TALLAHASSEE, Fla. (ABP) — A Florida state appeals court ruled Nov. 12 that the state's school-voucher program is unconstitutional because it provides funding to religious schools.
The Florida First District Court of Appeals ruled 8-5 that the state's Opportunity Scholarship Program, first created in 1999, violates the Florida Constitution.
The ruling upheld a similar 2-1 opinion handed down in August by a panel of the same court. Then, as in the new ruling, the majority judges said the Florida Opportunity Scholarship Program is unconstitutional because it allows government-funded scholarships to be spent at religious schools.
The Florida Constitution states that no state money “shall ever be taken from the public treasury directly or indirectly in aid … of any sectarian institution.”
Attorneys for Republican Gov. Jeb Bush and other Florida officials had argued that the program is constitutional because the provision in question does not impose any greater restriction on funding of religious schools than does the First Amendment of the United States Constitution. In 2002, the U.S. Supreme Court said that a similar Ohio voucher program did not violate the clause of the First Amendment that forbids government from making a law “respecting an establishment of religion.”
But Judge William Van Nortwick, authoring the majority's opinion, rejected that argument, saying a plain reading of the “no aid” provision of the Florida Constitution is required by a more recent Supreme Court decision. Earlier this year, the justices ruled in Locke vs. Davey that Washington state could be allowed, under the federal Constitution, to provide indirect funding to religious schools but could not be forced to if the state chose not to do so.
“For a court to interpret the no-aid provision as adding nothing substantive to article I, section 3 of the Florida Constitution would require that court to ignore the clear meaning of the text of the provision and its formative history,” Van Nortwick wrote.
But Judge Ricky Polston, writing for the minority, dissented, saying that the Florida provision shouldn't be interpreted as being any more restrictive than the First Amendment. He also said the state government already provides indirect funding to religiously affiliated groups and shouldn't treat schools any differently.
“There is no distinction between this Opportunity Scholarship Program and the state Medicaid program that funds religiously affiliated or operated health-care institutions providing free or subsidized medical care,” he said. “Other examples are legislative programs providing public funds to any public or private person or organization for preservation of historic structures, rent paid to churches for use of their facilities as polling places, and government-subsidized pre-K or child-care programs operated by churches or faith-based organizations.”
The case, Bush vs. Holmes, began when a collection of civil-rights and educational organizations sued the state on behalf of a group of Florida parents who believed it was unconstitutional. In 2002, a trial judge agreed with them and ordered the program halted. Bush and other state officials appealed that ruling.
In the most recent decision, the appeals court asked the Florida Supreme Court to review the case.