Lost Opportunity: Bush V. Holmes and the Application of State Constitutional Uniformity Clauses to School Voucher Schemes

I. INTRODUCTION Most legal challenges to school voucher programs have focused on the question of whether a voucher program that permits the use of public funds in private religious schools constitutes an unconstitutional establishment of religion.1 In the wake of the Supreme Court's 2002 decision in Zelman v. Simmons-Harris2 that such programs do not violate the First Amendment, the question remains whether they will be found to violate state constitutional provisions governing the relationship between church and state. State constitutional challenges to voucher programs will not be limited to the issue of religious establishment, however. Although most state constitutions do prohibit state aid to religious institutions, many also include provisions governing other aspects of public education. Of particular interest are provisions in the constitutions of fifteen states requiring some degree of uniformity among public schools.3 In the past, plaintiffs have used these "uniformity clauses" to justify challenges to state approaches to public school financing. But voucher opponents are putting them to a different use, claiming that in offering families a diverse array of educational options, voucher programs sacrifice the required uniformity. A recent decision of the Florida Supreme Court illustrates the possibilities of this approach-and its perils. In Bush v. Holmes, decided in January 2006, the court heard a challenge to the Opportunity Scholarship Program (OSP), a school voucher program permitting the use of vouchers in religious schools.4 The plaintiffs claimed that the OSP violated not only Florida's constitutional "no aid" clause, prohibiting state aid to religious institutions, but also its uniformity clause, requiring the state to maintain a "uniform, efficient, safe, secure, and high quality system of free public schools."5 In advance of the ruling, many observers expected the court to focus on the establishment question, which an intermediate appellate court had certified as one of "great public importance."6 Instead, the high court struck down the OSP as a violation of Florida's uniformity clause.7 Some voucher proponents accused the Holmes court of ducking the real issue. Said an attorney with the Institute for Justice, a nonprofit organization that helped litigate the case for the defendants: "[T]he opinion appears both nakedly political and specifically designed to avoid confronting the [religion] question."8 Such criticisms missed the point, however. The problem with Holmes v. Bush was not that the court passed on the religion question. It was that, having addressed itself to the question of uniformity, the court offered an unsatisfactory answer. Whether a court measures a school voucher program against a ban on religious establishment or against a requirement for uniformity, the potential sticking point is the same: voucher programs provide public funds to private institutions whose purposes and practices may differ radically from those of public schools. In either case, the court must evaluate whatever differences exist between publicly funded schools against the constitution's insistence on uniformity. But it cannot do so without first determining what "uniformity" means. The fatal flaw in Bush v. Holmes is that the court neglected this essential task. Although the meaning of uniformity is neither obvious nor settled, clues exist as to its meaning. Courts in other states have offered a variety of possible definitions, some arguing that uniformity means equal funding, others that it denotes equality of opportunity, and still others that it refers to the "character of instruction." These decisions, interpreting other uniformity clauses, do not indicate how the Florida court should have interpreted Florida's constitutional language-but they do illustrate the range of possibilities. More importantly, there is a small body of case law construing Florida's own uniformity clause. …