Florida
Florida’s educational choice landscape will no longer be haunted by its Blaine Amendment. Florida’s Blaine Amendment discriminates against religious educational options in the same manner as the Montana Blaine Amendment that was at issue in Espinoza. It thus cannot be invoked to prohibit religious educational options from a generally available choice program. After Espinoza, Florida’s Blaine Amendment is no longer an impediment to the passage of a generally available educational choice program. However, lawmakers must still navigate the intricacies of the Florida Supreme Court’s 2006 decision in Bush v. Holmes, striking down a state voucher program for children attending chronically failing schools under the state constitution’s education article. Bush held that the voucher program at issue in that case violated the state’s obligation to operate a uniform public education system. Thankfully, Florida continues to offer families robust educational choice through its tax credit program, its voucher and education savings account programs for students with special needs, and its means-tested voucher program.
Constitutional Provisions
Blaine Amendment
“No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” Florida Const. Art. I, § 3.
Education Articles
“The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require ….” Florida Const. Art. IX, § 1(a).
“The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein ….” Florida Const. Art. IX, § 4(b).
“The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.” Florida Const. Art. IX, § 6.
Relevant Case Law
Citizens for Strong Schools, Inc. v. Florida State Board of Education, 262 So. 3d 127 (Fla. 2019)
In a challenge to the adequacy of the state’s funding and operation of the public school system, plaintiffs sought to show that the Florida Corporate Tax Credit and McKay programs contributed to the inadequacy of the public school system by allegedly siphoning off money from that system. The state supreme court found that the challenge to the adequacy of the entire K–12 system failed to present any manageable standard by which to avoid judicial intrusion into legislature’s powers.
McCall v. Scott, 199 So. 3d 359 (Fla. Dist. Ct. App. 2016)
Plaintiffs’ complaint was dismissed with prejudice because they did not have taxpayer standing or any special injury supporting standing to challenge the Corporate Tax Credit Scholarship program.
Council for Secular Humanism, Inc. v. McNeil, 44 So. 3d 112 (Fla. Dist. Ct. App. 2010)
Appellants alleged that payments to certain organizations constituted payments to sectarian institutions contrary to Florida’s Blaine Amendment. After concluding that the trial court erred in ruling that the Blaine Amendment was limited to the school context, the appellate court held that the Amendment applied to contracts with faith-based organizations that offer substance abuse programs, making the contracts potentially unconstitutional.
Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)
The Florida Supreme Court held that one of the state constitution’s education articles (Article IX, Section 1(a)) mandates the provision of education only through a “uniform” public school system. In an unprecedented ruling, the Court held that the state may use public funds only for traditional public schools and may not provide additional educational opportunities outside the traditional public system. This decision was effectively neutralized by the United States Supreme Court in Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020).
Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004), aff’d on other grounds, 919 So. 2d 392 (Fla. 2006)
The en banc Florida 1st District Court of Appeal held that Florida’s publicly funded voucher program violated the state’s Blaine Amendment.
Scavella v. School Board, 363 So. 2d 1095 (Fla. 1978)
The Florida Supreme Court held that a statute capping reimbursement expenses for districts educating special needs students at private schools did not violate the uniformity provision of the state constitution’s education article.
School Board v. State, 353 So. 2d 834 (Fla. 1977)
In one of its most searching analyses of the phrase “uniform system of free public schools,” the Florida Supreme Court held that it does not require that each county’s school board have the exact same number of board members.
Nohrr v. Brevard County Educational Facilities Authority, 247 So. 2d 304 (Fla. 1971)
The Florida Supreme Court held that providing tax-exempt revenue bond proceeds to public and private universities, including religious colleges, does not violate the U.S. or Florida Constitutions. The bonds were issued for the secular purpose of expanding educational facilities, any aid to religious or sectarian organizations was incidental, and issuing bonds was not the same as expending public funds from the treasury.
Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So. 2d 256, 261 (Fla. 1970)
The Florida Supreme Court held that a statute exempting from taxation church-run retirement homes was constitutional under Florida’s Blaine Amendment because it had the secular purpose of improving care for the elderly and any benefit flowing to religious interests was incidental.
Southside Estates Baptist Church v. Board of Trustees, 115 So. 2d 697 (Fla. 1959)
The Florida Supreme Court held that a school board’s policy of allowing religious groups to use school facilities for religious services during non-school hours provides only an incidental benefit to the religion itself and therefore does not violate Florida’s Blaine Amendment.
Koerner v. Borck, 100 So. 2d 398 (Fla. 1958)
The Florida Supreme Court upheld a will that gave a parcel of land to a county for a park but required that religious groups be allowed to continue using an adjacent lake for baptismal purposes. The Court held that county-funded improvements to the lake’s docking area did not constitute aid to religious groups in violation of Florida’s Blaine Amendment because the improvements benefited all users of the lake.
Fenske v. Coddington, 57 So. 2d 452 (Fla. 1952)
The Florida Supreme Court held that having a chapel for religious worship in a public school did not violate the Florida Blaine Amendment because the chapel was maintained with funds from a private trust.
Existing Private School Choice Programs
McKay Scholarships for Students with Disabilities
Florida Statutes Sections 1002.39, 1002.421
Voluntary Pre-kindergarten Education Program
Florida Statutes Section 1002.53
Corporate Tax Credit Scholarships
Florida Statutes Sections 1002.395, 1002.41
Personal Learning Scholarship Accounts
Florida Statutes Sections 393.063, 1002.385
Family Empowerment Scholarship Program
Fl St. § 1002.394
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
