Florida Rallies Behind School Choice

April 2005

Florida Rallies Behind School Choice

By Clark Neily

Bishop Harold Ray addresses school choice supporters on the steps of the Florida Supreme Court on the day seven friend-of-the-court briefs are filed in the Opportunity Scholarship case. Fifty years of Florida practice and precedent support school choice.

On January 24, 2005, the steps of the Florida Supreme Court were packed with parents and kids voicing their solidarity with the 700 Opportunity Scholarship students whose right to choose educational excellence is being challenged in court by teachers unions and other supporters of the public education monopoly. The parents and kids were there that day to attend a media conference and rally announcing the filing of seven friend-of-the-court briefs in the Opportunity Scholarship case. They were also there to put the Florida Supreme Court on notice that whatever it decides about the constitutionality of Opportunity Scholarships will directly affect more than 200,000 students who receive educational aid through a wide variety of public programs that, like Opportunity Scholarships, permit recipients to select among religious and non-religious providers.

After the U.S. Supreme Court upheld Cleveland’s voucher program against a federal constitutional challenge in Zelman, school choice opponents renewed their tactic of arguing that provisions in certain states’ constitutions called Blaine Amendments, which prohibit expenditures “in aid of” religious institutions, prohibit school choice programs that the federal Constitution would permit. That is precisely what the teachers unions and their coalition of choice-hating allies have argued in Florida, where they have persuaded two lower courts to adopt their radical interpretation of the state’s Blaine Amendment.

Perhaps the most glaring problem with that argument is that it directly contradicts more than 50 years of religion-neutral state practice and precedent in Florida. Not only has the Florida Supreme Court interpreted the state’s Blaine Amendment as allowing programs that provide only “incidental benefits” to religious organizations, but the legislature has erected over three dozen public aid programs—covering everything from education to drug rehabilitation to support for the homeless—that function exactly like Opportunity Scholarships in providing vouchers to aid recipients and allowing them to choose among a wide variety of religious and nonreligious service providers.

Indeed, as explained in one of the amicus briefs filed in support of the Opportunity Scholarship program, there are more than 200,000 students receiving publicly funded scholarships through nearly a dozen different aid programs in Florida, including McKay Scholarships for disabled students, Corporate Tax Credit Scholarships for low-income K-12 students, and a variety of higher education scholarships that not only allow students to attend religious colleges, but even permit them to study for the ministry if they choose.

Another glaring problem with school choice opponents’ attempt to invoke Blaine Amendments is the bigoted history of those provisions and the blatantly discriminatory manner in which teachers unions and others seek to have them applied today. Academic scholarship is virtually unanimous in its agreement that Blaine Amendments were originally enacted for the specific purpose of discriminating against Catholics and forcing them to enroll their children in unabashedly Protestant “common schools,” where they would be taught according to Protestant teachings and forced to read from the Protestant Bible. School choice opponents seek to update the discriminatory intent of Blaine Amendments by arguing that instead of being used to discriminate against one religion, they should be used to discriminate against all religions by excluding them from an otherwise neutral aid program that functions just like dozens of other public aid programs in the state of Florida.

We at IJ wish to express our deepest thanks to those parents and kids who came to the Florida Supreme Court in January to show their solidarity with Opportunity Scholarship recipients and to the lawyers and groups who produced such compelling friend-of-the-court briefs in support of the program. Together, we will prevail.Clark Neily is an IJ senior attorney.