The Florida Supreme Court today struck down the state’s voucher system that Governor Jeb Bush had heavily supported and had passed into law back in 1999 (it was the first such statewide voucher prgram in the country). The court ruled, 5-2, that the program was a violation of the Florida Constitution, but reached its decision based on financing, and thus did not address the issue of whether the program also violated the separation of church and state, as a lower appellate court had also found. The question regarding sectarian aid was the focus of most of the briefing before the court. Today’s decision is not appealable.

The key point, the court determined in its Opinion (66-page PDF) in Bush v. Holmes, was that the Opportunity Scholarship Program (“OSP”) would siphon money away from public schools and into a parallel private system that is not only in competition with the public schools but is also largely exempt from many state standards. (So much for the concept of No Child Left Behind!)

More below.
The OSP is one of several voucher programs within the state of Florida, and is actually smaller than the others (covering only about 700-1000 students in the current year), but this same reasoning may now be applied to the others as well, placing their ability to continue into serious question. The New York Times notes that “voucher proponents said today’s ruling would also endanger a separate Florida voucher program in which some 16,000 disabled students participate, as well as the state’s system of more than 300 charter schools, which educate some 82,000 students.” According to the Tampa Tribune, approximately half of the students affected by today’s ruling have been attending “faith-based” schools.

The court found that the OSP

diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. 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. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools. (Opinion at 4) (Emphasis added)

In its conclusion, the court took pains to note that this is not an attack on the concept of school choice, but only on the manner of financing the program in its use of taxpayer money:

We do not question the basic right of parents to educate their children as they see fit. We recognize that the proponents of vouchers have a strongly held view that students should have choices. Our decision does not deny parents recourse to either public or private school alternatives to a failing school. Only
when the private school option depends upon public funding is choice limited. (Opinion at 34-35)

People for the American Way President Ralph Neas reacted to the decision by stating, “This is a tremendous victory for schools and students in Florida. It’s always been good policy to focus public resources on strengthening public schools. Today the Florida Supreme Court said state officials must take seriously the educational requirements of the state Constitution. . . Americans want all kids to have access to the strongest public schools possible. Vouchers are an expensive and ineffective distraction from that goal. They deserve to be abandoned. And now in Florida they must be.”

The NYT quotes Gov. Bush as calling the decision a “blow to educational reform,” and as further saying:

“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. . . We will work to protect these programs so important to so many families. We will explore all legal options and ask the Florida Legislature to enact any available legislative fixes or amend the Florida Constitution.”

The governor’s words, though, appear to run directly contrary to the court’s majority opinion, which makes quite clear: “[T]he usual deference given to the Legislature’s resolution of public policy issues is at all times circumscribed by the Constitution. Acting within its constitutional limits, the Legislature’s power to resolve issues of civic debate receives great deference. Beyond those limits, the Constitution must prevail over any enactment contrary to it.” (Opinion at 3)

Since it would seem as though any legislative “fix” would likely run afoul of the same problems with regard to public financing, my guess would be that Gov. Bush and his allies go the amendment route instead. Once that hurdle is cleared (assuming that the amendment passes), however, that would immediately bring the “no aid” (to religious institutions) provision back into play, unless a separate carve-out is made. Even then, a challenge could be mounted on the grounds that the constitutional amendment creates an unresolvable conflict within the document. At that point, the issues arising from a recent U.S. Supreme Court decision on sectarian aid could come back into play.

The Bush Administration (George’s, that is) had gotten strongly behind the state, and the U.S. Justice Department had filed an amicus curiae brief (28-page PDF) in support of maintaining the program, though their involvement was pretty much limited to addressing the church-state separation issue. The feds claimed that the lower court’s decision

raises important issues involving the right of individuals to be free from discrimination based on religion under the Free Exercise Clause of the First Amendment. In particular, this case raises important questions about the scope of the U.S. Supreme Court’s decision last term in Locke v. Davey, 124 S. Ct. 1307 (2004), and the degree to which a State may depart from the Free Exercise principle of nondiscrimination on the basis of religion in order to seek greater separation of church and state than that required by the federal Constitution.

As mentioned above, the Florida Supreme Court ducked that issue and never dealt with these arguments head-on, nor those raised by many other amici. Gov. Bush’s opening brief spent only 3 1/2 pages (out of 46) on the financing question, and the answering brief for Holmes spent only 9 out of 50 on it; the vast majority of the papers dealt with the question of sectarian aid. A full list of the briefs filed in support of both sides can be found at this summary page.

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