TALLAHASSEE, Fla. — A Florida court has dealt a blow to a program that allowed low-income students to attend private schools.

A three-judge panel of the 1st District Court of Appeals in Tallahassee decided on Aug. 16 that the state's Florida Opportunity Scholarships Program is unconstitutional. The program has given students in the state's lowest-performing schools an out to transfer to better schools, including religious ones — most of them Catholic.

The issue has been politically charged in this campaign season. The Black Alliance for Educational Options says that the Florida decision, unless it's overturned on appeal, will be a disaster for families like Tracy Richardson's.

Her daughter Khaliah was able to use a voucher to attend the Montessori Elementary School in Pensacola.

”It works for Khaliah,” Richardson told reporters. “She is one of those children who does not want to pay attention. She needs that one-on-one attention, and now she's getting it.”

But teachers’ unions and their allies oppose vouchers, which are based on the assumption that the public-school system fails kids. They argue that vouchers violate church-and-state restrictions.

President George Bush says he supports school vouchers. He created a White House office to promote programs that help the poor with government money, even if religious organizations are involved. Democratic presidential candidate John Kerry opposes these efforts and is against school vouchers.

Some experts worry that the Florida court's decision has the potential for a ripple effect throughout the nation.

Jay Greene, a senior fellow at the Manhattan Institute's Education Research Office, says, “The court's opinion not only might be devastating to Florida's students, it could also prove a significant obstacle to the enactment of school choice throughout the nation. If legislators in other states believe that voucher programs will simply be struck down because of their states’ Blaine amendments, they might hesitate to implement these programs even though research consistently shows that they benefit students.”

Blaine amendments prohibit public aid to religious schools. The anti-Catholic relics remain in the constitutions of more than 30 states.

The new decision upheld a 2002 ruling that the program violated the Florida Constitution's prohibition on state money going to sectarian institutions. The case now goes to the state Supreme Court.

”The decision is a devastating harbinger for thousands of Florida schoolchildren who have been able to leave failing schools for good ones,” said Clint Bolick, president and general counsel of the Phoenix-based Alliance for School Choice. “It is also bad news for Florida schoolchildren as a whole, whose schools have improved as a result of the threat of competition.”

Rebecca Nieves Huffman, president of the Hispanic Council for Reform and Educational Options, added, “The Florida ruling is an outrage and is another example of how the opponents of parental choice are out to best serve those who work in the system rather than the students who are supposed to be educated in it.”

In the court's majority opinion, Judge William Van Nortwick Jr. wrote that, “We recognize the salutary public policy supporting the legislation to enhance the educational opportunity of children trapped in substandard schools. Nevertheless, courts do not have the authority to ignore the clear language of the Constitution, even for a popular program with a worthy purpose.”

More than 600 students are currently enrolled in the scholarship program, which was established by the Bush administration in 1999. None of the students currently enrolled in the program will be affected by the litigation until the state high court rules.

In a statement, Florida Gov. Jeb Bush said, “This decision is particularly disappointing given the U.S. Supreme Court's recent decision finding Ohio's choice program constitutional. This ruling is also troubling because it suggests that the Florida Constitution requires aid programs to discriminate against parents who choose religious schools. Moreover, this decision could undermine many other vital initiatives that benefit countless Floridians …. This interpretation of our state's constitution cannot be correct.”

Of course, some are hoping for exactly what the Manhattan Institute's Green describes. The Florida case was celebrated as a victory by opponents of school choice, including Americans United for the Separation of Church and State.

The organization's spokesman, Joe Conn, said, “The Florida voucher decision is extremely important. This case is being closely watched across the country. Two-thirds of the states have constitutions with language barring tax aid to religion. The Florida ruling is one more reason for legislators in other states to consider other options.”

Ron Meyer, lead attorney for the Florida Education Association, one of the plaintiffs in the case against the Florida program, told reporters the decision was “a monumental win for taxpayers.” He said, “It means they'll no longer be forced to pay tax money for unaccountable schools.”

In a dissenting opinion, Judge Ricky Polston worried that the damage of the ruling will go beyond education. “The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion.”

School-choice proponents, however, have different reads on the extent of the Florida ruling's damage.

Bolick, of Alliance for School Choice, has a more positive take than Greene. “The decision will have little impact outside of Florida,” he said, because Florida “has a ‘super’ Blaine amendment, which forbids aid for religious schools ‘directly or indirectly.’”

In two other states with Blaine amendments but without the clause forbidding “indirect” aid, the supreme courts have upheld school-choice programs. Their reasoning? “They provide aid to children, not to schools,” Bolick said. “If the decision is affirmed by the Florida Supreme Court, we hope the U.S. Supreme Court will review the decision and ruled unequivocally that a state may not exclude religious options from the range of school choices made available to children.”

Richard W. Garnett, a professor at the University of Notre Dame's law school, is also hopeful.

”In its recent decision, Locke v. Davey, the Supreme Court left open the question whether the Constitution would permit a state to exclude religious schools entirely from a general school-voucher program,” he said. “The appeals court in Florida has answered Yes to that question, holding that the Florida Constitution requires, and the free-exercise clause permits, such discrimination. In the months and years to come, we can expect a number of other courts — and, eventually, the Supreme Court — to tackle the same issue.”

He said the reasoning of the Florida court is vulnerable on at least two fronts. “First, that the U.S. Supreme Court permitted Washington to refuse to fund college-level studies in ministry and theology does not mean that the justices would allow a state to exclude religious schools across the board from a general choice program,” Garnett said.

“Second, the Florida court failed to confront or engage the anti-Catholic purposes — and effects — of that state's ‘no-aid’ provision, a provision that was, as Justice (Clarence) Thomas has observed, designed to hamstring Catholic schools and reduce perceived Catholic power.”

Kathryn Jean Lopez is the editor of National Review Online.