Law & Courts

Florida Supreme Court Finds State Voucher Program Unconstitutional

January 06, 2006 | Corrected: February 22, 2019 7 min read

Corrected: The Florida Supreme Court’s vote has been corrected in this story.

The Florida Supreme Court ruled Jan. 5 that one of the nation’s highest-profile school voucher programs is unconstitutional, a decision that will force many of the 720 students who use state money to attend private schools to look for other options after this school year.

The court voted 5-2 to end the Opportunity Scholarships program, which provides students who decide to leave some of the state’s lowest-rated public schools with about $4,350 in tuition aid they can use in private or religious schools.

Chief Justice Barbara J. Pariente wrote in the majority opinion that the vouchers violate the state constitution’s provision that requires a “uniform” system of public schools for all students.

The decision not only disappointed school choice advocates in Florida and across the United States, but also could block their hopes for a U.S. Supreme Court ruling on constitutional language in some 38 states that restricts the use of public money in private, religious institutions.

The chief justice wrote that the Opportunity Scholarships “diverts public dollars into separate, private systems ... parallel to and in competition with the free public schools.”

“This diversion not only reduces money available to the free schools, but also funds private schools that are not ‘uniform’ when compared with each other or the public system,” she wrote.

The high court’s ruling differed from the state court of appeals’ 2004 decision that the voucher program violated the state constitution’s requirement for a “uniform” school system and its ban on the use of public money in religious institutions.

In his dissent, Justice Kenneth B. Bell wrote that the state constitution simply ensures that “every child in Florida has the opportunity to receive a high-quality education and to ensure access to such an education by requiring the legislature to make adequate provision for a uniform system of free public schools. There is absolutely no evidence before this court that this mandate is not being fulfilled.”

Fallout Ahead

Lawyers for the state and advocates for school choice programs across the country decried the decision.

“I think it’s outrageous,” said Clark M. Neily, a senior attorney with the Arlington, Va.-based Institute for Justice, who helped argue the case before the Florida Supreme Court. “Fundamentally, what’s at issue in this case is the notion of school choice. Some people are just plain committed to sabotaging any sort of school choice program.”

Mr. Neily said the court’s decision to avoid a ruling on Florida’s so-called “Blaine amendment” likely prevents lawyers for the state from having a chance to appeal their case to the U.S. Supreme Court as a church-state issue.

Thirty-eight states have similar constitutional language, named for the 19th-century Republican political leader James G. Blaine, who advocated such a constitutional provision. Mr. Neily had hoped to mount a federal court challenge that might have overturned such provisions and opened the door for school vouchers and similar programs across the country.

Blaine amendments became one of the last major legal obstacles to the expansion of state-sponsored voucher programs. In 2002, the U.S. Supreme Court upheld Ohio’s voucher program in Cleveland, saying it didn’t violate federal constitutional rules against the separation of church and state.

The Florida court decision likely will produce fallout in the state’s education system and in state politics for many years to come.

While the John Ellis “Jeb” Bush v. Ruth D. Holmes decision does not directly apply to Florida’s other school choice programs, which enroll some 24,000 students, state Commissioner of Education John Winn has said previously that if the Opportunity Scholarships were struck down, similar programs also could be affected. Mr. Winn was out of the country on the day of the ruling and could not be reached for comment.

The state’s McKay Scholarships, for instance, allow some 14,000 students with disabilities to attend private schools or use state money to access additional educational services from private providers, including tutors and therapists.

More uncertain is how the Bush v. Holmes ruling might affect the state’s most popular school choice program, known as corporate tax-credit scholarships, which allow some 10,000 students from low-income families to attend private schools using money gathered by nonprofit organizations that receive corporate donations in exchange for state tax breaks.

Significance Outside Florida

Ronald G. Meyer, a Tallahassee lawyer who argued the plaintiffs’ case and was hired by the Florida Education Association, said he will consult with his clients and others who oppose school choice in Florida to determine whether to pursue lawsuits against the McKay Scholarships and other programs.

“I think this spells the end of this diversion of public monies to private education programs in Florida,” he said. “The significance of this travels well beyond the state of Florida.”

The Florida court decision may have an impact in future cases in states that require “uniform” systems of public schooling, Mr. Meyer said. “What this court has said is the requirement of uniformity requires accountability. It requires the same standards that are applicable to public schools if the public is going to support them,” he said.

Leaders of the state teachers’ union, which aided the plaintiffs in the case, will discuss in the coming weeks whether to pursue legal action against Florida’s remaining school choice programs, said Mark Pudlow, a spokesman for the Florida Education Association, a merged affiliate of the National Education Association and the American Federation of Teachers.

“It’s unfortunate it had to come to this,” said Mr. Pudlow, adding that union leaders supported the court’s decision to allow students to finish the school year using the Opportunity Scholarships. “There was certainly evidence of the unconstitutionality of vouchers [all along].”

National groups that oppose school choice and advocate for the separation of church and state praised the ruling.

“This is an important victory for public education and church-state separation,” the Rev. Barry W. Lynn, the executive director of the Washington-based Americans United for Separation of Church and State, said in a statement. The group helped bring the challenge against the voucher program. “Now the state legislature can devote its attention to improving public education rather than subsidizing religious and other private schools.”

Ralph G. Neas, the president of the Washington-based People for the American Way Foundation, which also assisted the plaintiffs in the case, added: “Vouchers are an expensive and ineffective distraction from that goal. They deserve to be abandoned. And now in Florida they must be.”

Governor Reacts

Florida Gov. Jeb Bush, a Republican who first pushed for the Opportunity Scholarships, condemned the ruling as a step backward for minority students, who are the primary users of the vouchers. He promised to work with lawmakers to find any possible legislative remedies for restoring the scholarships.

“Today marks the first time the Florida Supreme Court has struck an educational program solely because private schools participate equally in it,” he said in a written statement. “It temporarily removes a critical tool for improving Florida’s public schools and it also challenges the power of the Florida legislature to decide as a matter of public policy the best way to improve our educational system.”

State Rep. Rafael Arza, a Republican from Dade County and a former teacher and coach, called the court decision “a cowardly act” that avoided church-state issues and will force inner-city parents to provide false addresses to schools to ensure their children avoid some of the worst public schools.

“This traps children who don’t have the means to have a choice and condemns them to be in failing schools,” he said in an interview, adding that he couldn’t predict how the state legislature might respond to the voucher decision. Other school choice advocates also decried the ruling.

“This decision is a travesty. It makes a mockery of the state’s guarantee of high-quality educational opportunities,” said Clint Bolick, the president of the Phoenix-based Alliance for School Choice, in a statement. He is working with national and Florida education groups to help develop public-policy responses to the court’s ruling.

Larry Keough, the education associate for the Tallahassee-based Florida Catholic Conference, lamented that about 150 students who attend Roman Catholic schools using the vouchers may not be able to continue after the current school year. “The ruling is a setback for hundreds of families and their children, as well as the school choice movement,” he said.

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