Appeals Court Strikes Down Florida Vouchers

Published January 1, 2005

In a ruling the dissent characterized as driving “a semi-truck” through a “small window” in the U.S. Constitution, the full 1st District Court of Appeals in Florida on November 12 struck down the state’s five-year-old Opportunity Scholarship program, ruling it violated a provision in Florida’s Constitution barring public funds being used to aid any religious institution.

More than 730 students currently use the program to gain access to better-performing K-12 schools. Although they will be able to continue in their choice schools while the ruling is appealed to the Florida Supreme Court, the breadth of the appeals court decision places a cloud not only over the future of the Opportunity Scholarship program, but also over similarly funded post-secondary scholarship programs used by almost 200,000 other Florida students.

“We are saddened to see Florida’s 1st District Court of Appeals rule against low-income parents choosing the best schools for their children,” said John Kirtley, chairman of the Florida Education Freedom Foundation. “We also are very concerned about the impact a negative State Supreme Court ruling will have on other state educational programs such as the Bright Futures Scholarships, the Universal Pre-K program, and the McKay Scholarship Program.”


Since it was approved by the Florida legislature and signed by Gov. Jeb Bush (R) in 1999, the Opportunity Scholarship program has given parents with children in failing public schools the option of choosing to transfer their children, together with funds for tuition, to a better-performing public or private school. A coalition of school choice opponents–the NAACP, state teacher union, state PTA, state League of Women Voters, and others–has fought to overturn the program since its inception.

The court decision, the third ruling against the program, was handed down in an 8-5-1 ruling (8 majority, 5 dissent, and 1 completely separate opinion). Judge William Van Nortwick’s majority opinion declared that Opportunity Scholarships violate the Blaine Amendment in the Florida Constitution by providing “aid” to religious schools–an opinion that covered essentially the same ground as the one he wrote last August when a three-judge panel of the same court struck down the program. (See “Appeals Court Strikes Down Florida Vouchers,” School Reform News, October 2004.)

Using Locke as a Guide

The Appeals Court acknowledged the U.S. Supreme Court precedent in the Cleveland voucher Zelman (2002) case–where parents could choose to direct neutrally available aid to religious or non-religious schools–but said Zelman did not apply in this case. Instead, the Appeals Court took its lead from the U.S. Supreme Court’s recent ruling in Locke v. Davey (2004), where state funds were denied to a college student training to be a minister but were otherwise made available to students for a wide range of religious classes at religious schools.

Despite Locke being a very narrow ruling on what the Supreme Court called “the play in the joints” of the First Amendment, the Appeals Court applied Locke very broadly to deny the use of any state funds for any purpose at religious schools. Although the Florida Constitution clearly bars aid to “religious institutions,” the court claimed the provision was intended to apply only to religious K-12 schools.

Five judges dissented in a strongly worded opinion written by Judge Ricky Polston. The dissent pointed out there was nothing in the historical record to indicate the “no aid” provision should apply only to K-12 schools and warned that the majority’s ruling could jeopardize a wide range of state programs.

“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 (e.g., St. Mary’s Hospital in West Palm Beach and Baptist Medical Center in Jacksonville),” Polston wrote.

“Why wouldn’t the holding be applied to other programs?” asked Polston. “There is no meaningful difference.”

The dissent listed a range of publicly funded programs that have permitted people to freely select religious providers as well as non-religious ones. Those programs include state-subsidized childcare, McKay Scholarships for Students with Disabilities, and the Bright Futures college scholarship program. The Institute for Justice, which is representing parents using Opportunity Scholarships, estimates the educational choices of nearly 200,000 Florida students in 11 grant and scholarship programs may be at risk with the Appeals Court ruling. (See table.)

Discrimination Against Religion

By broadening the Locke ruling from a “relatively minor burden” to one that would have “a dramatic, devastating effect on colleges, students and their families, health care providers, and patients throughout Florida,” the majority ruling “discriminates against religion,” argued the dissent.

In reaching the Locke decision, the U.S. Supreme Court had stated the Establishment Clause and Free Exercise Clause “are frequently in tension,” and that “there is room for play in the joints between them.” But the effect of “the majority’s broad-sweeping interpretation of Florida’s Constitution” is “too large–there is not enough play,” argued the dissent.

“This is not the same as the narrowly written Washington statute that fits within the narrow ‘play between the joints’ as addressed in Locke,” wrote Polston. “Rather, the majority is trying to fit its ruling, the size of a semi-truck, through the small window of the ‘play between the joints.'”

The dissent also pointed out the majority had discriminated against religion by focusing exclusively on the “no-aid” modification to Florida’s First Amendment protections and ignoring a second modification that adds protection against “penalizing” the free exercise of religion.

The Power of Choice

In reviewing the application of Zelman to the Opportunity Scholarship program, Polston concluded there was “no meaningful difference” between the two programs and faulted the majority for not addressing the effect of parental choice on who was the beneficiary of the aid.

“Because parents and guardians have a choice, their children, who would otherwise attend failing schools, rather than sectarian institutions, are aided by the program,” explained Polston. Consequently, he argued, the program does not violate the “no-aid” provision of the Florida Constitution.

Ironically, one of the clearest statements of how choice affects the constitutionality of state aid going to religious schools was presented to U.S. Supreme Court Justices in January 2002 by teacher union legal counsel Robert H. Chanin, arguing against school vouchers.

“If public money that is reasonably attributable to the State is used to pay for a religious education, it violates the Constitution,” explained Chanin.

“The only way in which it’s not attributable to the State is if it doesn’t go there by virtue of a State action or a State decision, but the circuit is broken,” he continued. “[A]nd the circuit is broken because in between, standing between the State and standing between the schools, is an independent party with decisionmaking to divert it away.”

George A. Clowes ([email protected]) is managing editor of School Reform News.

For more information …

The November 12, 2004 ruling of the full 1st District Court of Appeals in Holmes v. Bush is available online at

The August 16, 2004 panel decision of the 1st District Court of Appeals in the case of Holmes v. Bush is covered in the article, “Appeals Court Strikes Down Florida Vouchers,” School Reform News, October 2004, available online at>. The decision is available at

Robert Holland’s summary of the U.S. Supreme Court’s Locke v. Davey ruling, “Davey Ruling Leaves Vouchers in Play,” is available online at