Legal Fight Takes Shape in Florida Over Constitutional Amendment

By Sean Cavanagh — July 21, 2011 2 min read
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Florida has long been a testing ground for private-school voucher programs and—no surprise—has also hosted a number of high-profile political and legal battles over the separation of church and state.

This week, another court fight began taking shape as a teachers’ union and religious leaders filed a lawsuit try to block a constitutional amendment from going on the ballot next year, claiming its language is misleading and would lead to faith-based institutions receiving special access to public funds.

The case stems from a measure approved earlier this year by Florida’s Republican-led legislature, which voted to place a constitutional amendment on the ballot in the November 2012 general election.

Known as Amendment 7, the measure would delete language in the state consitution that prohibits public money from being used “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” The amendment would also add language saying that the government cannot deny individuals or entities “the benefits of any program, funding or other support on the basis of religious identity or belief.”

Many states have language in their constitutions like Florida’s, which in some way bar or restrict public money from going to religious schools or institutions. Those provisions are known as Blaine amendments, a reference to former U.S. House Speaker John G. Blaine, who pressed for a constitutional amendment at the federal level. He wasn’t successful; but numerous states approved their own language with a restriction on public funding going toward religious entitites.

States have sought to change their Blaine amendments before, but none of them has used the precise language Florida is considering, Dick Komer, a senior lawyer at the Institute for Justice, a libertarian public-interest law firm in Arlington, Va., that supports vouchers and other forms of school choice, said in an e-mail.

The Florida Education Association, which supports the lawsuit, says the constitutional amendment would lead to a massive expansion of vouchers. Florida currently has voucher and tax credit programs benefiting special-needs students and those from disadvantaged backgrounds. The state’s Supreme Court in 2006 rejected one of the state’s private school choice programs, saying it violated the state’s constitution.

“This is a shady way of opening the door for school vouchers for all,” said FEA President Andy Ford, who is a plaintiff, in a statement.

The lawsuit contends the title of the ballot item—"Religious Freedom"—and its language are misleading, in that it suggests that voters are being asked to protect religious freedom, rather than give faith-based institutions “greater entititlement to government benefits” than is allowed by the U.S. Constitution.

One of the sponsors of the legislation to put the amendment on the ballot, state Rep. Scott Plakon, said the measure was not written with only school vouchers in mind. Social service and charitable groups with religious ties that do work with public entitities would also have greater legal protections, if the constitutional amendment passes, he told EdWeek.

“I believe the measure was correctly written, and I don’t see the merit in the lawsuit,” Plakon said. “I would hope the courts would allow the voters to weigh in on this issue.”

A version of this news article first appeared in the State EdWatch blog.