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Judicial activism strikes down Florida vouchers

Unfortunately, as I anticipated in June (in a now-defunct Haloscan comment), a 5-2 decision of the Florida Supreme Court has struck down a school-voucher program by manufacturing a nonsensical interpretation of a state constitutional clause out of thin air. Will Baude:

The majority commits the usual trick of announcing that a provision has a purpose that justifies creating a new but clearly different provision that resembles the old provision only with a newer, broader swath.

Institute for Justice Senior Attorney Clark Neily comments:

�This ruling is such a radical departure from Florida precedent and common sense that the opinion appears both nakedly political and specifically designed to avoid confronting the Blaine Amendment question. There is no case law whatsoever interpreting the �uniformity� clause to prevent the State from providing both public education and scholarships. And indeed, the State has a long history of paying for some public students to attend private schools. In fact, a unanimous Florida appellate court earlier in this case rejected the �uniformity� argument against Opportunity Scholarships, and no other state has taken such a radical interpretation of similar constitutional provisions.�

Because the decision was on narrow state constitutional grounds, there is no basis for appeal to the U.S. Supreme Court. (Or, perhaps better phrased as "To avoid appeal to the U.S. Supreme Court, the decision was on narrow state constitutional grounds.") The only remedy for Floridians is to amend their state constitution.

This opinion could lead to future outrages. Several states have constitutional provisions similar to Florida requiring a "uniform" school system. Some judges are activist, but feel some constraint to follow precedent. While such a judge would never nakedly strike down a voucher program with a brand-new interpretation of the uniformity provision, he or she would now have the fig leaf of the Florida Supreme Court "precedent" to hide behind—no matter how dishonest that precedent is.

Joseph Knippenberg was following the case closely and will no doubt have something to say. AEI's Katie Newmark was also following the issue.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.