The Florida Legislature enacted the nation’s first statewide voucher program in 1999. The program allowed students at schools designated as "failing" to receive a voucher that permited them to attend a participating private school or a neighboring public school.
AU and its education and civil-rights allies challenged the program in state court in the fall of 1999, asserting that it violated the federal and state constitutions. In March 2000, the trial court struck down the program as violative of a state constitutional provision that requires the state to provide "all children residing within its borders" with a "uniform, . . . high quality system of free public schools." That ruling was reversed in October 2000 by the Florida District Court of Appeals and, in April 2001, the Florida Supreme Court denied review, thereby sending the case back to the trial court for consideration of the remaining claims.
In January 2002, the plaintiffs filed a motion for summary judgment on their claim that the program violates the state constitutional provision that prohibits state revenue to be taken from the public treasury "directly or indirectly in aid of . . . any sectarian institution." While that motion was pending, the plaintiffs withdrew their federal constitutional claim in light of the Supreme Court’s ruling in Zelman v. Simmons-Harris. On August 5, 2002, the trial court granted the motion, finding that a contrary ruling "would be the functional equivalent of redacting the word ‘indirectly’ from this phrase of the Constitution."
The defendants appealed this decision to the Florida Court of Appeals. Oral argument was held on March 18, 2003. On August 16, 2004, a panel of the Florida Court of Appeals ruled 2-1 that the voucher scheme ran afoul of the "no aid" provision and that, under the U.S. Supreme Court’s ruling in Locke v. Davey, this constitutional provision does not violate the federal Free Exercise Clause.
Then, in November 2004, an eight-judge majority of the entire Florida Court of Appeals reached the same conclusion. Five of those judges also argued that the voucher program violated the "uniform, high quality education" provision as well. The state appealed the decision to the Florida Supreme Court, and AU and its allies filed their brief on behalf of the plaintiffs in that court on February 28, 2005, urging it to affirm the decision. The Court held oral argument on June 7, 2005.
On January 5, 2006, the Florida Supreme Court ruled 5-2 that the program violated the "uniform, high quality education" provision for two independent reasons: (1) the provision "prohibits the state from using public monies to fund a private alternative to the public school system"; and (2) the private schools are subject to different standards than the public schools, and even the standards of private schools are not uniform.
The Court opted not to reach the question whether the program also violates the "no aid" provision of the Constitution, saying that it neither "approve[s] nor disapprove[s]" of the appellate decision finding such a violation.