Florida case highlights voucher movement

Thursday, August 15, 2002

A ruling from a Florida court last week, concerning the constitutionality of that state's pioneering school-voucher program, probably surprised many Americans.

A local judge decided that Florida's 1999 school voucher program -- the nation's only statewide voucher program -- violates the state constitutional ban on any state aid for religious institutions.

Wait: Didn't the U.S. Supreme Court just rule, at the end of June, in a case from Cleveland that school vouchers don't violate the First Amendment ban on an establishment of religion?

Yes, that was the ruling from the nation's highest court, addressing the federal constitutional issue.

This ruling from the high court -- that vouchers are constitutional as long as the aid goes to parents who freely make their own choice of school from a range of options that includes religious schools -- was an enormous boost to the school-choice movement.

The single Florida judge whose ruling made news last week based his decision on the provision in that state's constitution known in history as the Blaine Amendment. Iowa and a majority of other states have similar provisions in their state constitutions.

Named after a prominent 19th-century senator from Maine, the amendment is a legacy of the strong anti-Catholic bigotry prevalent during the heavy waves of immigration during the last part of that century. The amendment bars public money or aid, "either direct or indirect," from going to religious institutions.

The matter of the legality of state-level Blaine amendments is fascinating.

Wisconsin has a Blaine amendment, but it didn't stop that state's legislature from passing the nation's first voucher program, limited to Milwaukee, back in the early 1990s.

Nor did that constitutional provision stop Wisconsin's highest court from upholding that program against a legal attack alleging it violated the state constitution.

A similar scenario has played out in Arizona -- another school-choice pioneer, using tax credits -- where that state's constitution has another version of the Blaine amendment.

By the end of last week, the judge who issued the Florida ruling had stayed the effective date of his own order, pending an appeal launched by Gov. Jeb Bush, who backs the law. This will allow children -- students who were counting on the vouchers to escape failing schools -- to continue to use the voucher program this year as the legal battle continues.

If a voucher program is ever to be adopted in Iowa, similar legal tests are likely to occur, unless a movement to remove the restrictive Blaine amendment's language from this state's constitution is successful.