Florida’s Amendment 8 is not about private school vouchers

Florida voters will be asked in November to remove the Blaine amendment from their state Constitution, but, despite some assertions to the contrary, this vote is not about private school vouchers.

The amendment was placed on the ballot by two legislators – Sen. Thad Altman, R-Viera, and Rep. Scott Plakon, R-Longwood – who have said repeatedly they want to protect religiously-based social services. Their interest was piqued by a lawsuit, Council for Secular Humanism v. McNeil, that challenges a prison ministries program, and by the fact that the director of this New York-based Council has called it “a springboard to mounting other challenges.”

In turn, the pro-Amendment 8 campaign is being led by a coalition of community-service providers and religious leaders who have raised less than $100,000 to date. They are honorable people who simply want to protect the broad assortment of services that is currently delivered without controversy by faith-based providers. Their position is understandable: If the secular humanists will sue over prison ministries, what’s to stop them from challenging government contracts with the Catholic Charities, Gulf Coast Jewish Family and Community Services or the YMCA? Are Catholic hospitals safe? After all, the constitutional language at issue is quite explicit: “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.”

Though parental choice advocates have previously pushed for changes to the no-aid clause, they were not involved last year in the legislative effort to put this issue on the ballot and are not raising money for the campaign. This is not to suggest they oppose the amendment – most school choice advocates support the role of faith-based service providers – but it reflects the extent to which state and federal court decisions have minimized the relevance of this issue for school choice.

First, the no-aid clause is irrelevant to Florida’s current judicial precedent on school vouchers. The state Supreme Court, in its 2006 Bush v. Holmes ruling, found Opportunity Scholarships to be unconstitutional because they violated Article IX provisions requiring a “uniform” public school system. The court, in fact, steered clear of a lower court ruling that invalidated the scholarships based on the Blaine Amendment – a decision that may well have been influenced by the U.S. Supreme Court’s 2002 Zelman v. Simmons-Harris decision. In Zelman, the U.S. Supreme Court found parents could use public funds to pay for religious schools provided the parents were making a genuine and independent choice. In all of Florida’s private school choice programs, parents control which school receives the public funds. There is no government coercion.

Second, the largest private learning option in the state, tax credit scholarships that served 40,249 low-income students this past year, is constitutionally distinct from vouchers.

In its landmark 2011 case, Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court rejected a challenge to tax credit scholarships by determining these tax credits could not be construed as government expenditures. Consequently, most lawyers believe this scholarship program is safe from any legal challenge, including Blaine.

Unfortunately, the Florida Education Association is erroneously calling Amendment 8 an assault on public education. Its president told reporters the amendment “is designed to open the state treasury to voucher schools.” But other opponents of the amendment have correctly noted the legal distinctions. In a 2010 Tampa Tribune column, Anti-Defamation League attorney David Barkey wrote: “Some supporters say these measures are necessary to authorize vouchers for religious schools, but Florida effectively has a school vouchers program in the form of the $118 million Tax Credit Scholarship Program under which most students attend religious schools.” And a new Florida School Boards Association document that lists the impacts of the amendment’s passage doesn’t even mention tax credit scholarships.

So far, the Florida ACLU is the only organization to raise any money in opposition to Amendment 8, and its astute executive director Howard Simon has made scant mention of the impact on private school vouchers. Simon has taken pains to distance himself from the ways the current Blaine amendment could be used to harm religious charities, and has embraced the complex constitutional balancing act that has allowed faith-based organizations to play a constructive role in community life. Unfortunately, the Secular Humanist lawsuit suggests our time-honored civic détente is in danger.

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18 Responses to Florida’s Amendment 8 is not about private school vouchers

  1. George Klaes August 17, 2012 at 9:58 pm #

    Removing the Blaine Amendment from the Florida Constitution and then removing the Article IX language will restore true religious freedom in Florida and will bring Florida’s constitution into line with US treaty oblgations, and the US Supreme Court ruling in
    Pierce V Society of Sisters. Article IX would not be much of a problem if the Florida Supreme Court hadn’t used it to deny equal justice under the law to Florida residents.

    The Florida Supreme Court’s “non-ruling” used an extreme misinterpretation of Article IX to
    deny equal justice to students who were receiving vouchers.

  2. candor September 4, 2012 at 2:38 pm #

    I suppose the purpose of complicating everything in government bureaucracy is to hide the true purpose of everything in government, which is to perpetuate the bureaucracy… So are you saying that the Constitution is already being violated and this Amendment does not change that, so why oppose it? Tax dollars go to all sorts of things most people would not support if they could simply choose, like killing children in illegal and unwanted wars and maintaining a fear-driven culture based on suicidal behaviors and delusions of grandeur. Why oppose trying to stop the existing constitutional violation?

    This sounds like the US Constitution second Amendment separating church and state. “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.”

    Why would anyone fight against the US Constitution when it is working for centuries?

  3. Diane September 8, 2012 at 10:18 am #

    Amendment 8 will open the door for the federal funding of ALL organizations who choose to call themselves religious – Islamic, Satan and cult organizations. It will give the Federal government the right to sanction your church and tell you how and what to spend your money. They are already trying to force churches to push condoms, abortions – what else would you like? Go rad the amendment and go to http://www.krisannehall.com and read her explanation AGAINST AMENDMENT 8.

  4. James Hall September 10, 2012 at 11:49 am #

    Translation: God is broke. The Gospel is a lie. God cannot fund His own work without a govt bailout. And we wonder why judgement has come to America. Hey “Honorable People,” Get familiar with this phrase, you will here it again: DEPART FROM ME I NEVER KNEW YOU!

  5. James Hall September 10, 2012 at 11:54 am #

    The Apostle Paul said we must strive lawfully. I find it despicable how this argument is disguised in misleading language. They call the argument school choice, when we have no problem with school choice in Florida. You can send your child wherever you want. It is an argument about funding not choice. Unless you mean “I won’t make the choice God tells me to make unless the govt pays for it.” Wicked and FAITHLESS GENERATION! Strive lawfully, tell the truth stop using deceitful language.

  6. MKeller September 21, 2012 at 4:55 pm #

    Frankly, any faith-based organization shouldn’t be taking one dime of my public money. I pay taxes in this state and I abhor all religion and deist-based organizations. I don’t want my money supporting hokum and superstition. If faith-based organizations want to minister in prisons they should raise money to support it. If Catholic Charities wants to deliver services to people they should raise the money through private means.

    Maybe if we stop sending over $400 million dollars of public tax money we wouldn’t have to cut (and then cynically re-add) so much money for public education.

    I will be voting no. I will also be telling everyone that I know to vote no as well.

    • Doug Tuthill September 21, 2012 at 6:07 pm #

      MKeller–Thanks for your comment. I’m interested in how far you’d go in forbidding people from using public funds to receive services from faith-based organizations. For instance, do you oppose students using government grants and loans to attend the University of Notre Dame or Boston College? Do you oppose patients using Medicaid and Medicare to pay for treatment at Catholic hospitals?

  7. Andrea October 5, 2012 at 3:29 pm #

    I wish someone claiming this has nothing to do with vouchers had more convincing evidence than one old lawsuit and suggesting scary scenarios that could arise if that lawsuit was successful. We’ve been living with the Blaine Amendment a long time and none of the ‘scary stuff’ has happened.

    Yes, the YMCA is safe, yes, Catholic hospitals are safe. Why? Because they don’t discriminate and they don’t proselytize. The only reason for this lawsuit was that the two companies in question were essentially requiring anyone wanting their services to submit to, uh, coersion. There was no ‘opt-out’.

    So, no, this is not about religious freedom. This is a scare tactic. It didn’t work when Tax & Budget Reform Commission member (and Jeb Bush educational foundation board member) Patricia Levesque, who lead the charge to put it on the ballot for 2008, referenced the very same lawsuit, Council for Secular Humanism v. McNeil, and claimed “This is proof there will continue to be attacks on these programs”.

    Well, four years later, and where are these attacks? Nowhere. Even that lawsuit, started in 2007 has gone nowhere, round and round while several Florida courts dismissed it. As far as I know, it still has not been heard or ruled on.

    So, if we don’t pass Amendment 8 “what’s to stop them from challenging government contracts with the Catholic Charities, Gulf Coast Jewish Family and Community Services”?

    The fact that that lawsuits are expensive, time-consuming, and don’t seem to be getting them anywhere under already existing law!

    Vote No on 8.

    • Jon East October 5, 2012 at 4:07 pm #

      Andrea:

      I don’t necessarily disagree with your analysis of the current danger to religious service providers. We indeed have been living with the Blaine amendment without harm to service providers. I do view the Secular Humanist case as a serious threat, because an appellate court has ruled that it must be heard on its merits. But it is certainly premature to guess how the case might play out.

      So my point is not so much about whether religious service providers are in grave danger as it is about whether this amendment really does impact vouchers. The Blaine amendment has been long viewed as the major constitutional sticking point to vouchers, but that has changed with the U.S. Supreme Court rulings in 2002 and 2011 and the state Supreme Court ruling in 2006. The most that passage of Amendment 8 could possibly accomplish is to remove once perceived barrier to more vouchers (I say “perceived” because it appears the Florida Supreme Court was afraid the U.S. court would overturn a Blaine ruling against vouchers due to the findings in the 2002 Zelman case). Voucher proponents would still need to come back and change the language in Article IX, because it represents the primary barrier to more vouchers since it is the standing Florida Supreme Court precedent.

      So if you don’t think the amendment is needed because religious providers are already protected, I definitely respect your NO vote. I just caution voters who think a YES vote “opens the door” to more vouchers. It can’t, based on the state Supreme Court precedent.

      Thanks for responding.

      • Andrea October 6, 2012 at 12:15 pm #

        Thanks for your reply.

        I might agree with you about your last point, that basically the Supreme Court ruling of Bush v. Holmes regarding Title IX is a protection against a broadly expanded voucher system, if it were not for;

        1) The makeup of the courts can change, and where one court might see something as unconstitutional, another would rule it constitutional (yes, we have an appeals process, but it’s long and costly).

        Former Gov. Bush wrote a letter to current Gov. Rick Scott as he took office:

        “Bush also recommended that Scott push ahead with ‘education savings accounts’ or a form of universal private school vouchers.

        Bush acknowledged such a move would probably lead to legal challenges.

        ‘I am guessing lawyers inside Tallahassee will say that it is not constitutional,’ wrote Bush. ‘I don’t know how our court will respond but it will be a game changer for the country and you might have the chance to change the makeup of the court.’”

        2) The provisions of Amendment 5, also on the ballot:

        http://tampabay.com/tbprojects/elections/2012/ballot_guide/index.html#

        “This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal.”

        This seems to me to mean that the legislature could pass a voucher bill (which could be vast and sweeping, ‘opening the doors’ you might say), Gov. Scott could sign it into law, its constitutionality could be challenged and judged unconstitutional, and that ruling could be overturned by a simple majority of the legislature.

        Here’s a list of FL legislators that have ties with ALEC, which as you know writes model legislation including tons of school voucher legislation (a few on this list are or will not be current in 2013, but not many):

        http://www.sourcewatch.org/index.php/Florida_ALEC_Politicians

        Bill Moyers did a great 1/2 hour segment about ALEC on his program recently:

        http://www.youtube.com/watch?v=Q0CaOhS7wJg

        Thanks again for your detailed reply and it did help me understand the situation better, but it still does not make me feel warm and fuzzy that the passage of Amendment 8 will be ‘school voucher-neutral”

        However, it also makes me more frightened of the possible passage of Amendment 5 than of Amendment 8.

        • Jon East October 8, 2012 at 9:26 am #

          Andrea,

          You will get no quarrel from me about some of the efforts that are underway to make courts more obedient to the Legislative or administrative branches. I believe, as you apparently do, in the necessity of an independent judiciary.

          In the vein, I do think it is certainly possible that a new set of justices might decide to take a new look at the Bush v. Holmes ruling and the use of Article IX. Of course, a new court could choose to decide the Blaine amendment in a different way as well. But if your point is that you want to keep as many potential protections in the constitution as possible to try to head off what a new court might do, I get that.

          By the way, I work with the Tax Credit Scholarship program and our law was passed and has been improved over the years without any input from ALEC. The Florida law has been praised even by critics of vouchers as having genuine forms of accountability. It is far from perfect, but any private option within the public education system warrants true public oversight.

          Jon

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