Nearly 700 Florida school children attending religious schools using public vouchers may someday be sent back to public schools. Last week, the full Court of Appeal of Florida, First District, ruled (8-5-1) that the voucher program violates Florida’s Constitution because it allows tax dollars to be spent at religious schools.

Despite calling it a "popular program with a worthy purpose," the majority agreed with a panel of the court and a trial judge that the program violates the state Constitution’s "no-aid" provision, which the court referred to as "highly restrictive." Florida’s Constitution mandates that "no revenue of the state … shall ever be taken from the public treasury directly or indirectly in aid … of any sectarian institution."

The provision at the heart of the case, the state’s "Blaine Amendment," was added to the Florida Constitution in the late 1800s, and some historians and legal commentators attribute the provision to anti-Catholic bigotry of the late 19th Century. The court dismissed this position, noting that other scholars and historians have disputed whether the law had such discriminatory origins and that there was no evidence that the language was added and then retained because of religious bigotry.

Four dissenters raised concern that the ruling violates the First Amendment to the U.S. Constitution, essentially arguing that denying vouchers for use at religious schools amounts to an attack on the free exercise of religion because it penalizes religious schools. "The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion," Judge Polston wrote in dissent.

The majority countered that Florida’s "no-aid" provision is more restrictive than the First Amendment because Florida’s Constitution prohibits the use of state funds either "directly or indirectly in aid of" not only churches, religions, and sects, but any sectarian institution. The majority relied on the U.S. Supreme Court’s recognition last term in Locke v. Davey that a state constitutional provision, like Florida's "no-aid" provision, can preclude state financial aid to religious institutions without violating either the Establishment Clause or Free Exercise Clause of the First Amendment.

The dissenters also noted that the majority’s reasoning jeopardizes a wide variety of programs that have been in place for many years in Florida, including Florida’s other voucher programs — the McKay Scholarship Program for the disabled and a Corporate Tax Credit Scholarship program for low-income students, some of whom attend religious schools. Florida’s Bright Futures Scholarships, a college scholarship program that allows students to choose religious schools, is at risk, as well. The dissenters further cautioned that non-education related public aid programs could also fall victim to the ruling. For example, use of state Medicaid payments at religious hospitals may be in jeopardy if the decision is upheld. The majority dismissed such claims as "pure speculation," noting that "this case resolves the case before us and leaves for another day, if need be, a decision on the constitutionality of any other government program or activity which involves a religious or sectarian institution."

The next stop for the school voucher bus is the Florida Supreme Court. In last week’s decision, the appellate court noted that the Florida Supreme Court should review the issue "as a question of great public importance." In the meantime, the program will continue pending that appeal.

The Florida voucher case may not even end at the state Supreme Court. Should that court uphold the decision, proponents maintain the issue will be brought before the Florida voters, a point not lost by Judge William Van Nortwick, who wrote for the majority that "[i]f Floridians wish to remove or lessen the restrictions of the no-aid provision, they can do so by constitutional amendment."

The Opportunity Scholarship Program was passed in 1999 by Governor Jeb Bush in order to give a choice to families with students in "chronically failing" schools. Essentially what it does is give parents of the children at those schools the option to either transfer their kids to another public school or to take a scholarship from the state to put the children into the private school of their choice. The state declares a school as "chronically failing" when it receives two "F"s in the same four-year period under the state’s test score grading system.

Proponents of the school voucher program argue that it creates a level educational playing field for all schoolchildren, giving poor children the same opportunity to attend a better school that children from wealthier families already have. "Everybody in this country should be able to have school choice, not just people who are rich enough to afford it for themselves," said Clark Neily, an attorney with the Institute for Justice, an organization that represents the families who are using Opportunity Scholarships and battling in the Florida courts for school choice.

The Center for Individual Freedom is an active supporter of school choice and filed an amicus brief before the U.S. Supreme Court in Zelman v. Simmons-Harris, a case in which the Court upheld an Ohio school voucher program against constitutional challenge under the Establishment Clause. To download a copy of the Center’s brief, click here.