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Date: 01-06-2006

Case Style: John Ellis "Jeb" Bush v. Ruth D. Holmes, et al.

Case Number: SC04-2323

Judge: Pariente

Court: Supreme Court of Florida on appeal from the Circuit Court, Leon County

Plaintiff's Attorney:

Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Daniel Woodring,
General Counsel, Nathan A. Adams, IV, Deputy General Counsel, Florida
Department of Education, and Raquel A. Rodriguez, General Counsel and Robert
H. Fernandez, Deputy General Counsel, Office of the Governor, Tallahassee,
for Appellants John Ellis �Jeb� Bush, etc., et al.

Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General,
Louis F. Hubener, Chief Deputy Solicitor General, Erik M. Figlio, and James A.
McKee, Deputy Solicitor Generals, Tallahassee, Florida,
for Appellants Charles J. Crist, Jr., etc.

Clark M. Neily and Clint Bolick of the Institute of Justice, Washington, D.C.,
Kenneth W. Sukhia of Fowler, White, Boggs and Banker, P.A., Tallahassee,
Florida and Major B. Harding and Jason Gonzalez of Ausley and McMullen,
Tallahassee, Florida,
for Appellants Brenda McShane, etc., et al.

Valerie A. Fernandez, Coral Gables, on behalf of Independent Voices for Better
Education, Teachers for Better Education, Ira J. Paul, and Pacific Legal
Foundation; Gregory R. Miller, United States Attorney and E. Bryan Wilson,
Assistant United States Attorney, Northern District of Florida, Tallahassee, Florida
and David K. Flynn, Eric W. Treene, Gordon Todd Conor Dugan, and R.
Alexander Acosta, Assistant Attorney General Attorneys for United States
Department of Justice, Civil Rights Division, Washington, D.C.,
on behalf of The United States; Carlos G. Muniz of GrayRobinson, P.A.,
Local Counsel, Tallahassee, Florida, G. Marcus Cole, Professor of Law,
Stanford Law School, Stanford, California, and Briscoe R. Smith, Atlantic
Legal Foundation, New York, New York, on behalf of Black Alliance for
Education Options, Hispanic Council for Reform and Educational Options,
Excellent Education for Everyone, Center for Education Reform and Reason

Stephen C. Emmanuel of Ausley and McMullen, Tallahassee, Florida, Professor
Thomas C. Berg, University of St. Thomas School of Law, Minneapolis,
Minnesota, and Professor Richard W. Garnett, University of Notre Dame School of
Law, Notre Dame, Indiana, On behalf of Florida Catholic Conference, Inc., Association of Christian
Schools International, Christian Schools International, Friends of Lubavitch
of Florida, Inc., Salvation Army-Florida Division, American Center for Law
and Justice, and Christian Legal Society

Isaac M. Jaroslawicz of Givner and Jaroslawicz, Miami, Florida, Anthony R.
Picarello, Jr. and Derek L. Gaubatz, Washington, D.C.,
on behalf of The Becket Fund for Religious Liberty

Scott D. Makar, Chief, Appellate Division, Office of General Counsel and Devin J.
Reed, Director, Department of Procurement, Jacksonville, Florida,
on behalf of The City of Jacksonville, Office of the Mayor

Lansing C. Scriven, Tampa, Florida, Robert R. Gasaway, Ashley C. Parrish and
Padraic B. Fennelly of Kirkland and Ellis, LLP, Washington, D.C.,
on behalf of The Coalition of McKay Scholarship Schools; The Florida
Association of Academic Nonpublic Schools; The Florida Council of
Independent Schools; The Florida Association of Christian Colleges and
Schools; The Child Development Education Alliance; Redemptive Life
Academy; Leah Ashley Cousart; Ed and Carmen Delgado; Martha Parker;
and Michelle Emery

Timothy W. Weber and Andrew W. Lennox of Battaglia, Ross, Dicus and Wein,
P.A., St. Petersburg, Florida,
on behalf of The Berkshire School, Sagemount Learning Academy, The
Broach School, Pathways School, The Randazzo School, Victoria�s Higher
Learning Academy and Glades Day School;
as Amici Curiae in support of Appellant(s)

Defendant's Attorney:

Ronald G. Meyer of Meyer and Brooks, P.A., Tallahassee, Florida; Robert H.
Chanin and John M. West of Bredhoff and Kaiser, PLLC, Washington, D.C.,
Pamela L. Cooper, Florida Education Association, Tallahassee, Florida, Randall
Marshall, ACLU Foundation of Florida, Inc., Miami, Florida, David Strom,
American Federation of Teachers, Washington, D.C., Joan Peppard, Anti-
Defamation League, Miami, Florida, Steven M. Freeman and Steven Sheinberg,
Anti- Defamation League, New York, New York, Ayesha N. Khan and Richard B.
Katskee, Americans United For Separation of Church and State, Washington, D.C.,
Elliot M. Mincberg and Judith E. Schaeffer, People for the America Way
Foundation, Washington, D.C., Steven R. Shapiro, American Civil Liberties Union
Foundation, New York, New York, Michael A. Sussman, National Association for
the Advancement of Colored People, Goshen, New York, Marc D. Stern,
American Jewish Congress, New York, New York, Julie Underwood, National
School Boards Association, Alexandra, Virginia, and Jeffrey P. Sinensky,
American Jewish Committee, New York, New York,
for Appellees Ruth D. Holmes, et al.

Talbot D� Alemberte, Florida State University, College of Law, Tallahassee,
Florida, on behalf of Professor Steven G. Gey

Karen Gievers, Tallahassee, Florida and Steven K. Green, Williamette University,
College of Law, Salem, Oregon,
on behalf of The Baptist Joint Committee, The Union for Reform Judaism,
Americans for Religious Liberty, The National Council of Jewish Women,
and The Jewish Labor Committee

Bill McBride, Tampa, Florida,
on behalf of The National PTA, The National School Boards Association,
The American Association of School Administrators, The National
Association of Bilingual Educators, The United Church of Christ Justice and
Witness Ministries, and The International Reading Association

as Amici Curiae in support of Appellee(s)

Timothy W. Weber and Andrew W. Lennox of Battaglia, Ross, Dicus and Wein,
P.A., St. Petersburg, Florida,
on behalf of Lyonsdown School, Inc. d/b/a The Berkshire School,
Sagemount Learning Academy, Inc., The Broach School of Jacksonville,
Inc. d/b/a Broach School Mandarin, Pathways School, Inc., Alternate
Education Systems, Inc. d/b/a The Randazzo School, Victoria�s Higher
Learning Academy, Inc., and Glades Day School, Inc.,
As Amici Curiae � Non-party



Because a state statute was declared unconstitutional by the First District
Court of Appeal, this Court is required by the Florida Constitution to hear this
appeal. See art. V, � 3(b)(1), Fla. Const. 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).

Under the OSP, a student from a public school that fails to meet certain
minimum state standards has two options. The first is to move to another public
school with a satisfactory record under the state standards. The second option is to
receive funds from the public treasury, which would otherwise have gone to the
student's school district, to pay the student's tuition at a private school. The
narrow question we address is whether the second option violates a part of the
Florida Constitution requiring the state to both provide for "the education of all
children residing within its borders" and provide "by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to
obtain a high quality education." Art. IX, � 1(a), Fla. Const.

As a general rule, courts may not reweigh the competing policy concerns
underlying a legislative enactment. The arguments of public policy supporting
both sides in this dispute have obvious merit, and the Legislature with the
Governor's assent has resolved the ensuing debate in favor of the proponents of the
program. In most cases, that would be the end of the matter. However, as is
equally self-evident, the usual deference given to the Legislature's resolution of
public policy issues is at all times circumscribed by the Constitution. Acting
within its constitutional limits, the Legislature's power to resolve issues of civic
debate receives great deference. Beyond those limits, the Constitution must prevail
over any enactment contrary to it.

Thus, in reviewing the issue before us, the justices emphatically are not
examining whether the public policy decision made by the other branches is wise
or unwise, desirable or undesirable. Nor are we examining whether the Legislature
intended to supplant or replace the public school system to any greater or lesser
extent. Indeed, we acknowledge, as does the dissent, that the statute at issue here
is limited in the number of students it affects. However, the question we face
today does not turn on the soundness of the legislation or the relatively small
numbers of students affected. Rather, the issue is what limits the Constitution imposes on the Legislature. We make no distinction between a small violation of
the Constitution and a large one. Both are equally invalid. Indeed, in the system
of government envisioned by the Founding Fathers, we abhor the small violation
precisely because it is precedent for the larger one.

Our inquiry begins with the plain language of the second and third sentences
of article IX, section 1(a) of the Constitution. The relevant words are these: "It is .
. . a paramount duty of the state to make adequate provision for the education of all
children residing within its borders." Using the same term, "adequate provision,"
article IX, section 1(a) further states: "Adequate provision shall be made by law
for a uniform, efficient, safe, secure, and high quality system of free public
schools." For reasons expressed more fully below, we find that the OSP violates
this language. It 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. This
diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the
public system. Many standards imposed by law on the public schools are
inapplicable to the private schools receiving public monies. In sum, through the
OSP the state is fostering plural, nonuniform systems of education in direct
violation of the constitutional mandate for a uniform system of free public schools.

Because we determine that the OSP is unconstitutional as a violation of article IX,
section 1(a), we find it unnecessary to address whether the OSP is a violation of
the "no aid" provision in article I, section 3 of the Constitution, as held by the First

* * *

Click the case caption above for the full text of this opinion.

Outcome: Our position as justices vests us with the right and the responsibility to
declare a legislative enactment invalid�but only when such a declaration is an
�imperative and unavoidable necessity.� State ex rel. Crim, 159 So. at 664. No
such necessity is evident in this case. Nothing in the plain language or history of
article IX requires a finding that the Opportunity Scholarship Program is
unconstitutional. The clear purpose behind article IX is to ensure that every child
in Florida has the opportunity to receive a high-quality education and to ensure
access to such an education by requiring the Legislature to make adequate
provision for a uniform system of free public schools. There is absolutely no
evidence before this Court that this mandate is not being fulfilled. Therefore, I
agree with Judge Kahn and his two colleagues in the First District Court of
Appeal's first opinion regarding this dispute over the OSP. �Nothing in article IX,
section 1 clearly prohibits the Legislature from allowing the well-delineated use of
public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary.� Bush, 767 So. 2d at 675. The
Opportunity Scholarship Program does not violate article IX, section 1 of Florida's

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None

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