Florida school-choice decision

Thanks to Howard Bashman, here is a link to the decision by a Florida appeals court, invalidating that State's school-choice program.

In a nutshell, the state court ruled that the program violates a provision of the Florida Constitution, which states that "no revenue of the state . . . shall ever be taken from the public treasury directly or indirectly in aid . . . of any sectarian institution." In the view of the majority, Florida's no-aid provision is more restrictive than the U.S. Constitution's "Establishment Clause." And, the court ruled that the no-aid provision did not violate the First Amendment's "Free Exercise Clause."

The opinion includes a long and -- in my view -- regrettably laundered version of the history of "no-aid" provisions like Florida's. These provisions were, as MOJ readers likely know, designed not to "separate church and state", or to secularize education generally, but to counter perceived Catholic influence. (For a discussion of these "Blaine Amendments" and their premises, see this paper). (It should be noted that the majority's suggestion, in a footnote, that expert opinion on the Blaine Amendments is evenly split on the question whether anti-Catholicism "played a significant role in the[ir] development" is quite mistaken. The Blaine Amendments were not, as the majority suggests, about "religious schools"; they were about "Catholic schools.")

The court's conclusion that Florida's exclusionary provision does not violate the Free Exercise Clause -- and that this result is supported by the Supreme Court's recent decision in Locke v. Davey -- is also debatable. In Davey, the Court agreed that the Free Exercise Clause did not require the State of Washington to fund college-level training in ministry and theology. I do not believe, though, that Davey necessarily authorizes more generalized discrimination in education-funding programs. On this matter, the dissent seems to have the better of the argument.

In any event, the opinion is worth a look.

Rick