Former Florida Gov. Jeb Bush said it was “heart-breaking.” But public school advocates and supporters of civil rights and civil liberties in Florida and around the country were ecstatic.
In a sweeping defeat for Bush and the school voucher movement, the Florida Supreme Court on Sept. 3 removed from the November ballot two controversial amendments that would have erased church-state safeguards from the state constitution and gravely jeopardized public schools.
Ruling unanimously in Ford v. Browning, the seven justices blocked Amendments 7 and 9 from going before the voters. The action came in response to a lawsuit brought by Americans United for Separation of Church and State and an array of allied educational and civil liberties organizations.
Said Americans United Executive Director Barry W. Lynn, “This ruling puts an end to a dangerous assault on the religious liberty rights of all Floridians. These reckless and deceptive amendments had no business being on the ballot in the first place, and we’re glad to see them go.”
Had they become law, the ballot proposals would have dramatically altered the relationship between religion and government in the Sunshine State.
Amendment 7 would have struck current constitutional language that forbids the use of any public funds “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” In place of those words, Article I, Section 3 would have asserted, “An individual or entity may not be barred from participating in any public program because of religion.”
Amendment 9 would have eviscerated the constitution’s strong language requiring, as a “paramount duty of the state,” the provision of a “uniform, efficient, safe, secure, and high quality system of free public schools.” The measure would have revised Article IX, Section 1 to state that “this duty shall be fulfilled, at a minimum and not exclusively” through public schools.
But voters would never have known the real impact of the measures from reading the language proposed for the state ballot.
Amendment 7 was headlined “Religious Freedom.” Amendment 9 was headlined “Requiring 65 Percent Of School Funding For Classroom Instruction; State’s Duty For Children’s Education.” The measures sounded positive toward religious freedom and public schools, and neither mentioned school vouchers.
The proposals were placed on the ballot by the Taxation and Budget Reform Commission, an obscure body that meets only once every 20 years. Commission members, appointed by the governor and the leaders of the two houses of the legislature, are supposed to address budget policy. They have the power to place referenda directly before the voters, without getting approval from the legislature or other elected officials.
This year, Bush and his political allies carefully stacked the commission with pro-voucher cronies. Former Bush aides Greg Turbeville and Patricia Levesque led the voucher charge. (Levesque is a graduate of Bob Jones University, a fundamentalist school in South Carolina notorious for its intolerant racial and religious policies.)
Bush saw the commission as a back-door way to resurrect his school voucher program, which was struck down by the Florida Supreme Court in January 2006.
The new Bush scheme was immediately challenged in court by Americans United, the Florida Education Association, the Florida School Boards Association, the Florida Association of District School Superintendents, the Florida Association of School Administrators, the Florida ACLU, the ACLU Freedom of Religion and Belief Project, the Anti-Defamation League and People For the American Way.
Among the plaintiffs were Merrill Shapiro, rabbi at Temple Beth Shalom in Palm Coast and vice president of the Americans United Board of Trustees, and the Rev. Harry Parrott, a retired Baptist minister in Penney Farms, Fla., and a member of the AU National Advisory Council.
Florida attorney Ron Meyer took the lead role in the case, working with AU Legal Director Ayesha Khan and lawyers for the other progressive groups.
The coalition lawsuit failed in the district court, but it triumphed at the top level. The amendments ran into a buzz saw of opposition from justices at the high court. Promoting school vouchers, the justices indicated, was outside the tax commission’s mandate.
Justice Barbara Pariente noted that Amendment 7 was titled “Religious Freedom” and wondered how that related to the state’s budget.
“Seems as far afield as you can get,” she said.
The justices also were concerned that the two amendments – and a third one dealing with taxes that jeopardized support of public schools – were worded to mask their true intent and effect.
Criticizing the “game playing” that seemed to be under way, Justice R. Fred Lewis said, “It’s starting to become a game and these things ought to fly on their own merit.”
Four hours after the morning hearing, the high court issued an order barring all three amendments from the ballot. The quick action came because the secretary of state was required to certify the official ballot two days later.
The ruling sparked a howl of outrage from Bush, who had tried to maintain a behind-the-scenes role in the drama. In a press statement issued through his Foundation for Florida’s Future, he called the decision “extremely disappointing” and “heartbreaking” and said it could mean that other scholarship programs may be attacked by “individuals who want to centralize all education decisions within government bureaucracies.”
The decision also drew criticism from religious groups that wanted to remove barriers to state funding.
“We are very disappointed in the Court’s ruling,’’ said D. Michael McCarron, executive director of the Florida Catholic Conference, the lobbying arm of the Catholic hierarchy.
The Catholic bishops joined forces with Friends of Lubavitch of Florida, Catholic Charities of the Archdiocese of Miami and the Association of Christian Schools International to urge the high court to leave the proposals on the ballot. These religious groups were represented by the Alliance Defense Fund, a Religious Right legal group founded by TV preachers and other fundamentalist activists.
But supporters of public education and church-state separation were delighted with the court’s ruling.
AU’s Shapiro said, “Religious liberty and public education are two cornerstones of the American way of life, and these amendments would have badly damaged both of them. We’re glad the Florida Supreme Court did its duty and put a stop to it.”
Shapiro and other Florida AU members were standing by to launch a major educational campaign if the Bush proposals were cleared for the ballot.
Many think the battle over school vouchers in Florida is far from over.
Damien Filer of Progress Florida told the St. Petersburg Times that the Supreme Court ruling was a “fundamental rebuke to [Bush’s] efforts to dismantle public schools.”
But he warned that Bush and company are unlikely to give up their crusade.
“They’re smart, well-funded and relentless,” observed Filer.
Civil liberties activists are also alarmed that the state’s high court may be less friendly next time.
On Aug. 28, Gov. Charlie Crist named former U.S. Rep. Charles Canady to the bench as a new justice. Canady, a staunch ally of the Religious Right, is only the first of four appointments Crist will make in the coming months.
That makes the future more than a bit ominous, but for the time being, friends of church-state separation and public schools are celebrating.
“The Supreme Court of Florida has vindicated the rights of all Floridians,” said AU State Legislative Counsel Dena Sher, who coordinated Americans United’s response to the Bush voucher plan. “Bush and his friends on the commission tried to deceive and mislead Florida voters. Thankfully the justices saw through the trickery.”