Florida Supreme Court Strikes Down School Choice

Matt Powers
Matt Powers · January 5, 2006

Washington, D.C.—In a major blow to education reform in Florida, the Florida Supreme Court today struck down the state’s Opportunity Scholarship program, the nation’s first statewide school choice program. For six years, Opportunity Scholarships have enabled families to opt out of failing public schools and into better-performing public or private schools.

The Court ruled in an opinion drafted by Chief Justice Barbara Pariente that Opportunity Scholarships violate the Florida Constitution’s “uniformity” clause, which guarantees all Florida students a “uniform, efficient, safe, secure, and high quality system of free public schools.” The Court declined to rule on a separate claim by teachers’ unions and other school choice opponents that Opportunity Scholarships violate the state Constitution’s Blaine Amendment.

The 5-2 ruling could force hundreds of mostly minority students out of the private schools of their choice and back into the failing public schools they left. As of last school year, African-Americans and Hispanics made up 95 percent of Opportunity Scholarship recipients. The Court is allowing the scholarships to continue throughout this academic year only.

“This ruling is a serious blow to equal educational opportunity and the schoolchildren of Florida,” said Institute for Justice Senior Attorney Clark Neily, who helped argue the case before the state’s High Court. “We are reviewing our legal options and will work swiftly toward a solution to keep Opportunity Scholarship children in their schools.”

The Institute for Justice, the nation’s leading legal advocate for school choice, represents families using Opportunity Scholarships.

“Nothing in today’s unfortunate decision will stop the nationwide march toward greater educational opportunity,” said IJ President and General Counsel Chip Mellor. “Just this past year, new school choice programs were passed in Utah and Ohio, and programs in Milwaukee, Cleveland, the District of Columbia, Arizona and Pennsylvania continue to flourish. That progress will continue. Because today’s ruling was based on a narrow provision of the state Constitution, its effects are limited to Florida.”

In a stinging dissent, Justice Kenneth Bell wrote, “Nothing in the plain language or history of article IX requires a finding that the Opportunity Scholarship Program is unconstitutional. The clear purpose behind article IX is to ensure that every child in Florida has the opportunity to receive a high-quality education and to ensure access to such an education by requiring the Legislature to make adequate provision for a uniform system of free public schools. There is absolutely no evidence before this Court that this mandate is not being fulfilled.”

“This ruling is such a radical departure from Florida precedent and common sense that the opinion appears both nakedly political and specifically designed to avoid confronting the Blaine Amendment question,” said Neily. “There is no case law whatsoever interpreting the ‘uniformity’ clause to prevent the State from providing both public education and scholarships. And indeed, the State has a long history of paying for some public students to attend private schools. In fact, a unanimous Florida appellate court earlier in this case rejected the ‘uniformity’ argument against Opportunity Scholarships, and no other state has taken such a radical interpretation of similar constitutional provisions.”

“There’s nothing left to do now, but to fight to save school choice however we can,” said Angela Mack, a mother of six in Miami with two children using Opportunity Scholarships to attend the well-regarded Lincoln-Marti school. “My kids would be devastated without these scholarships. They will not go back to the public school they left. If they can’t finish school at Lincoln-Marti, they will drop out.”

“Losing his scholarship will be devastating to my grandson,” said Ramona Nickson, whose grandson uses an Opportunity Scholarship to attend Monsignor Edward Pace High School in Miami. “I can’t take him out of his school, and I just don’t know what I will do. I have no means to keep him in his private school and I can’t even imagine sending him to another school.”

In a section of its opinion titled “Other Programs Unaffected,” the Court specifically limited the impact of the decision to Opportunity Scholarships only, writing “the effect of our decision on [other] programs would be mere speculation.”

[For a complete legal backgrounder on Florida’s Blaine Amendment, a list of similar programs at risk, and more information about school choice in Florida and nationwide, visit IJ’s School Choice Media Kit at www.ij.org/schoolchoice/mediakit.html.]