For years, Florida lawmakers have sought to chip away at Article 1, Section 3 of the state’s Constitution. That provision states, unequivocally, that "no revenue … shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution."
This so-called "no-aid" clause was first adopted in 1885. The current language stems from a 1968 constitutional revision. Although religious zealots in Florida’s Legislature attempted to totally eviscerate the provision in 2012, their proposed constitutional amendment was overwhelmingly rejected by the voting public.
The contemporary debate over no-aid can be traced to 1999 when, under then-Gov. Jeb Bush, Florida passed the nation’s pioneer "school choice" program (styled as "Opportunity Scholarships"). The program allowed eligible students to opt out of their assigned schools for a higher-performing public school or a private school of their "choice" (including religious schools). Notably, the scholarships were (in clear contravention of Florida’s Constitution) "directly" funded "from the public treasury."
Although lower courts found this inaugural "scholarship" program in violation of the no-aid clause, it was ultimately struck down in 2006 by Florida’s Supreme Court on entirely separate grounds. Intentionally ducking the no-aid clause, Florida’s highest court instead held that the program violated the "uniformity" clause of Florida’s Constitution, which requires the state to provide a "uniform … high quality system of free public schools."
The program, however, has continued to survive and grow, just in different clothing. Here’s how it now works: in lieu of direct funding, vouchers are handed out as "tax credit scholarships" — which, over the years, the Legislature has substantially expanded (in both scope and eligibility). A state-sanctioned entity (generally an outside advocacy group) "officially" awards the vouchers to eligible students for private school tuition. Funding comes from the donations of participating corporations (who get a tax credit).
All of this should, of course, remain highly problematic — because Florida’s Constitution clearly bans direct and indirect funding of private religious schools, and because nearly 80% of Florida voucher students are currently enrolled in religious schools.
Still, it gets worse. A new governor and complicit legislators now appear ready to again challenge the no-aid clause head on. In last year’s session they brazenly returned to direct funding — starting on a limited basis, but with further expansion already contemplated this year.
As Gov. Ron DeSantis sees it, any type of public funding automatically makes the voucher recipient (whether a religious institution or not) just another element of the public education system. Clearly, for DeSantis, like Jeb Bush, it’s all about expanding "school choice," and promoting privatization, regardless of the religious nature of the recipient.
And, the governor may get a big assist from the U.S. Supreme Court. That’s because currently before the court is the question of whether the state of Montana — which has a no-aid clause nearly identical to Florida’s — can set up a "scholarship" program that excludes religious schools from all other non-public schools (which is what Florida should be doing, if it fully complied with Article 1, Section 3).
In short, in the guise of putting religious schools on a non-discriminatory basis with other private schools when handing out state aid, a conservative-leaning court is poised to rule that states, like Florida, are actually required to include religious schools in such programs (despite having constitutional restrictions that say otherwise).
The potential fallout could uproot "public" education as we know it — not only voiding Florida’s no-aid clause, but effectively forcing taxpayers everywhere to fund religious indoctrination in schools, driving a lethal spike into the nation’s longstanding tradition of government neutrality in the practice and teaching of religion.
At the same time, it could greatly bolster the broader school choice movement — heralding a new era of unlimited voucher programs and unrestrained public funding of private schools (mostly religious).
Make no mistake, such a massive expansion of private school vouchers, diverting more funds away from public schools and directing it to unregulated schools operated by religious organizations (that are allowed to indoctrinate faith), would mark a seminal moment in the annals of American public education.
Carl Ramey, a retired Washington communications attorney and monthly contributor to The Sun, lives in Gainesville.