School Choice & Charters

Appeals Court Strikes Down Florida Voucher Program

By Alan Richard — August 16, 2004 5 min read
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A Florida appeals court has found the state’s Opportunity Scholarships unconstitutional, leaving in doubt the future of Florida’s state-financed tuition vouchers that students can use in religious schools.

The First District Court of Appeal in Tallahassee ruled 2-1 on Aug. 16 that the school voucher program violates a provision of the state constitution forbidding the use of public money in religious institutions.

The Opportunity Scholarships are Florida’s best-known, but least-used, form of school choice. About 660 students were using the tuition vouchers this past spring. About 25,000 students use 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 and warned that school choice for many thousands of students ultimately could be cut off.

“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.”

If the Florida Supreme Court ultimately agrees on appeal that the vouchers are unconstitutional, the court case could have consequences for the school choice movement nationwide, observers said, because other states have similar constitutional provisions.

Students who use the 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 for the program, students must attend public schools that receive two failing grades on state report cards during a four-year period—which means that only pupils in a few dozen of Florida’s lowest-scoring schools have taken part.

Most students who transfer out of public schools using the Opportunity Scholarships enroll in religious private schools.

It was not immediately clear whether students using public money to attend private and religious schools in Florida would immediately be forced to stop using the vouchers.

The appeals court decision upholds a lower-court ruling from 2002 in the case of Bush v. Holmes, in which a Leon County resident and group of organizations sued Gov. Bush and other state officials.

The Ruling

Writing for the two-judge appellate majority, Judge William A. Van Nortwick Jr. said that the voucher program “undisputedly involves the payment of state funds to religious schools,” and therefore violates the state constitution’s prohibition on such activity, no matter its good intentions or popularity.

Judge Ricky Polston wrote in his dissent there cannot be a distinction between the Opportunity Scholarships and other forms of public aid to colleges, hospitals, or other organizations with religious ties.

The judge quoted the U.S. Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, in which the nation’s highest court allowed the use of state tuition vouchers in religious schools in Cleveland.

The Florida program equally focuses on the “the neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools,” Judge Polston wrote, quoting the federal ruling.

But the majority held that the Florida Constitution goes further than the U.S. Constitution to restrict government aid to religious institutions. The court held that state law does allow such assistance as revenue bonds and tax credits for religious institutions, but not direct aid.

Most students using school choice in Florida are not part of the Opportunity Scholarships program. Two other programs—corporate-tax-credit scholarships for low-income students, and the McKay Scholarships for special education students—are far more widely used.

The Aug. 16 decision does not directly affect those programs, although the McKay Scholarships could face a similar challenge if the Opportunity Scholarships do not survive the court battles.

The tax-credit scholarships provide about $3,500 for each student. The money is doled out by nonprofit organizations that accept donations from businesses in exchange for a break on state corporate taxes.

The McKay Scholarships provide money for special education students whose parents wish to transfer them out of their current public schools and into another public or private school, or for extra help with children’s disabilities outside the school setting.

Mixed Reactions

“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 Florida Catholic Conference, based in Tallahassee.

Mr. Keough said that dozens of other state programs with religious ties could be threatened under the appeals court’s interpretation of the state constitution.

“It’s our hope that the Florida Supreme Court would take more of a comprehensive review of the actual Florida constitutional language,” he said.

Marcus Winters, a research associate for the Manhattan Institute, a think tank based in New York City whose work is supportive of school choice, argued that ending the use of Opportunity Scholarships in Florida would hurt public schools as much as private schools that receive the money.

“Our research has found that the Opportunity Scholarships program has significantly improved the performance of Florida public schools” on state tests, said Mr. Winters. If the decision ultimately leads to the end of other programs such as the McKay Scholarships—as Gov. Bush suggested publicly—the adverse affects could reach far more children, Mr. Winters said.

But critics of Florida’s use of public money in religious schools cheered the court decision.

“Now that two state courts have declared it unconstitutional, the governor and his allies should turn to the work of ensuring every Florida child a quality public education,” said Ralph G. Neas, the president of the People for the American Way Foundation, a Washington-based group that advocates strict separation of church and state.

“The authors of the Florida state constitution were very clear: Public funds cannot be given to religious institutions,” added Judith Schaeffer, the deputy legal director for the People for the American Way Foundation.

Gov. Bush said in his statement that a variety of state-financed programs with ties to religious institutions could be affected if the state supreme court upholds the appellate ruling.

“If upheld, the court’s logic for striking the scholarships could invalidate many other programs such as... [the] McKay Scholarships for special-needs children, and funding to private universities such as Bethune-Cookman [University],” the governor said. “Even non-education programs such as Medicaid funding to hospitals with religious affiliations could be threatened.

“Today, thousands of children attend private schools, including hundreds of non-religious schools, under Florida’s choice programs,” Gov. Bush continued. “Their parents have chosen these schools, and we should honor that choice.”

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