Litigation Update: Florida School Choice

March 2002

Litigation Update: Florida School Choice

Our choice-hating friends in Florida are up to their old tricks—namely, peeling off state constitutional claims one by one to see if they can find a winner.

School choice opponents first tried this tactic more than two years ago when they argued that Florida’s Opportunity Scholarship Program violated the Florida state constitution’s “uniform public education” requirement. The first trial judge bought this argument, but he was reversed on appeal. Despite the fact that the trial judge’s son had recently married the daughter of a high-ranking teachers’ union official, the judge refused to disqualify himself from the case. Again, the appeals court reversed the judge, and a new trial judge—one with no connections to any of the parties—was assigned to the case.

Shortly thereafter, our opponents picked out yet another state constitutional provision (this one prohibiting the State from spending money “in aid of” religious institutions) and again asked that Opportunity Scholarship children be thrown back into the failing public schools from which they had escaped.

At a hearing featuring lawyer Barry Richard (who argued on the Bush side of Bush v. Gore), the new judge refused choice opponents’ latest invitation to jump the gun. Agreeing instead with arguments from the State’s lawyer, Mr. Richard, and the Institute’s Clark Neily, Judge Kevin Davey agreed that it would be more prudent for him to wait until the U.S. Supreme Court’s decision on the constitutionality of Cleveland’s voucher program, which was argued in February. Meanwhile, the Opportunity Scholarship Program continues providing kids who would otherwise be ignored by the educational establishment with educational options.