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.

Vouchers: No

Tax Credits: Yes

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

Relevant Case Law

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 faithbased organizations that offer substance abuse programs, making the contracts potentially unconstitutional.

McCall v. Scott, No. CA 002282 (Fla. 2d. Jud. Cir. May 18, 2014)
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. The case is on appeal.

Citizens for Strong Schools, Inc. v. Florida State Board of Education, No. CA-4534 (Fla. 2d. Jud. Cir. May 24, 2016)
In a challenge to the adequacy of the state’s funding and control of the public schools, plaintiffs sought to show that the Florida Corporate Tax Credit and McKay programs contributed to the inadequacy of the public schools. The trial court found no negative effects on the uniformity or efficiency of the public school system, instead crediting evidence that these programs are reasonably likely to improve the quality and efficiency of the entire system. The case is on appeal.

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.

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.

Analysis and Recommendations

The status of school choice in Florida is unclear. Unfortunately, in an unprecedented decision, the Florida Supreme Court struck down the
state’s groundbreaking Opportunity Scholarships voucher program for children in chronically failing public schools. The Court declared that the program violated the state constitution’s education article, specifically the requirement to provide a “uniform” public education. Contrary to state supreme courts in Wisconsin and Ohio, the Florida Court decided that the Legislature may not provide educational options beyond those in the public schools. Still, the Court limited its decision to Opportunity Scholarships only, leaving untouched Florida’s other school choice programs.

Earlier in the same case, a Florida appellate court struck down Opportunity Scholarships under the state’s Blaine Amendment. That ruling ran counter to years of Florida Supreme Court rulings on the Blaine Amendment permitting “incidental” benefits to religious organizations as the by-product of programs designed to advance the general welfare. The Florida Supreme Court did not review that issue, and the validity of the appellate court’s holding is unclear under Florida law.

Despite the uncertainties surrounding vouchers, tax credit programs are completely consistent with the Florida Constitution, even as interpreted by Holmes, because they involve private rather than public funds. As of press time, two cases unsuccessfully challenging the Florida Tax Credit Scholarship program are currently on appeal at the Florida Court of Appeals.

Model Legislation: Education Savings Account, Great Schools Tax Credit Program, Family Education Tax Credit Program

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