In this case, Circuit Judge P. Kevin Davey held unconstitutional Florida's Opportunity Scholarship Program, which permitted students at certain failing public schools to receive tuition vouchers that could be used at private - including religious - schools. Judge Davey determined that the Scholarship program violated Article I, Section 3 of the Florida State Constitution, which prohibits all payments of public funds to religious institutions. Because the Opportunity Scholarship program permits the use of tuition vouchers at religious schools, the judge reasoned, it contravenes the clear mandate of Florida's constitutional ban on any aid, whether direct or indirect, from government to religious institutions.
Defenders of the voucher program claimed that the state constitution cannot impose a stricter separation of church and state than the federal constitution, but the judge disagreed. Holmes v. Bush thus stands in significant tension with the recent decision of the U.S. Court of Appeals for the Ninth Circuit in Davey v. Locke, which held that Washington State Constitution's stricter church-state separation violates the federal constitution. (See our analysis of Davey v. Locke).
Holmes and Davey represent the first of what will likely be many cases trying to sort out the appropriate relationship between the federal constitution's more permissive view of church state relations, seen in Zelman v. Simmons-Harris, and the more restrictive provisions found in many state constitutions.
CASE BACKGROUND: In 1999, Governor Jeb Bush signed into law a package of education reform programs collectively known as the "A+ Plan." At its core, the reforms adopted a grading system for public schools, and provided Opportunity Scholarships for students who have attended failing schools. A failing school is defined as one that has received a failing grade for the two previous school years. Students eligible for Opportunity Scholarships may elect to use the tuition voucher at either a better performing public school or a private school, which may be either secular or religious. (For further details on the Opportunity Scholarship Program, see the Florida Department of Education website, http://www.opportunityschools.org/home.asp.) Initially, the voucher program operated only in Pensacola, but the program was scheduled to expand statewide for the coming school year.
The scholarship program faced a legal challenge immediately upon its enactment. A variety of groups, including the American Civil Liberties Union and the National Education Association, sued to halt operation of the program, claiming that it violated both the federal and state constitutions. In March of 2000, Circuit Judge L. Ralph Smith held that the Opportunity Scholarship Program violated Article IX, Section 1 of the Florida Constitution, which requires the state to provide an "adequate" public education. An appeals court reversed Judge Smith's decision, and sent the case back to the circuit court (and to a different judge) (Bush v. Holmes, 767 So. 2d 768 (Fla. 1st DCA 2000)).
The challengers then focused their arguments on a different clause of the Florida Constitution, Article I, Section 3, which provides that "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." Judge P. Kevin Davey postponed the case to await the U.S. Supreme Court's ruling on Cleveland's voucher program, Zelman v. Simmons-Harris, handed down at the end of June, 2002.
At a hearing on July 9, 2002, defenders of the Opportunity Scholarship first argued that the program does not violate Florida's constitution because the voucher financing mechanism allows parents to choose where public money is spent, and so the state should not be seen as "aiding" religious schools. The defenders also contended that the Supreme Court's decision in Zelman effectively requires the circuit court to uphold the Florida Opportunity Scholarship Program. Because such voucher programs do not violate the Establishment Clause of the federal constitution, the defenders argued, Florida must include religious schools within any voucher program. To exclude only religious schools would constitute discrimination against religious education in violation of the federal constitution's Free Exercise, Free Speech, and Equal Protection Clauses.
Those who challenged the voucher program argued that the voucher program clearly involves government support for religious institutions as prohibited by the state constitution, and the federal constitution does not bar states from enforcing their own, stricter requirements for church-state separation.
CASE DECISION: Judge Davey agreed with those who challenged the Opportunity Scholarship program. He reasoned that Florida's constitution provided a "clear and unambiguous" directive - no public funds may be used to aid a religious institution. Judge Davey found unpersuasive the state's claims that the voucher financing method disconnected the government from the money flowing to religious schools, describing the argument as "a colossal triumph of form over substance."
The opinion does not discuss the question of whether Florida's constitutionally required strict separation of church and state runs afoul of the federal constitution's protections for religious liberty. Judge Davey ordered the Opportunity Scholarship program halted for the 2002-2003 school year; state officials say that they will appeal the court's ruling.
CASE ANALYSIS: The decision has immediate practical significance - unless an appeals court intervenes and lifts the court's order, Florida's Opportunity Scholarship program will be halted for the coming school year. The case is also legally significant, primarily because it - along with Davey v. Locke - represents an early interpretation of a state constitution in light of the U.S. Supreme Court's voucher decision in Zelman. That said, however, the court did not specifically address the argument that Florida's strict separation of church and state violates the federal constitution, and it is this question that is likely to be the centerpiece of future litigation about voucher programs.
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