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Published in Print: September 1, 2004, as Florida Weighs Impact of Ruling Against Voucher Program

Florida Weighs Impact of Ruling Against Voucher Program

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A recent Florida appeals court ruling leaves in doubt the future of Florida’s state-financed tuition vouchers that students can use in religious schools.

The state’s First District Court of Appeal, in Tallahassee, ruled 2-1 on Aug. 16 that the state’s Opportunity Scholarships violate a provision of the state constitution forbidding the use of public money in religious institutions.

State leaders plan to appeal the ruling to the Florida Supreme Court.

Hundreds of students attending religious schools using the state- financed vouchers likely will continue using them until the case reaches the high court.

The Opportunity Scholarships are Florida’s best-known, but least- used, form of school choice. About 660 students used the tuition vouchers this past spring. More than 25,000 students participate in other forms of school choice in the state.("Fla. Vouchers Move Toward Tighter Rules," Sept. 17, 2003.)

Gov. Jeb Bush, a Republican who successfully pushed lawmakers to approve the Opportunity Scholarships in 1999, was disappointed in the court’s decision. "We will appeal the ruling," the governor said in a statement. "It’s unfortunate the plaintiffs continue to try to deny predominately poor and minority parents meaningful choices."

Others hailed the decision.

"The authors of the Florida state constitution were very clear: Public funds cannot be given to religious institutions," said Judith Schaeffer, the deputy legal director for the People for the American Way Foundation, a Washington-based group that advocates for church and state separation, and a party in the suit.

Blaine Amendments

Even if the Florida Supreme Court ultimately agrees that the vouchers are unconstitutional, the case’s potential impact on school choice nationwide could be minimal, said Clint Bolick, the president and general counsel of the Phoenix-based Alliance for School Choice, a national proponent of education vouchers.

About three dozen states have constitutional provisions that in some way prohibit public funding of religious education. Those provisions are often referred to as "Blaine amendments," for the 19th-century congressman who championed such restrictions.

Mr. Bolick said that while the Florida Constitution bars "direct or indirect" use of state money by religious institutions, most state laws are less restrictive.

Florida’s school choice advocates, he said, could try to expand the state’s tax-credit scholarships. That program gives state tax breaks for corporate donations to nonprofit scholarship groups, which provide tuition aid that can be used at religious schools.

"In the long run, our goal is to make the world safe for voucher programs," Mr. Bolick said, even if that means challenging state constitutional language in the U.S. Supreme Court.

Mr. Bolick represented parents whose children participated in Ohio’s voucher program for students in Cleveland in a case the high court decided on federal constitutional grounds in 2002. ("Voucher Advocates Plan a Multistate Legal Battle," Oct. 16, 2002.)

Students who use Florida’s Opportunity Scholarships are eligible for about $3,900 in state aid to pay tuition at the private or public schools of their choice. To qualify, students must attend public schools that receive two failing grades on state report cards during a four-year period.

Ripple Effect?

Most students using the state’s school choice programs do not use the Opportunity Scholarships. Two other programs—the corporate-tax-credit scholarships for students from low-income families and the McKay Scholarships for special education students—are far more widely used.

The state appellate court’s decision does not directly affect those programs, although the McKay Scholarships could face a similar challenge if the Opportunity Scholarships do not survive.

"If the Opportunity Scholarships program is deemed unconstitutional by the Florida Supreme Court, I believe it’s only a matter of time before the McKay Scholarships would meet a similar fate," said Larry Keough, the director of education for the Tallahassee-based Florida Catholic Conference, which favors vouchers.

The appellate ruling upheld a lower court’s 2002 decision in Bush v. Holmes.

Writing for the two-judge majority in the August decision, Judge William A. Van Nortwick Jr. said that the voucher program "undisputedly involves the payment of state funds to religious schools," and therefore clearly violates the state constitution’s prohibition on such activity.

Judge Ricky Polston dissented, writing that doing away with the Opportunity Scholarships would leave no distinction between the vouchers and other forms of public aid to colleges, hospitals, or other religious organizations.

The majority held that state law allows revenue bonds and tax credits for religious institutions, but not direct aid.

Vol. 24, Issue 1, Page 29

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