Monday, August 05, 2002

Florida school choice ruling

A Florida judge struck down the state's voucher law today. The Blaine Amendment to the state's constitution was the reason the judge struck down the law. The Blaine Amendment prevents direct or indirect state aid from going to private and religious schools.

Florida's voucher law allows students in "failing" schools--as defined by the state--to take vouchers to attend other schools. According to Kevin Teasley from Greater Education Opportunities, parents of 338 children notified the state saying they intended to use vouchers this school year. Now, these children will have to go back to state identified "failing" schools if their parents can't afford to move or pay private school tuition.

The decision will be appealed.

The Volokh Conspiracy has an extensive analysis of why Blaine Amendments probably violate the federal constitution:

Generally, state courts and legislatures may interpret state constitutions in a more rights-protective way than the federal constitution. Many state courts have did this to various rights provisions in their state constitutions, such as those governing free speech, search and seizure, and right to bear arms. There's no inherent conflict between the federal constitution imposing various constraints on both the federal and state governments, and a state constitution imposing still more constraints on the state government. That's part of the virtues of our federal system -- a state's citizens may enact protections against their state government beyond what the federal constitution provides.

But a state may not secure supposed constitutional rights that themselves violate the rights of others. For instance, a state constitution cannot provide more protection of the right to free speech by giving one race extra speech rights beyond what another race has -- this might not violate the federal Free Speech Clause (since it gives more protection than the federal clause offers), but it does violate the Equal Protection Clause, which generally prohibits states from treating people differently based on race.

That's why I think that state constitutional provisions (and state statutory provisions) that require the exclusion of religious schools from evenhanded choice programs do violate the federal constitution. It's not that there's anything wrong in principle with state citizens having extra protection against their state legislature -- but this "protection" cannot take forms that are themselves unconstitutionally discriminatory.

Read the whole thing.

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