Appeals Court Strikes Down Florida Vouchers

Published October 1, 2004

Many of Florida’s citizens use public funds to purchase child care, health care, and higher education services from a range of providers that include religious institutions. Nevertheless, a new program designed to add K-12 education to that list of services was struck down by the First District Court of Appeals in August because it was seen as providing aid to religious schools, in violation of the state’s bar on public funds being used to aid any religious institution. More than 700 elementary school children are currently participating in the new program, called the Opportunity Scholarship Program (OSP).

Florida Governor Jeb Bush (R), who initiated the program, said he was disappointed by the ruling and by the continuing efforts of plaintiffs to deny meaningful choice to predominantly poor and minority parents. He warned the court ruling could result in the rejection of many other similarly structured programs.

“If upheld, the court’s logic for striking the scholarships could invalidate many other programs such as Bright Futures college scholarships, McKay Scholarships for special needs children, and funding to private universities such as Bethune-Cookman,” said Bush. “Even non-education programs such as Medicaid funding to hospitals with religious affiliations could be threatened.”

Parental Choice Key

The Florida legislature approved the K-12 Opportunity Scholarships in 1999 to give parents with children in failing public schools the opportunity to obtain a high-quality education for their children. Parents in such circumstances may opt for their children to attend a better-performing public school or, as the law itself puts it, to “attend an eligible private school when the parent chooses to apply the equivalent of the public education funds generated by his or her child to the cost of tuition in the eligible private school …” [emphasis added]

“Families across Florida depend on this program as the only means to save their children from chronically failing public schools,” said Clark Neily, senior attorney with the Institute for Justice, a public interest law firm defending the program in court. “This program has provided these families with a vital lifeline to better educational opportunities and a brighter future.”

Religious schools may participate in the program so long as they meet the eligibility requirements, which include accepting OSP students on “an entirely random and religious-neutral basis” and agreeing not to compel any OSP student “to profess a specific ideological belief, to pray, or to worship.” The parents of more than 90 percent of the initial 51 OSP students chose religious schools.

The appeals court viewed the selection of religious schools by parents as troubling since it results in public funds being used by religious institutions. The court found the use by a religious school of any funds once designated “public” is a violation of Article 1, Section 3 of the Florida Constitution, which 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.” [emphasis added]

School choice supporters note, however, that the OSP funds are designated for the use of parents, not schools; the religious schools are freely chosen from among religious and non-religious alternatives by the parents; and the funds received by the chosen schools are payment for the cost of tuition at the schools.

Parents who participate in the scholarship program expressed frustration over the ruling.

“It feels like we’re bumping our heads up against a brick wall just to get a decent education for our kids,” said Tracy Richardson, whose daughter Khaliah attends a Montessori school in Pensacola using an Opportunity Scholarship.

Opponents of the scholarship program, by contrast, were overjoyed by the ruling. Ayesha Khan, legal director for Americans United, called the Holmes v. Bush ruling “a tremendous victory for public schools and taxpayers.” Andy Ford, president of the Florida Education Association, said the decision was “a triumph for public schools and Florida’s taxpayers.”

The editors of The Times-Union regarded the ruling to be grounded more in “a political agenda than on points of law,” noting drily that buying groceries “isn’t giving aid to Publix or Winn-Dixie.”

“When a customer hands a barber or beautician money, that isn’t a gift; it’s payment for services rendered,” wrote the editors. “The same goes for tuition.”

Misreading the Law

In its ruling, the appeals court readily conceded that if the Holmes v. Bush case were decided with reference to the First Amendment of the U.S. Constitution, then a decision to uphold the scholarship program “would be mandated” by the U.S. Supreme Court’s Zelman ruling, even if public funds were being paid directly to the school instead of to parents. That’s because the appeals court accepted as fact that “the OSP program on its face has a religiously neutral purpose” and “the OSP gives parents or guardians the freedom of choice in selecting an alternative to a failing public school.”

However, the appeals court decided the case on the basis of the “no-aid” provision of the Florida State Constitution and turned to the U.S. Supreme Court’s recent Locke v. Davey ruling for guidance. In that case, the High Court upheld Washington State’s denial of scholarship aid to a college student studying for the ministry, based on the state constitution’s prohibition on using “public money … for … the support of any religious establishment.”

The Locke v. Davey decision turned on the very narrow point that it was a state’s prerogative not to subsidize vocational training of ministers. Apart from that restriction, the Supreme Court noted the scholarship program actually “goes a long way towards including religion in its benefits,” with students using scholarships to attend accredited religious schools and pay for religious courses.

The appeals court, however, declared a broad interpretation of the Locke v. Davey ruling. “If the Washington Constitution cannot violate the Free Exercise Clause of the Federal Constitution,” the appeals court decided, “the Florida Constitution does not violate the Free Exercise Clause.” The appeals court thus upheld the application of the no-aid provision to deny the use of OSP vouchers in religious schools. The appeals court insisted its ruling was a narrow one that affected only religious schools, not religious institutions in general or programs like Bright Futures.

According to Neily, the appeals court “seriously misread” the Davey decision.

“In Locke v. Davey the U.S. Supreme Court only upheld that application of the scholarship program after concluding that many, many kinds of religious options were still open to students receiving that scholarship and therefore there was no religious animus,” he explained. “That’s completely different from the First District Court of Appeals decision, which takes all religious options right off the table. It’s hard to imagine a much more overt statement of disfavor of religion.”

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

For more information …

The First District Court of Appeals’ opinion in Holmes v. Bush is available online at

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