, and efforts are under way across the country to do exactly that.

Voucher critics counter that the justices merely sidestepped the issue, choosing to wait for a better case to settle the contentious debate over school vouchers.

Florida may provide that case. "There will be a showdown," says Barry W. Lynn, executive director of the Washington-based advocacy group Americans United for Separation of Church and State.

Mr. Lynn says it may take as long as five years for the Florida plan and others like it to work their way through various court challenges to the US Supreme Court. But he says the issue will inevitably land there.

In addition to Florida, school vouchers are a hot issue in Maine, Ohio, and Vermont.

The Maine Supreme Court ruled two weeks ago that school-voucher payments to parochial schools would violate the US Constitution. In that state, parents receiving education vouchers may use them only to pay tuition at another public school or a private, nonreligious school.

A group of Maine parents sued the state seeking to enroll their children in a parochial school using state-issued vouchers. They claimed the state's refusal to permit them to send their children to parochial schools under the state voucher program was a violation of their right to religious liberty.

The court ruled that the parents had a right to send their children to a religious school, but that they had no right to expect the State of Maine to pay for it.

School-voucher cases are also pending in Ohio and Vermont, with the supreme courts in both those states expected to rule within the next six weeks.