Bush v. Holmes, No. SC04-2323.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPariente
Citation919 So.2d 392
Decision Date05 January 2006
Docket NumberNo. SC04-2323.,No. SC04-2324.,No. SC-4-2325.
PartiesJohn Ellis "Jeb" BUSH, etc., et al., Appellants, v. Ruth D. HOLMES, et al., Appellees. Charles J. Crist, Jr., etc., Appellant, v. Ruth D. Holmes, et al., Appellees. Brenda McShane, etc., et al., Appellants, v. Ruth D. Holmes, et al., Appellees.
919 So.2d 392
John Ellis "Jeb" BUSH, etc., et al., Appellants,
v.
Ruth D. HOLMES, et al., Appellees.
Charles J. Crist, Jr., etc., Appellant,
v.
Ruth D. Holmes, et al., Appellees.
Brenda McShane, etc., et al., Appellants,
v.
Ruth D. Holmes, et al., Appellees.
No. SC04-2323.
No. SC04-2324.
No. SC-4-2325.
Supreme Court of Florida.
January 5, 2006.

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Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Daniel Woodring, General Counsel, Nathan A. Adams, IV, Deputy General Counsel, Florida Department,

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of Education, and Raquel A. Rodriguez, General Counsel and Robert H. Fernandez, Deputy General Counsel, Office of the Governor, Tallahassee, FL, 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, FL, 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, FL and Major B. Harding and Jason Gonzalez of Ausley and McMullen, Tallahassee, FL, for Appellants Brenda McShane, etc., et al.

Ronald G. Meyer of Meyer and Brooks, P.A., Tallahassee, FL; Robert H. Chanin and John M. West of Bredhoff and Kaiser, PLLC, Washington, D.C., Pamela L. Cooper, Florida Education Association, Tallahassee, FL, Randall Marshall, ACLU Foundation of Florida, Inc., Miami, FL, David Strom, American Federation of Teachers, Washington, D.C., Joan Peppard, Anti-Defamation League, Miami, FL, Steven M. Freeman and Steven Sheinberg, Anti-Defamation League, New York, NY, 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, NY, Michael A. Sussman, National Association for the Advancement of Colored People, Goshen, NY, Marc D. Stern, American Jewish Congress, New York, NY, Julie Underwood, National School Boards Association, Alexandra, VA, and Jeffrey P. Sinensky, American Jewish Committee, New York, NY, for Appellees Ruth D. Holmes, 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, FL 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, FL, G. Marcus Cole, Professor of Law, Stanford Law School, Stanford, CA, and Briscoe R. Smith, Atlantic Legal Foundation, New York, NY, 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 Foundation.

Stephen C. Emmanuel of Ausley and McMullen, Tallahassee, FL, Professor Thomas C. Berg, University of St. Thomas School of Law, Minneapolis, MN, and Professor Richard W. Garnett, University of Notre Dame School of Law, Notre Dame, IN, 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, FL, Anthony R. Picarello, Jr. and Derek L. Gaubatz, Washington, D.C., on behalf of The Becket Fund for Religious Liberty.

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

Lansing C. Scriven, Tampa, FL, 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, FL, 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 Appellants.

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

Karen Gievers, Tallahassee, FL and Steven K. Green, Williamette University, College of Law, Salem, OR, 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, FL, 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 Appellees.

Timothy W. Weber and Andrew W. Lennox of Battaglia, Ross, Dicus and Wein, P.A., St. Petersburg, FL, 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.

PARIENTE, C.J.


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

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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...

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56 practice notes
  • Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., No. SC18-67
    • United States
    • United States State Supreme Court of Florida
    • January 4, 2019
    ...weaker version of the current Article IX, Section 1." The trial court instead relied on this Court's 2006 decision in Bush v. Holmes , 919 So.2d 392 (Fla. 2006), which interpreted the post-1998 article IX, section 1 in the context of a challenge to a voucher program. The trial court pointed......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of panel decision), aff'd in part by 919 So.2d 392 (Fla.2006); Vause v. Bay Med. Ctr., 687 So.2d 258 (Fla. 1st DCA 1996) (en banc decision on rehearing released after publication and withdrawal ......
  • Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 & 11CA1857
    • United States
    • Colorado Court of Appeals of Colorado
    • February 28, 2013
    ...relies, Cain v. Horne, 220 Ariz. 77, 202 P.3d 1178 (2009) ; Bush v. Holmes, 886 So.2d 340 (Fla.Dist.Ct.App.2004), aff'd on other grounds, 919 So.2d 392 (Fla.2006) ; and Witters v. State Commission for the Blind, 112 Wash.2d 363,771 P.2d 1119 (1989).24 In Cain, for example, the court based i......
  • Atheists of Fla., Inc. v. City of Lakeland, Case No. 8:10–cv–1538–T–17–MAP.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 22, 2012
    ...by the federal Constitution—namely, the “no-aid” provision. See Bush v. Holmes, 886 So.2d 340, 344 (Fla.Dist.Ct.App.2004), aff'd in part,919 So.2d 392 (Fla.2006) (“For a court to interpret the no-aid provision of article I, section 3 as imposing no further restrictions on the state's involv......
  • Request a trial to view additional results
56 cases
  • Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., No. SC18-67
    • United States
    • United States State Supreme Court of Florida
    • January 4, 2019
    ...weaker version of the current Article IX, Section 1." The trial court instead relied on this Court's 2006 decision in Bush v. Holmes , 919 So.2d 392 (Fla. 2006), which interpreted the post-1998 article IX, section 1 in the context of a challenge to a voucher program. The trial court pointed......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...340 (Fla. 1st DCA 2004) (en banc decision on rehearing released after publication and withdrawal of panel decision), aff'd in part by 919 So.2d 392 (Fla.2006); Vause v. Bay Med. Ctr., 687 So.2d 258 (Fla. 1st DCA 1996) (en banc decision on rehearing released after publication and withdrawal ......
  • Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., Nos. 11CA1856 & 11CA1857
    • United States
    • Colorado Court of Appeals of Colorado
    • February 28, 2013
    ...relies, Cain v. Horne, 220 Ariz. 77, 202 P.3d 1178 (2009) ; Bush v. Holmes, 886 So.2d 340 (Fla.Dist.Ct.App.2004), aff'd on other grounds, 919 So.2d 392 (Fla.2006) ; and Witters v. State Commission for the Blind, 112 Wash.2d 363,771 P.2d 1119 (1989).24 In Cain, for example, the court based i......
  • Atheists of Fla., Inc. v. City of Lakeland, Case No. 8:10–cv–1538–T–17–MAP.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 22, 2012
    ...by the federal Constitution—namely, the “no-aid” provision. See Bush v. Holmes, 886 So.2d 340, 344 (Fla.Dist.Ct.App.2004), aff'd in part,919 So.2d 392 (Fla.2006) (“For a court to interpret the no-aid provision of article I, section 3 as imposing no further restrictions on the state's involv......
  • Request a trial to view additional results

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