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Would an Expansion of Florida Vouchers Stand Up in Court?

There's considerable speculation in Florida about whether new Gov. Rick Scott and state lawmakers will make a push for a major new voucher-type program, dubbed education savings accounts.

But even if the GOP-controlled legislature delivers a bill to Scott and he gives it his blessing, a voucher program might not yet be in the clear.

That's because the Florida Supreme Court in 2006 ruled unconstitutional the Opportunity Scholarship Program, which provided taxpayer funding to familes of students in poorly performing public schools to attend private schools. The court found that the program violated the constitution's provision that the state provide a "uniform" system of public education for schools.

Despite that ruling, Florida continues to offer vouchers to families of students with disabilities, and to low-income families through a corporate tax credit program. But the transition team for Scott, a Republican, recommended last month that all Florida families be given access to "education savings accounts," public money roughly equivalent to each student's per-pupil spending, to use as they see fit—including for a host of private school options.

The Orlando Sentinel offers a nice breakdown of some of the legal questions Floridians on both sides of the issue will have to consider. It notes that while a 2002 U.S. Supreme Court decision allowed public money to support students attending private schools, including religious ones, individual state constitutions have set different standards, which hasn't been favorable to vouchers.

One voucher advocate quoted in the article worries that if education savings accounts were challenged in court and went down to defeat, Florida's two other voucher programs could be imperiled legally, too. Backers of education savings accounts appear to hope that by offering families a range of options for how they could use public money—for private school tuition and tutoring, college tuition and savings, and other options—such a program would stand a better chance in court.

Despite legal uncertainties, Republican lawmakers in Florida seem intrigued by the idea. One prominent supporter of the savings accounts is Patricia Levesque, a top aide to former Gov. Jeb Bush, who was a staunch voucher proponent during his time in office. Levesque and former state senator and state education commissioner Betty Castor offer dueling op-eds, pro and con, about the savings accounts, in the St. Petersburg Times. (Perhaps not surprisingly, Jeb Bush, in a recent interview with Ed Week, was keen on the new school-choice option.)

I'll put the question to legal observers, professional and amateur alike: What odds would education savings accounts face in court?

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