Fla. High Court to Hear Arguments Over School Choice Funding
by Jim Brown and Jenni Parker
January 24, 2005
(AgapePress) - The Florida Supreme Court is getting set to hear a challenge to the state's school voucher law. Under Florida's Opportunity Scholarship Program, students at public schools that earn a failing grade two years out of four can ask for vouchers that use taxpayer dollars to pay for private school tuition. Opponents of the program, however, claim the constitution of Florida bars the state from ever having a program where public money flows to a religious institution.
Attorney Clark Neilly with the Institute for Justice (IJ) is defending the State's voucher law on behalf of Florida parents whose children use the school vouchers. The case pits decades of practice and precedent allowing thousands of Florida students to select their schools -- including public private and religious options -- against the interests of teachers, unions, and special interests that oppose school choice.
School choice opponents, led by lawyers for the teachers' unions, contend that the Opportunity Scholarships unconstitutionally aid religious schools. However, Neilly says their legal challenge threatens not only the school voucher program, but also endangers other religious institutions providing educational benefits and social services.
The challenge to the Florida voucher law "puts in jeopardy over three dozen programs in the state, including not only Opportunity Scholarships but McKay Scholarships, corporate tax credits, Bright Futures Scholarships for college students, and innumerable other programs," the IJ attorney explains. He says adopting the self-serving and unsupported claims of the teachers' unions would harm thousands of Floridians, and moreover, would be a radical departure from Florida case law, departing from the court's historical inclusiveness and neutrality toward religion.
In its brief on the matter, the Institute for Justice argued that there is nothing in the Florida Constitution that prevents the state from "giving 'have nots' the same freedom to choose educational excellence for their children that society's 'haves' take for granted." However, four of five lower court rulings have declared the state's voucher law unconstitutional. IJ and the State of Florida have appealed to Florida's Supreme Court, and the voucher program is continuing through the appellate process.
Neilly notes that the U.S. Supreme Court has previously ruled that no prohibition against voucher programs exists under the Constitution of the United States. Also, he says, in a number of Florida Supreme Court cases, "the court has made it very clear that, as long as the purpose of the program is a secular -- i.e., nonreligious -- purpose and benefits only flow incidentally to a religious organization, then there's no problem with the program."
Those are the cases Neilly says IJ will be relying on in defending the voucher program as the case goes before the Florida Supreme Court. Oral arguments are slated to begin this spring.
