Voucher Victory

Florida Court Strikes Down State Funding Of Religious Schools, Cites Blaine Amendment

A court in Florida has declared the state's voucher law unconstitutional, calling it a clear violation of a section of the Florida Constitution that bars the diversion of tax money to religious schools.

In an Aug. 5 ruling in a case brought by Americans United and its allies, Circuit Judge P. Kevin Davey of the Second Judicial Circuit, Leon County, found that the Florida Opportunity Scholarship Program (OSP) violates Article I, Section 3 of the Florida Constitution. That provision states, "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."

Wrote Davey in the Holmes v. Bush decision, "The language utilized in this provision is clear and unambiguous. There is scant room for interpretation or parsing.... To construe the statutory scheme of the OSP as not running afoul of Article I, Section 3 would require a strained construction of the Florida Constitution that is not countenanced under the law."

Davey was not persuaded by the state's argument that the money spent through the program does not amount to public support of sectarian education. He noted that OSP funds "distributed to a participating student or their parent (guardian) result in a dollar for dollar reduction in the funds of the public school or school district where the student was assigned. These funds are without question revenue 'taken from the public treasury' of a political subdivision."

The judge also dismissed arguments that the state aid really goes to parents, not private schools.

"To hold that this two-step payment mechanism avoids the prohibition in Article I, Section 3 would be the functional equivalent of redacting the word 'indirectly' from this phrase of the Constitution," Davey observed. "Moreover, such an interpretation would amount to a colossal triumph of form over substance."

Florida's voucher law was approved by the legislature in 1999 after being pushed by Gov. Jeb Bush. Under the plan, state officials rate all public schools with letter grades from A to F, based on student performance on standardized tests. Students in schools that receive an F for two years out of four qualify for vouchers up to $4,000.

Although statewide in its scope, the plan until recently has been limited to a few schools in Pensacola that were given F grades. Only about 50 students took part in the program last year, but state officials said 705 have applied for vouchers for this school year, as a result of more schools being assigned Fs.

Americans United Executive Director Barry W. Lynn hailed the recent court ruling.

"The Florida court's decision shows that the battle over vouchers is far from over," said Lynn. "I expect to see similar decisions against vouchers in state courts around the country."

A recent analysis of state constitutions by Americans United's Legal Department found that 37 have language that bars tax funds for sectarian institutions.

The states with Blaine-style amendments are: Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Virginia, Washington and Wyoming.

Voucher proponents hope to strip provisions like the Florida language from state constitutions.

The day of the Florida ruling, Clark Neily, an attorney with the pro-voucher Institute for Justice told The Washington Post, "We've known for a long time that this issue [state constitutional provisions] needs to go before the Supreme Court. Florida is going to provide one vehicle, and we're looking to create a few more."

In August the Associated Press reported that legislators in as many as 20 states are already gearing up to introduce voucher bills. Battles are expected in Pennsylvania, Texas, Colorado, Kansas, Maine and other states.