An appeals court panel is now left to decide the constitutionality of the school voucher program.

TALLAHASSEE -- To the families of Pensacola children who get vouchers for private school, the case is simple: Their kids shouldn't be stuck in Florida's worst schools.

To advocates for public education, there is no question: Florida's Constitution prohibits sending those Pensacola children to private school with the public's money.

A three-judge panel of the 1st District Court of Appeal heard from both sides Wednesday, as it considered the fate of Florida's voucher program that allows children in failing public schools to use taxpayer money for private school.

"These children did not have a high quality education before the (voucher) program started. Today, they do," said attorney Clint Bolick, representing Pensacola families who were the first to take advantage of the 1999 education reform law that created the voucher program.

Bolick, and lawyers for the state, asked the appellate judges to reverse a decision by Leon County Circuit Judge L. Ralph Smith Jr., who threw out the voucher program earlier this year. Smith agreed with Florida's teachers unions, the NAACP, the Florida PTA and other groups who went to court arguing that the vouchers violate the state Constitution. The 50 or so children in the voucher program were allowed to continue attending private schools after Smith's ruling.

The 1st District Court of Appeal panel did not rule on the spot, which is typical. Although it is difficult to predict which way judges will rule, the appellate judges on Wednesday clearly expressed caution about a ruling that could have broad implications.

"We have a tendency to worry about the future," said Judge Peter D. Webster. "I am concerned about the logical implications of Judge Smith's decision."

In question are situations in which Florida is already giving public money to private facilities for educating children. For example, the state spent 16 million last year to educate disabled students with special needs in private facilities.

Wouldn't a ruling striking down the voucher law also get rid of that program for disabled kids?

Dexter Douglass, one of the lead lawyers against the voucher program, told the judges that the situation is different for special education students because they can't be served in public schools and must go to private facilities.

Under the voucher law, students in schools given an "F" grade by the state because of low test scores and other factors, can transfer to a better public school, with a grade of C or higher.

One problem with sending children to private schools is that those private schools aren't held to the same standards as Florida's public schools, said Douglass. For example, children at the private schools don't have to take the same tests as public school children and the schools don't get A through F grades like public schools do. That flies in the face of Florida's Constitution, which calls for a "uniform" system of free public schools, among other requirements.

One of the main arguments by state lawyers on Wednesday was that Smith's ruling didn't give the state a fair chance to argue its case in a trial setting. Rather than consider the constitutional issues involved in the case, the panel of appellate judges could simply send the case back down to Smith for a trial.

If the judges uphold Smith's decision, the state would ask for a review by the Florida Supreme Court, said Thomas Warner, the state's solicitor general.