Florida Court of Appeals Strikes Down School Choice Program in 2-1 Decision

John Kramer
John Kramer · August 16, 2004

Washington, D.C. – With one judge dissenting, a three-judge panel of the First District Courts of Appeal today affirmed a trial judge’s decision finding that Florida’s Opportunity Scholarship program violates the “no aid to religion” provision of the state constitution. The Opportunity Scholarship program enables parents to remove their children from failing public schools and send them to higher-performing public schools or to attend private schools of their choice, including religious schools.

Recognizing that the issue presented by the case is one of first impression involving an issue of great public importance, the Courts of Appeal certified the case to the Florida Supreme Court meaning that the Court will hear the case. Because the trial court’s August 2002 decision was automatically stayed on appeal, the Opportunity Scholarship program has not been affected by the court rulings.

The question for the Florida Supreme Court will be whether a neutral scholarship program that allows parents to send their children to private schools of their choice violates the state constitution’s prohibition against providing aid to religious organizations. As Judge Ricky Polston noted in his dissent, the answer could have a tremendous impact on a whole array of state aid programs—from Medicaid to subsidized child care to college scholarships—that have historically permitted religious institutions to participate on equal footing with non-religious organizations.

There are currently about 640 children receiving Opportunity Scholarships, and hundreds more became eligible after the most recent FCAT scores were released in June identifying additional failing public schools.

The Institute for Justice, a public interest law firm that represents Pensacola families participating in the Opportunity Scholarship program, vowed to continue the fight before the Florida Supreme Court. “Families across Florida depend on this program as the only means to save their children from chronically failing public schools,” said Clark Neily, senior attorney with the Institute for Justice. “This program has provided these families with a vital lifeline to better educational opportunities and a brighter future.”

Tracy Richardson, whose daughter Khaliah attends a Montessori school in Pensacola using an Opportunity Scholarship, expressed frustration over today’s ruling. “It feels like we’re bumping our heads up against a brick wall just to get a decent education for our kids.”

“The Institute for Justice will continue this fight for Florida’s most-needy school children,” said Chip Mellor, IJ’s president and general counsel. “School choice is the only reform that will give these kids a good education today, not some empty union promise of an education years down the road.”