Holmes v. Bush, No. 04-2323 (Fla. Jan. 5, 2006)
In a 5-2 decision, the Florida Supreme Court has ruled that the state's Opportunity Scholarship Program (OSP), a private school voucher program, violates the Florida constitution's requirement that the state provide "a uniform, efficient, safe, secure, and high quality system of free public schools." The court concluded that the OSP violates that provision because it "diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children." This diversion not only reduces the money available to free public schools but also funds private schools that are not legally "uniform" in comparison with each other or with the public school system. Because the court decided the case on this basis, it did not reach the question of whether OSP also violated the Florida Constitution's establishment clause by providing taxpayer funds to religious schools. A state appeals court had ruled that OSP violated article I, section 3, which prohibits the use of public funds to "directly or indirectly [aid] any sectarian institution" and certified its decision to the Florida Supreme Court for expedited consideration as a "question of great public importance."
While the statement of findings in the OSP legislation purported to comply with article IX, section 1(a) of the state constitution, the supreme court found that these findings omitted crucial language requiring the state to provide "a uniform, efficient, safe, secure, and high quality system of free public schools." The omitted language limits the legislature's power because it provides a mandate for educating the state's children and restricts how the mandate is executed. The court held that the provision requires the legislature to provide "a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives." OSP violates this prohibition on using public monies to fund a private alternative to the public school system. The court rejected the state's argument that the OSP supplements the public education system. Rather, OSP diverts funds that would otherwise be used to provide the system of free public schools as required by the state constitution. Because voucher payments reduce funding for public schools, the court found, the OSP undermines the system of "high quality" free public schools that are the exclusive approved means of fulfilling the constitutional mandate to all the state's children. OSP also lacks any provision to ensure that private schools accepting vouchers must meet state accountability standards, violating the constitutional requirement of uniformity; in fact, the court noted, the legislature expressly disavowed any intention to regulate, control or accredit private schools. As a result the private schools are not subject to state curriculum and teacher accreditation standards.
The court found that the language in two other sections of article IX bolstered its conclusion. First, article IX, section 6 of the Florida Constitution restricts the use of revenue from the state school funds to the support and maintenance of free public schools. Second, while article IX, section 1(b) requires the legislature is to provide pre-kindergarten services, that provision, unlike section 1(a), does not restrict the state to any particular means of providing these services. Lastly, the court rejected the state's contention that its decision could jeopardize other educational and welfare programs. The ruling on OSP rests solely on the provisions of article IX, the court emphasized.
Holmes v. Bush, No. 04-2323 (Fla. Jan. 5, 2006)
[Link to full opinion][
Editor's Note: For a summary of the earlier court of appeals decision in the case, see the NSBA School Law pages, below. See also the amicus
brief by the National PTA, which NSBA joined, urging the court to strike down the program. In the aftermath of the supreme court ruling, the St. Petersburg Times reports below that the Florida legislature is adopting a two-pronged strategy to save the program. The first prong reportedly was in the works before the court decision. The Times reports that Governor Bush had already been planning for a defeat: "Internal memorandums outline a legislative proposal for what amounts to a funding shell game." OSP's funding would be shifted from state funding to private contributions collected under an existing corporate tax exemption that funds another voucher program by giving corporations a dollar-for-dollar tax deduction for contributions. Because money in the tax-credit system never technically flows to state coffers, voucher proponents contend such a system will be legal. The second prong involves placing an initiative on the November ballot to ask Florida voters to amend the state constitution to allow tax dollars to be used for private school vouchers.]
[NSBA School Law pages on Bush v. Holmes][National PTA brief]St. Petersburg TimesBy Joni James
[Link to full story]