Institute for Justice and Florida Parents To File Opening Brief in Florida Supreme Court Defending School Choice

Matt Powers
Matt Powers · January 18, 2005

Washington, D.C.—Today the Institute for Justice will file its opening brief urging the Florida Supreme Court to uphold the state’s Opportunity Scholarships program, which enables parents in failing public schools to choose better-performing public or private schools for their children, including religious schools. The Institute, the nation’s leading legal advocate for school choice, represents parents using Opportunity Scholarships and the Urban League of Greater Miami.

The case pits decades of Florida practice and precedent enabling thousands of students to freely choose their schools—including public, private and religious options—against the interests of teachers’ unions and other special interests intent on thwarting true educational reform. A ruling against school choice could put dozens of similar, long-standing Florida aid programs at risk.

IJ’s brief argues: “[N]othing in the Florida constitution prevents the state from giving ‘have nots’ the same freedom to choose educational excellence for their children that society’s ‘haves’ take for granted.”

School choice opponents, led by lawyers for the teachers’ unions, claim that Opportunity Scholarships unconstitutionally “aid” religious schools in violation of the Florida Constitution’s Blaine Amendment, which is an unfortunate remnant of long-past religious discrimination. In November, Florida’s 1st District Court of Appeal struck down the program. IJ and the State of Florida appealed to the Florida Supreme Court, and the Opportunity Scholarship program is continuing through the appeal.

The Florida Supreme Court will be the first state supreme court to consider the Blaine Amendment, its discriminatory pedigree and its potential impact on school choice following the U.S. Supreme Court’s ruling in Locke v. Davey.

Decades of Florida Precedent and Practice Favor School Choice

IJ argues that not only do Opportunity Scholarships “aid” parents and students—not schools—but they operate just like similar Florida education and social service programs that have for decades allowed aid recipients to freely choose among religious and non-religious service providers. For more than 50 years, Florida has offered programs like Bright Futures college scholarships, Florida Resident Access Grants, Medicaid and drug treatment programs where participants can choose to spend their aid at public, religious or non-religious institutions.

Indeed, the Florida Supreme Court has considered its Blaine Amendment before. Not once has it ruled to prohibit religious options from public programs. Instead, the Court has adopted a consistent, even-handed rule: public benefits may flow to religious institutions if they do so incidentally, as the by-product of programs that are designed to promote the general welfare, as opposed to religious institutions specifically.

“Opportunity Scholarships are an educational life preserver for Florida families—and they are perfectly consistent with 50 years of Florida practice and precedent,” said IJ Senior Attorney Clark Neily. “Only when a program came along that threatened the powerful public school monopoly did anyone claim that allowing a choice of religious schools or hospitals or any other service provider would violate Florida’s Constitution.”

Dozens of Aid Programs at Risk

Accepting instead the teachers’ unions’ interpretation of Florida’s Blaine Amendment—that no aid may ever reach a religious institution, even incidentally by the independent choice of an aid recipient—could prove fatal to more than three dozen education and public benefit programs in Florida. Programs like Bright Futures, Florida Resident Access Grants, McKay Scholarships for Students with Disabilities, state-subsidized childcare and even the recently enacted universal pre-K program likely would be unconstitutional under the unions’ interpretation.

In the education arena alone, IJ calculates that the scholarships and grants of nearly 200,000 students in 11 programs would be in jeopardy—not inluding the estimated 90,000 to 150,000 expected to participate in the pre-K program. Moreover, because school choice opponents urge the courts to dismantle the entire Opportunity Scholarships program, all of these scholarships are at risk, not just those for students attending religious schools.

“Adopting the teachers’ unions self-serving and historically unsupported claims would be a radical departure from decades of Florida caselaw and practice,” said Neily. “Departing from the Court’s history of inclusiveness and neutrality toward religion is unnecessary, impractical and would be harmful to hundreds of thousands of Floridians.”

Blaine Amendments and School Choice

Opponents of school choice claim that the U.S. Supreme Court in Locke gave states permission to exclude religious options from generally available public programs. But, as the Court noted approvingly, the college scholarship program at issue in Locke did permit permit a wide variety of religious schools and options within the program.

Moreover, the Court created only a narrow exception to its neutrality doctrine: public funding for the religious training of clergy. But unlike Washington state in the Locke case, Florida has for years allowed recipients of certain publicly funded scholarships, like Bright Futures, to pursue degrees in theology—and many do. Notably, none of those programs have ever been challenged in court.

Expanding Opportunity and Improving Education for Florida Students

At stake in the Opportunity Scholarships case is a program carefully tailored to give choice to those who need it most and to spur public school improvement through competition. The evidence shows that the program is fulfilling both of those goals.

“This isn’t about church and state, it’s about accommodating the needs of parents and children for a good education,” says IJ client and Opportunity Scholarship mom Brenda McShane of Pensacola. “I should have a say in what happens with my tax dollars to educate my child.”

Opportunity Scholarship mom Angela Mack of Miami added that if the program were to end, “It would destroy my children. Finally, we have an answer for getting them a good education.”

[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]

Filing: IJ’s Florida Supreme Court Opening Brief (January 18, 2005)