Minister, children, parents demonstrate for school vouchers

Associated Press
Last update: January 25, 2005

TALLAHASSEE -- Backed up by several dozen students on the steps of the Florida Supreme Court, a West Palm Beach minister spoke out Monday in defense of state laws that let parents send their children to private schools on state vouchers or scholarships.

Florida's high court is considering the constitutionality of Florida's original voucher program, and Bishop Harold Ray and his supporters say a ruling against the 1999 law would put in jeopardy several other programs that are used by thousands of students.

"School choice is rapidly becoming the pre-eminent civil right of the 21st century," said Ray, a senior pastor at Redemptive Life Fellowship and a senior administrator at Redemptive Life Academy.

But voucher opponents said Ray and his backers are using scare tactics. Voucher opponents include the state's teachers union, the Florida PTA, the League of Women Voters and the National Association for the Advancement of Colored People.

"This lawsuit is not to destroy everything," said Ruth Holmes, a retired Panhandle teacher.

The Supreme Court has not yet scheduled oral arguments in the case, which came to it after the 1st District Court of Appeal ruled in November that the law violates the church-state separation provision of the Florida Constitution. It forbids the state from using tax dollars to aid any church, sect or religious denomination.

Also Monday, the U.S. Department of Justice filed a friend-of-the-court brief in the case, arguing that the 1st DCA had erred in its interpretation of a recent decision by the U.S. Supreme Court in a church-state issue out of the state of Washington.

The ruling by the 1st DCA "raises important issues involving the right of individuals to be free from discrimination based on religion under the Free Exercise Clause of the First Amendment," the brief reads.

The Florida case raises key questions about the scope of the decision in the Washington case and about how far a state can go in seeking to create a greater divide between church and state than is required by the federal Constitution without discriminating against religion, according to the Justice Department brief.

Nearly 700 children attend private schools on state vouchers under the original law, which is triggered when a public school earns failing grades from the state two years out of four. More than half the students attend religious schools; the law specifies that students cannot be forced to pray or profess a religious belief.

Although the law at issue in the lawsuit is Florida's first school voucher program, it is also dwarfed by later voucher programs.

Nearly 14,000 students attend private schools on McKay scholarships, which was created for children with disabilities, and another 10,000 students attend private schools on scholarships funded by businesses who get tax credits from the state.

Voucher supporters warn that programs like these -- as well as the popular Bright Futures college scholarship and the prekindergarten law -- are at risk if the Florida Supreme Court upholds the appellate ruling.

Parents who spoke Monday said they wanted to send their children to private schools because of smaller class sizes, greater physical safety and academic content.

Micelle Emery, a Castleberry mother who wants to send her youngest to a Christian preschool, said she wanted her children to be taught creationism as an alternative theory to evolution.

"Why should I lose my rights to send my children to a school that promotes the values, the level of education and the safety that are important to me simply because that school is religious?" Emery asked.

Leah Cousart, who attends Southeastern College in Lakeland, said it was her dream to attend a Christian college and she would not be able to if she lost her Bright Futures scholarship.

"If you take away the choice of being able to take this scholarship to any accredited school in Florida it is not an advance for freedom, it's more of a step back," she said.

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FOR IMMEDIATE RELEASE: January 18, 2005

Institute for Justice and Florida Parents

To File Opening Brief in Florida Supreme Court

Defending School Choice

Washington, D.C.-Today the Institute for Justice will file its opening brief urging the Florida Supreme Court to uphold the state's Opportunity Scholarships program, which enables parents in failing public schools to choose better-performing public or private schools for their children, including religious schools. The Institute, the nation's leading legal advocate for school choice, represents parents using Opportunity Scholarships and the Urban League of Greater Miami.

The case pits decades of Florida practice and precedent enabling thousands of students to freely choose their schools-including public, private and religious options-against the interests of teachers' unions and other special interests intent on thwarting true educational reform. A ruling against school choice could put dozens of similar, long-standing Florida aid programs at risk.

IJ's brief argues: "[N]othing in the Florida constitution prevents the state from giving 'have nots' the same freedom to choose educational excellence for their children that society's 'haves' take for granted."

School choice opponents, led by lawyers for the teachers' unions, claim that Opportunity Scholarships unconstitutionally "aid" religious schools in violation of the Florida Constitution's Blaine Amendment, which is an unfortunate remnant of long-past religious discrimination. In November, Florida's 1st District Court of Appeal struck down the program. IJ and the State of Florida appealed to the Florida Supreme Court, and the Opportunity Scholarship program is continuing through the appeal.

The Florida Supreme Court will be the first state supreme court to consider the Blaine Amendment, its discriminatory pedigree and its potential impact on school choice following the U.S. Supreme Court's ruling in Locke v. Davey.

Decades of Florida Precedent and Practice Favor School Choice

IJ argues that not only do Opportunity Scholarships "aid" parents and students-not schools-but they operate just like similar Florida education and social service programs that have for decades allowed aid recipients to freely choose among religious and non-religious service providers. For more than 50 years, Florida has offered programs like Bright Futures college scholarships, Florida Resident Access Grants, Medicaid and drug treatment programs where participants can choose to spend their aid at public, religious or non-religious institutions.

Indeed, the Florida Supreme Court has considered its Blaine Amendment before. Not once has it ruled to prohibit religious options from public programs. Instead, the Court has adopted a consistent, even-handed rule: public benefits may flow to religious institutions if they do so incidentally, as the by-product of programs that are designed to promote the general welfare, as opposed to religious institutions specifically.

"Opportunity Scholarships are an educational life preserver for Florida families-and they are perfectly consistent with 50 years of Florida practice and precedent," said IJ Senior Attorney Clark Neily. "Only when a program came along that threatened the powerful public school monopoly did anyone claim that allowing a choice of religious schools or hospitals or any other service provider would violate Florida's Constitution."

Dozens of Aid Programs at Risk

Accepting instead the teachers' unions' interpretation of Florida's Blaine Amendment-that no aid may ever reach a religious institution, even incidentally by the independent choice of an aid recipient-could prove fatal to more than three dozen education and public benefit programs in Florida. Programs like Bright Futures, Florida Resident Access Grants, McKay Scholarships for Students with Disabilities, state-subsidized childcare and even the recently enacted universal pre-K program likely would be unconstitutional under the unions' interpretation.

In the education arena alone, IJ calculates that the scholarships and grants of nearly 200,000 students in 11 programs would be in jeopardy-not including the estimated 90,000 to 150,000 expected to participate in the pre-K program. Moreover, because school choice opponents urge the courts to dismantle the entire Opportunity Scholarships program, all of these scholarships are at risk, not just those for students attending religious schools.

"Adopting the teachers' unions self-serving and historically unsupported claims would be a radical departure from decades of Florida caselaw and practice," said Neily. "Departing from the Court's history of inclusiveness and neutrality toward religion is unnecessary, impractical and

would be harmful to hundreds of thousands of Floridians."

Blaine Amendments and School Choice

Opponents of school choice claim that the U.S. Supreme Court in Locke gave states permission to exclude religious options from generally available public programs. But, as the Court noted approvingly, the college scholarship program at issue in Locke did permit a wide variety of religious schools and options within the program.

Moreover, the Court created only a narrow exception to its neutrality

doctrine: public funding for the religious training of clergy. But unlike Washington state in the Locke case, Florida has for years allowed recipients of certain publicly funded scholarships, like Bright Futures, to pursue degrees in theology-and many do. Notably, none of those programs have ever been challenged in court.

Expanding Opportunity and Improving Education for Florida Students

At stake in the Opportunity Scholarships case is a program carefully tailored to give choice to those who need it most and to spur public school improvement through competition. The evidence shows that the program is fulfilling both of those goals.

"This isn't about church and state, it's about accommodating the needs of parents and children for a good education," says IJ client and Opportunity Scholarship mom Brenda McShane of Pensacola. "I should have a say in what happens with my tax dollars to educate my child."

Opportunity Scholarship mom Angela Mack of Miami added that if the program were to end, "It would destroy my children. Finally, we have an answer for getting them a good education."

[For a complete legal backgrounder on Florida's Blaine Amendment, a list of similar programs at risk, and more information about school choice in Florida and nationwide, visit IJ's School Choice Media Kit at www.ij.org/schoolchoice/mediakit.html

<http://www.ij.org/schoolchoice/mediakit.html>.]