On the 1998 National Assessment of Educational Progress, only
23 percent of Florida’s fourth and eighth graders demonstrated proficiency in
reading. And in what should have been the class of 1998, more than 50 percent of Florida
students failed to graduate from high school within the traditional four years. These
statistics, as well as a host of others, paint a picture of a school system in trouble,
unable to provide a decent education to many of Florida’s children.
In response to this dismal situation, candidates Jeb Bush and
Frank Brogan proposed their A+ Plan for Education during last year’s gubernatorial
campaign. This comprehensive program set out to overhaul the existing public education
system through a package of groundbreaking reforms. The A+ Plan increases funding for
public education, rewards good schools, gives extra help to bad schools, and strengthens
standards and testing to provide an accurate measurement of whether students are learning
what they need to know to compete in our global, information-age economy.
This spring the Florida Legislature passed the A+ package, and
on June 21, 1999, Gov. Bush signed the far-reaching plan into law, ushering in a new era
in Florida education. As part of the plan to improve educational quality for every child,
the A+ law created the opportunity scholarship program, a small but essential part of the
overall plan.
The program is simple: The Florida Department of Education
will evaluate each public school for educational quality and give it a "grade"
on a scale of A through F. The grade is primarily based upon students’ scores on
standardized achievement tests, as well as dropout and attendance rates. If a school
receives a failing grade, an "F," for two years in any four-year period,
students assigned to that school become eligible for the opportunity scholarship program.
Those students then will be given the option of transferring to another public school,
graded "C" or better, or to a private school of their parents’ choice.
Should the child attend private school, he will receive a grant of money — called an
opportunity scholarship — roughly equal to the per-pupil allotment provided by the
state. The private school then must accept the scholarship as full payment of a
student’s tuition and fees.
While supporters know that school choice gives children —
all children — the opportunity for a better education, critics claim that it violates
both the U.S. and the Florida constitutions and have filed suit seeking to block the
program. A closer examination of the issues, however, reveals that the program should
withstand judicial scrutiny.
The Establishment Clause
The American Civil Liberties Union, National Association for
the Advancement of Colored People, teachers’ unions, and other groups have filed suit
in Leon County Circuit Court, claiming that the scholarship program violates the U.S.
Constitution’s establishment clause, which states: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof."
Opponents claim that since parents may use scholarships to send their children to
religious schools, the scholarship program constitutes an unconstitutional establishment
of religion.
While it is true that scholarships may be used at religious
schools, precedent suggests that the program does not violate the establishment clause.
When evaluating the constitutionality of a law challenged under the establishment clause,
the U.S. Supreme Court applies what is known as "the Lemon test," which
was established in the case of Lemon v. Kurtzman in 1971.
Any action by the government that affects religious
organizations must pass a three-pronged test: (1) the action must have a secular purpose;
(2) its primary effect must neither advance nor inhibit religion; and (3) the government
must avoid excessive entanglement with religion. The Florida scholarship program passes
all three of these tests.
First, the goal of the program is secular in nature, as it is
designed solely to provide broader educational opportunities for Florida’s children.
Two aspects of the program confirm that its primary purpose is secular. Schools may not
require children participating in the program to pray or worship, and students must be
admitted to private schools on a random basis, regardless of their religion.
Second, the primary effect of the program is not to advance
religion, but to improve the quality of education received by Florida’s children.
Scholarships are given on the basis of neutral criteria: students may attend another
public school, private school, or religious school. The choice is dictated solely by
parental choice — not by the government.
Finally, there is no excessive entanglement between religious
schools and the government, as religious schools will not be regulated by the government,
but will remain under private control.
Government money finding its way to religious schools is not
unique to the opportunity scholarship program. The GI Bill and Pell Grants, for example,
provide students with government money to use at the colleges of their choice. Often that
choice is a religious college or university, such as Notre Dame. Additionally, other
states have instituted school-choice programs that have withstood similar court
challenges. The Ohio Supreme Court ruled that Cleveland’s scholarship program was
consistent with the establishment clause, and Milwaukee’s school-choice program was
upheld as constitutional by the Wisconsin Supreme Court.
The Wisconsin Supreme Court followed clear precedents
established by the U.S. Supreme Court in cases spanning the last 16 years. These cases
have upheld the constitutionality of general educational assistance programs, which
include religious schools as an option. In the 1986 case of Witters v. Washington Department
of Services for the Blind, for instance, the U.S. Supreme Court allowed a
sight-impaired man to use a post-secondary education grant to attain a divinity degree at
a religious college. In the Milwaukee school-choice case, the Wisconsin Supreme Court
distilled the U.S. Supreme Court’s rationale into a clear principle:
State educational assistance programs do not have the primary effect of advancing
religion if those programs provide public aid to both sectarian and nonsectarian
institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor
religion; and (2) only as a result of numerous private choices of the individual parents
of school-age children.
The Florida opportunity scholarship program clearly conforms
to these criteria.
Education v. Religion?
Critics also allege in their suit that the scholarship program
violates the Florida Constitution. They point to Article 1, Section 3, which declares,
"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." But opportunity
scholarships are not given in aid of churches; they are provided in aid of students.
The Florida Supreme Court has permitted religious
organizations to participate in government programs as long as those programs do not favor
a particular religion and are administered according to neutral criteria for the
advancement of the public welfare. For example, in the 1970 case of Johnson v.
Presbyterian Homes of the Synod of Florida, taxpayers challenged the constitutionality
of granting tax-exempt status to homes for the elderly run by religious organizations. The
Florida Supreme Court upheld the constitutionality of the statute, saying that all homes
for the elderly — religious or non-religious — were tax-exempt and that
"under the circumstances, any benefit received by religious denominations is merely
incidental to the achievement of a public purpose."
The school-choice program is similar in that public funds are
being spent on behalf of a neutral program to promote the general welfare. And currently,
the state provides grants to students studying at religious universities under Bright
Futures Scholarships and Florida Resident Access Grants. Thus, precedent suggests that the
school-choice program will withstand this challenge as well.
Opponents also cite the Florida constitutional clause that
declares it is "a paramount duty of the state to make adequate provision for the
education of all children residing within its borders," and therefore a
"uniform, efficient, safe, secure, and high quality system" of public schools
must be provided. They claim that by funding opportunity scholarships, the state violates
this provision by undermining the existing public schools.
But the public school system will not be drained financially
as money follows students to private schools. The allocation of funds to a school
currently depends upon the number of students attending it. So the school’s funds per
student will remain the same, regardless of whether a student goes to a public or a
private school. Furthermore, the A+ Plan provides public schools with record levels of
funding and extra assistance targeted to improve failing schools.
Florida has promised to provide its children with a quality
education. If this "paramount duty" of the state is to be carried out, the
government must not allow some of its students to be trapped within substandard schools.
The A+ Plan not only permits these students to escape, but encourages all schools to
provide excellent, consistent education. Opportunity scholarships therefore fulfill the
promise of quality education made by voters last November and should survive the ongoing
court challenge.
Matthew Berry is a staff attorney at the Institute for Justice,
which represents Pensacola families participating in the opportunity scholarship program
and the Urban League of Greater Miami, Inc. in the program’s courtroom defense.
Vanessa Countryman is a researcher at the Institute. (e-mail: mberry@ij.org).
September/October 1999 -- Florida Business Insight, PO Box 784,
Tallahassee, Fla. 32302
(850)224-7173, insight@aif.com
