Florida Supreme Court Strikes Down School Voucher Program

Since 1999, Florida’s Opportunity Scholarship Program (the “OSP”)¹ provided students in failing public schools,² which do not meet minimum state standards, to obtain alternate means of education. On January 5, 2006, the Florida Supreme Court held the OSP unconstitutional as a matter of Florida law in Bush v. Holmes.³ The remainder of this article addresses the OSP and the Florida Supreme Court opinion in Bush v. Holmes.⁴

I. Florida’s Opportunity Scholarship Program

The OSP is the only program of its kind in the nation. Since enacted in 1999, many have maintained that the OSP improved the quality of education for numerous Florida students, particularly minority students attending schools in urban areas. According to the Florida Department of Education of the 763 Opportunity Scholarships students enrolled in private schools in 2004 through 2005, 61% are African American and 33% are Hispanic.⁵ The OSP is designed to “provide enhanced opportunity for students in [the state of Florida] to gain the knowledge and skills necessary for postsecondary education, a career education, or the world of work.”⁶ The OSP is an effort to improve the quality of education in Florida by expanding educational choice to include private schools.

In addition, the OSP attempts to spur competition among schools and stimulate public schools to provide the best education available.⁷ In the event a student’s public school obtains a poor performance grade, failing to make adequate progress, and has two (2) school years in a four (4) year period of low performance,⁸ the OSP allows children in kindergarten through grade twelve to choose between two (2) options: (i) the student may move to a different public school, maintaining a satisfactory record, or (ii) the student may attend an eligible private school when the student’s parent chooses to apply the equivalent of the public education funds generated by the student to the cost of tuition in the eligible private school.⁹

II. The Florida Supreme Court Opinion in Bush v. Holmes¹⁰

In Bush v. Holmes, the Florida Supreme Court clearly states that it does not intend to review the political motivations of the Florida Legislature in passing the OSP, but rather to measure the OSP against the dictates of the Florida Constitution.¹¹ The Florida Supreme Court cited three main reasons for holding the OSP unconstitutional: first, the OSP violates Article IX, Section 1(a) of the Florida Constitution, second, the OSP diverts public funds from the public schools, and, third, under the OSP, private schools participating in the OSP violate the “uniformity” requirements of Article IX, Section 1 of the Florida Constitution. Since the OSP violates Article IX, Section 1(a) of the Florida Constitution, the Florida Supreme Court did not address whether the diversion of public funds under the OSP violates Florida’s Blaine Amendment or the “no aid” provision in Article I, Section 3 of the Florida Constitution.¹²

A. The State’s Obligation Pursuant to Article IX, Section 1(a) of the Florida Constitution

Article IX, Section 1(a) of the Florida Constitution imposes an obligation on the state to provide “a uniform, efficient, safe, secure, and high quality system of free public schools.”¹³ The Florida Supreme Court compared the constitutional language of Article IX, Section 1(a) with the language adopted by the Florida Legislature in the OSP statute. The OSP statute states: “The Legislature finds that the State Constitution requires the state to provide a uniform, safe, secure, efficient, and high quality system which allows the opportunity to obtain a high quality education.”¹⁴ The Court emphasized that the Legislative statements contained in the OSP statute omit “critical language in the constitutional provision,”¹⁵ such as the obligation of the state to provide a system of free public schools, pursuant to the Florida Constitution. The Florida Supreme Court maintained that the omission from the OSP statute of the operative phrase, “to provide a system of free public schools,” is of critical importance:

“The constitutional language omitted from the legislative findings [of the OSP statute] is crucial […] Article IX, Section 1(a) is a limitation on the Legislature’s power because it provides both a mandate to provide for children’s education and a restriction on the execution of that mandate.”¹⁶

Since the Florida Constitution imposes an obligation on the state to make adequate provision for the education of all children within its borders, Article IX, Section 1(a) is a limitation on the exercise of legislative power to provide for alternate means of education. As the Court stated: “The OSP violates the provision, [to make adequate provision for the education], by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.”¹⁷ Since the Constitution provides one way of education, through Article IX, Section 1(a), then any other method or means of public education or exercising Legislative power is prohibited by the Florida Constitution. The Florida Supreme Court concluded: “[Article IX, Section 1(a) of the Florida Constitution] mandates that the state’s obligation is to provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternative.”¹⁸

To support this conclusion, the Florida Supreme Court relied on the principle of construction, “expressio unius est exclusio alterius,” or “the expression of one thing implies the exclusion of another.” Justice Kenneth Bell’s dissent challenged the majority’s finding that Article IX, Section 1 provides the sole means in which the state fulfills its duty to provide for the education of children. The dissent states: “[T]here is no language of exclusion in the text [of the Florida Constitution]. [Article IX, Section 1] does not preclude the Legislature from using its general legislative powers to provide a private school scholarship to a finite number of parents who have a child in one of Florida’s relatively few failing public schools […] Given these irrefutable facts, it is wholly inappropriate for a court to use a statutory maxim such as expressio unius est exclusio alterius to imply such a proscription.”¹⁹ The Court stated that Article IX, Section 1(a) “mandates that a system of free public schools is the manner in which the [State of Florida] is to provide a free education to the children of Florida […] and that providing a free education […] to attend private schools is a substantially different manner of providing publicly funded education than the one prescribed by the [Florida] Constitution.”²⁰ The OSP conflicts with the primary purpose of the relevant constitutional provision related to education, namely Article IX, Section 1(a), which provides a “comprehensive statement of the state’s responsibilities regarding the education of its children.”²¹

B. Diversion of Funds form the Public Schools

The Florida Supreme Court emphasized that Article IX, Section 1(a) of the Florida Constitution prohibits the systematic diversion of public dollars to separate private schools, competing with public schools. Such diversion of public dollars reduces funds available to the public schools and is incompatible with Article IX, Section 1(a), but also, as the Court held: “funds private schools that are not uniform when compared to each other or the public system.”²² Since Article IX, Section 1(a) provides the exclusive means to provide for the education of children and the OSP diverts funds otherwise earmarked for public education to private schools, the OSP is an unconstitutional Legislative act. The Court concluded its analysis stating: “[Because] voucher payments reduce funding for the public education system, the OSP […] undermines the system of high quality free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.”²³

C. The OSP Violates the Uniformity Provision of the Florida Constitution

Florida public schools are subject to the uniformity requirements of Article IX, Section 1(a). In other words, Florida’s system of “free public education” enumerated in Article IX, Section 1 of the Florida Constitution must be uniform throughout the state. The OSP fails to apply the uniformity element set forth in Article IX, Section 1 to private schools participating in the OSP. The Court noted that student’s participating in the OSP do not take the same statewide assessment tests required of a public school student. In addition, the “private school’s curriculum and teachers are not subject to the same standards as those in force in public schools.”²⁴ Since public schools are subject to additional requirements of state law, such as background checks for teachers, teacher certification requirements, and minimum curriculum standards, and private schools are not subject to the same public school requirements, “[t]he OSP contravenes [Article IX, Section 1 of the Florida Constitution] because it allows children to receive a publicly funded education through an alternate system of private schools that are not subject to the uniformity requirements of the public school system.”²⁵ In sum, through the OSP, the “state is fostering plural, non-uniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.”²⁶

III. Conclusion

As a result of Bush v. Holmes, over 700 students are required to return to their former schools at the beginning of the next school year. Bush v. Holmes prohibits any alternative form of public education other than the type provided for in Article IX, Section 1 of the Florida Constitution.27

 

Endnotes

1 FLA. STAT. §1002.38. 

2 Florida Statutes §1008.34 establishes the methodology for grading public schools according to student achievement. In 1999, Fla. Stat. §1008.34 was passed simultaneous with Fla. Stat. §1002.38 or the OSP. 

3 No. SC04-2323 (Florida Supreme Court 2006) (citation omitted). 

4 Id. 

5 See http://www.floridaschoolchoice.org/information/OSP. 

6 FLA. STAT. §1002.38(1).

7 As the district court stated in Bush v Holmes, 767 So. 2d 668, 676 (Fla. 1st DCA Aug. 16, 2004): “Although, in establishing the OSP, the Legislature recognized that some public schools may not perform at an acceptable level, the Legislature attempted to improve those schools by raising expectations for and creating competition among schools, while at the same time not penalizing the students attending failing schools.” 

8 FLA. STAT. §1002.38(1). 

9 Id. 

10 No. SC04-2323 (Florida Supreme Court 2006) (citation omitted). 

11 Id. at 17. 

12 A Blaine Amendment places some form of additional limitation on government aid to private, sectarian schools beyond the limitations imposed by the Establishment Clause of the U.S. Constitution. Currently, thirty seven (37) states have Blaine Amendments of varying severity, including Florida. Florida’s Blaine Amendment set forth in Article I, Section 3 of the Florida Constitution states: “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.” Florida’s Blaine Amendment prohibits taking revenue of the state from the public treasury to aid a sectarian institution. The Florida Supreme Court did not address Florida’s Blaine Amendment or whether the OSP violates the Establishment Clause of the U.S. Constitution.

13 FLA. CONST. art. IX, §1(a), (emphasis added). 

14 FLA. STAT. §1002.38(1). 

15 Bush v. Holmes, No. SC04-2323 at 20 (Florida Supreme Court 2006) (citation omitted). 

16 Id. at 21, 22. 

17 Id. at 22. 

18 Id. at 25. 

19 See Bush v. Holmes, No. SC04-2323 at 40, 41 (Florida Supreme Court 2006) (citation omitted). 

20 Bush v. Holmes, No. SC04-2323 at 23 (Florida Supreme Court 2006) (citation omitted). 

21 Id. at 23. 

22 Id. at 4. 

23 Id. at 27. 

24 Id. at 28. 

25 Id. at 34. 

26 Id. at 5. 

27 See Andrew Coulson, War Against Vouchers, WALL ST. J., Jan. 9, 2006.

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