Florida Choice Fight Continues

October 2004

Florida Choice Fight Continues

On August 16, Florida’s First District Court of Appeal held in a 2-1 decision that the Opportunity Scholarship program, which provides private school scholarships to children trapped in failing public schools, violates the state constitution’s Blaine Amendment. The appellate court has been asked to reconsider its decision, but either way it is clear that the case will soon be on its way to the Florida Supreme Court.

Among its many errors, the two-judge majority misunderstood and misapplied both U.S. Supreme Court and Florida Supreme Court precedent.

First, the majority refused to follow a decades-old line of precedent in which the Florida Supreme Court has consistently held that the state’s Blaine Amendment does not prohibit public benefits from flowing to religious institutions as long as they do so as the incidental by-product of a general aid program—which is exactly what happens with Opportunity Scholarships. The majority also misconstrued the U.S. Supreme Court’s Locke v. Davey decision, which strongly suggested that states may not exclude all religious options from an otherwise neutral scholarship program.

In a strongly worded dissent, Judge Ricky Polston criticized the majority for using “form over substance arguments” and not following Florida Supreme Court precedent.

Clark Neily, Lisa Knepper and the entire IJ team are busily gearing up for an epic battle in the Florida Supreme Court, where the case will most likely be heard sometime early next year.