ACLU Applauds Appeals Court Decision Striking Down Florida School Voucher Program

Affiliate: ACLU of Florida
August 16, 2004 12:00 am

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MIAMI, FL — Saying Governor Jeb Bush can no longer ignore the Florida Constitution and divert much-needed tax dollars to private, sectarian schools, the American Civil Liberties Union of Florida today hailed a court of appeal decision striking down as unconstitutional the state’s school voucher program.

In a 2-1 decision issued today, the First District Court of Appeal in Tallahassee ruled that the Florida Opportunity Scholarship Program, which allows students in so-called failing schools to attend religious schools with the financial assistance of the state is an unconstitutional violation of the ban on state-funded religious education.

“Though it has taken a frustratingly long time, in effect the courts have now told Governor Bush that school reform in Florida must mean improving the neighborhood public schools, not ignoring the Constitution and diverting state education dollars to church-run schools,” said Howard Simon, Executive Director of the ACLU of Florida, which was a member of the legal team that filed the lawsuit challenging the program.

In the majority opinion written by Judges William Van Nortwick and Larry Smith, the state appeals court upheld the ACLU’s claim that the voucher scheme violates the prohibition of Article I, Section 3 of the Florida Constitution barring use of public funds, directly or indirectly, in support of “any church, sect, or religious denomination or in aid of any sectarian institution.” Judge Ricky Polston dissented.

Although the U.S. Supreme Court in June 2002 upheld a Cleveland school voucher program under the federal constitution, the state appeals court said Florida’s constitutional prohibition on state-funded religious education is more restrictive than the federal ban on government-funded religion because it specifically prohibits the expenditure of public funds “directly or indirectly” to aid sectarian institutions. That so-called “no-aid” provision was adopted into the 1868 Florida Constitution.

Today’s decision affirms a lower court ruling issued on August 5, 2002 by Leon County Circuit Court Judge P. Kevin Davey also citing Article I, Section 3 of the Florida Constitution. Judge Davey said that despite the need “to enhance the educational opportunity of children caught in the snare of substandard schools,” Florida’s Constitution is “clear and unambiguous” and that the court does not have the “authority to abandon the clear mandate of the people as enunciated in the constitution.”

Florida’s school voucher program — the Opportunity Scholarship Program that is a portion of the Governor’s “A+ Plan for Education” — was the cornerstone of candidate Jeb Bush’s 1998 campaign for Governor. The program was approved by the legislature to operate statewide in 1999. Although the voucher program initially started in Pensacola, it has expanded in recent years to include school districts across the state.

The case is Bush v. Holmes et al. (No. 1 D02-3160). Plaintiffs include the Florida NAACP, Florida Congress of Parents and Teachers (Florida PTA) and parents and students in the public school system in Pensacola. Lawyers for the plaintiffs include: Ronald G. Meyer, of Tallahassee, Robert H. Chann, John M. West and Alice O’Brien, of Washington, D.C., Randall Marshall, Legal Director of the ACLU of Florida and Steve Shapiro, Legal Director, National ACLU, New York. Today’s decision is available online at

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