Katie Newmark brings us up to date with an account of the oral arguments in the Florida voucher case, about which I’ve posted before here, here, here, here, here, here, here, and here. (Some of the earlier posts are about Georgia, but the issues in the two states--dealing with "Blaine Amendments"--are similar.)
What’s surprising about the oral arguments, also noted in this article, to which Katie links, is that the judges spent less time on Florida’s religious funding restrictions than on another clause of Florida’s constitution that requires the state to make "adequate provision...for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require." Taken together with another constitutional reference to a "state school fund," whose principal and interest may only be used to fund free public schools, this provision may serve as the basis of an argument that the state cannot support any form of private education, religious or secular. This is a very clever argument, which if successful would likely make support of public schools the only constitutional option in Florida. And since it doesn’t in any way discriminate against religious schools in particular, it wouldn’t be subject to any 14th Amendment equal protection or 1st Amendment viewpoint discrimination challenge. Saving Florida’s voucher program under these circumstances would probably require a constitutional amendment, which would be portrayed by its opponents as an assault on public education. Whew!
There is one possible loophole identified by one of the program’s legal defenders, Barry Richard. He suggests that the Florida legislature could appropriate money for its voucher program separate from the so-called "school fund," and that, even if the money for the voucher program reduces dollar for dollar funds available to public schools, the legislature would have met its obligation to provide for a free public school system. Here’s his argument:
THERE IS NO PROVISION ANYWHERE IN THE CONSTITUTION, THAT HAS A MINIMUM AMOUNT OF FUNDING THAT THE LEGISLATURE MUST PROVIDE. IT COULD REDUCE THE FUNDING BY THE SAME AMOUNT THAT CURRENTLY GOES INTO THE OPPORTUNITY SCHOLARSHIP PROGRAM AND THERE WOULD BE NO ISSUE BEFORE THIS COURT, UNLESS THE PLAINTIFFS HAD ESTABLISHED A RECORD THAT THEY WERE NOT PROVIDING THE MANDATE OF ARTICLE IX.
Of course, someone could take up the challenge and argue that the legislature isn’t in fact making adequate provision for public schools, which seems to be what happened last week in Kansas and also elsewhere. This could end up driving the costs of education through the roof, with or without vouchers, as judges predictably succumbed to the temptation to legislate from the bench.
Hat tip (for the oral argument transcript): Religion Clause.
Update: Howard Friedman thinks that my worries might be misplaced. Heres his quick and helpful response:
Many state constitutions require the state to furnish a "thorough and efficient system of common schools". Floridas provision just seems to be a more elaborate version of these. These clauses have been used to reform the financing system for public schools, but I do not know of any cases that have said they mean that states cannot support private schools. See Ohios DeRolph case for an example of a school funding case.
Of course, that it hasnt been done before doesnt mean that the Florida court wont try it.