Florida: The Kids Win a Big One

May 23, 2008

November 2000


Florida: The Kids Win a Big One

By Clint Bolick

Reversing an unprecedented decision by the trial court, the Florida First District Court of Appeals unanimously ruled that the state constitution does not bar the use of public funds in private schools.

The ruling was an important victory for Florida schoolchildren using Opportunity Scholarships to attend private schools. The trial court struck down the program in March, concluding that the program violated Florida’s guarantee of a “uniform” and “high-quality” public education. We argued to the contrary that the program is a remedy for the state’s failure to provide quality education in many public schools.

The Court of Appeals agreed. “Nothing [in the constitutional provision] clearly prohibits the Legislature from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary,” the Court declared, adding that the state constitution “does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system.”

The ruling is important beyond Florida’s borders, because school choice opponents typically argue that public education guarantees in state constitutions implicitly limit public funds to public schools only. Until the trial court ruling, no court had accepted that proposition. The Court of Appeals decision delivered a stinging rebuke.

Undaunted, the teachers’ unions and their allies filed in November an appeal to the Florida Supreme Court, which has discretion whether or not to review the case. IJ and the State of Florida will argue that the Court should not take the case, because this issue was decided without the benefit of a record, and several other issues (particularly religious establishment) remain to be decided in the case. Rather, we urge the Court to send the case back to the trial court for presentation of evidence and consideration of all remaining issues.

The Court of Appeals decision sparked enormous joy among Pensacola parents whose children are attending private schools with opportunity scholarships. Coming as it did a month after the start of the program’s second year, the decision gave the parents greater hope that their children’s education will continue uninterrupted.

Meanwhile, Governor Jeb Bush’s legal team was bolstered by the addition of U.S. Rep. Charles Canady as the new legal counsel. Canady, who honored his term limit pledge not to run for another congressional term, argued the appeal on behalf of the State. IJ and Canady worked closely together on race preference and other civil rights issues during the congressman’s tenure as Chairman of the House Subcommittee on the Constitution.

Regardless of the path the litigation takes, much work lies ahead. For the moment, however, the dubious constitutional cloud that was hovering over the program is removed, and the kids are doing fine.

Clint Bolick is the Institute for Justice litigation director.

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