Legal Showdown for School Choice:

Institute for Justice · May 11, 2005

Washington, D.C.—As the school year comes to a close, students across Florida are wondering if they will be free to return to the schools of their choice—or if they will be forced back into the failing public schools they left.

These families await a Florida Supreme Court decision on Opportunity Scholarships, Florida’s flagship school choice program, which has for six years enabled families to opt out of failing public schools and into better-performing public or private schools. In a critical legal showdown for school choice, the Florida Supreme Court will hear oral arguments June 7 on whether the program violates the Florida Constitution’s Blaine Amendment, a remnant of long-past religious discrimination.

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.

The Institute for Justice, the nation’s leading legal advocate for school choice, is defending the program on behalf of parents using Opportunity Scholarships and the Urban League of Greater Miami.

Far more is at stake than the fates of the 700-plus students who rely on Opportunity Scholarships as their last hope for a quality education. Also at risk is a reform proven to help public schools. Florida is the first state to offer school choice scholarships to students in demonstrably failing public schools—expanding educational opportunity while spurring public school improvement through competition. Four academic studies, the latest released last month by Harvard researchers, demonstrate that the threat of losing students through Opportunity Scholarships has raised academic achievement in Florida’s worst public schools.

Moreover, about a dozen similar educational aid programs in Florida—including McKay Scholarships for Students with Disabilities, the state’s new pre-kindergarten program and Bright Futures college scholarships—could face legal trouble from a ruling against school choice in this case. Those programs currently serve some 200,000 students, not including the estimated 90,000 to 150,000 expected to participate in the pre-K program this fall.

“The Florida Supreme Court faces a clear choice: will Florida continue to lead the nation in educational opportunity, or will teachers’ unions and other special interest groups succeed in using the Blaine Amendment to thwart proven education reform?” said IJ Senior Attorney Clark Neily.

The argument will mark the first time a state supreme court considers the Blaine Amendment and school choice since the U.S. Supreme Court’s decision in Locke v. Davey, which failed to settle the question of whether Blaine Amendments and their discriminatory pedigree could be used to halt school choice in the states.

“For years, opponents of school choice have wielded Blaine Amendments against programs that offer an educational lifeline to disadvantaged kids, and not once have they succeeded,” said IJ President and General Counsel Chip Mellor. “It’s time to put this misguided, discriminatory campaign against educational opportunity to rest.”

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. But Opportunity Scholarships aid parents and students—not schools. Blaine Amendments, born of bigotry, were meant to prevent the public funding of Catholic school systems alongside the then-Protestant public schools—not to stop parents from using a publicly funded scholarship to choose the best school for their child.

Moreover, decades of Florida practice and precedent have enabled thousands of students to freely choose their schools—including public, private and religious options—using state-funded scholarships.

For more than 50 years, Florida has offered dozens of programs like Bright Futures college scholarships, McKay Scholarships for Students with Disabilities, Medicaid and drug treatment programs where participants can choose to spend their aid at public, religious or non-religious institutions.

“Opportunity Scholarships are perfectly consistent with 50 years of Florida practice and precedent,” said Neily. “When the state of Florida gives parents, for the first time in their lives, a choice of where to send their children to school—that is aid to those parents and their children. It is not aid to whatever schools they happen to choose.”

“This isn’t about church and state, it’s about giving parents the power to get a good education for their children,” said 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.”