Florida’s New School Voucher Law Will Revive 20-Year-Old Legal Battle
“They approved the death sentence for public education in Florida,” cried the Tampa Bay Times just hours after the state legislature approved the Family Empowerment Scholarship, Florida’s newest voucher program.
“New voucher program isn’t about choice, it’s about sabotaging public schools,” thundered the Orlando Sentinel’s editorial headline the following day. The new program would serve up to 18,000 low- and middle-income students with state-funded scholarships to attend private schools.
The hyperbole is just as bad today as it was 20 years ago, when Governor Jeb Bush and the Florida legislature created the Opportunity Scholarship Program, the first statewide voucher program in the U.S. in almost 50 years.
Unlike Florida’s newest program, which is estimated to cost about $130 million, the Opportunity Scholarship Program never served more than 57 students during its first three years and 788 students in any other year. Despite the program’s small size, the stakes were huge. Supporters and opponents alike spent millions to sway public opinion, while the nation watched a titanic legal battle rage for nearly seven years to decide the fate of the little scholarship program.
The history of that first voucher program (and the lawsuit that followed) resurfaced in debates in the Florida House and Senate this spring, more than a decade after the Florida Supreme Court declared the Opportunity Scholarship Program unconstitutional in a controversial ruling. The retelling of that history, however, has been confused, often wrong, and mostly forgotten. What follows here is a corrective to that flawed retelling.
In January 1999, Bush’s “A+ Plan” was generating bipartisan praise. Democrats, school-district leaders, and even the teachers union said positive things about letter grades for schools, annual testing, and increased accountability.
“The only negative is the voucher piece,” said Florida Education Association spokesman David Clark. 
That “voucher piece” was the Opportunity Scholarship, a new voucher program that found opposition from all sides.
“It’s a great plan—except for the opportunity scholarship,” said Connie Milito, a lobbyist for Hillsborough County. 
“I can’t complain if Bush is supporting Democrat proposals,” said Senate Minority Leader Buddy Dyer from Orlando, who supported everything in the A+ Plan except the opportunity scholarship. 
Private schools remained skeptical, too. The Miami Herald surveyed 300 schools in South Florida in 1999 and found only three willing to participate. A follow-up survey found only 50 participants the next year. Private schools seemed to think the law came with too many strings attached.
Eligible students would come from public schools receiving two F grades within a four-year window. Private schools would get between $3,400 and $3,800 and couldn’t charge more to cover tuition. Schools could not use academic or religious admission requirements, and oversubscribed schools required a lottery to admit scholarship students. Students also could not be compelled to attend religious classes or prayer.
“I think the only schools that are going to take these students are schools that are badly under-enrolled or schools that are already low-performing,” Sherry Ryan, the owner of Vista School in Coral Springs, told the Herald. 
Sister Mary Caplice, the superintendent for the Diocese of Pensacola-Tallahassee, was a little more optimistic. “There continue to be things that we have to work out, but there’s room for negotiation in the law,” she told the Herald. 
Newspapers were split, too.
The Orlando Sentinel complained the voucher program would “ultimately steal money from public schools and punish public schools for conditions over which they have no control.” 
But the Florida Times-Union in Jacksonville editorialized in favor of the voucher program, though it called the concept “embarrassingly modest” when compared to Ted Forstmann’s and John Walton’s $100 million Children’s Scholarship Fund. 
By mid-March 1999, supporters had raised $1.3 million to help push for vouchers, while the Florida Education Association, the state’s teachers union, had already spent more than $1 million on an advertisement campaign to derail vouchers in the legislature. 
On March 26, 1999, the House passed the A + Plan 71-49, with seven Republicans breaking ranks to vote “no” and seven Democrats voting in favor.
“This is the day that will go down in the annals of Florida history as the day we abandoned the public schools and the day that we abandoned, more importantly, our children,” complained then-Rep. Debbie Wasserman Schultz. 
Rep. John Cosgrove of Miami called the program “a grand theft of public education dollars,” while House Democratic Leader Lesley Miller of Tampa worried the voucher would become “a fast track toward resegregation.” 
Passage in the Senate would take a bit longer, passing 25-15 on April 30, 1999. Critics fumed again.
“Vouchers are the twentieth-century equivalent of ‘let them eat cake’,” said Latha Krishnaiyer, president of the Florida PTA. 
“Vouchers in this bill are the lynchings of the civil-rights movement,” claimed Sen. Betty Hozendorf of Jacksonville. 
Bush signed the A + plan into law on June 21.
Students at two elementary schools, Spencer Bibbs Elementary and A.A. Dixon Elementary in Escambia County, were the first to be eligible for the Opportunity Scholarship. That first year, just 57 students attended one of five schools: four Catholic schools and one Montessori school.
“This will kill public education, and we’re not going to let it happen,” Leon Russell, chairman of the Florida Chapter of the NAACP, said after the voucher passed the Senate. “We’ll go to court. We’ll fight on every battlefield there is.” 
The day after Bush signed the bill, opponents sued as promised. Opponents included school board members, the Citizens’ Coalition for Public Schools, the Florida Chapter of the NAACP, a teacher, and parents of three students in Escambia County. Opponents claimed the voucher program violated three sections of the Florida Constitution and the U.S. Constitution.
They squared off against scholarship parents represented by the Institute for Justice, the Urban League, and the State’s Attorney General, himself a former voucher critic. The lawsuit would last nearly seven years and result in a contentious ruling that was widely criticized by legal scholars at the time.
While the lawsuit continued, opponents ran a public relations campaign under a group calling itself “Citizens Committee for Public Information on School Vouchers.” With backing from mystery donors, the group spent $75,000 on full- and quarter-page ads in several newspapers around the state, ran the website www.stopvouchers.org, and encouraged visitors to call a toll-free number, “1-877-901-OUCH,” to learn more. 
Lawyers for both sides met to discuss the case in Leon County Circuit Court under Judge Ralph Smith on February 24, 2000. Smith’s remarks spelled trouble for the voucher program.
“All children aren’t entitled to a private education,” he said. Smith even seemed to blame struggling students for public-school failures when he remarked that “the students who have been at the school and who may be the reason that the school has failed are now going to get a private education.”
In early March, lawyers from the Institute for Justice moved to have Smith removed from the case, noting that Smith’s son was engaged to the daughter of Jack Carbone, deputy chief of staff for the Florida Education Association. Carbone and his daughter denied the engagement, and Smith remained on the case. Smith’s son and Carbone’s daughter later wed on October 9, 2000. The First District Court of Appeal removed Smith from the case on September 4, 2001.
But back on March 14, 2000, without having heard any evidence, Smith ruled the program unconstitutional under Article IX, Section 1 of the Florida Constitution. He reasoned that, because the constitution mandated that funding free public schools was a “paramount duty,” it was “in effect a prohibition on the Legislature to provide a K–12 public education in any other way.”
“The ruling sent teachers unions and other voucher foes to their fax machines declaring victory,” wrote Miami Herald reporters Lesley Clark and Analsia Nazareno. 
But Dermita Merkman, the mother of a 5-year-old daughter on the scholarship, took the judge’s remarks personally. “I’m just wondering how this is unconstitutional, us wanting a better education for our kids?” she told the Miami Herald. 
Lawyers representing scholarship parents appealed the decision, and supporters remained hopeful. John Kirtley, now chairman of Step Up For Students which administers four scholarship programs in Florida, donated $500,000 to the Children’s Scholarship Fund to provide grants to inner-city private schools willing to accept students from the Opportunity Scholarship Fund.  Billionaire Ted Forstmann offered to pick up the $185,000 tuition tab for the 52 students remaining on the scholarship program.  Both donations came within a week of Judge Smith’s ruling.
By the end of May, the number of schools willing to participate in the scholarship program jumped nearly fourfold to 101 private schools across the state.  However, the number of eligible students did not expand, as many public schools saw sufficient improvement on the writing portion of the state test.
While scholarship opponents breathed a sigh of relief, Bush touted the results as proof that competition worked. Indeed, multiple studies over the next few years showed that the threat of a voucher alone was enough to modestly improve the lowest performing schools in the state.
However, a 2013 research paper revealed that at least some of the improvement was due to schools gaming the system by reclassifying the lowest-scoring students as “limited-English proficiency,” which exempted the scores from the school’s letter-grade evaluation.
On October 3, 2000, a unanimous decision by the District Court of Appeal reversed Judge Smith.  “Article IX does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system,” wrote the justices.
Opponents appealed to the Florida Supreme Court, but on April 24, 2001, the court declined to hear the case on a 4-1 vote, thereby upholding the Court of Appeal’s decision. The voucher program was constitutional.  For now.
The critics strike back
With vouchers deemed constitutional by the First District Court of Appeal and with an appeal rejected by a 4-1 vote by the Florida Supreme Court, state leaders not only began to improve the A+ Plan; they birthed an entirely new scholarship program.
In the summer of 2001, Florida created the Florida Corporate Income Tax Scholarship, later renamed the Florida Tax Credit Scholarship, for low-income students. The previous year, the state had created the McKay Scholarship for students with special needs. Both programs swelled in size immediately, dwarfing the embattled Opportunity Scholarship Program. McKay served 8,000 students with special needs in 2002, and more than 55,000 low-income students applied for 15,000 corporate tax scholarships in that first year. 
The Florida Tax Credit Scholarship would eventually grow to become the largest private-school scholarship program in the nation, serving 100,512 students in the 2018-19 school year.
The state also revised the A+ Plan’s accountability system in December 2001. Previously, schools were evaluated only on 4th-grade reading, 5th-grade math, and both tests in 8th and 10th grades. New rules based school grades on math and reading tests in all grades between 3rd and 10th. The new grading scale also gave a substantial weight to learning gains, with bonus points for significant gains for low-income students.
With the new rules in place, more schools received F grades, and enrollment in the Opportunity Scholarship Program soared to 557 students in the next school year. Enrollment peaked at 788 students in 2004-05.
After a year away from the courtroom, the lawsuit resumed in the Leon County Circuit Court under Judge Kevin Davey in the summer of 2002. Voucher opponents now argued the programs violated Florida’s Blaine Amendment, a constitutional ban on direct or indirect aid to religious institutions.
Voucher supporters were eager to argue the case. Just prior to the hearing, the U.S. Supreme Court ruled an Ohio voucher program did not violate the U.S. Constitution’s Establishment Clause.
On August 5, Judge Davey issued his ruling. “The language utilized in this provision is clear and unambiguous,” he wrote regarding Article I, Section 3 of the state constitution. Known as the “No Aid” clause, it bans “direct and indirect” aid to any church, or sect, or sectarian institution. 
School-choice supporters appealed, claiming the ruling also threatened other religiously affiliated organizations, such as several non-profit hospitals operating in the state.
The First District Court of Appeal upheld the ruling 8-5 on November 12, 2004. Scholarship supporters appealed to the Florida Supreme Court, knowing a loss could still be appealed to the U.S. Supreme Court.
Lawyers for both sides argued on the “No Aid” clause before the Supreme Court on June 7, 2005. Lawyers representing parents argued the aid was to the student, not the school, as the Supreme Court had reasoned in its 2002 Zelman decision.
On January 5, 2006 the Florida Supreme Court in a 5-2 vote ruled the voucher program was unconstitutional, but for entirely different reasons than anyone expected.
The Opportunity Scholarship Program “diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children,” wrote the majority in a decision that completely contradicted itself from five years earlier.
Back in 2001, Justices Charles Wells, Harry Lee Anstead, Barbara Pariente and Fred Lewis voted 4-1 (against Peggy Quince) to decline jurisdiction on the case, which allowed the Circuit Court of Appeal decision to stand. That ruling found nothing within Article IX Section 1 of the state constitution that prohibited vouchers or any other educational alternative created by the legislature.
But with all other avenues of ruling the program unconstitutional now defeated or in jeopardy of being appealed to the Supreme Court, the Florida court suddenly reversed course. Not comfortable with its own ruling, the court also invented its own definition of “uniformity” and declared vouchers “inevitably harmed” public schools without examining a single piece of evidence.
Clark Neily, a lawyer representing scholarship parents, condemned the decision as “among the most incoherent, self-contradictory and ends-oriented court decisions in recent memory.”
Chief Financial Officer Tom Gallagher agreed, called the ruling “a results-oriented decision.” 
Jason Marques, writing for the Florida Law Review agreed, concluding the “case was arguably decided on the basis of policy rather than precedent.”
Other critics were equally harsh.
The Harvard Law Review called the ruling an “adventurous reading and strained application” of Florida’s constitution.
Jamie Dycus, writing for Yale Law School Student Scholarship Papers, argued, “the court’s cramped, simplistic definition of uniformity, unmoored from all possible sources of guidance, is impossible to justify on any terms.”
But Steve Gey, a law professor at Florida State University, believed the ruling “adhered closely to the text of the Constitution.”  Gey had co-authored an amicus brief in March 2005 on the “No Aid” clause, in support of the teachers unions lawsuit.
While legal experts debated its merits, the impact of the ruling hit families the hardest.
Barbara Cruz used the scholarship to send her daughter to La Progresiva Presbyterian School in Miami. Her daughter graduated using the scholarship, but Cruz still described the court ruling as, “so, so bad.” 
Many others were in limbo.
“I think [the ruling is] going to hurt a lot of students and their parents who can’t afford it, and they are forced to go to these public schools,” said Bobby Evans, whose daughter, Kiara, attended St Paul’s Catholic School in Jacksonville on the scholarship for the 6th and 7th grades. Kiara finished out the year on the scholarship, but whether she could remain at St Paul’s remained unknown. 
School choice supporters worried the ruling might be used to target other programs.
“One of the attorneys for the plaintiff made it very plain,” said Senator John McKay, sponsor of the state’s McKay Scholarship. “If they succeeded with this case, they will be going after children with disabilities next.”
“I think this spells the end of this diversion of public monies to private education programs in Florida,” said Ronald Meyer, the lawyer representing the teachers union in the case.
When asked about challenging the tax credit scholarship or McKay Scholarship, Meyer told Education Week that “the significance of this travels well beyond the state of Florida.” He hinted that the ruling could help overturn vouchers in other states as well. A few months later, Meyer denied that the teachers union had any interest in challenging either scholarship program. 
Bush promised to save the program.
In mid-February, Bush stood before a rally of thousands of parents and students wearing “Save Our Students” t-shirts and promised to get a constitutional amendment passed to rescue the voucher program.
“This is a fundamental right, this is a civil right, this is as American as apple pie,” Bush said to a cheering crowd. 
Bush and Senate President Tom Lee moved to pass a constitutional amendment that would save the Opportunity Scholarship Program and protect other private scholarship programs. The amendment would need to pass the Senate and the House by three-fifths votes before being approved by voters in November 2006.
Those efforts collapsed when Senate Majority Leader Alex Villalobos, Senator Nancy Argenziano, Senator Dennis Jones, and Senator Evelyn Lynn joined Democrats to oppose the amendment. Bush came up one vote shy of the three-fifths threshold. Villalobos would be stripped of his power as a result.  Today, Villalobos works for the legal firm headed by Ronald Meyer, the teachers union’s lead counsel.
Bush and Senator Lee brushed off the defeat and moved to a new plan, passing a bill to allow the remaining Opportunity Scholarship Program students to transfer to the tax credit scholarship program.  Tensions were high with just a few days left in the session. Democrats’ best hope for defeating the bill was to stall. Senate Democratic Leader Les Miller demanded the full text of bills be read aloud, a parliamentary trick that brought the legislative process to a grinding halt.  The House eventually ran out of time to vote on the bill. 
The Opportunity Scholarship Program’s private scholarship was finally dead.
Despite fears of copycat cases attempting to use “uniformity” clauses to upend school vouchers around the country, Bush v. Holmes was never successfully duplicated. And even with threats from the teachers union, the case failed to overturn significantly larger scholarship programs in Florida. At the time of the Holmes ruling, the tax credit scholarship enrolled more than 14,000 low-income students in private school, while the McKay Scholarship enrolled more than 15,000 children with special needs. Combined, both programs cost $136 million that year. 
The Opportunity Scholarship’s private option ended in 2005-06 with 734 students. During the program’s seven-year lifespan, the state spent a mere $11.2 million for 2,848 scholarships. Ninety-five percent of the students on the program were black or Hispanic, and 70 percent participated in the free or reduced-price federal lunch program.
None of the worries conjured by critics ever proved true.
The Opportunity Scholarship Program continues today, though students may only choose to attend another public school. Enrollment and the students who are eligible fluctuate annually. Opportunity Scholarship Program enrollment peaked with 4,424 students attending new public schools in 2011-12 and had a low of 1,280 in 2008-09. In 2017-18, the latest data available, the program served 3,074 students.
Despite its small size, the Opportunity Scholarship Program started a massive fight over how to educate Florida’s students. Today, its history may be half-forgotten and half-confused, but its legacy reshaped Florida’s educational landscape forever. The controversial case that struck down the Opportunity Scholarship Program over a decade ago may soon be tested by Florida’s newest school voucher.
Patrick Gibbons is the public affairs manager at Step Up For Students, a 501(c)3 nonprofit administering four scholarship programs in Florida. A version of this appeared on RedefinED, Step Up’s blog.
22. Balona, Denise-Marie. “Tax Vouchers Trigger Rush; More than 15,000 Kids Received Private-School Scholarship From Corporate Taxes; Many Children Are On Waiting List,” Orlando Sentinel, March 21, 2003.
28. Klas, Mary Elen, “Senate moves to keep vouchers; The state Senate advanced a proposal to fix the constitutional weakness of Florida’s first voucher program. It comes up for a vote today,” Miami Herald, May 3, 2006.
31. Klas, Mary Elen, “Senate moves to keep vouchers; The state Senate advanced a proposal to fix the constitutional weakness of Florida’s first voucher program. It comes up for a vote today,” Miami Herald, May 3, 2006.