Bush v. Holmes

Litigation: Challenging Florida’s Opportunity Scholarship Program, a statewide voucher enacted in 2005. Opposed to educational choice program: ACLU Foundation of Florida; American Association of School Administrators; American Civil Liberties Union Foundation New York City; American Federation of Teachers; American Jewish Committee; American Jewish Congress; Americans for Religious Liberty; Americans United For Separation of Church and State; Anti-Defamation League, Miami; Anti- Defamation League, New York, New York; Baptist Joint Committee; Florida Education Association; International Reading Association; Jewish Labor Committee; National Association for the Advancement of Colored People; National Association of Bilingual Educators; National Council of Jewish Women; National PTA; National School Boards Association; People for the America Way Foundation; Professor Steven G. Gey; Union for Reform Judaism; United Church of Christ Justice and Witness Ministries; In support: American Center for Law and Justice; Assistant U.S. Attorney E. Bryan Wilson; Assistant U.S. Attorney General Attorneys for the Dept of Justice Civil Rights Div. David K. Flynn, Eric W. Treene, Gordon Todd Conor Dugan, and R. Alexander Acosta on behalf of the United States; Association of Christian Schools International; Atlantic Legal Foundation; Becket Fund for Religious Liberty; Berkshire School; Black Alliance for Education Options; Broach School; Center for Education Reform; Child Development Education Alliance; Christian Legal Society; Christian Schools International; City of Jacksonville, Office of the Mayor; Coalition of McKay Scholarship Schools; Ed and Carmen Delgado; Excellent Education for Everyone; Florida Association of Academic Nonpublic Schools; Florida Association of Christian Colleges and Schools; Florida Catholic Conference; Florida Council of Independent Schools; Friends of Lubavitch of Florida; Glades Day School; G. Marcus Cole, Professor of Law, Stanford Law School; Hispanic Council for Reform and Educational Options; Independent Voices for Better Education; Institute for Justice; Ira J. Paul; Leah Ashley Cousart; Martha Parker; Michelle Emery; Pacific Legal Foundation; Pathways School; Reason Foundation; Professor Richard W. Garnett, University of Notre Dame School of Law; Professor Thomas C. Berg, University of St. Thomas School of Law; Randazzo School; Redemptive Life Academy; Sagemount Learning Academy; Salvation Army-Florida Division; Teachers for Better Education; U.S. Attorney Gregory Miller; Victoria’s Higher Learning Academy.

Outcomes: On January 5, 2006, Florida’s Supreme Court found that the state’s newly enacted voucher program violated the uniformity clause of the state constitution. The Court held, in a 5-2 vote, that the state could not fulfill its constitutional mandate to provide a system of public education if there also existed an alternative system of private schools for some children, reducing funding for the public system, wherein participating private schools would not be subject to the uniformity requirements of the public education system. The Court specifically declined to consider whether the voucher program violated the state’s Blaine amendment.

Why it Matters: This ruling invalidated Florida’s new voucher program and set the stage for enactment of a tax credit scholarship program to provide school choice options for children without running afoul of this ruling. Furthermore, litigation against vouchers in other states following this ruling faced scrutiny of those programs in light of this ruling. Notably, this is the only final ruling in a state court invalidating a voucher program on the merits. Louisiana’s Supreme Court ruled that funding for its voucher was unconstitutional but the program itself was not struck down; Nevada’s education savings account program faced a similar result. Both programs were free to operate with different funding mechanisms (Louisiana’s voucher was funded differently shortly after the ruling, while Nevada’s ESA was never funded). The Douglas County School District voucher was ruled unconstitutional by its state supreme court, but the U.S. Supreme Court vacated that decision (the program was rescinded by a new school board before the state’s courts could reconsider their decisions, as directed by the U.S. Supreme Court).

Effects: Florida quickly built-up its tax credit scholarship program to help those children who had been hoping to access a voucher. Although that program was litigated many times, it was never found unconstitutional. In 2019, thirteen years after this ruling, Florida enacted another statewide voucher, and it has not been challenged. Court observers believe that, considering numerous court decisions since 2006, a challenge would not be successful.