Florida School Choice - Release: 11-12-2004

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Florida Court of Appeal Strikes Down School Choice Program

Case Now Heads to Florida Supreme Court; Decision Puts State-Funded Scholarships for Nearly 200,000 Florida Students in Jeopardy

WEB RELEASE: November 12, 2004
CONTACT: Lisa Knepper
or John Kramer
(703) 682-9320
[School Choice]


Washington, D.C.—The full 1st District Court of Appeal in Florida today struck down the state’s Opportunity Scholarship program.  Although the program—which enables parents in failing public schools to choose better-performing public or private schools for their children—will continue as the case is appealed to the Florida Supreme Court, the decision is a blow to the more than 730 children currently participating statewide and possibly to hundreds of thousands more enjoying school choice through similar state-funded scholarship programs.

In an 8-5-1 ruling (one judge disagreed with both the majority and dissent because he felt that the constitutionality of Opportunity Scholarships must be decided on a school-by-school basis), Judge William Van Nortwick declared that Opportunity Scholarships violate the Florida Constitution’s Blaine Amendment by “aiding” religious schools that receive scholarships from participating students, even though Opportunity Scholarships aid parents and children, not schools.  Judge Van Nortwick also wrote a nearly identical opinion in August striking down the program when a three-judge panel of the same court first heard the case.

“This case has tremendous implications not only for the hundreds of students for whom Opportunity Scholarships are the last hope for a good education, but also for the hundreds of thousands of Floridians who benefit from a wide array of state aid programs in which people have always been allowed to select religious options,” said IJ Senior Attorney Clark Neily.

School choice opponents, such as teachers’ unions and other special interest groups, argue that the program violates the state constitution’s Blaine Amendment because it allows parents to select religious schools.  But courts in other states with similar provisions, including Wisconsin and Arizona, have rejected those arguments, ruling that neutral school choice programs aid parents and children, not schools. 

Moreover, as the dissent warned, such an interpretation of Florida’s Blaine Amendment—that no state funds may ever reach a religiously affiliated institution, regardless of the independent choices of individuals—puts in jeopardy a wide range of state programs.  Publicly funded programs like McKay Scholarships for Students with Disabilities, state-subsidized childcare and college scholarships like Florida’s popular Bright Futures program all have historically permitted people to freely select religious providers as well as non-religious options.  The Institute for Justice calculates that across 11 educational grant and scholarship programs, the educational choices of nearly 200,000 Florida students may be at risk with this ruling.   (See Florida Educational Choice Chart)

“The Florida Constitution declares education to be of fundamental importance,” added Neily.  “It is up to the Florida Supreme Court to put teeth into that provision by upholding the Opportunity Scholarships, thereby vindicating the rights of parents to equal educational opportunities.”


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