Constitutional Myths About School Choice Scholarships

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The Florida Supreme Court claimed it did in its 2006 decision in Bush v. Holmes. However, the ruling essentially invented a prohibition where none existed and did so by misinterpreting a legal case from 1927.

The relevant language cited by the court comes from the second and third sentences of Article IX Section 1(a) of Florida’s constitution:

"It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education…"

You won’t find any language prohibiting school vouchers or requiring public schools be the sole means of education in this wording. The court’s decision, widely criticized in its day, hasn’t held up well over time. The language was evoked in two other cases (McCall v. Scott, 2017 and Citizens for Strong Schools v. State Board of Education, 2019) but it failed to persuade courts to end the Florida Tax Credit Scholarship or charter schools.

The above language was never about outlawing school vouchers, but actually intended to increase public school funding and ensure a system of high-quality schools. As Justice Bell concluded in his dissent in Bush v. Holmes, “The clear purpose behind article IX is to ensure that every child in Florida has the opportunity to receive a high-quality education and to ensure access to such an education by requiring the Legislature to make adequate provision for a uniform system of free public schools.  There is absolutely no evidence before this Court that this mandate is not being fulfilled.”

Florida's constitution requires uniform schools

Florida’s constitution requires a uniform system of free public schools, but uniformity doesn’t apply to private schools. The Florida Supreme Court's 2006 ruling Bush v. Holmes, which struck down the state's first K-12 voucher, the Opportunity Scholarship, redefined the term “uniformity” and claimed all schools must be uniform in order to receive public funds.

The relevant language is again Article IX, Section 1:

"It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education…"

In Bush v. Holmes, the court decided “uniformity” meant lock-step adherence to rules and regulations governing schools. It specifically cited school curriculum and teacher credentials as examples of uniformity.

James Dycus, writing in the Yale Law Review, argued, “the court’s cramped, simplistic definition of uniformity, unmoored from all possible sources of guidance, is impossible to justify on any terms.”

The new definition was at odds with history and legal precedent.

A 1991 case decided uniformity, “gives every student an equal chance to achieve basic educational goals prescribed by the legislature.”

Justice Kogan, writing a concurring opinion in a 1993 case, stated, “Florida law now is clear that the uniformity clause will not be construed as tightly restrictive, but merely as establishing a larger framework in which a broad degree of variation is possible.”

The absence of Latin or calculus in one school, while present in another, did not make the system non-uniform. In other words, schools did not have to be identical across the state. While the Opportunity Scholarship program was invalidated, in part, because “uniformity” was redefined, the same arguments failed to strike down charter schools and the Florida Tax Credit Scholarship in two later cases (McCall v. Scott, 2017 and Citizens for Strong Schools v. State Board of Education, 2019).  

Vouchers are unconstitutional in Florida because of a ban on direct and indirect aid to churches

The Florida Supreme Court has never ruled school vouchers unconstitutional on these grounds. In fact, it ignored the arguments all together in Bush v. Holmes.

The relevant constitutional language comes from Article 1, section 3:

“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.”

Despite this being one of the strongest “ Blaine Amendments,” in the country because it prohibits “indirect aid,” the court ignored the issue, It stated: “Because we determine that the OSP is unconstitutional as a violation of article IX, section 1(a), we find it unnecessary to address whether the OSP is a violation of the “no aid” provision in article I, section 3 of the Constitution, as held by the First District.”

A trial court did invalidate the voucher program on these grounds in August 2002 and was supported by a split 8-5 vote by the First District Court of Appeal in November 2004. It is widely believed the Florida Supreme Court ignored the issue because the U.S. Supreme Court had ruled school vouchers did not violate the U.S. Constitution in the 2002 Zelman v. Simmons-Harris decision. In fact, school choice supporters were hoping to take Holmes as a test case to the U.S. Supreme Court in an effort to strike down state Blaine Amendments nationwide.

Although Florida has a strong Blaine Amendment, it has largely been ignored in education and beyond. Among other examples, churches in Florida are granted tax breaks; students may use taxpayer funded scholarships to attend religiously affiliated pre-schools, K-12 schools and colleges; and state funding flows to a long list of religiously affiliated hospitals.

The U.S. Constitution prohibits school vouchers because of seperation of church and state

Both the plain language of the Constitution and the interpretation of that language by the United States Supreme Court however make clear that the Constitution requires neutrality towards religious organizations in public policy-neither discriminating against or in favor of them. Policies which include religious school options as a portion of an overall menu of possibilities selected by families therefore pass constitutional muster.

The First Amendment to the United States Constitution reads (emphasis added) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. An established religion refers to the common practice in Europe of having national governments favor a particular religion or denomination like for instance the Church of England. Americans were to be and remain to this day free to practice whatever religion they wish, or no religion at all.

Notice however that one cannot read the First Amendment to say “Congress shall be openly hostile to religious groups” or “Congress must always favor non-religious groups over religious groups.” In Zelman vs. Simmons-Harris the United States Supreme Court laid out a standard of neutrality towards religious groups in public policy, finding a school voucher program from Ohio constitutional. In the more recent Trinity Lutheran vs. Comer decision the United States Supreme Court ruled that a policy excluding an organization based upon religious affiliation violated the free exercise clause of the First Amendment.

The notion that the United States Constitution requires active hostility towards groups based solely upon their religious faith is a myth. Neutral policies where families rather than government officials make the decisions between non-religious and religious service providers pass constitutional muster.

The fascinating history of Florida's A+ Plan, the state's first voucher program, and the massive legal battle it spawned.

The legal case overturning Florida's first voucher program was widely criticized and school choice supporters feared copycat cases that never materialized.

The constitution says free public schools are the sole means for the state to provide education in Florida.

Florida has a long history of subsidizing private school education.

Florida's first voucher program was struck down over an amendment to increase public school spending.

One of the oldest and most persistent myths is the Florida Tax Credit Scholarship was created to skirt a Florida Supreme Court decision ruling taxpayer-funded vouchers unconstitutional. In Bush v. Holmes, the court determined the state had a “paramount duty” to fund a “high quality system of free public schools.” The court reasoned this “paramount duty” meant the Legislature could not use tax dollars to fund a competing, parallel, private school system through vouchers. Not to be outdone, the myth goes, the Legislature created a new voucher to circumvent the constitution by funding the program through tax credits instead of tax dollars. There’s just one major problem: the FTC program was created in 2001, nearly five years before the Holmes decision in 2006. In fact, when the FTC program passed into law, tax-funded vouchers were still constitutional.

Just prior to creation of the FTC scholarship, the Supreme Court voted 4-1 to decline hearing the case and allowed the Court of Appeal decision to stand. The Court of Appeal rejected the notion that the state’s “paramount duty” to fund public schools also meant it could not fund vouchers through tax dollars. Unless voucher proponents had access to a time machine, there was simply no way for them to know about a ruling five years in the future, especially after the Supreme Court had rejected the very same arguments. We deny owning or possessing any such time travel device.

The Tax Credit Scholarship was created to get around the constitutional ban on vouchers