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Blaine Amendments

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In Espinoza’s wake, is the Blaine bane at risk?

John E. Coons
John E. Coons

“Like to one more rich in hope.”

Twelfth Night, Shakespeare

The media are calling the long-awaited U.S. Supreme Court decision in Espinoza v. Montana Department of Revenue a victory for “conservatives.” The Court has liberated a few low-income Montana families from conscription by the state and the teachers union, and yet we hear this rescue is “conservative.”

It is, I concede, an act of conservation, preserving the basic legal authority of the poor over their own children. These parents are, to a limited degree, made free to participate in the great school market. It is a victory for the lower-income family – but conservative?

Could it be that our English language is, for this scenario, simply lacking in resource to describe the reality? If you don’t like the judicial outcome of some dispute, you are free to call it whatever you think will give it a black eye in your own intellectual neighborhood. Hence, “conservative” we shall hear.

Last week’s decision is a powerful, if very limited, reaffirmation of the basic constitutional right, authority, and power, even of low-income parents, to decide just what style and content of formal schooling their child will experience – what teacher we shall allow to instruct their child in the skills she or he may need and what version of human origin and personal perfection will be delivered to these young minds for whom we are so full of hope.

The decision reminds us that 95 years ago, a case titled Pierce v. Society of Sisters et al. gave America the basic precept that parents – not the State – have the authority to decide where Susie goes to school. But a fundamental problem has remained: If you are not well-off, how can you exercise that authority by paying tuition? And, if you can’t do so, will the government that makes school compulsory leave you helpless with no option but P.S. 42? Must Susie go where strangers – i.e., “the State” – decide to send her?

So far in history, government has shown little interest in assisting the exercise of your parental authority. The primary concern of its legislatures and its governors has been to keep the teachers union electing them.

The Montana decision will not by itself end this great shadow on human liberty and authority. But the majority opinion justifies hope for development of ever more radical motions (“conservative,” if you prefer). The majority opinion by the chief justice relies exclusively upon the First Amendment’s guarantee that “Congress shall make no law … prohibiting the free exercise” of religion, extended by the 14th Amendment to limit the states.

One can wonder (“conservatively”?) about the regimes of public schooling born of 19th century anti-Romanism by which schools became mandatory, but those elite who could afford it could, and still do, go private or religious at their choice.

Is it still constitutionally sound for a state to make schooling a parental duty, but then to protect choice only for the well-off? Will the Court let the inner-city “public” school last forever it its captive mission, thus saving the bacon for officers of the teachers union?

Talk to your state legislator – and stay tuned to the conservative Court.

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Commentary and OpinionCourtsEducation and Public PolicyEducation ChoiceEducation EquityEducation LegislationFaith-based EducationFeaturedParent EmpowermentPrivate SchoolsSchool Choice

Komer saved the best for last

Matthew Ladner
Matthew Ladner

Dick Komer retired in May after a quarter-century at the Institute for Justice, helping countless families obtain greater choice to meet their educational needs. He is known throughout the educational choice movement as the consummate expert on crafting choice programs that can withstand lawsuits from choice opponents.

Bigots spent an enormous amount of effort in the late 19th century enshrining their hostility to Catholics and Jews into dozens of state constitutions in the form of Blaine Amendments. They quite nearly amended the federal Constitution as well.

It was never going to be easy to undo, but it has been done.

This Blaine Amendment movement supported by the likes of the Know-Nothing Party and the Ku Klux Klan reeked of illiberal intent. In the 1920s, the Know-Nothings and the Klan managed to make it illegal to send a child to a private school at all, making attendance at a public school with a Klan-approved curriculum mandatory so as to meld people into what the Klan considered “real Americans.”

While the U.S. Supreme Court struck this law down, Blaine Amendments remained in effect. It took multiple careers-worth of sustained effort to chip away at these relics, including that of the great Dick Komer, pictured above, who came out of retirement to argue the Espinoza v. Montana Department of Revenue case.

Komer has long been one of the treasurers of the education choice movement. To meet him is to love him. Not even his consistent and hilariously expressive swearing can distract you from his warm heart and keen intellect.

Blaine, the Know-Nothings and the Klan met their match once Komer and the many other dedicated attorneys at the Institute for Justice put their mind to it across a string of cases stretching over decades. Komer not only won the big case; he served as an inspiration and example to the choice movement for how to be a happy warrior.

Enjoy your retirement Dick, and thank you for your service.

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Court lays to rest age-old debate with Espinoza decision

Patrick R. Gibbons
Patrick R. Gibbons

After more than a century, the U.S. Supreme Court finally has determined that Blaine amendments, which were created in the late 19th century under a wave of anti-immigrant and anti-Catholic bias, violate the U.S. Constitution’s Free Exercise clause.

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” ruled the U.S. Supreme Court in a 5-4 decision this week.

Montana’s school choice program became the first tax credit scholarship to be struck down by a state supreme court, but not the first private school choice program to be struck down because of a “Blaine Amendment.”

The U.S. Supreme Court’s ruling reverses the Montana Supreme Court, arguing the state’s  “No Aid” provision violates the rights of parents, students and religious schools under the Free Exercise Clause of the U.S. Constitution.

The ruling is in step with the Trinity Lutheran (2017) decision which argued denying grants for playground resurfacing simply because the institution was religious was unconstitutional.

Though the Court ruled that the Blaine Amendment violates the Free Exercise clause, it declined to rule whether it also violated the Establishment Clause or Equal Protections Clause.

Not surprisingly, school choice opponents are up in arms about the decision.

“… the court has made things even worse opening the door for further attacks on state decisions not to fund religious schools,” said National Education Association president Lily Eskelsen García in an NEA blog post.

But the court’s decision does nothing of the sort. The decision to create and fund education scholarships still falls to the people.

Other school choice opponents are arguing the decision erodes separation of church and state.

Ron Meyer, lawyer for the Florida Education Association, went so far as to state in an interview with the Miami Herald, “It’s another chipping away of the free exercise of religion.”

But the decision falls in line with a long-standing recognition of religious neutrality required of governments. Though many of these cases deal with the Establishment Clause rather than the Free Exercise Clause, they demonstrate this long-standing precedent on religious neutrality. 

The first case to apply the Free Exercise clause to a state matter was Cantwell v. Connecticut (1940), which reversed a criminal conviction of three Jehovah’s Witnesses for proselytizing door-to-door without a state license. In a unanimous decision the court ruled:

“Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts, freedom to believe and freedom to act.”

In Everson v. Board of Education (1947), the court defined the Establishment Clause beyond simply establishing a national church by declaring the clause prohibited the aid of one religion or even all religions. However, the court still upheld public bus fare reimbursements to parents sending their children to Catholic schools because the reimbursement was available to all. Regarding New Jersey’s publicly funded programs, the court ruled:

“Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court held Ohio’s voucher program “does not offend the Establishment Clause” because the program was neutral with respect to religion.

As with Zelman, several other national cases support tax exemptions and other public benefits for seemingly religious activities, but only so long as the programs pass the “Lemon Test.”

Lemon v. Kurtzman (1971) established the “Lemon Test,” a three-part test to determine if a program violates the Establishment Clause. The test requires the program to have a secular purpose, to not advance or inhibit any particular religion, and to not excessively tangle government with religion. In Lemon, the court allowed state subsidies of textbooks, educational materials and even teacher salaries at private schools in Pennsylvania.

Mueller v. Allen (1983) upheld a Minnesota tax law that allowed individuals to deduct parochial school expenses. The Supreme Court ruled the program was neutral with respect to religion since the tax deduction was available to all, and that helping to fund education (even through tax deductions) was a secular purpose.

Agostini v. Felton (1997) allowed public funds to pay the salaries of public school teachers educating economically disadvantaged children, including private religious schools. This landmark ruling reversed Aguilar v. Felton (1985), which held that paying public school teachers to teach parochial school students was “excessive entanglement” with religion. Agostini reversed that decision and determined the program was neutral with respect to religion and that the purpose of educating disadvantaged children was a secular one.

Deference to religious neutrality flows down to the state courts as well.

Florida cases such as Koerner v. Borck (1958) argued that, “State power is no more to be used so as to handicap religions, than it is to favor them.”

Meanwhile, in Johnson v. Presbyterian Homes of Synod of Florida, Inc. (1970), the Florida Supreme Court ruled on a tax exemption:

“A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited.”

Espinoza isn’t deviating from the U.S.’s “separation of church and state,” as critics have misunderstood. The ruling follows a long history of allowing religious institutions and persons to benefit from public programs, in this instance extending that right to K-12 education where powerful opponents attempted to carve out an exemption.

 A fight over how much religion can be taught in a private school may be around the corner. But that is a fight for another day.

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Florida Schools RoundupredefinED education roundup

Senate committee’s teacher pay proposal, carrying on campuses, restricting restraints and more

Compiled by redefinED staff
Compiled by redefinED staff

Teacher raises: The Florida Senate Education Committee has released its $22.6 billion budget plan that calls for an increase in spending of $762 million, with $500 million of it going toward teacher salary increases. That’s about $100 million less than Gov. Ron DeSantis requested to raise starting teacher salaries, and the Senate also would distribute the money differently than DeSantis wanted. DeSantis called for $600 million to boost starting teacher pay to $47,500 a year, while the Senate would distribute the money proportionally to districts, which would have to spend 80 percent of their share to move toward that starting teacher pay goal but could use the rest to boost pay for veteran teachers. The Senate’s budget also includes no money for any educator bonuses program; DeSantis had requested $300 million. Other items in the Senate budget include a spending increase of $181 per student, and increases of $42 million for Gardiner scholarships for special needs students, $42 million for school security and $25 million for mental health services. News Service of Florida. Gradebook. Politico Florida. redefinED. Florida Politics. Florida Phoenix.

Weapons at schools: Two bills are approved by a House subcommittee that would allow people to carry guns in churches that have schools and permit school board members with concealed carry permits to be armed at school board meetings. Both H.B. 1437 and H.B. 183 received bipartisan support in the House Criminal Justice Subcommittee. “Every day that this (H.B. 1437) is not the law in Florida is an insult to people of faith who attend church,” said Rep. Anthony Sabatini, R-Howey-in-the-Hills. Okaloosa County Commissioner Graham Fountain spoke on behalf of H.B. 183. “Every day we get threats,” he said. “We have people stalking our staff, our commissioners . … This protects us.”  News Service of Florida. Associated Press. WFSU.

Restricting restraints: A House subcommittee has approved a bill that could put restrictions on the use of restraints on students. H.B. 1231 would define the terms “restraint” and “seclusion” and establish when their use is permitted. School districts would have to create policies emphasizing positive behavior interventions and train employees in their use. Rep. Bobby DuBose, D-Fort Lauderdale, the bill sponsor, said restraints have been used 80,000 times on students in recent years, and seclusion more than 20,000 times. “This is a traumatic experience for both the students and the parents,” he said. Gradebook.

Educator honored: Jesus Armas of Royal Palm Beach High School has been named the Palm Beach County School District’s principal of the year. The other finalists were Pamela Buckman of Pioneer Park Elementary, Michelle Fleming of Lake Park Elementary and Reggie Myers of Park Vista Community High. Palm Beach Post. WPEC.

Union challenge: Florida public employee union officials, including those in education, say that a House bill increasing the regulations for membership is all about “union-busting.” H.B. 1, which was filed by state Rep. James Grant, R-Tampa, would require union members to sign a form every year if they want to remain a member. Right now, employees authorize the deduction for union dues just once, and may leave the union after giving 30-day notice. Florida Phoenix. WTSP.

Teacher complaints: Brevard County teachers say the addition of mental health instruction on such topics as substance abuse and child trafficking leaves them feeling undertrained and overwhelmed. “Every time we take away time teachers have to teach the standards that are required, that can be very stressful,” said union vice president Vanessa Skipper. “I think teachers support the idea of mental and emotional health education. But they recognize there are only so many hours in a day.” Florida Today. Hundreds of Polk County teachers tell the school board that they are overworked and underpaid, and implored board members to push the state to improve funding. WTVT.

Free SAT tests: All Volusia County high school juniors will take the SAT during the school day April 14, with the district picking up the $150,000 bill. The initiative is Superintendent Scott Fritz’s idea, and it includes paying for seniors to take the test next fall and 9th- and 10th-graders to take the pre-SAT. “I can’t think of anything better to invest in for our students,” said school board member Linda Cuthbert. Daytona Beach News-Journal. Retakes of the 2019 reading, writing and algebra Florida Statewide Assessment tests for Citrus County students are scheduled from Feb. 24 to March 13, district officials have announced. Citrus County Chronicle.

Holocaust education funding: The U.S. House of Representatives has approved a bill that allocates $10 million over five years for educating students about the Holocaust. The U.S. Holocaust Memorial Museum will create and share curriculum materials on a centralized website. Jewish Journal.

Career planning: The Marion County School District’s new career planning guide program emphasizes the three E’s: enrollment, employment or enlistment. It’s been designed to guide students into thinking about their life beyond high school. About 85 percent of the district’s 2,809 seniors have identified their E, with 72 percent picking enrollment, 20 percent employment and 8 percent enlistment. Ocala Star-Banner.

Students chat with superintendent: Bay County school Superintendent Bill Husfelt has begun a series of community conversations with students at each of the district’s high schools in which they can voice concerns and ask questions. Bay High School went first on Tuesday, and students wanted to know how students and parents can get more involved in district decision-making and the status of facilities improvements such as the addition of a STEM building on campus. Panama City News Herald.

Smart watch problems: Smart watches worn by students are becoming a problem in Santa Rosa County classrooms, said Superintendent Tim Wyrosdick. “Smartwatches have really become an issue in the county where we’ve really had to say, ‘Parents, take a look at this,'” he said. “We need your help.” WEAR.

Compensation for college athletes: The House Workforce Development & Tourism Subcommittee has approved a bill that would allow Florida college athletes to receive compensation for use of their “name, image, likeness or persona.” H.B. 251 would also require schools to provide insurance, life-skills workshops, and continue scholarships to athletes for up to one academic year after their athletic eligibility has ended. News Service of Florida. Florida Politics.

Day-care worker fired: A day-care teacher at a Sanibel Island preschool has been fired for writing a message in marker on the abdomen of a 1-year-old boy. The message to the mother read, in part, “Mom, I’m out of diapers.” The mother said she may remove the child from the Children’s Education Center of the Islands, and the Florida Department of Children and Families and Early Learning Coalition of Southwest Florida are investigating. Fort Myers News-Press. WINK. WFTX.

Arrests at schools: An English teacher and a student at Fivay High School in Pasco County were arrested separately at the school Tuesday. Deputies say the teacher, who was not named, had a gun in her purse inside a filing cabinet. She told deputies she forgot she had it. The student falsely reported a threat against the school, deputies said. Gradebook. WFLA. WTSP.

Iguanas cause lockdown: Two Charlotte County schools were locked down for more than an hour Tuesday after someone reported seeing a man with a rifle near the adjacent campuses of Ainger Middle and Vineland Elementary in Rotonda West. When deputies found the man, they discovered he was a local animal trapper with a pellet gun who had been hired to remove iguanas from the area. He was given a trespass warning and released. Charlotte Sun. WFTS. WFTX.

Opinions on schools: We keep short-changing public education in this state financially and keep whining that the kids aren’t smart enough. Funny how that works. Scott Maxwell, Orlando Sentinel. Don’t expect Espinoza, the U.S. Supreme Court case about tax credit scholarships in Montana, to be a major game changer. State legislatures still must create voucher programs and families must still choose schools for their children. All we can hope for is that the court will provide some clarity in how Blaine Amendments can or cannot be applied. Patrick R. Gibbons, redefinED. By forcing students to research discussion topics, develop and sharpen their own arguments, study the opposing angle and articulate their points publicly, Gov DeSantis’ civics and debate initiative should improve their critical thinking, help them become more socially interactive, learn more about our shared political culture and, hopefully, develop tougher hides as preparation for the bump and grind of the real world. Lakeland Ledger.

Student enrichment: A Palm Beach County teacher has received a $10,000 grant from the Massachusetts Institute of Technology, which she and 22 of her students are using to develop a test that can monitor a patient predisposed to sepsis and prompt intervention. Mary Fish teaches science in the Biotechnology Academy at Spanish River High School. Palm Beach Post. More than 800 students from traditional public high schools in Pinellas County marched across a bridge in Clearwater in a Unity Walk to honor those in the past who have fought for equality and human rights and to inspire others in future struggles. Gradebook.

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Espinoza may not be the game changer some are predicting

Patrick R. Gibbons
Patrick R. Gibbons

It seems especially appropriate midway through National School Choice Week to ask:

Can the use of state “Blaine Amendments” to prohibit publicly available funds from being used by parents at religiously affiliated educational options be considered discriminatory? And if so, does that discrimination violate a family’s right guaranteed by the U.S. Constitution to equal protections under the law?

Those are questions education choice advocates have been asking for nearly two decades. The issue came to a head last week when the U.S. Supreme Court heard arguments in Espinoza v. Montana Department of Revenue.

Voucher opponents have managed to avoid these questions since 2006 when the Florida Supreme Court ducked the state’s “Blaine Amendment” arguments altogether in Bush v. Holmes. Opponents lucked out again when they seized the opportunity to pour millions into the Douglas County, Colorado, school board races to kill a voucher program that would have been a perfect test case for the U.S. Supreme court in 2017.

Voucher opponents may get lucky once again in 2020. It’s possible the U.S. Supreme Court will sidestep the issue and instead scold the Montana Supreme Court for thinking tax credits are functionally the same as direct tax dollars – a distinction the court already made in Arizona Christian School Tuition Organization v. Winn in 2011.

And while Espinoza is an important case, some commentators have overblown its possible impact. Ian Millhiser, writing for Vox, and Jay Michaelson, writing for the Daily Beast, incorrectly claim that a victory for school choice supporters would be a “mandate” for states to fund religious schools and “starve” public schools. David Dayen, executive editor for the American Prospect, elevates the case to conspiracy level “brought … to undermine public education” by corporations seeking to obtain tax breaks from their donations to religious schools.

There is no corporate conspiracy theory, nor will Espinoza result in the starvation of public education, dozens of new voucher programs, or even a mandate to fund private religious schools.

At best, the U.S. Supreme Court simply will provide some consistency, or at least some guidance, on how all the various state Blaine Amendments can or cannot be applied to education. Florida is a great example of how Blaine Amendments have been inconsistently applied.

In 2004, the First District Court of Appeal ruled the state’s first voucher program, the Opportunity Scholarship, unconstitutional because it violated the state’s constitutional ban on direct or indirect aid to religious institutions. But the ruling was unsatisfactory because it failed to address the dozens of examples raised by voucher supporters. Examples included several legal cases in which churches benefiting from state or local programs did not violate Blaine.

In Koerner v. Borck (1958), the Florida Supreme Court ruled that a portion of a last will and testament allowing for land donation to Orange County for use as a park as long as a local church be granted perpetual easement to access the lake was constitutional because the benefit to the church also was a benefit to the general public.

In Southside Estates Baptist Church v. Board of Trustees (1959), the Court ruled that the use of public schools to hold private religious meetings did not violate the “No Aid” clause.

In Johnson v. Presbyterian Homes of Synod of Florida (1970), the Court ruled that tax credits for retirement homes were constitutional even if the retirement home was owned and operated by a religious organization. The Court stated: “A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited.”

In Nohrr v Brevard County Education Facilities Authority (1971), the Court ruled that the government could issue bonds for facilities at religiously affiliated schools.

And in City of Boca Raton v. Gidman (1983), a case that dealt with publicly funded daycare at a religiously affiliated program, the Court stated: “The beneficiaries of the city’s contribution are the disadvantaged children. Any “benefit” received by the charitable organization itself is insignificant and cannot support a reasonable argument that this is the quality or quantity of benefit intended to be proscribed.”

These cases strongly suggest that programs created to benefit the general public CAN be provided by religious organizations, and that any benefit derived from the program to the church is merely incidental.

Florida’s Opportunity Scholarship Program voucher also forbade private schools from admitting students based on their religion and prohibited private schools from requiring students to take religious courses or attend religious services. The scholarships themselves didn’t cover the full cost of tuition, though the private schools had to accept the voucher as full payment. In other words, the private schools educated each child at a loss compared to private pay students. Voucher supporters argued that all these facts made education at a private religiously affiliated school functionally no different, as far as the “No Aid” clause was concerned, than medical services provided at a religiously affiliated hospital.

And so another question comes to mind: Why is it possible for individuals to use public programs to pay for medical services at religious hospitals, but not use public funds to pay for education at religious affiliated schools? The First District Court of Appeal failed to address this example entirely.

Voucher supporters pointed to the McKay Scholarships for children with disabilities along with the Florida Private Student Assistance Grant Program and Bright Futures Scholarships, which could be used at one of 23 private religiously affiliated colleges in Florida. The state Attorney General noted that the Legislature appropriated nearly $9 million to private religious universities in Florida in 2002.

Other examples include rent paid to churches for use as polling places, subsidized childcare and prekindergarten education at churches and religious schools as well as public funds to churches for the preservation of historic structures. The First District Court of Appeal ignored these examples, too.

The First District Court of Appeal defined the “No Aid” clause as prohibiting any funds being taken directly from the treasury to be paid to a religious organization, regardless of how the money arrived, even indirectly through choices made by parents offered scholarships. This ruling threatened many existing programs in Florida highlighted by the lawyers for the state.

Even Judge James R. “Jim” Wolf, who wrote a concurring opinion, argued the ruling endangered other programs unless arbitrarily confined to K-12 education, stating: “In order to avoid catastrophic and absurd results which would occur if this inflexible approach was applied to areas other than public schools, the majority is forced to argue that the opinion is limited to public school funding and article 1, section 3 may not apply to other areas receiving public funding.”

In other words, the court had to distinguish K-12 education as being uniquely prohibited by the “No Aid” clause compared with other aid programs. Florida is not unique when it comes to Blaine. Other states have treated K-12 education as being distinct from other government programs in which churches may participate or benefit.

What conclusion can we draw from all of this?

Don’t expect Espinoza to be a major game changer. State legislatures still must create voucher programs and families still must choose schools for their children. All we can hope for is that the U.S. Supreme Court will provide some clarity in how Blaine Amendments can or cannot be applied.

Hopefully, we’ll learn that distinguishing K-12 education from other publicly beneficial programs is arbitrary and in error.

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Florida’s Blaine amendment leaves many unanswered questions (Part 2)

Patrick R. Gibbons
Patrick R. Gibbons

Florida’s First District Court of Appeal

This is the second of two posts on the judicial history of Florida’s Blaine Amendment with regard to public aid to private religious institutions. Part one can be read here. The U.S. Supreme Court is expected to weigh in on the constitutionality of state Blaine Amendments in 2020.

Lawyers defending Florida’s first school voucher program in Bush v. Holmes demonstrated the state historically allowed public funding to flow to many religious organizations providing public services, including through the McKay Scholarship for children with special needs. The First District Court of Appeal refused to acknowledge these programs.

Supporters of the Opportunity Scholarship program also cited several Florida Supreme Court cases which upheld aid to religious institutions as constitutional. But the appellate court found a way to ignore this precedent too.

Koerner v. Borck (1958) dealt with the last will and testament of Mrs. Lina Downey, who had donated a parcel of land to Orange County for use as a county park, but with the provision that Downey Memorial Church be granted a perpetual easement to access the lake for the privilege of baptizing members and swimming.

The court upheld the will, concluding,

“to hold that the Amendment is an absolute prohibition against such use of public waters would, in effect, prohibit many religious groups from carrying out the tenets of their faith; and, as stated in Everson v. Board of Education, supra, 67 S. Ct. 504, 505, “State power is no more to be used so as to handicap religions, than it is to favor them.”

In 1959 the Florida Supreme Court heard Southside Estates Baptist Church v Board of Trustees, a case in which the court ruled religious institutions could use public buildings (in this case a public school) for religious meetings.

The court was not persuaded that minimal costs associated with the “wear and tear” of the building constituted aid from the public treasury, and concluded there was “no evidence here that one sect or denomination is being given a preference over any other.”

In Johnson v. Presbyterian Homes of Synod of Florida, Inc. (1970), tax collectors for Bradenton and Manatee County challenged a law that gave property tax exemptions to non-profits operating homes for the elderly after a religious organization applied. Presbyterian Homes of Synod, a religious non-profit operating homes for the elderly, maintained a religious atmosphere, offered religious services and employed an ordained Presbyterian minister who conducted services every day except Sunday. Most residents were even practicing Presbyterians.

The Florida Supreme Court determined the tax exemption benefit was available to all, not just Presbyterians, and ruled:

“A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited.”

Nohrr v. Brevard County Education Facilities Authority (1971) dealt with the issue of government issue bonds potentially being received by religious schools. The Florida Supreme Court found no problem here either.

In all four cases the Florida Supreme Court held the law did not violate the constitutional prohibition on direct or indirect aid to religious institutions. In all instances, the court examined who benefited from the aid, and required that the aid benefit the general public and/or required that no religious group be favored over the other.

The appellate court majority brushed aside these arguments, noting that the Opportunity Scholarship was different because the financial aid came directly from the state treasury, making the scholarship “distinguishable from the type of state aid found constitutional.” In fact, it appears the appellate court restricted Florida’s “no aid” provision to “payment of public monies,” though it failed to consider other similar programs such as McKay.

Having crafted itself exemptions to prior state Supreme Court precedent, the appellate court cited cases in Washington (2002), South Carolina (1971) and Virginia (1955) where state supreme courts held that direct subsidies to students were, in effect, benefits to religious schools.

This directly contradicted the U.S. Supreme Court decision in Zelman v. Simmons-Harris (2002), which determined the benefit to religious institutions from school vouchers were merely “incidental.”

The Florida Supreme Court had even weighed in on whether these benefits were direct or incidental during a 1983 case, City of Boca Raton v. Gilden, which upheld the city’s subsidy to a religiously affiliated daycare provider. The court declared:

“The beneficiaries of the city’s contribution are the disadvantaged children. Any ’benefit‘ received by the charitable organization itself is insignificant and cannot support a reasonable argument that this is the quality or quantity of benefit intended to be proscribed.”

The appellate court in Bush v. Holmes failed to understand that the constitutional question hinged not on the method of aid, but who was the intended beneficiary of the aid. Though Florida’s constitutional language may appear clear, its longstanding history of neutrality in funding medical and educational services at secular and religious institutions, has muddied the waters.

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Florida’s Blaine amendment leaves many unanswered questions (Part I)

Patrick R. Gibbons
Patrick R. Gibbons

On June 7, 2005, opposing sides met for the final time to argue before the Florida Supreme Court over the constitutionality of the state’s first voucher program, the Opportunity Scholarship. Supporters of the program for low-income students had won several important victories, forcing opponents to abandon all but one remaining argument — that the voucher violated Florida’s “Blaine Amendment.”

Florida’s Blaine Amendment, Article 1, Section 3 of Florida’s constitution, is one of the most restrictive in the country. It reads:

“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.”

Just seven months earlier the First District Court of Appeal issued an “en banc” decision, with eight of the justices declaring the program violated Article 1, Section 3.*

A ruling by Florida’s Supreme Court on the matter could have sent the case to the U.S. Supreme Court to resolve, once and for all, how state Blaine Amendments could be applied to restrict or support state-funded scholarships to attend religious schools. But the Florida Supreme Court ducked the issue altogether. In a stunning move, the Court reversed course and resurrected two arguments it had rejected just four years before.

The U.S. Supreme court isn’t expected to resolve the lingering questions over state Blaine Amendments until 2020.

Florida’s First District Court of Appeal had the last word on the matter, but despite claiming a “clear meaning” and “unambiguous history” of Florida’s no aid clause, the court’s decision left gaping holes and many unanswered questions.

Lawyers defending the voucher program argued the scholarship did not violate the Florida Constitution because the benefit was to the student and the general public, and not intended to aid religious organization. In fact, the entire program was neutral with respect to religion because the vouchers were issued to parents who could use them at any private religious or non-religious school of their choosing.

Furthermore, the Opportunity Scholarship forbid private schools from selecting students on a religious basis and stated that scholarship students could not be compelled to pray, attend worship or even take religious courses.

Supporters noted several state programs benefiting Florida residents were provided at religious or religiously-affiliated institutions. Programs included Florida Bright Futures Scholarship, John McKay Scholarships, Florida Private Student Assistance Grant Program and eight other scholarship programs, along with the 23 private religious colleges accepting them. Supporters pointed to direct financial support for religiously-affiliated colleges, including $8.9 million in 2002 for libraries at Bethune-Cookman, Edward Waters College and Florida Memorial College.

Attorney General Robert Butterworth pointed to other direct appropriations, such a rent paid to churches used as polling places and subsidized pre-K at religious preschools.

Butterworth even noted that state funds provided subsidized medical care at religiously affiliated hospitals such as St. Mary’s in West Palm Beach or Baptist Medical Center in Jacksonville.

A direct taxpayer subsidy to a sick patient to attend any hospital, religious or non-religious, of their choosing, should not be treated any differently under the law that a scholarship to attend a religious or non-religious school, the Attorney General argued.

The appellate court majority responded to these arguments with deafening silence, with no mention of the McKay Scholarship, the state’s only other K-12 voucher program funded by direct appropriations at the time. The ruling was narrowly tailored to only one single K-12 scholarship program.
Even Judge Wolf, who concurred in part, criticized the majorities incoherent constitutional interpretation stating,

“In order to avoid catastrophic and absurd results which would occur if this inflexible approach was applied to areas other than public schools, the majority is forced to argue that the opinion is limited to public school funding and article 1, section 3 may not apply to other areas receiving public funding.”

The court would not only fail to grapple with these important constitutional questions, it would end up ignoring Florida’s own legal precedent on the matter.

Coming Thursday: Florida has a long history of court cases that upheld the constitutionality of providing aid to religious institutions.

*Seven justices ruled the OSP should be struck down entirely for violating the state’s “Blaine Amendment.” Just one justice ruled the OSP should be partially struck down by requiring religious schools to be excluded from the program. Five justices ruled the program should be upheld.

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