The Florida Supreme Court heard oral arguments June 7 in a case that could determine the future of school vouchers in the state and set the pace for school choice policies across the nation.
Lawyers for each side sparred over the role of religion in many of the private schools that receive vouchers under Florida’s Opportunity Scholarships program.
Justices on the seven-member court also questioned whether public money for K-12 schools should be used in private schools at all, whether other forms of state aid to religious institutions would be at risk if the vouchers are struck down, and whether federal law barring discrimination against religious institutions applies to this case, Bush v. Holmes.
Named on one side for Florida Gov. Jeb Bush, a Republican who first proposed the Opportunity Scholarships, and on the other for retired educator and teachers’ union official Ruth D. Holmes, the case will determine whether the Florida Constitution permits the publicly funded vouchers.
Two lower courts have ruled the Opportunity Scholarships violate the Florida Constitution’s language stating that “No revenue of the state or any political subdivision or agency thereof 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.”
Only about 720 students used the Opportunity Scholarships in Florida during the 2004-05 school year. But far greater numbers of students could see other state-sponsored school choice programs at risk if the state supreme court strikes down the voucher program.
For example, the state’s McKay Scholarships, which allowed 14,300 students with disabilities to attend private secular and religious schools in the most recent school year, likely would face an immediate legal challenge if the court rules the Opportunity Scholarships unconstitutional. The state’s Bright Futures college scholarships also could be at legal risk. Neither are included in Bush v. Holmes specifically. (“Court Showdown Over Fla. Vouchers Nears,” May 25, 2005.)
Legal Precedent
In the one-hour oral arguments in Tallahassee, two Florida Supreme Court justices suggested that they see no difference between the state’s general budget for K-12 schools and the relatively modest amount of money the state spends on Opportunity Scholarships.
“This is money that’s coming, dollar for dollar, out of the money that would be … for the uniform system of public schools,” said Justice Charles L. Wells, questioning why the court should allow the state to divert public money to private schools.
But lawyer Barry Richard, representing Gov. Bush and defending the state’s voucher program, argued that money for the Opportunity Scholarships doesn’t directly strip funding from general school aid in Florida.
“The plaintiffs are not suggesting that the money in the Opportunity Scholarships comes from the state school fund,” he said.
Mr. Richard added that to single out religious, private schools’ use of Opportunity Scholarships would fly in the face of the U.S. Supreme Court’s 2004 decision in Locke v. Davey that allows state tuition aid to religious colleges except for students studying to become clergy.
He added that if the court rules the voucher program unconstitutional, other forms of public aid to religious colleges, hospitals, and other institutions will be at risk. “We don’t believe you can sever it without running afoul of the U.S. Constitution,” he said.
Justice Kenneth B. Bell wanted to know why the reasoning behind the 2002 U.S. Supreme Court decision allowing state-funded vouchers in Cleveland in Zelman v. Simmons-Harris, and Locke would not apply in the Florida case.
Plaintiffs’ lawyer John M. West responded that the Florida Constitution and its so-called Blaine amendment contains “a far more specific restriction on the use of public funds than does the federal establishment clause.” Florida is one of 37 states whose state constitutions include language first advocated by 19th century Maine politician James G. Blaine that prohibits the use of public money in religious institutions. The amendments were seen as a way to keep public money from going to non-Protestant institutions. (“Voucher Advocates Plan a Multistate Legal Battle,” Oct. 16, 2002.)
Justice Raoul G. Cantero III asked whether the possible religious bigotry touted by supporters of the Blaine language more than a century ago should be considered in the Florida voucher ruling. He noted that the state could not measure how much religion is taught in private schools that qualify for public aid. “How do you distinguish one situation from another?” he asked Mr. West.
Mr. West said that distinctions can be made, but asked that the court consider whether Florida’s constitution allows any sort of public aid for private schools, religious or secular. He added that the court’s decision should not apply to state aid for higher education.
A decision could come later this summer, in time for the new school year in Florida.
