Public funds, private schools

A ruling may open doors for more state cash going to religious organizations.

Times/Herald Tallahassee Bureau | BY MARY ELLEN KLAS | July 2, 2020

TALLAHASSEE — The U.S. Supreme Court decision this week — that states that provide school choice vouchers to private schools must also make them available to religious schools — should have little impact on existing Florida programs where school vouchers already go to students in private and religious schools, legal experts said.

However, both proponents and opponents predicted the decision could set the stage for a broadening of state funds being directed to religious institutions in Florida and other states. “A state need not subsidize private education,” wrote Chief Justice John G. Roberts Jr., in a 5-4 opinion Tuesday for the majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The ruling involved a Montana program enacted in 2015 that provided state-funded scholarships to low-income students in private schools by using private contributions. The program, similar to Florida’s Opportunity Scholarships, gives contributors tax credits in exchange for their contributions to the scholarship program.

But after the Montana Department of Revenue prohibited scholarship recipients from using their vouchers at religious schools, citing a provision of the state Constitution that prohibits “direct or indirect” public funding of religiously affiliated educational programs, Kendra Espinoza, who used the program to send her two daughters to private school, filed a lawsuit in state court challenging the rule. The state Supreme Court ruled against them and voucher advocates brought the case to the high court.

Sen. Manny Diaz, a Hialeah Republican who has sponsored legislation expanding school choice, said the ruling “doesn’t change much in the scheme of things of what we’re doing here.”

“It validates that family makes the decision about where kids can go to school, not government,” he said. “In the long term, this may make it so more parents feel more secure to take advantage of scholarship in Florida.”

Diaz joined Gov. Ron DeSantis at a news conference last week in which the governor signed a bill that makes it easier for families to become eligible for financial support to attend a private school and quadruples the rate at which vouchers would grow annually.

Florida’s tax-credit scholarship programs have faced several lawsuits, but courts found them constitutional because they were configured to keep the money outside of state government. Last year, however, Florida moved a step closer to direct support of religious schools when legislators passed and DeSantis signed the “Family Empowerment Scholarship,” a measure that dedicates $130 million in state education funds to help up to 18,000 low-income children pay for private education.

That scholarship program differed from the other voucher programs in that it relied on taxpayer money to support the families rather than being financially backed by corporate donations that bypassed state coffers. Critics, such as the Florida Education Association, have vowed to fight it in court.

Conservatives had hoped the court would use the Montana case to cleanly knock down what is known as the Blaine Amendments, the provisions in 38 state constitutions, including Florida’s, that prohibit state money from going directly to religious organizations. The amendment has been used as a barrier to school choice proposals, including former Florida Gov. Jeb Bush’s 1990s-era voucher programs.

Supporters said the ruling in Espinoza v. Montana Department of Revenue has effectively removed the Blaine Amendments from serving as a barrier and will make it difficult, if not impossible, for opponents to use the “no-aid” to religious schools provisions as a barrier in the future.

“This ruling likely closes the door to a successful challenge to Florida’s scholarship challenge under the Blaine Amendment,’‘ said Daniel Woodring, a constitutional lawyer who has advised Step Up for Students, an education advocacy organization that manages Florida’s school voucher programs.

The so-called Blaine Amendments get their name from James G. Blaine, a congressman and later senator from Maine who unsuccessfully attempted to amend the U.S. Constitution in 1875 to include “anti-aid” language. Although he failed in getting a federal amendment, several states — including Florida — adopted similar provisions in their state constitutions.

Woodring called the ruling a “pretty clean” take down of the Blaine Amendment.

“It basically says that if you’re going to prohibit a religious entity from participating in a neutral

program then you can’t use a Blaine Amendment to prohibit religious entities from participating or you run into problems with the free exercise clause,” Woodring said.

Voucher opponents, however, said the decision will have a more narrow impact.

“Roberts’ opinion simply finds that because the benefits of the tax credit vouchers were being withheld solely because of the religious character of the school, it violated the free exercise clause of the First Amendment,” said Ron Meyer, a constitutional lawyer who has represented the Florida Education Association in lawsuits opposing school vouchers in Florida. “(Roberts) didn’t reach into whether those monies were used to inculcate students.”

Meyer was lead counsel in the pivotal Bush v. Holmes school voucher case in 2006 in which the Florida Supreme Court ruled that then-Gov. Bush’s taxpayerfinanced voucher program was unconstitutional. Meyer agreed that the Montana ruling will have little impact on the tax credit scholarship programs in Florida, 80 percent of which are for religious schools, he said.

“Those programs have never been found to be unlawful by the courts and, while this may provide comfort to those running tax credit voucher programs that their programs cannot be challenged, it doesn’t change the dynamic here,” Meyer said.

But, he added: “It’s another chipping away of the free exercise of religion because, as we march forward, if these voucher monies are used to inculcate religion, will they argue: What does it matter?”

Meyer said the court has made a distinction between supporting the use of taxpayer funds in the direct support of religion and more generic uses, particularly in a previous case, Trinity Lutheran Church v. Comer.

In that case, the Supreme Court ruled that Missouri had violated the First Amendment’s protection of free exercise of religion by barring religious institutions from being eligible for state funds intended to make playgrounds safer. Writing for the majority, Roberts emphasized the narrowness of the court’s decision. “This case involves express discrimination based on religious identity with respect to playground resurfacing,” he wrote. “We do not address religious uses of funding or other forms of discrimination.”

Bush hailed the ruling.

“For years, the archaic obstacle of Blaine Amendments has kept thousands of students and families away from the opportunity to attend schools other than those assigned to them solely by where they live,’‘ the former Florida governor said in a statement. “(The) Supreme Court decision liberates states to expand educational options for the underserved, giving families the freedom to find the best fit for their children.