Florida Voucher Decision Could Be Reversed On Constitutional Grounds

By Christine Hall | July 7, 2008 | 8:29 PM EDT

(CNSNews.com) - A court decision striking down Florida's school voucher program could be reversed by higher courts on federal constitutional grounds, some legal experts believe.

The Florida Supreme Court could, on appeal, affirm Circuit Judge P. Kevin Davey's ruling that, under the state's constitution, the voucher program wrongly lends indirect aid to religion when parents choose to endorse tax-funded voucher checks over to parochial schools.

The U.S. Supreme Court ruled on June 27, in Zelman v. Simmons-Harris, that a school voucher program in Cleveland did not violate the establishment clause by using tax dollars to pay for students in failing public schools to attend parochial schools.

Voucher proponents remain hopeful that the Florida Supreme Court will disagree with the lower court's interpretation of the state constitution.

But, even if that doesn't happen, the decision could be appealed to the U.S. Supreme Court on a federal constitutional challenge and result in a ruling against a state law that excludes religious schools from voucher programs, said Eugene Volokh, a University of California constitutional law expert. Or a new challenge could be brought in federal court to the Florida constitution, producing the same result.

Specifically, the high court could find that excluding religious schools from a government-sponsored voucher program violates the free exercise, establishment and free speech clauses of the First Amendment, he said.

Regarding free exercise, "as the court has repeatedly held, when you've got an anti-discrimination rule, it should apply not just to discrimination in prohibitions but also discrimination in benefits," Volokh said. The "court has acknowledged that excluding somebody from a generally available program may be a form of religious discrimination."

Similarly, he said, that while the establishment clause "bars endorsement of religion or advancement of religion...the court has also...in dozens of cases said it also bars disapproval of religion and inhibition of religion."

"Education is a form of speech. And when religious education is excluded...that means...the communication of religious messages is excluded from this public forum that the government has created," Volokh said.

He pointed to the Ninth Circuit decision in Davey v. Locke as evidence that federal courts and the U.S. Supreme Court may rule against discrimination.

In the July 18, 2002 decision, the court struck down a Washington state policy that denied students from using state education scholarship funds for theology programs. "A state law may not offer a benefit to all . . . but exclude some on the basis of religion," wrote the court.

The Ninth Circuit noted that the scholarship fund's "selection criteria are high school grades, income, and staying in Washington for college; the deselection criterion is pursuing a degree in theology." But whether or not a student studies theology "has nothing to do with the purpose or point of the program."

Howard Simon, executive director of the American Civil Liberties Union of Florida, disagrees with Volokh's interpretation of the First Amendment.

"The Constitution considers religion separately," said Simon. "His view seems to totally eliminate the non-establishment clause of the Constitution.

"Every time the courts intervene to enforce the non-establishment clause of the Constitution to prevent government from financing religion, endorsing religion, advancing religion, being involved with religion in any way-- in his view, it sounds like the courts are intruding upon free exercise of religion," he said.

"His view [is] an ingenious effort to re-write the First Amendment so that the non-establishment clause prohibition no longer exists," said Simon, who believes that federal courts will not perceive a conflict with the U.S. Constitution and, therefore, will not accept a challenge on that basis.

See Earlier Stories:
School Vouchers Face More Hurdles, Despite Court Ruling (June 28, 2002)

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