Florida School Choice - Background

Litigation Backgrounder

Safeguarding Educational Freedom:

Latest Legal Showdown for School Choice Heads to Florida Supreme Court

 

The Issue in a Nutshell:

One day after Florida passed Opportunity Scholarships—the nation's first statewide school choice program—state and national teachers' unions and their special interest allies filed lawsuits to stop the program. Five years and numerous court decisions later, the case has reached the Florida Supreme Court, which will hear arguments on June 7, 2005.

The Institute for Justice represents parents who intervened to help defend Opportunity Scholarships, which enable schoolchildren trapped in demonstrably failing schools to transfer to a private school or a better performing public school. Among the issues at stake in this case:

 

  • The Rights of Parents—Not Bureaucrats—to Choose Their Children's Schools
    In addition to Opportunity Scholarships for students at failing public schools, Florida offers school choice for special needs and economically disadvantaged K-12 schoolchildren, making the state the nationwide leader in school choice.
     
  • Measurable Public School Improvement Spurred by Competition
    Four independent studies confirm that fear of losing students through Opportunity Scholarships has proved a powerful motivator for real reform in Florida's most troubled public schools.

  • Decades of Florida Precedent and Practice Endorsing School Choice
    Florida operates nearly a dozen K-12 and college scholarship and aid programs that allow nearly 200,000 students to freely choose among public, private and religious schools. The Florida Supreme Court has held that programs intended to promote the general welfare are constitutional because any benefit to religious institutions is merely incidental . Striking down Opportunity Scholarships could jeopardize important aid programs.
     
  • State Blaine Amendments as a Tool to Thwart Meaningful Education Reform
    While school choice opponents claim Opportunity Scholarships unconstitutionally "aid" religious schools—in violation of the Florida Constitution's Blaine Amendment—IJ counters that scholarships aid parents and children, not schools. The Florida Supreme Court will be the first state supreme court to consider the Blaine Amendment, its discriminatory pedigree and school choice after the U.S. Supreme Court's ruling in Locke v. Davey.


In early 2005, the Florida Supreme Court will hear the legal challenge to the state's Opportunity Scholarships school choice program. The case pits decades of Florida precedent and practice enabling thousands of students to freely choose their schools—including public, private and religious options—against the interests of teachers' unions and other special interests intent on thwarting true educational reform in Florida. It also provides the nation's latest legal showdown over school choice and state Blaine Amendments.

Since 1999, Florida schoolchildren trapped in failing schools—those that receive an F grade from the State two out of four years—have had the right to transfer to better performing public schools or to the private school of their parents' choice using public funds. Thanks to these Opportunity Scholarships, more than 700 schoolchildren across the state enjoy a safe, high-quality education in private schools that better meet their needs. Better still, Florida's most troubled public schools are improving, motivated to respond to the needs of their students—or risk losing them through Opportunity Scholarships.

Despite this win-win success story—expanded educational opportunities and real reform in the public schools—teachers' unions and other special interest groups have spent five years and vast resources attacking Opportunity Scholarships in court. The goal of the litigation is to keep control over a child's education by the educational bureaucracy rather than parents. In November 2004, teachers' unions secured an 8-5-1 decision from Florida's 1st District Court of Appeal striking down Opportunity Scholarships. Because some students (about half) use the scholarships at religious schools, choice opponents claim the program violates the Florida Constitution's "no aid" to religion clause, better known as a Blaine Amendment, a remnant of 19th-century anti-Catholic and anti-immigrant discrimination.

For five years, the Institute for Justice, the nation's leading legal advocate for school choice, has defended Opportunity Scholarships on behalf of parents and children for whom these scholarships are an educational life preserver. IJ, which successfully defended school choice programs against similar attacks in Wisconsin, Arizona, Illinois and Ohio, argues that school choice "aids" parents and students—not schools.

A decision from the Florida Supreme Court affirming the appellate ruling would contradict decades of Florida precedent and practice. Florida operates about a dozen educational aid programs serving nearly 200,000 students—including the popular McKay Scholarships for Students with Disabilities and Bright Futures college scholarships—that allow students to freely choose among public, private and religious schools. The battle over Opportunity Scholarships may be just the tip of the legal iceberg.

Nationally, the Opportunity Scholarship case is the latest legal showdown over the controversial Blaine Amendments and school choice, and the first state supreme court case to address the issue since the U.S. Supreme Court ruling in Locke v. Davey,[1] a case that observers on both sides expected would settle the question once and for all—but did not. With this case, the Florida Supreme Court has an opportunity to address the issues left open in Locke : the Blaine Amendment, its discriminatory history and K-12 scholarship programs that do not involve "training for the ministry."

School choice opponents have relied on state constitutional religion provisions—the so-called Blaine Amendment and "compelled support" clauses[2]—in similar challenges to school choice programs in Wisconsin, Ohio, Arizona and Illinois. Each state's supreme or appellate court rejected these arguments.[3] The Arizona Supreme Court went further, calling that state's Blaine Amendment "a clear manifestation of religious bigotry" against Catholics.[4] The U.S. Supreme Court has also recognized the Blaine Amendments' "shameful pedigree" as a legacy of 19th century anti-Catholic and anti-immigrant sentiment.[5]

 

School Choice in Florida: Expanding Educational Opportunities at All Ages

Florida leads the nation in expanding educational access and opportunity through school choice, with about a dozen programs serving nearly 200,000 students from kindergarten through college. These programs are not new; some of the aid programs have helped students attend the college or university of their choice for more than 25 years—long before any litigation to stop Opportunity Scholarships began.[6]

Like Opportunity Scholarships, these programs allow students to choose from a wide array of schools—public, religious or non-religious—reflecting a basic philosophy that students and parents, not government bureaucrats, should decide which schools best suit their needs. The common thread is choice: not one dollar reaches a school without the free and independent choice of parents and students. The schools have no claim on the aid; the parents and students do. In other words, these programs aid students, not schools.

The Opportunity Scholarship program was enacted in 1999 by the Florida Legislature to "provide enhanced opportunity for students in this state to gain the knowledge and skills necessary for postsecondary education, a career education, or the world of work."[7] The program was designed to help students and improve education statewide both by giving students in demonstrably failing schools options for a better education today —in better performing public schools or private schools—and by spurring real, systemic reform in troubled public schools.[8]

During the first year of the Opportunity Scholarship program, only two schools—Dixon and Spencer-Bibbs elementary schools, both in Escambia County—received second F grades, thus enabling their students to transfer to other public schools or to private schools. About 85 students decided to transfer to other public schools, while about 50 elected to receive scholarships to attend private schools. Despite the subsequent court challenge, Opportunity Scholarships have continued uninterrupted, growing to more than 700 students statewide. Currently, students from 21 Florida schools are eligible.

Also in 1999, the legislature created McKay Scholarships for Students with Disabilities to help special needs students whose assigned public schools may not meet their needs. Any child with a federal Individualized Education Plan is eligible for a McKay Scholarship for private schooling; currently, 15,913 students use McKay Scholarships, which average $6,910 per student, at a wide range of religious and non-religious private schools, many of which specialize in educating special needs students.

In 2001, Florida began a Corporate Tax Credit program,[9] similar to successful school choice programs in Pennsylvania and Arizona, to expand educational opportunities for low-income students. Companies that pay Florida state corporate income taxes receive a dollar-for-dollar tax credit for donations to qualified Scholarship Funding Organizations. The SFOs then offer scholarships up to $3,500 to low-income families for tuition at a qualifying private school, or to pay for transportation costs to a public school across district lines. In 2004, about 10,424 students received tax credit scholarships, which may be used at religious or non-religious schools.

Florida also maintains a number of popular college and post-secondary aid programs that give students a choice of colleges and universities, including religious schools. Bright Futures scholarships are awarded to Florida graduates with excellent academic records;[10] more than 112,000 students currently use Bright Futures scholarships, and at least 23 religious schools accept them.[11]

Florida also offers a number grant programs for Florida students attending their choice of public or private colleges and universities, including religious schools. The need-based Florida Student Assistance Grant Program, for example, has three parts: Public Student Assistance Grants are for students attending state universities and public community colleges; Private Student Assistances Grants[12] currently help more than 11,400 Florida students pay tuition at eligible private, four-year schools; Postsecondary Student Assistance Grants[13] assist more than 10,700 students at private schools (such as nursing programs) not eligible for Private Student Assistant Grants.[14] Florida Resident Access Grants[15] are awarded to more than 35,000 students at Florida private schools.[16]

Several college aid programs are designed to expand minority access to higher education. Jose Marti Scholarship Challenge Grants are awarded to students of Hispanic origin who demonstrate academic excellence and financial need and may be used at the Florida public, private or religious school of the student's choice.[17] Mary McLeod Bethune Scholarships are awarded to academically promising students who demonstrate financial need and attend one of Florida's historically black colleges, including religious schools.[18] The Minority Teacher Education Scholars program rewards minority students planning to pursue a career in teaching with a scholarship for use at public, private or religious colleges.[19]

The Florida Legislature is poised to expand educational choice to pre-K soon. In 2002, Florida voters amended the state constitution to require free universal pre-kindergarten by fall 2005, and the Legislature will likely pass implementing legislation either in a special session in late 2004 or in its general session in early 2005. Among the leading proposals is what amounts to a classic school choice plan: the state would provide funding to parents who would be free to select among public, private and faith-based providers.[20] One of the key benefits of a choice-based plan is creating more space, since public schools lack the capacity to serve Florida's large pre-K population—between 90,000 and 100,000 students are expected to take advantage of the universal pre-K program.[21]

Each of these programs' futures could be jeopardized if the Florida Supreme Court strikes down Opportunity Scholarships under the state's Blaine Amendment.

The Legal Attack on School Choice in Florida

The legal attack against school choice in Florida began just one day after the passage of Opportunity Scholarships in June 1999. Local and national special interest groups, including Florida's teachers' union and led by lawyers from the National Education Association, filed two lawsuits in state court claiming that Opportunity Scholarships are unconstitutional under a variety of legal theories. (The two lawsuits were later consolidated into one, Bush v. Holmes.)

The unions claimed, as they have in challenging similar K-12 school choice programs nationwide, that Opportunity Scholarships violate the U.S. Constitution's Establishment Clause and the Florida Constitution's Blaine Amendment (or "no aid" provision)[22] by allowing scholarship students to choose religious schools. They also claimed that Opportunity Scholarships violate a provision of the state Constitution that requires Florida to make "adequate provision" for a "uniform, efficient, safe, secure, and high quality system of free public schools."[23]

The latter "uniformity clause" claim was litigated first. In October 2000 a three-judge panel of Florida's 1st District Court of Appeal unanimously rejected the unions' argument that the uniformity clause forbids the use of public funds to aid private school students. In doing so, the panel overturned a March 2000 trial court decision in the unions' favor, ruling instead that the requirement to establish a public school system does not forbid the State from also providing educational services through other means, including publicly funded scholarships. Indeed, Florida has contracted with private schools for years to provide educational services through a variety of "exceptional students" programs.[24] In April 2001, the Florida Supreme Court declined to review that decision, sending the case back to the trial court to hear the remaining claims.

School choice opponents may attempt to revive the "uniformity" claim now that the case is back before the Florida Supreme Court. Five judges of the 1st District Court of Appeal wrote in its most recent opinion in the case that the claim is still viable and could be considered by the Court.

Shortly after the U.S. Supreme Court upheld school choice in Cleveland in June 2002—rejecting a teachers' union charge that choice programs violate the federal Establishment Clause—the unions dropped their Establishment Clause claim against Opportunity Scholarships. That left Florida's Blaine Amendment as the main legal issue in the case.

Both the trial court (in August 2002) and the 1st District Court of Appeal (in November 2004) declared Opportunity Scholarships unconstitutional under Florida's Blaine Amendment. Those courts ruled that Opportunity Scholarships are unconstitutional "aid" to religious schools, rather than aid to students who choose where to use their scholarships. The case now heads for the Florida Supreme Court, which is expected to hear oral argument in the spring of 2005.

Although so far only Opportunity Scholarships have been challenged, opponents of school choice have already signaled their belief that the popular McKay Scholarships and Corporate Tax Credit programs would be challenged next.[25] And it may not end there. By the logic of the appellate court ruling, all of the other Florida aid programs that give students a choice of religious and non-religious schools could be in jeopardy. A ruling from the Florida Supreme Court striking down Opportunity Scholarships could also set up a U.S. Supreme Court showdown over school choice and the controversial Blaine Amendment.

 

The Blaine Amendment's Historical Context: Religious Discrimination in Public Schools

State Blaine Amendments are far from the bulwarks of religious liberty that modern-day opponents of school choice claim. They are actually a legacy of anti-Catholic and anti-immigrant bigotry—as well as religious discrimination in public schools—that should not be allowed to block educational opportunities for children who desperately need them today.

During the 19th century, America witnessed several surges in anti-Catholic bigotry. That bigotry reached its zenith when several states, inspired by U.S. Senator James G. Blaine's attempt to enact a federal constitutional amendment that would have sanctioned official discrimination against Catholics, passed their own versions of the "Blaine Amendment."

That same wave of anti-Catholic sentiment pervaded the "common school" movement that gave birth to America's public schools. The common school movement was born, in part, from a specific desire to inculcate non-denominational Protestantism in students, in addition to teaching traditional subjects.[26]

The terms "religious" and "sectarian" were not interchangeable for common school agitators, as they are today. In the 19th century, "sectarian" was code for "Catholic" (and to a lesser extent other non-Protestant religions).[27] So by definition, mainstream Protestantism was "non-sectarian." What the common school movement advocated was not a non-religious education, but one free of Catholic influence. That meant the inclusion of readings from the King James Bible in the public school curriculum—a practice Catholics vehemently opposed. While the leaders of the common school movement believed themselves to be religiously neutral, they actually created a double standard that favored Protestantism over Catholicism.[28]

Blaine Amendments and the Anti-Catholic and Anti-Immigrant Backlash

The Catholic minority understandably chafed under a system whose purpose was to instill Protestant teachings. Catholic groups therefore attempted to remove Bible-reading from public schools and to secure public funding for Catholic schools.[29] The Protestant backlash against this "Catholic menace" was both swift and powerful, and Protestant churches joined with anti-immigrant groups to take up the fight.[30] Seeking to capitalize on this sentiment, President Grant called for Americans to "[e]ncourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools."[31] He then proposed that Congress pass a constitutional amendment that would block such appropriations.[32]

Recognizing a political opportunity, James G. Blaine, then a Republican Congressman, sought to use anti-Catholic support as a means to capture his party's presidential nomination in 1876.[33] Shortly after Grant's proposal, Blaine submitted his draft amendment in the House of Representatives. Most political observers of the time recognized Blaine's amendment for what it was: an instrument of political opportunism and discrimination directed against Catholics.[34] According to The Nation, "all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes."[35]

Although it received sufficient votes in the House of Representatives, the Blaine Amendment failed to achieve the necessary two-thirds majority in the Senate.[36] Unfortunately, others did not abandon the tool of bigotry that Blaine had helped to forge: by 1890, 29 states had passed their own versions of the Blaine Amendment.[37]

 

Florida's Blaine Amendment

It was during this time of virulent anti-Catholic sentiment that Florida adopted its Blaine Amendment, Article I, Section 3 of the Florida Constitution, which provides: "no revenue of the state . . . shall ever be taken from the public treasury directly or indirectly in support of any church, sect, or religious denomination or in aid of any sectarian institution." Underscoring the mood of the times, Florida's Blaine Amendment was enacted during an 1885 state constitutional convention that also injected overt racial and religious discrimination mandates into the public education provisions.[38]

Notably, Florida's adoption of the Blaine Amendment did not bring to an end the State's longstanding practice of funding both religious and non-religious schools. To the contrary, both state and county governments continued paying for the construction of religious schools until at least 1914.[39] And Florida continues to support students who choose religious schools through its array of K-12 and college aid programs. Similarly, the Florida Supreme Court, in a 1962 case, upheld various religious practices in public schools, including recitation of the Lord's Prayer, singing of religious hymns, and daily Bible readings.[40]

Thus, if Florida's Blaine Amendment truly required that no public funds—no matter how incidental—ever reach a religious school or institution, as school choice opponents now contend, it would certainly be news to those who ratified it and to former justices of the Florida Supreme Court who interpreted it in past cases.

Florida Supreme Court Precedent: "Incidental" Benefits are Constitutional

Fortunately, the Florida Supreme Court has never adopted the hard-line interpretation of its Blaine Amendment urged by the teachers' unions. To the contrary, the Court has considered Article I, Section 3 of the Florida Constitution several times, and it has applied a consistent, even-handed rule: public benefits may flow to religious institutions if they do so incidentally, as the by-product of programs that are designed to promote the general welfare, as opposed to religious institutions specifically. Cases that support this interpretation of Florida's Blaine Amendment include:

Nohrr v. Brevard County Educ. Facilities Auth. (1971)[41]—This case makes clear that even if "religious interests may be indirectly benefited" as an unintended consequence of a generally available public welfare program, this indirect benefit does not constitute "aid" as defined by Florida's Blaine Amendment.

Johnson v. Presbyterian Homes, Inc. (1970)[42] —The Court explained that the state "cannot pass a law to aid one religion or all religions but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited." In the case, the Court approved a program designed to encourage the establishment of homes for the aged, even though the program included homes maintained by religious groups. Because the goal was to improve care for the elderly—a public purpose—and applied equally to religious and non-religious providers, the Court found, "Under the circumstances, any benefit received by religious denominations is merely incidental to the achievement of a public purpose." (Emphasis added.)

Chamberlin v. Dade County Board of Public Instruction (1962)[43]—The Florida Supreme Court considered whether certain practices of the public school system—Bible reading, distribution of religious literature, recitation of the Lord's Prayer and other religious practices—violated the First Amendment or Florida's Constitution. The Court upheld the practices under the Blaine Amendment, even though public funds and employees were supporting religious practices. Although the U.S. Supreme Court reversed that decision under the First Amendment of the U.S. Constitution, it is notable that the Florida Supreme Court did not believe that those practices violated the state's Blaine Amendment.

Southside Estates Baptist Church v. Board of Trustees (1959)[44] —The Court noted—in ruling that a church could use a public school building for Sunday meetings—that an "incidental benefit" to a religious group resulting from a proper use of public property does not violate Florida's Blaine Amendment.

Both Florida precedent and practice support this "incidental benefit" view. In addition to its educational aid programs, Florida has operated myriad public welfare and social service programs for decades in which aid recipients have been free to choose among religious and non-religious providers—from the state Medicaid program to drug rehabilitation and youth diversion programs.

Such programs are popular and many have existed for decades with no suggestion that they run afoul of Florida's Blaine Amendment. That leaves school choice opponents in the unenviable position of trying to distinguish on constitutional grounds programs they like (or, at least, haven't previously opposed) from those they dislike—even though all the programs include religious options.

School choice opponents have tried to distinguish these programs from their assault on Opportunity Scholarships without success. First, they claim that educational aid programs are somehow different from other public welfare programs, even though the Florida Constitution makes no such distinction. Second, they argue that among educational aid programs, primary and secondary education is different from college education, thus trying to attack K-12 programs (Opportunity, McKay and Corporate Tax Credit scholarships) while leaving alone college programs (Bright Futures and other scholarships and grants). Again, the Florida Constitution draws no such distinction.

Finally, teachers' unions and other special interests opposed to school choice assert that religious K-12 schools aim to convert students, while religious colleges simply educate students. They offer no evidence to support that claim, and in fact, many K-12 religious schools educate students from different religious traditions and make no attempt to "convert" any children. Religious viewpoints do not become more or less persuasive between the senior year of high school and the freshman year of college. Certainly, the framers of the U.S. and Florida constitutions didn't think so.

State Constitutions Cannot Authorize Religious Discrimination

The Florida Supreme Court's "incidental" aid interpretation of the Florida Blaine Amendment makes good sense, and it is no accident that other states have charted the same path in interpreting their own Blaine Amendments.[45] In fact, in four Blaine states—Arizona, Wisconsin, Illinois and Pennsylvania—publicly funded school choice programs that allow religious options are both constitutional and thriving.

Aside from the Blaine Amendments' shameful legacy of discrimination, one important reason to reject the position of school choice opponents is that it raises serious constitutional concerns regarding anti-religious discrimination and the free exercise of religion.

While the First Amendment's Establishment Clause prohibits government-coerced support for religion, barring the government from favoring one religion over another, the Free Exercise and Equal Protection Clauses forbid the government from favoring non-religion over religion—such as by funding students who freely choose secular options, but not those who freely choose religious options (the essence of the legal argument of school choice opponents). A line of federal cases over the past 25 years has articulated a way to resolve the tension between these two clauses: strict neutrality, whereby government may not favor religion, but it may not hinder it either—a notion that fits neatly with Florida's "incidental benefit" rulings.

In addition to Zelman v. Simmons-Harris[46]—the 2002 Supreme Court victory for vouchers in Cleveland—recent federal cases that make the argument for neutrality include:

Good News Club v. Milford Central School (2001) [47] —The Court held that a school district that made its facilities available to any group that wished to discuss "instruction in any branch of education, learning, or the arts" could not exclude a group that wanted to sing songs and study the Bible. The Court held that such an exclusion discriminated against a religious viewpoint.

Rosenberger v. University of Virginia (1995) [48] —The Court held that the First Amendment prohibited the University of Virginia from refusing to fund the publication of a religious student publication while funding non-religious publications.

Lamb's Chapel v. Center Moriches Union Free District (1993) [49] —The Court held that government action that discriminated against a religious viewpoint violated the First Amendment. The case concerned a school district in New York that had made its rooms generally available for such things as "social, civic and recreational meetings and entertainments" or "other uses pertaining to the social welfare." A Christian group wanted to use some of the space to show a film about family values from a religious perspective. The Court held that the district could not deny the group access based on its religious viewpoint.

Church of Lukumi Babalu Aye v. City of Hialeah (1993) [50] —The Court held that a law prohibiting animal sacrifice violated the First Amendment. The Court reasoned, "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs," and concluded that "a law targeting religious beliefs as such is never permissible."

Employment Division v. Smith (1990) [51] —The Court upheld a law that criminalized the possession of peyote because it was neutral with respect to religion. In so doing, however, the Court stated, "The government may not É impose special disabilities on the basis of religious view or religious status."

Widmar v. Vincent (1981) [52] —The Court held that a state university in Missouri that made its facilities open and generally available to the public could not prevent groups from using the facilities for religious worship. The Court disallowed the university's attempt to proscribe speech simply because the university disagreed with the speech. As Justice Stevens wrote in his concurrence, "Quite obviously, the university could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege."[53] The Court rejected Missouri's claim that its state constitution's religion clauses justified the exclusion.

McDaniel v. Paty (1978) [54] —The Court invalidated Tennessee's law disqualifying members of the clergy from holding public office. The Court concluded that the government could not "condition the exercise of one [right] on the surrender of another."

 

School Choice and Blaine Amendments After Locke v. Davey

In its 2004 ruling in Locke v. Davey, [55] the U.S. Supreme Court carved out a very narrow exception to its neutrality doctrine: public funding for the religious training of clergy. At issue in Locke was whether Washington violated the federal Free Exercise or Equal Protection Clauses by withholding a state-funded college scholarship from an otherwise eligible student solely because he planned to use it to study for the ministry. Washington argued that the religion provisions of its state Constitution were stricter than those in the federal Constitution and required the state to withhold Davey's scholarship if he planned to use it to study for the ministry.

In a 7-2 opinion, the Supreme Court upheld that argument. School choice opponents immediately seized on the decision as an indication that the U.S. Constitution does not prevent states from interpreting their own Blaine Amendments to strike down neutral educational aid programs, as they are currently urging Florida courts to do.

But that conclusion is it odds with both the language and the rationale of the Locke opinion, which made clear that "the only interest at issue here is the State's interest in not funding the religious training of clergy."[56] In fact, at least 28 times in the brief, 12-page opinion, the Court goes out of its way to limit its decision to the funding of training for the ministry. Moreover, the Court noted that the case did not implicate Washington's Blaine Amendment because the State based its decision to withhold Davey's scholarship on a separate provision of its state constitution.[57]

Finally, the court emphasized that "far from evincing a hostility to religion . . . the entirety of the Promise Scholarship Program goes a long way towards including religion in its benefits. The program permits students to attend pervasively religious schools , so long as they are accredited."[58] In other words, the Court did not authorize Washington to exclude religious schools from its scholarship program—as school choice opponents urge—and Washington does not do so under its Blaine Amendment. The Court even suggests that if a State were to exclude all religious options from an otherwise neutral program, such a move might be unconstitutional.[59]

In the Opportunity Scholarships case, the Florida Supreme Court will be the first court to address these issues following Locke : namely, whether the Blaine Amendments, with their discriminatory pedigree, can be used to bar parents from choosing religious schools through neutral school choice programs that involve no training for the ministry.

Opportunity Scholarships: Expanding Opportunity and Improving Education for Florida Students

At stake in the Opportunity Scholarships case is a program carefully tailored to give choice to those who need it most and to spur public school improvement through competition. The evidence shows that the program is fulfilling both of those goals.

For parents like Angela Mack, a single mom of six in Miami, Opportunity Scholarships have been a godsend. Her two oldest children, Reshawnda Blash, age 17, and Jeffrey Lewis, age 16, were struggling at Miami's Booker T. Washington High School without much hope for the future. The chaotic environment at the school made it impossible for her children to focus or to get the attention they needed to succeed. Both children are shy and tended to simply fade into the background as rowdier classmates occupied the full attention of teachers. Every day for Reshawnda and Jeffrey brought new frustration. "They were ready to just give up," says Angela.

Private school was not an option on Angela's salary. But when students at Booker T. Washington became eligible for Opportunity Scholarships two years ago, Angela leapt at the chance and enrolled Reshawnda and Jeffrey at Lincoln-Marti, a private school in Miami that emphasizes cultural diversity and rigorous academics. In just one year, both children became A and B students who wake up every day eager to go to school, begging not to miss a single day, even when they are sick.

If the Opportunity Scholarships program is halted, Reshawnda says she will drop out and get her GED before going back to public school. Angela puts it more bluntly. The end of this program, she says, would "destroy my children. Finally, we have an answer for getting them a good education."

Other Opportunity Scholarship parents—predominantly minorities in low-income neighborhoods[60]—tell similar stories. And the available evidence shows that Opportunity Scholarship students are making strides in their new schools. The best evidence comes from Escambia County, where the first Opportunity Scholarships were granted in 1999. Choice students there have had ample time to adjust to their new schools. In December 2003, the Pensacola News Journal reported the academic results so far for the 34 Opportunity Scholarship students in Escambia County Catholic Schools, based on the national Iowa Test of Basic Skills:

After four years of attending private Catholic schools on the taxpayers' tab, Pensacola's voucher students are showing astounding academic growth.

On average, the 34 students attending Escambia County Catholic Schools on state-funded Opportunity Scholarships have jumped more than one grade level for each year they've attended, and many are working beyond their grade level now.[61]

Shortly after Opportunity Scholarships became available to families in Pensacola, schools all over the state in jeopardy of receiving their second F grade began serious reforms, including after-school tutoring, Saturday classes, more intensive reading instruction for early grades, longer school years and stepped up efforts to identify and tailor instruction for at-risk students.[62] One superintendent in Hillsborough County—along with his eight deputies—even publicly announced that if any of the schools in his district received an F grade, he would give himself a five-percent pay cut for the next year.[63]

Of course, none of these changes are particularly radical—some observers and educators had been calling for them for years. A catalyst was needed to break through the inertia of institutional complacency; Opportunity Scholarships provided the spark.

Four separate studies confirm that Opportunity Scholarships have spurred real academic improvement precisely where it's needed—in Florida's most troubled public schools. The most recent study, conducted by researchers Martin West and Paul Peterson, compared test score improvements for students at F schools-those at risk of losing students through Opportunity Scholarships if they earn another F grade-with D schools that don’t face an imminent voucher threat. The researchers controlled for demographics and other factors like resources.

They found that while D schools were motivated by the stigma of a bad grade to improve, F schools, faced with the threat of vouchers, improved even more-even though those F schools had highly disadvantaged students.[64] They also found Florida’s A+ program, with the threat of private school choice, had a much larger impact on public school performance than the No Child Left Behind Act. Two studies by Jay P. Greene, a researcher at the Manhattan Institute's Education Research Office in Davie, Fla., show that schools in danger of receiving their second F grade—and thus in danger of losing students to the Opportunity Scholarship program—improved at a far greater rate than schools not similarly threatened.[65]

Education researcher Rajashri Chakrabarti of Cornell University reached the same conclusion in a separate analysis of the effect of Opportunity Scholarships on Florida's public schools. She concluded, "In short, there is strong evidence that F schools in Florida responded to the threat of vouchers."[66] In all three studies, the researchers found that the significant learning gains made by students in double-F public schools did not reflect demographic or funding changes, or even the mere stigma of being labeled an F school. Rather, the schools were responding to the possibility of losing students through Opportunity Scholarships.

 

Litigation Team

The lead attorney in this case for the Institute for Justice is Senior Attorney Clark Neily, who litigates school choice and economic liberty cases nationwide. Prior to joining the Institute, Neily was an associate in the trial department of the Dallas-based law firm Thompson & Knight. Assisting the Institute for Justice as able local counsel is Kenneth Sukhia of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. in Tallahassee.

The Institute for Justice is the nation's leading legal advocate for school choice. The Institute helped win a tremendous victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland's school choice program. IJ also successfully defended the school voucher program in Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents.

 

For more information contact:

 

Lisa Knepper, Director of Communications
W: (703) 682-9320 , ext. 202
C: (703) 597-2523
lknepper@ij.org

John Kramer, Vice President for Communications
W: (703) 682-9320 , ext. 205
jkramer@ij.org

The Institute for Justice is a Washington, D.C.-based public interest law firm, which through strategic litigation, training and outreach, advances a rule of law under which individuals control their own destinies as free and responsible members of society. It litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. In addition, it trains law students, lawyers and policy activists in the tactics of public interest litigation to advance individual rights. The Institute was founded in September 1991.



[1] Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (2004).

[2] In all, 37 state constitutions have Blaine Amendments and 29 contain compelled support clauses. See www.ij.org/school/blaine_faq.shtml.

[3] Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999); Griffith v. Bower, 747 N.E.2d 423 (Ill. App. Ct. 2001); Toney v. Bower, 744 N.E.2d 351 (Ill. App. Ct. 2001).

[4] Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999); Joseph P. Viteritti, Choosing Equality: Religious Freedom and Educational Opportunity under Constitutional Federalism, 15 Yale L. & Pol'y Rev. 113, 146 (1996).

[5] Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality op.)

[6] Initial Brief of Attorney General in Bush v. Holmes, Case Nos. 1D02-3160 et al., First District Court of Appeal at 12-13; Educational Choice in Florida at www.ij.org/schoolchoice.

[7] ß 1002.38(1) Fla. Stat.

[8] ß 1002.38(2)(a)(1) Fla. Stat. Schools whose students are eligible are determined annually by the Florida Department of Education. The department assigns schools a letter grade from A to F based on Florida Comprehensive Assessment Test (FCAT) scores, as well as learning gains, attendance and dropout rates, discipline data, and student readiness for college. If a school receives two F grades in four years, its students become eligible for Opportunity Scholarships.

[9] ß 220.187, Fla. Stat.

[10] ß 1009.53, Fla. Stat.

[11] Initial Brief of Attorney General in Bush v. Holmes, Case Nos. 1D02-3160 et al., First District Court of Appeal.

[12] ß 1009.51, Fla. Stat.

[13] ß 1009.52, Fla. Stat.

[14] See www.firn.edu/doe/osfa/fsagfactsheet.htm for a description of the programs and lists of eligible institutions.

[15] ß 1009.89, Fla. Stat.

[16] See www.firn.edu/doe/osfa/fragfactsheet.htm for a description of the program and a list of eligible institutions.

[17] ß 1009.72, Fla. Stat.

[18] ß 1009.73, Fla. Stat.

[19] ß 1009.60, Fla. Stat.

[20] Marilyn Brown, "Survey shows gaps in pre-K awareness," Tampa Tribune, November 5, 2004.

[21] Marilyn Brown, "Unanswered questions abound on pre-K effort," Tampa Tribune, November 7, 2004, and James Dean, "Lawmakers try again to pass pre-K legislation," Florida Today, November 28, 2004.

[22] Fl. Const. Art. I, ß 3.

[23] Fl. Const. Art. IX, ß 1.

[24] See, e.g., Scavella v. Sch. Bd. of Dade Cty., 363 So.2d 1095, 1098 (Fla. 1978); see also Answer Brief of State Defendants Bush v. Holmes, Case Nos. 1D02-3160 et al., First District Court of Appeal at 9 (noting that more than $45,000,000 in annual state funds are provided to educate more than 8,000 students in private schools through various exceptional students programs).

[25] Jackie Hallifax, "Florida school voucher law unconstitutional, appeals court rules," Associated Press, November 12, 2004.

[26] See Diane Ravitch, The Great School Wars (1974); Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997); Joseph P. Viteritti, Blaine's Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol'y 657 (1998); Joseph P. Viteritti, Choosing Equality: Religious Freedom and Educational Opportunity under Constitutional Federalism, 15 Yale L. & Pol'y Rev. 113, 146 (1996).

[27] See Mitchell v. Helms, 530 U.S. 793, 828 (2000).

[28] See Viteritti, Choosing Equality at 179. This double standard is even reflected in court decisions of the time, which routinely held that reading of the Bible was not a "sectarian" activity. See, e.g., Donahoe v. Richards, 38 Me. 376, 379 (1854); see also Green at 44-45.

[29] See Viteritti, Blaine's Wake, at 670.

[30] See id.

[31] See Green at 47.

[32] See id. at 52.

[33] See id. at 49.

[34] See id. at 54.

[35] Id.

[36] Id. at 67.

[37] See Viteritti, Blaine's Wake, at 673. Today, 37 state constitutions contain versions of Blaine's original amendment, many because Congress made including Blaine-like language a requirement for states to be admitted to the Union.

[38] See Nathan Adams, The Florida Blaine Amendment: Blaine-Light in Education, 1820-1910s and 1950s-2000s, at 25-26 n.223 (quoting Art. XII, ? 12 of 1885 Florida Constitution, which provided that "[w]hite and colored children shall not be taught in the same school" and Art. XII, ? 13, according to which "[n]o law shall be enacted authorizing the diversion of . . . school funds . . . for the support of any sectarian [meaning Catholic] school"). (Copy on file with the Institute for Justice.)

[39] Id. at 26.

[40] Chamberlin v. Dade County Bd. of Public Instruction, 140 So.2d 21 (Fla. 1962).

[41] 247 So.2d 304 (Fla. 1971)

[42] 239 So.2d 256 (Fla. 1970)

[43] 143 So.2d 21 (Fla. 1962), rev'd, 337 U.S. 402 (1964).

[44] 115 So.2d 697 (Fla. 1959)

[45] See, e.g., Board of Educ. v. Allen, 228 N.E.2d 791 (N.Y. 1967); Durham v. McLeod, 192 S.E.2d 202 (S.C. 1972); Warren v. Nusbaum, 219 N.W.2d 577 (Wis. 1974); Embry v. O'Bannon, 798 N.E.2d 157 (Ind. 2003).

[46] 536 U.S. 639 (2002).

[47] 533 U.S. 98 (2001).

[48] 515 U.S. 819 (1995).

[49] 508 U.S. 384.

[50] 508 U.S. 520 (1993).

[51] 494 U.S. 872 (1990).

[52] 454 U.S. 263.

[53] Id. at 281.

[54] 435 U.S. 618 (1978).

[55] Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (2004).

[56] Id. at 1314 n.5.

[57] Id. at 1314 n.7.

[58] Id. at 1314-15. (emphasis added)

[59] It seems unlikely the U.S. Supreme Court could be persuaded to embrace the blatant anti-religious discrimination urged by school choice opponents in Florida. As a plurality of justices recently noted, "the exclusion of sectarian schools from otherwise permissible aid programs"—which is precisely what school choice opponents are seeking in Florida—is premised upon a "doctrine, born of bigotry, [that] should be buried now." Mitchell v. Helms, 530 U.S. 793, 829 (2000) (plurality op. of Thomas, Rehnquist, Scalia, and Kennedy, JJ.). Other Justices have recognized the history of Blaine Amendments and their attempt to disadvantage Catholics and other religious groups. Zelman v. Simmons-Harris, 536 U.S. 639, 720-21 (2002) (Breyer, Stevens, and Souter, JJ., dissenting).

[60] See Demographic Profile of Florida School Choice Families at www.ij.org/schoolchoice.

[61] Jenny LaCoste, "Discipline, success, acceptance and inspiration," Pensacola News Journal , December 21, 2003, p. 1A (emphasis added).

[62] Carol Innerst, "Competing to Win: How Florida's A+ Plan Has Triggered Public School Reform," Urban League of Greater Miami, Collins Center for Public Policy, Floridians for School Choice, James Madison Institute, Center for Education Reform, April 2000.

[63] Linda Chion-Kenney, "School officials tie salary to tests," St. Petersburg Times, August 10, 1999, p. 1A.

[64] Martin R. West and Paul E. Peterson, “The Efficacy of Choice Threats Within School Accountability Systems: Results from Legislatively Induced Experiments,” Program on Education Policy and Governance, Kennedy School of Government, Harvard University, March 2005.

[65] Jay P. Greene and Marcus A. Winters, "When Schools Compete: The Effects of Vouchers on Florida Public School Achievement," Manhattan Institute for Policy Research, Education Working Paper No. 2, August 2003, and "An Evaluation of the Florida A-Plus Accountability and School Choice Program," Florida State University, the Manhattan Institute for Policy Research, and Harvard University Program on Education Policy and Governance, February 15, 2001.

[66] Rajashri Chakrabarti, "Impact of Voucher Design on Public School Performance: Evidence from Florida and Milwaukee Voucher Programs," results reported in Education Next, Summer 2004.


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