he war over voucher programs and other efforts to funnel public monies to private and religious schools has heated up, with major developments in two states. In Florida, the legislature is expected to enact the first statewide voucher program in the country, possibly as early as today, following a compromise measure agreed to earlier this week by conferees. But vouchers advocates received a stunning setback on Friday, as the Maine Supreme Judicial Court handed down a 5-1 decision upholding the state's policy of restricting publicly financed vouchers to nonreligious schools.

   The Maine decision involved an appeal by five families in the rural community of Raymond who had sought to use voucher monies to send their children to a nearby, all-male parochial school. They argued that since there was not a public school in the area, the Maine program -- which prohibits vouchers from being used at sectarian institutions -- violated their religious freedoms.

   "Choice alone," wrote the justices, "cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion...None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge...

   "While it may be possible for the Legislature to craft a program that would allow parents greater flexibility in choosing private schools for their children, the current program could not be easily tailored to include religious schools without addressing significant problems of entanglement or the advancement of religion."

   The special voucher tuition program in Maine covers an estimated 14,000 students who attend special public and approved private institutions; the budget for the voucher arrangements runs about $70 million per year.

   Clint Bolick, director of the Institute for Justice which represented the Maine families, rightly described the situation coalescing in the courts around the voucher issue. "This now creates a split in authority among state supreme courts on the constitutionality of school choice that makes it much more likely that the United States Supreme Court will take a case and resolve the issue..." He added that an appeal of the case was likely, insisting, "We are very anxious for the Supreme Court to remove any lingering doubt about the constitutionality of school choice programs."

   A decision to appeal could indeed force the nation's highest court to make a definite ruling on the voucher question. In June, Wisconsin's Supreme Court upheld the constitutionality of a Milwaukee program that permitted the use of vouchers for private and sectarian schools. The U.S. Supreme Court, though, declined to review that decision in November. High state courts in Vermont and Ohio have also heard arguments on vouchers.

   Interpreting the ruling in Wisconsin, voucher supporters in a number of states have launched aggressive efforts to institute similar programs. They say that the voucher system allows greater choice in education and permits parents to circumvent poorly performing schools, entrenched educational bureaucracies and teachers' unions. But critics charge that voucher programs make it tougher for cash-strapped public schools to deal with the influx of students, and note that public schools cannot "pick and choose" who they are to educate.

"None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge..."

   Voucher programs are already being promoted in Arizona, New York, Pennsylvania, Florida and elsewhere. Following the recommendation of Governor Jed Bush, the Florida legislature will probably enact a statewide voucher program today or later this week -- an event that is sure to trigger lawsuits challenging their constitutionality.

   Under the Florida proposal, students in schools receiving low marks from the state would be able to use "opportunity scholarships" worth up to as much as $4,000 per year to transfer to private schools. Again, voucher opponents see themselves in a Catch-22 situation; districts with a high percentage of students from dysfunctional households who may not perform well inevitably will suffer under the new and tougher state rating systems. At present, only four schools throughout Florida are classified as "low performing," but the new standards in the current education bill could bring that figure up to 169 by next year.

   Governor Bush has declared that when passed, he will sign the voucher proposal "with a smile on his face..."

   The Florida rating system will assign public schools a grade from A to F based on the cumulative scores of students from a new, standardized test. That plan worries Rep. James Bush (no relation to the governor) who says that low scores in poorer school districts will worsen the situation by draining off the better students and the state financing that goes with them. "What you will have is a massive exodus of students leaving the public schools ... you're going to loose teachers, too."

   Dr. Samuel J. Yarger of the University of Miami School of Education also predicted problems with the voucher program. While admitting that the plan was "very viable, politically," he warned, "If you allow vouchers, the students who voucher out of public schools will be those whose parents care about them. The kids who are left behind are the kids who are poor, whose parents don't have the concern... That residual student body will have more failures..."

   Rep. Bush told the New York Times that inner city schools were already at a disadvantage, and "don't receive the resources that they should to catch up with schools that have adequate books and computers and support staff and those things that give some schools an upper hand."

   The Times noted, "Small schools, which hold a warm place in the history of their communities, would just disappear, he said."

   The Florida plan is also constitutionally suspect regarding First Amendment issues, specifically the separation of state and church. Religious schools that accept voucher students presumably cannot require them to pray or take part in sectarian instructions; critics insist, though, that this would be difficult if not impossible to enforce.

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