The constitutionality – and precedent – of publicly funded private schools

family empowerment scholarship
U.S. Supreme Court

Gov. Ron DeSantis, in an effort to address a backlog of more than 13,000 students awaiting a Florida Tax Credit Scholarship, pledged to create a new scholarship paid out of public dollars in the Florida Education Finance Program (FEFP). The new scholarship would generate 28,000 vouchers for low-income and working-class students in the first year.

Critics claim the idea is unconstitutional.

By putting state funds “directly into the pockets of unaccountable private institutions,” Senate Democrat Leader Gary Farmer said, the voucher “directly contradicts the precedent established by the Florida Supreme Court in Bush v. Holmes.”

“It is blatantly unconstitutional,” said Rep. Carlos Smith (D-Orlando). “This is a setup for another court case. It’s a setup to declare the Blaine Amendment unconstitutional so that future legislatures can start handing out money directly out of our state coffers into private schools”

The controversial Holmes decision in 2006 did invalidate the Opportunity Scholarship Program, but the justices remained silent in regard to the McKay Scholarship, a significantly larger voucher program paid for by public dollars.

In fact, justices at the time brushed off claims that other programs may be ruled unconstitutional as a result of Holmes, stating, “other legislatively authorized programs may also be distinguishable in ways not fully explored or readily apparent at this stage. The effect of our decision on those programs would be mere speculation.”

When the Opportunity Scholarship Program was ruled unconstitutional, the state had spent a mere $2.9 million on 734 scholarships. The following year, Florida taxpayers spent $119.1 million on scholarships for 18,273 students with special needs.

McKay was never challenged.

But that’s not the only tax-payer funded scholarship program that help students attend private schools, including religious schools. Florida’s voter approved Voluntary Pre-Kindergarten (VPK) program sent more than 135,000 students to private day care centers or schools in the ’17-’18 school year.

In 1978 a Florida Supreme Court case centered around a voucher program for children with special needs. At the time, state law required school districts to pay the tuition of students with special needs if the district was unable to provide specialized services to that child. The lawsuit wasn’t over whether the program was constitutional or not, but whether the private school tuition cap set by the Miami-Dade School Board was constitutional. The court ruled districts were able to set caps so long as it didn’t prevent the child from receiving a free education. That cap must be able to provide an adequate education in both the public or private school, but the court determined that parents must pay the tuition difference if parents had “forsaken an adequate special program for a more expensive, albeit better, private school, then they should pay for the extra costs.”

Florida’s Constitution has been amended multiple times since 1838, including adding a school “uniformity” clause in 1868 and a “Blaine Amendment” prohibiting direct or indirect subsidies of churches or religious institutions in 1885.

The wall separating public funds and private education has varied in height over the decades too. In the 1800s and early 1900s, the state legislature even made small appropriations for the construction and maintenance of religious private schools.

According to historian Thomas Everette Cochran, Florida passed a law allowing counties to collect taxes, not exceeding $4 per pupil, for the support of schools within the county. “It seems that during the early fifties the money received from public funds was used in many of the counties to subsidized favorite private schools,” he wrote.

Following the Civil War, the state legislature made appropriations to support private schools for freedmen, including schools founded by Catholic orders and even the American Missionary Association, a Northern abolitionist society.

In 1883 and 1884 the Legislature appropriated $4,000 to fund two seminaries. Today, Florida provides students with Bright Futures scholarships that can be used at public or private universities, including schools with religious affiliations.

William N. Sheats, Florida’s first elected superintendent of public instruction and the “father” of Florida’s public school system, allowed Fessenden Academy Principal John Wiley to secure a $360 public appropriation in 1904. The state support of the rural private school for black students would continue through 1908.

The practice of supporting religious private schools temporarily ended around 1914 when anti-Catholic and anti-black biases united against the Sisters of St. Joseph in St. Augustine and other efforts to educate black students through religious organizations in the state.