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Contents : RECENT CASES STATE CONSTITUTIONAL LAW EDUCATION CLAUSE FLORIDA SUPREME COURT DECLARES STATE S SCHOOL VOUCHER PROGRAM UNCONSTITUTIONAL. Bush v. Holmes 919 So. 2d 392 (Fla. 2006). The legal battle over school choice has tended to miss the point. The first decade of litigation focused on deploying federal and state establishment clause arguments in an effort to prove vouchers unconstitutional a strategy derailed by the Supreme Court in Zelman v. Simmons-Harris.1 Religion however is a red herring in the voucher debate diverting attention from equal educational opportunity and toward separation of church and state.2 Recently in Bush v. Holmes 3 the Florida Supreme Court considered a program that offered K 12 students scholarships to attend private schools as an alternative to their failing public ones and held that the scheme facially violated the education clause of the state constitution. Although Holmes ostensibly shifted the voucher question to one of education the court was still unable to discuss the merits of vouchers frankly. As the court s adventurous reading and strained application of the Florida Constitution demonstrate the issues raised by an inquiry into the constitutional adequacy of an education plan do not lend themselves to resolution through the plan s facial invalidation. Rather the educational effect of a particular voucher program is an empirical question and state courts would be more prudent to wait to consider such programs as applied. In 1999 Florida enacted the first statewide publicly funded school voucher program in the United States the Opportunity Scholarship Program (OSP).4 The statute provided that the parents of a student attending a public school found to be failing for two years in a fouryear period could use a state-funded scholarship either to send the child to a better public school or to pay tuition at a qualifying private 1 536 U.S. 639 (2002) (holding that an Ohio voucher program that allowed recipients to attend sectarian schools did not violate the Establishment Clause of the U.S. Constitution). However some states establishment clause equivalents could be interpreted as more permissive than the federal one and therefore serve as voucher battlegrounds in the future. See generally Frank R. Kemerer State Constitutions and School Vouchers 120 EDUC. L. REP. 1 (1997) (categorizing the state religion clauses and analyzing their effects on school vouchers). 2 As the Ohio Supreme Court pointed out t he primary beneficiaries of the School Voucher Program are children not sectarian schools. Simmons-Harris v. Goff 711 N.E.2d 203 211 (Ohio 1999) (citing Zobrest v. Catalina Foothills Sch. Dist. 509 U.S. 1 12 (1993)). 3 919 So. 2d 392 (Fla. 2006). 4 See 1999 Fla. Laws 4275 (codified as amended at FLA. STAT. ANN. 1002.38 (West 2004 & Supp. 2007)) invalidated by Holmes 919 So. 2d 392. 1097 1098 HARVARD LAW REVIEW Vol. 120:1097 school.5 The voucher was funded by a transfer of appropriated funds from the school district the student would have otherwise attended the amount transferred was the lesser of the public school funds generated by the child or the private school s tuition.6 Parents of children in the Florida public schools along with several interested organizations filed complaints in the Circuit Court of Leon County challenging the constitutionality of the OSP under both the Establishment Clause of the U.S. Constitution7 and various provisions of the Florida Constitution.8 The circuit judge ruled that the OSP violated the Florida Constitution.9 The First District Court of Appeal reversed concluding that nothing in the constitution prohibited the well-delineated use of public funds for private school education 10 and remanded for further proceedings. The circuit court entered final summary judgment holding the OSP violated the no aid provision of the Florida Constitution which restricts direct public aid to religious schools.11 The First District issued a decision en banc affirming the circuit court s order.12 The court held that given the historical context and the highly restrictive language of this provision the drafters clearly intended to prohibit public funding of religious schools.13 In a 5 2 decision the Florida Supreme Court affirmed but on different grounds.14 Writing for the court Chief Justice Pariente15 held that the OSP violated the education clause of the Florida Constitution which declares it a paramount duty of the state to make adequate provision for the education of all children residing within its borders and requires the state to provide a uniform efficient safe secure and

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