During oral arguments Tuesday, Florida Supreme Court justices grilled lawyers for and against Gov. Jeb Bush's school voucher program as they considered a lower court ruling striking down the program as unconstitutional.

Most of the justices, especially Harry Lee Anstead, Peggy A. Quince and Charles T. Wells, seemed skeptical of the arguments of attorneys supporting vouchers, while Justice Raoul G. Cantero III seemed dubious about the arguments of those opposing vouchers.

Jeb Bush, et al. v. Ruth Holmes, et al. centers on the Opportunity Scholarship Program, which was established by the Legislature in 1999 as part of Bush's "A+ Plan for Education." It was the first statewide school voucher program in the country to have the state pay for public school students to attend private and parochial schools. Other states are closely watching the outcome of the case.

On Tuesday, Barry Richard, a Greenberg Traurig shareholder in Tallahassee who is representing Bush, led off the oral arguments. But he was quickly interrupted and peppered with questions about the constitutionality of the voucher program under two provisions of the state constitution - Article I, Section 3, also known as the no-aid provision, and Article IX, Section 1, which mandates the Legislature provide quality public education.

Referring to the Article IX provision, Justice Quince asked, "Isn't that an expression of the way that the Legislature is to educate the children of this state? And that is through a system of free, public education?" Richard replied that "the question suggests that Article IX says that the public schools are the exclusive method by which the state provides education. It says nothing like that."

Richard told the justices that "there is nothing in the constitution that prohibits the Legislature from funding private school programs any more so than it prohibits the Legislature from funding private health programs, environmental programs or anything else the Legislature chooses to do."

But an attorney for anti-voucher groups, including the Florida Congress of Parents and Teachers and the Florida Education Association, argued that funding students at religious schools is different from paying for other types of services at religious-based facilities, such as hospitals.

"It is clear that the sectarian schools that children are attending under the opportunity program have as a major part of their program religious training and instruction," John West, of Bredhoff & Kaiser in Washington, D.C., told the justices. "The service [the state] is paying the fee for is religious indoctrination of young children."

The case is the latest flash point in the battle by Bush and his Republican allies to push a conservative social agenda through the courts. If they lose this appeal, voucher supporters have vowed to ask voters to amend the constitution to explicitly allow funding of religious schools.

Few appellate lawyers see how the Supreme Court could uphold the program.

Asked how much room for interpretation there was in the constitutional provisions, Steven Gey, a constitutional law professor Florida State University, said in an interview that "I'm not sure there is much of a gray area. Frankly, I don't think [voucher proponents] have a leg to stand on in the wording."

Gey filed an amicus brief against the voucher program.

The Opportunity Scholarship Program provides parents of children in low-performing public schools with money that can be put toward tuition at private schools, primarily religious-based schools. In 2004, 719 students took advantage of the program at 42 schools across the state. Students are eligible if they attend any K-12 school that has been given an "F" by the state in any two of the last four years. At the beginning of this academic year, just over 20,000 students from 21 low-performing schools were eligible.

No-aid provision

The constitutionality of the voucher program hinges on the Supreme Court's interpretation of two sections of the state constitution.

The no-aid provision declares that no state money shall "ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution."

The second provision, Article IX, Section 1, requires the Legislature to provide for "a uniform, efficient, safe, secure and high-quality system of free public schools." Critics of the voucher system say this section essentially requires that the state only fund the public school system. Proponents of school vouchers say it only requires the state to make sure that every student is educated and does not rule out state funding for private schools.

The first two legal challenges to the voucher program were filed in Leon Circuit Court immediately after the program was enacted by the Legislature in 1999. Foes were led by teachers' union leaders and Democratic lawmakers who argued that vouchers would drain resources from the state's neediest public school districts. In 1999, a group of Escambia County teachers led by Ruth Holmes, a former state teachers union president from Pensacola, filed a suit claiming the program violated the constitutional separation of church and state by sending public money to parochial schools.

Bush contended that the program was not giving public money to religious schools because the vouchers go to the parents, who sign them over to the schools. He also argued that the statute did not violate the separation between church and state because the participating private schools had to sign an agreement to refrain from forcing any of the voucher students to pray or profess a specific religious belief.

A Leon Circuit judge ruled that the program was unconstitutional under Article IX, Section 1. The decision was appealed. In 2000, the 1st District Court of Appeal reversed it, finding that nothing in the law prohibits the "well-delineated" use of public money for private school education, "particularly in circumstances where the Legislature finds such use is necessary." The 1st DCA remanded the case for further consideration.

But on remand, a Leon Circuit judge ruled in 2002 that the voucher program violated the no-aid provision. The case again was appealed to the 1st DCA. Last November, the full 1st DCA, in an 8-5 ruling with a ninth justice concurring in part and dissenting in part, found that the Opportunity Scholarship Program violated the no-aid provision.

"There is no dispute in this case that state funds are paid to sectarian schools through the OSP vouchers," the 1st DCA majority said in a ruling written by Judge William Van Nortwick. "Thus, we hold the OSP unconstitutional under the no-aid provision to the extent that the OSP authorizes state funds to be paid to sectarian schools."

In its majority opinion, the 1st DCA said that state constitution has one of the most restrictive no-aid clauses in the nation, because it prohibits public funds from being "directly and indirectly" sent to religious institutions.

A key issue, the 1st DCA majority said, is that many of the religious-based schools attended by the voucher students explicitly state that their mission is to instill religious faith and values as well as to teach academics. That differs from hospitals or day care programs that are run by a religious organization, the majority said. The state-funded teaching of religion is exactly what Florida's no-aid clause sought to prevent, the majority said.

'Child is more important'

On Tuesday, Christopher Kise, who was representing Attorney General Charlie Crist, a supporter of the Bush voucher plan and a Republican candidate for governor, told the justices that "The Opportunity Scholarship Program is in aid of Florida's children, period. It's not a ... clandestine way to fund religious or sectarian schools."

Kise agreed that the language of the state constitution prevents funding for organizations where the primary function is religious activity. On the other hand, he argued, just because a religious institution receives state money, that program is not unconstitutional if the primary purpose is serving the good of the public.

Asked by Justice Quince how the departure of students from low-performing public schools affected those schools, Kise replied that "the child is more important than the institution."

Clark Neily, an attorney from the Institute for Justice, a conservative Washington, D.C.-based group, argued on behalf of several individual voucher recipients. He said public money long has been used to send special-needs students to private schools, including religiously affiliated facilities.

Justice Quince asked him if it was different situation when the public schools are not equipped to handle particular special-needs students. Neily agreed that it was. Still, he noted that the policy of using public money for students at private and religious schools had not been ruled unconstitutional in those cases.

Neily said the no-aid provision should be considered within a historical context. Florida's clause was incorporated into the state constitution in 1868, a time when such clauses, commonly named Blaine Amendments after Maine politician James Blaine, were being adopted by many states to prevent public money from being given directly to Catholic organizations.

Quince asked what percentage of students in the voucher program attended religious schools. Neily said the figure is 58 percent.

Neily said two studies have shown that public schools improve their performance when they have to compete with private schools to survive.

Representing voucher foes, John West attacked the validity of those studies. West said other researchers had done similar studies and not found evidence the Opportunity Scholarship Program was responsible for reducing the number of failing schools in the state.

Justice Cantero then tangled with West over the history of the no-aid clause and the level of religious activity instruction and training at religious schools that participating in the Opportunity Scholarship Program.

"We are not throwing money at private schools," Cantero said. He argued that the state was essentially paying an institution for the education of a child, and that the institutions were sometimes religiously affiliated.

West disagreed, arguing that the education voucher students receive in religious-based schools often contains religious instruction as a "major part of their program."

West said his clients would be satisfied if the Florida opportunity scholarship law were rewritten so that state vouchers could be used only for education at religious-based or secular schools that do not include religious instruction as a major part of their program.