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Legal Issues in the Voucher Lawsuit
Gov. Bush's voucher plan violates the following three provisions of the Florida Constitution:
Article I, Section 3. Religious Freedom.
"There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. 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."
Article IX, Section 1. Public Education. (A state referendum that passed in November, 1998 and went into effect in January, 1999.)
"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."
Article IX, Section 6. State School Fund.
"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."
Bush's voucher plan also violates the Establishment Clause of the U.S. Constitution:
The Establishment Clause of the First Amendment to the U.S. Constitution is made applicable to the states by the Fourteenth Amendment and prohibits any state from enacting a law "respecting an establishment of religion."
The ACLU has been in the forefront of the fight against vouchers and in support of public education. We have lobbied in opposition to vouchers in Congress and the State legislatures and have been actively involved in lawsuits challenging the constitutionality of vouchers in Wisconsin, Ohio, Vermont, Maine, and the Commonwealth of Puerto Rico. The ACLU lobbied in opposition to the voucher program in the recently concluded Florida Legislative Session. We have joined with other civil rights groups, public education advocates, educators, parents of children attending public schools and school board members and have filed a lawsuit challenging the constitutionality of the Florida voucher program: Holmes v. Bush.
Most private schools in Florida are affiliated with a religious group, institution, or organization, or include a religious component in their educational program ("sectarian schools"). Almost all of these sectarian schools are "pervasively sectarian," as that term has been used by the U.S. Supreme Court. This means that the secular and sectarian aspects of the education that they provide are "inextricably intertwined." Because these pervasively sectarian schools are generally larger than other private schools, they enroll a disproportionately high percentage of all Florida private school students. For instance, in Escambia County alone, the site of the pilot vouchers, twenty of the 25 eligible private schools are sectarian, and most of them are "pervasively sectarian." For instance, according to the Little Flower School mission statement, the "young people in Little Flower School must experience the Gospel in order to proclaim it now and throughout their adult lives." These twenty schools enroll over 93% of the K-12 private school pupils in Escambia County.
Forcing taxpayers to fund the choice of a religious education for their neighbor's children is unconstitutional. The U.S. Constitution requires separation of church and state. Moreover, the Florida State Constitution is more explicit than the federal Establishment Clause. Florida Constitution, Article I, the Declaration of Rights, Section 3, Religious Freedom states: "No revenue . . . 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." Not only the plain text, but also the legislative intent goes against the voucher plan. Former state representative Jim Redman (who represented Plant City in the Florida House of Representatives from 1966-1978), the legislative sponsor of Article I, Section 3, was quoted in the St. Petersburg Times on November 9, 1998, that vouchers and other aid to parochial schools were "what we had in mind" when the provision was drafted and submitted to voters.
Because no restrictions are placed on the uses to which voucher payments can be put, the payments can be used to advance sectarian interests via the funding of religious services, the construction and maintenance of religious places of worship, and religious proselytizing. Voucher proponents who advance the "minimal aid" argument – i.e. that the plan falls within the bounds of Florida case law that allows minimal aid to sectarian institutions are missing the point. The bottom line is that even a conservative estimate of an annual $3,000-per-student for up to 156,000 students, for a total of roughly $500 million annually in the state of Florida, far exceeds minimal aid.
Moreover, the State must comply with Florida Constitution Article IX, Section 1. Public Education, which mandates the State to "make adequate provision for the education of all children residing within its borders" via a "uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education." Voucher plan proponents say that the State has reached the point where in order to comply with this mandate, the State has to resort to paying private schools to provide a quality public school education. The problem is that Gov. Bush's voucher plan sweeps too broadly. It is not structured as an option of last resort when the entire public school system has failed the student, but rather as one of three options, two of which are public school options.
In fact, once a student receives a voucher, the student may continue to attend a private school at public expense at least until he or she finishes middle school, regardless of any change in the "grade" assigned to the student's public school in the interim. Unless the student has chosen a private school that does not offer a high-school education, the student will remain eligible for a voucher through high school as well, even if the public high school to which he or she otherwise would have been assigned has never been designated a "failing" school.
Finally the State must adhere to Florida Constitution Article IX, §6, which provides that "income derived from the state school shall, and the principal of the fund may, be appropriated but only to the support and maintenance of free public schools."
