Voucher-friendly amendments won’t be on Florida’s 2018 ballot

Florida voters will not be voting this fall on whether to make the state constitution more amendable to school vouchers.

The state’s Constitution Revision Commission is still finalizing its proposals for the November ballot. But two proposals that might have drawn the attention of private school choice advocates won’t be in the mix.

One of those proposals would have struck Florida’s so-called Blaine Amendment. The debate around that now-scuttled proposal could hold insights for school choice advocates looking to overturn provisions in state constitutions that bar public aid to religious institutions.

Commissioner Roberto Martinez is a Miami lawyer who supported the proposal. He pointed to programs like a prison substance-abuse program that faced a legal challenge from the Council for Secular Humanism. Courts ultimately ruled the program’s faith-based providers do not violate Florida’s Blaine Amendment.

“I say this with all respect to the judges who were involved in those opinions. They performed legal jiu-jitsu in order to find the programs in effect constitutional, and not in violation of the no-aid provision, even though those programs provided aid to a religious organization,” Martinez said while debating the proposal last week.

If judges had blocked the program — which, he argued, the state constitution technically requires — they could have wound up on a collision course with the U.S. Supreme Court, which last year found it was unconstitutional to exclude religious schools from a program the helped fund safe playground equipment.

Since Florida judges kept the door open for faith-based substance-abuse services, the state’s “no-aid” provision remains safe from a federal challenge that could gut it — at least for now.

Commissioner Arthenia Joyner, a former Democratic state lawmaker who, like Martinez, is a respected attorney, disputed his interpretation of last year’s federal Trinity Lutheran case. She argued it was a narrow ruling dealing with playground equipment.

“One could reasonably differ on what the opinion means and how it affects the Blaine Amendment,” she said.

Later, she argued against any constitutional change that could help pave the way for vouchers. “Should your freedom become my financial responsibility?” she asked. “Should the taxpayers of Florida be forced to pay for your choice?”

But Martinez said federal justices don’t typically bring playground equipment grants under their purview. They settle big, constitutional questions.

And he said the Supreme Court decided explicitly barring religious institutions from programs that serve a public, secular purpose violated their “free exercise” rights under the First Amendment.

At the same time, he told Joyner, the First Amendment’s “establishment” clause keeps them from funding religious activities outright.

“I think the evil that you’re trying to safeguard … is that I don’t want the state involved in religion, in furthering a religion. But I also don’t want to put a bar and disable a religion based upon its status. And neither did our founders,” he said.

Indeed, in 2002, the high court held voucher programs were constitutional as long as they allowed parents to pay tuition at all types of schools, regardless of religious affiliation.

Don Gaetz, a former president of the state Senate, said the state supports all sorts of programs at religiously affiliated institutions that provide vital public services. He cited Jewish elder care facility in South Florida, a Lutheran organization that helps foster children and a Catholic hospital in the Panhandle.

“The only place that the adherents and advocates of the Blaine Amendment have decided to make their stand is in education,” he said. “They know better than to try to throw people out of the Miami Jewish home. They know better than to take on and oppose the interests of foster children in our state. They know better than to go to Pensacola and try to shut down Sacred Heart Hospital.”

Gaetz relayed the story of a coastal Catholic school devastated by a hurricane while he was superintendent of the Okaloosa County school district. He agreed to provide surplus desks and textbooks while it struggled to reopen. But he did so amid fears of a lawsuit. That ran counter to common sense, he argued. If St. Mary Catholic School could not reopen, its students would be forced to enroll in public schools, and they would become the district’s responsibility, anyway.

“The Blaine Amendment is a shameful relic of discrimination and political intimidation,” he said. “It’s unconstitutional. It’s violated every day of the week, in almost every county in the state.”

Later, Commissioner Patricia Levesque took his point further. Everyone seems to support Voluntary Pre-K vouchers that families use to attend private schools, or public programs that provide scholarships to students who attend religiously affiliated universities, she said.

Florida’s Blaine Amendment did come into play during a lawsuit against a voucher program Gov. Jeb Bush created. An appellate court found the Opportunity Scholarship Program violated the amendment’s prohibition on aiding religious institutions. But the state Supreme Court went on to set the religious questions aside, and strike down the program for completely different reasons.

The Constitution Revision Commission won’t be taking up an amendment addressing the Bush v. Holmes ruling, either. Its sponsor, Erika Donalds, withdrew it. Instead, she’s focused on a proposal that could expand options in the public-school system, allowing new types of charter school authorizers and other state-supported public schools. And it could be married with another proposal to expand charter-like freedoms in school districts.

Donalds explained why she intends to focus on public-school options to the Tampa Bay Times. She said barriers to school vouchers will likely be addressed by the courts, and need not be addressed on the ballot.

A proposed 2012 amendment deleting the Blaine Amendment didn’t muster 50 percent support from voters, much less the 60 percent needed to pass. Some opponents tried to raise the specter of school vouchers, even though voucher supporters pointed out the amendment hadn’t come from them.

Private school choice proponents have argued they don’t need such an amendment to advance their cause. As for substance-abuse and foster care providers, the legal jiu-jitsu will likely continue.

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