Florida’s Amendment 8 is not about private school vouchers

Florida voters will be asked in November to remove the Blaine amendment from their state Constitution, but, despite some assertions to the contrary, this vote is not about private school vouchers.

The amendment was placed on the ballot by two legislators – Sen. Thad Altman, R-Viera, and Rep. Scott Plakon, R-Longwood – who have said repeatedly they want to protect religiously-based social services. Their interest was piqued by a lawsuit, Council for Secular Humanism v. McNeil, that challenges a prison ministries program, and by the fact that the director of this New York-based Council has called it “a springboard to mounting other challenges.”

In turn, the pro-Amendment 8 campaign is being led by a coalition of community-service providers and religious leaders who have raised less than $100,000 to date. They are honorable people who simply want to protect the broad assortment of services that is currently delivered without controversy by faith-based providers. Their position is understandable: If the secular humanists will sue over prison ministries, what’s to stop them from challenging government contracts with the Catholic Charities, Gulf Coast Jewish Family and Community Services or the YMCA? Are Catholic hospitals safe? After all, the constitutional language at issue is quite explicit: “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.”

Though parental choice advocates have previously pushed for changes to the no-aid clause, they were not involved last year in the legislative effort to put this issue on the ballot and are not raising money for the campaign. This is not to suggest they oppose the amendment – most school choice advocates support the role of faith-based service providers – but it reflects the extent to which state and federal court decisions have minimized the relevance of this issue for school choice.

First, the no-aid clause is irrelevant to Florida’s current judicial precedent on school vouchers. The state Supreme Court, in its 2006 Bush v. Holmes ruling, found Opportunity Scholarships to be unconstitutional because they violated Article IX provisions requiring a “uniform” public school system. The court, in fact, steered clear of a lower court ruling that invalidated the scholarships based on the Blaine Amendment – a decision that may well have been influenced by the U.S. Supreme Court’s 2002 Zelman v. Simmons-Harris decision. In Zelman, the U.S. Supreme Court found parents could use public funds to pay for religious schools provided the parents were making a genuine and independent choice. In all of Florida’s private school choice programs, parents control which school receives the public funds. There is no government coercion.

Second, the largest private learning option in the state, tax credit scholarships that served 40,249 low-income students this past year, is constitutionally distinct from vouchers.

In its landmark 2011 case, Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court rejected a challenge to tax credit scholarships by determining these tax credits could not be construed as government expenditures. Consequently, most lawyers believe this scholarship program is safe from any legal challenge, including Blaine.

Unfortunately, the Florida Education Association is erroneously calling Amendment 8 an assault on public education. Its president told reporters the amendment “is designed to open the state treasury to voucher schools.” But other opponents of the amendment have correctly noted the legal distinctions. In a 2010 Tampa Tribune column, Anti-Defamation League attorney David Barkey wrote: “Some supporters say these measures are necessary to authorize vouchers for religious schools, but Florida effectively has a school vouchers program in the form of the $118 million Tax Credit Scholarship Program under which most students attend religious schools.” And a new Florida School Boards Association document that lists the impacts of the amendment’s passage doesn’t even mention tax credit scholarships.

So far, the Florida ACLU is the only organization to raise any money in opposition to Amendment 8, and its astute executive director Howard Simon has made scant mention of the impact on private school vouchers. Simon has taken pains to distance himself from the ways the current Blaine amendment could be used to harm religious charities, and has embraced the complex constitutional balancing act that has allowed faith-based organizations to play a constructive role in community life. Unfortunately, the Secular Humanist lawsuit suggests our time-honored civic détente is in danger.