Bush v. Holmes

District Court of Appeal of Florida
886 So. 2d 340 (2004)

ELI5:

Rule of Law:

Article I, section 3 of the Florida Constitution, which prohibits the use of public revenue 'directly or indirectly in aid of any sectarian institution,' imposes stricter limitations on state funding of religious schools than the Establishment Clause of the U.S. Constitution. A state-funded school voucher program that allows parents to pay tuition at sectarian schools violates this 'no-aid' provision.

Facts:

The Florida Legislature established the Opportunity Scholarship Program (OSP) to allow students in public schools deemed 'failing' to receive state financial assistance for education.
The OSP provided parents with a tuition voucher to enroll their child in a better-performing public school or an eligible private school.
Many of the private schools eligible to participate in the OSP were sectarian institutions with missions to provide religious education and formation in their specific faith.
For students attending a private school, the state issued a warrant payable to the student's parent or guardian, which was mailed directly to the chosen school.
The parent or guardian was then required to restrictively endorse the warrant to the private school for payment of tuition.
During the OSP's first three years in Escambia County, ninety percent of students who used an OSP voucher enrolled in sectarian schools operated by the Catholic Diocese.

Procedural Posture:

Ruth D. Holmes and other plaintiffs sued Governor Jeb Bush and other state officials in Florida circuit court (the trial court), challenging the constitutionality of the Opportunity Scholarship Program (OSP).
The trial court granted summary judgment for the plaintiffs, initially ruling that the OSP was unconstitutional on its face under Article IX, § 1 of the Florida Constitution (requiring a uniform system of free public schools).
The state officials appealed to the District Court of Appeal of Florida, First District (an intermediate appellate court).
The District Court of Appeal reversed the trial court's ruling on the Article IX, § 1 grounds and remanded the case for consideration of other constitutional claims.
On remand, the plaintiffs voluntarily dismissed their challenge under the Establishment Clause of the U.S. Constitution.
The trial court then granted summary judgment for the plaintiffs again, this time ruling that the OSP was facially unconstitutional under the 'no-aid' provision of Article I, § 3 of the Florida Constitution.
Governor Bush and the other state officials (Appellants) appealed this second summary judgment order to the District Court of Appeal of Florida, First District.

Premium Content

Subscribe to Lexplug to view the complete brief

You're viewing a preview with Rule of Law, Facts, and Procedural Posture

Issue:

Does Florida's Opportunity Scholarship Program, which provides state-funded tuition vouchers for students to attend private schools, including sectarian schools, violate Article I, Section 3 of the Florida Constitution's prohibition against using public revenue in aid of any sectarian institution?

Opinions:

Majority - Van Nortwick, J.

Yes, the Opportunity Scholarship Program violates Article I, section 3 of the Florida Constitution. The state constitution's 'no-aid' provision imposes greater restrictions on state aid to religious schools than the Establishment Clause of the U.S. Constitution. The court reasoned that the text and history of the no-aid provision demonstrate a clear intent to bar a broad range of state financial support for sectarian institutions. The provision's prohibition of 'indirect' aid means that routing funds through parents via a restrictively endorsed warrant does not cure the constitutional violation. Even if the OSP is constitutional under the federal standard set in Zelman v. Simmons-Harris, Florida's constitution is 'far stricter.' This holding does not violate the federal Free Exercise Clause, as established in Locke v. Davey, which recognized that states may maintain a more stringent separation between church and state than federally required.

Dissenting - Polston, J.

No, the Opportunity Scholarship Program does not violate the Florida Constitution. The dissent argued that Florida Supreme Court precedent permits incidental benefits to religious institutions when a program serves a secular public purpose, which the OSP does by aiding children in failing schools. Because parents exercise genuine private choice, the aid flows to the child, not the institution. The dissent contended that the Florida no-aid provision should be interpreted as equivalent to the federal Establishment Clause, making the program constitutional under Zelman v. Simmons-Harris. Consequently, the majority's interpretation discriminates against religion in violation of the Free Exercise Clauses of both the U.S. and Florida Constitutions.

Concurring - Benton, J.

Yes, but the judgment should be affirmed on the alternative ground that the OSP violates Article IX, Section 1 of the Florida Constitution. This provision mandates that the state make adequate provision for a 'uniform... system of free public schools.' The concurring opinion argued that diverting public funds to private schools, whether sectarian or not, is inconsistent with this paramount constitutional duty to support and improve the public school system itself.

Concurring in part and dissenting in part - Wolf, C.J.

No, the trial court erred in finding the program facially unconstitutional. The dissent argued against an all-or-nothing approach, suggesting the program should be evaluated on an as-applied basis. If the program were found unconstitutional as applied to sectarian institutions, the proper remedy would be to sever the unconstitutional portion of the statute (allowing vouchers for sectarian schools) rather than striking down the entire program. This would preserve the legislature's intent to provide educational opportunities for students while respecting constitutional limits.

Analysis:

This decision establishes that Florida's 'no-aid' provision is an independent and more restrictive barrier to public funding of religious institutions than the federal Establishment Clause. It significantly curtails the state legislature's ability to create school voucher programs that include sectarian schools, even if structured as programs of 'private choice' permissible under Zelman v. Simmons-Harris. The case solidifies the principle that state constitutions can provide greater separation of church and state than the federal minimum, impacting future litigation over school choice in states with similar 'Blaine Amendment' type provisions. It affirms that such stricter state-level prohibitions do not inherently violate the federal Free Exercise Clause.

Gunnerbot

AI-powered case assistant

Loaded: Bush v. Holmes (2004)

Try: "What was the holding?" or "Explain the dissent"