CopyCited 44 times | Published | Supreme Court of Florida | 2006 WL 20584
...The issue we decide is whether the State of Florida is prohibited by the Florida Constitution from expending public funds to allow students to obtain a private school education in kindergarten through grade twelve, as an alternative to a public school education. The law in question, now codified at section 1002.38, Florida Statutes (2005), authorizes a system of school vouchers and is known as the Opportunity Scholarship Program (OSP)....
...In interpreting article IX, section 1(a), we follow principles parallel to those guiding statutory construction. See Zingale,
885 So.2d at 282; Coastal Fla. Police Benevolent Ass'n v. Williams,
838 So.2d 543, 548 (Fla.2003). In the analysis that follows, we first examine the operation of section
1002.38, Florida Statutes, which authorizes the OSP, then explore both the language and history of article IX, section 1(a)....
...The Opportunity Scholarship Program The OSP provides that a student who attends or is assigned to attend a failing public school may attend a higher performing public school or use a scholarship provided by the state to attend a participating private school. See § 1002.38(2)(a), (3), Fla....
...(6)(a). Eligibility of a private school shall include the control and accountability requirements that, coupled with the exercise of parental choice, are reasonably necessary to secure the educational public purpose, as delineated in subsection (4). § 1002.38(1), Fla. Stat. (2005). [3] Section 1002.38(4), Florida Statutes (2005), which sets forth the eligibility requirements for private schools accepting OSP students, provides that these schools "may be sectarian or nonsectarian," and must: (a) Demonstrate fiscal soundness.......
...(j) Agree not to compel any student attending the private school on an opportunity scholarship to profess a specific ideological belief, to pray, or to worship. (k) Adhere to the tenets of its published disciplinary procedures prior to the expulsion of any opportunity scholarship student. §
1002.38(4)(a)-(k), Fla. Stat (2005). The OSP also places obligations on students participating in the program and their parents. See §
1002.38(5), Fla. Stat. (2005). In addition to requiring the student to remain in attendance at the private school throughout the school year and the parent to comply with the private school's parental involvement requirements, section
1002.38(5) also requires the parent to ensure that the participating student "takes all statewide assessments required pursuant to s.
1008.22." §
1002.38(5)(c), Fla. Stat. (2005). [4] A failure to comply with any of these requirements results in a forfeiture of the scholarship. See §
1002.38(5)(d), Fla....
...private school the highest grade of which is grade 8, until the student matriculates to high school and the public high school to which the student is assigned is an accredited school with a performance grade category designation of `C' or better." § 1002.38(2)(b), Fla....
...The only circumstance in which a student who has elected to attend a private school must return to a public school is if the private school ends at grade eight and the public high school to which the student is assigned has received a grade of C or better. Section 1002.38(6), Florida Statutes (2005), provides the method for funding and payment of opportunity scholarships....
...Education Finance Program multiplied by the appropriate cost factor for the educational program that would have been provided for *402 the student in the district school to which he or she was assigned, multiplied by the district cost differential." § 1002.38(6)(a), Fla....
...funds as provided for this purpose in the General Appropriations Act." Id. The funds for the opportunity scholarship are transferred "from each school district's appropriated funds ... to a separate account for the Opportunity Scholarship Program." § 1002.38(6)(f), Fla....
...Accordingly, the payment of the scholarships results in a reduction in the amount of funds available to the affected school district. The scholarship is made payable to the parent of the student who is then required to "restrictively endorse the warrant to the private school." § 1002.38(6)(g), Fla....
...ed the language of article IX, section 1(a): The Legislature finds that the State Constitution requires the state to provide a uniform, safe, secure, efficient, and high-quality system which allows the opportunity to obtain a high-quality education. § 1002.38(1), Fla....
...n system. Instead, the OSP diverts funds *409 that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children. Section 1002.38(6)(f), Florida Statutes (2005), specifically requires the Department of Education to "transfer from each school district's appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical...
...ority over the institutions or students served." §
1001.21(1), Fla. Stat. (2005). Further, although the parent of a student participating in the OSP must ensure that the student "takes all statewide assessments" required of a public school student, §
1002.38(5)(c), the private school's curriculum and teachers are not subject to the same standards as those in force in public schools....
...schools may hire teachers without bachelor's degrees if they have "at least 3 years of teaching experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in subjects taught." § 1002.38(4)(g), Fla....
...Eligible private schools are not required to teach any of these subjects. In addition to being "academically accountable to the parent," a private school participating in the OSP is subject only "to the ... curriculum ... criteria adopted by an appropriate nonpublic school accrediting body." § 1002.38(4)(f), Fla....
...tion. As we recently explained, "[w]hat is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone." Bush v. Schiavo,
885 So.2d 321, 336 (Fla.2004). Because we conclude that section
1002.38 violates article IX, section 1(a) of the Florida Constitution, we disapprove the First District's decision in Holmes I. We affirm the First District's decision finding section
1002.38 unconstitutional in Holmes II, but neither approve nor disapprove the First District's determination that the OSP violates the "no aid" provision in article I, section 3 of the Florida Constitution, an issue we decline to reach....
...on by law for the public school system. Indeed, the statute authorizing the OSP presents the public school system as the first option for parents with children in a public school that has twice failed to meet the Legislature's educational standards. § 1002.38, Fla. Stat. (2004). It requires school districts to notify parents whose children attend a school qualifying for an opportunity scholarship of the right to attend a higher-performing public school either within or outside of their district. §§ 1002.38(3)(a)(2), 1002.38(3)(b), Fla....
