The Constitutionality of Florida's McKay Scholarship Program Under the Bush Standard

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Title:
The Constitutionality of Florida's McKay Scholarship Program Under the Bush Standard
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1 online resource (195 p.)
Language:
english
Creator:
Omundsen, John.
Publisher:
University of Florida
Place of Publication:
Gainesville, Fla.
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Thesis/Dissertation Information

Degree:
Doctorate ( Ed.D.)
Degree Grantor:
University of Florida
Degree Disciplines:
Educational Leadership, Human Development and Organizational Studies in Education
Committee Chair:
WOOD,R C
Committee Co-Chair:
ELDRIDGE,LINDA BURNEY
Committee Members:
VILLARREAL,PEDRO
OLIVER,EILEEN
MOUSA,BRUCE E

Subjects

Subjects / Keywords:
mckay -- scholarship
Human Development and Organizational Studies in Education -- Dissertations, Academic -- UF
Genre:
Educational Leadership thesis, Ed.D.
Electronic Thesis or Dissertation
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )

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Abstract:
Educational vouchers provide a system whereby public funds are used to finance private education for students. With the United States Supreme Court decision in Zelman v. Simmons-Harris, educational vouchers were found to be constitutional under the Establishment Clause to the United States Constitution. However, these vouchers also had to be found constitutional under the wording of individual state constitutions as, per the Tenth Amendment to the United States Constitution, education is a power of the individual states. In 2006, the Florida Supreme Court ruled in Bush v. Holmes that the private school option of the Florida Opportunity Scholarship Program was unconstitutional as the program financed private school vouchers for students in chronically failing schools using money that had been specifically earmarked for public education. However, the John M. McKay Scholarship for Students with Disabilities Program, which provided private school vouchers for students in Florida classified as having a disability, had yet to be challenged in court. The purpose of this study was to answer the following question: Can the logic used in the decision of Bush v. Holmes in finding the Florida Opportunity Scholarship Program unconstitutional under the Florida State Constitution be applied to the McKay Scholarship for Students with Disabilities? To answer this question, this study analyzed United States Supreme Court cases, state supreme court cases, wording in state statutes, and legal research.In conducting the analysis, this study found that the Florida Opportunity Scholarship Program and the McKay Scholarship Program were comparable programs as worded in Florida State Statutes. As a result, the logic used in finding the Opportunity Scholarship Program was applied to the McKay Scholarship where it was shown that the private school option of the McKay Scholarship violated the Florida Constitution by financing a system of private schools which are not uniform in relation to the system of free, public schools outlined in the Florida Constitution. This study provided insight into the legal challenge that could emerge should the McKay Scholarship be challenged in court.
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In the series University of Florida Digital Collections.
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Includes vita.
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Includes bibliographical references.
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Description based on online resource; title from PDF title page.
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This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Thesis:
Thesis (Ed.D.)--University of Florida, 2014.
Local:
Adviser: WOOD,R C.
Local:
Co-adviser: ELDRIDGE,LINDA BURNEY.
Statement of Responsibility:
by John Omundsen.

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lcc - LD1780 2014
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1 UNDER THE BUSH STANDARD By JOHN OMUNDSEN A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF EDUCATION UNIVERSITY OF FLORIDA 2014

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2 2014 John Omundsen

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3 ACKNOWLEDGEMENTS I would like to thank all of the people who have supported me during the process of completing my dissertation. First and foremost, I would like to thank my advisor and chair, Dr. R. Craig Wood for his continuous support and guidance during this process. H is insights have made me a better writer, researcher, and practitioner in the field of educational leadership. His willingness in taking me on as a student in completing this dissertation is appreciated more than words can express. I would also like to thank my committee members Dr. Linda Eldridge, Dr. Pedro Villarreal, and Dr. Eileen Oliver for their support in this process. Thanks also to my special committee member, Dr. Bruce Mousa, who has been an incredible mentor over the past 4 years during my time in the LEAD Program. Dr. Mousa has been a continual support over the past 4 years in encouraging me to complete the program and has taught me more than I could have imagined about applying leadership in schools and for this I am truly grateful. Finally, thank you to Ms. Angela Rowe for her assistance with registration, the completion of all necessary pa perwork, and answering any and all qu estions needed to navigate complete this journey I would like to thank my family for their continual support through this dissertation process. Thank you to my mom and dad for always believing in me, supporting me in my work, and encouraging me to continue even when I did not think it would ever be possible. Thank you to my brother Tyler for always keeping me laughing when I needed it most. Thank you to my sister Samantha for being a continual positive support in my li fe and watching out for me from heaven.

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4 Finally, I would like to thank the members of the Collier LEAD Cohort. This was a long journey and the support that we provided one another helped me to get to this point. Special thanks to Michelle Licata for her c ontinual support, constant words of encouragement, and always being able to listen when I needed to talk I could not have made it through this process without your help!

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5 TABLE OF CONTENTS page ACKNOWLEDGEMENTS ................................ ................................ ............................... 3 ABSTRACT ................................ ................................ ................................ ..................... 7 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ ......... 9 Educati onal Vouchers Defined ................................ ................................ ................... 10 Differing Viewpoints on Vouchers ................................ ................................ .............. 11 Establishment Clause and Free Exercise Clause ................................ ...................... 13 Funding for Public Schools ................................ ................................ ........................ 15 Current Voucher Programs ................................ ................................ ........................ 18 Statement of the Problem ................................ ................................ .......................... 20 Purpose of the Study ................................ ................................ ................................ .. 21 Significance of the Study ................................ ................................ ............................ 22 Method of Study ................................ ................................ ................................ ......... 24 Limitations of the Study ................................ ................................ .............................. 24 Organization of the Study ................................ ................................ ........................... 24 2 UNITED STATES SUPREME COURT DECISIONS RELATING TO VOUCHER PROGRAMS ................................ ................................ ................................ ............. 26 Early Voucher Programs ................................ ................................ ............................ 26 Establishment Clause and Free Exercise Clause ................................ ...................... 28 Early Supreme Court Cases: Indirect Aid to Private Schools ................................ ..... 32 The Lemon Test ................................ ................................ ................................ ......... 36 Shift in the interpretation of the Lemon test ................................ ................................ 40 Lemon test ................................ ................ 50 Zelman v. Simmons Harris ................................ ................................ ......................... 61 Summary ................................ ................................ ................................ .................... 71 3 STATE SUPREME COURT DECISIONS RELATING TO INDIVIDUAL STATE VOUCHER PROGRAMS ................................ ................................ .......................... 72 Funding Provisions ................................ ................................ ................................ .... 76 Local Control Provisions ................................ ................................ ............................ 92 Uniformity Provisions ................................ ................................ ................................ 96 Florida Opportunity Scholarship Program ................................ ................................ 100 Holmes I ................................ ................................ ................................ ................... 104 Holmes II ................................ ................................ ................................ .................. 106 Holmes III ................................ ................................ ................................ ................. 112

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6 Impact of the Holmes III decision ................................ ................................ ............. 122 Summary ................................ ................................ ................................ .................. 125 4 SPECIAL EDUCATION VOUCHERS AND THE CONSTITUTIONALITY OF THE JOHN M. McKAY SCHOLARSHIP FOR STUDENTS WITH DISABILITIES ........... 127 Special Education Vouchers ................................ ................................ .................... 129 John M. McKay Scholarship for Students with Disabilities Program ........................ 142 The Constitutionality of the McKay Scholarship ................................ ....................... 149 Summary ................................ ................................ ................................ .................. 160 5 CONCLUSION ................................ ................................ ................................ ........ 163 Purpose ................................ ................................ ................................ .................... 163 Summary ................................ ................................ ................................ .................. 164 Implications ................................ ................................ ................................ .............. 173 Recommendations for Florida Policymakers ................................ ............................ 174 Recommendations for Further Research ................................ ................................ 178 APPENDIX : CITED CONSTITUTIONS, STATUTES, REGULATIONS, AND CASES 180 LIST OF REFERENCES ................................ ................................ ............................. 190 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 195

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7 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Education UNDER THE BUSH STANDARD By John Omundsen May 2014 Chair: R. Craig Wood Major: Educational Leadership Educational vouchers provide a system whereby public funds are used to finance private education for students. With the United States Supreme Court decision in Zelman v. Simmons Harris educational vouchers were found to be constitutional under the Establishment Clause to the United States Constitution. H owever, these vouchers also had to be found constitutional under the wording of individual state constitutions as, per the Tenth Amendment to the United States Constitution, education i s a power of the individual states. In 2006, the Florida Supreme Court ruled in Bush v. Holmes that th e private school option of the Florida Opportunity Scholarship Program was unconstitutional as the program financed private school vouchers for students in chronically failing schools using money that had been specifically earmarked for public education. H owever, the John M. McKay Scholarship for Students with Disabilities Program, which provided private school vouchers for students in Florida classified as having a disability, had yet to be challenged in court. The purpose of this study was to answer the following question: Can the logic used in the decision of Bush v. Holmes in finding the Florida Opportunity Scholarship

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8 Program unconstitutional under the Florida State Constitution be applied to the McKay Scholarship for Students with Disabilities? To ans wer this question, this study analyzed United States Supreme Court cases, state supreme court cases, wording in state statutes, and legal research. In conducting the analysis, this study found that the Florida Opportunity Scholarship Program and the McKay Scholarship Program were comparable programs as worded in Florida State Statutes. As a result, the logic used in finding the Opportunity Scholarship Program was applied to the McKay Scholarship where it was shown that the private school option of th e McKay Scholarship violated the Florida Constitution by financing a system of private schools which are not uniform in relation to the system of free, public schools outlined in the Florida Constitution. This study provided i nsight into the legal challeng e that could emerge should the McKay Sch olarship be challenged in court

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9 CHAPTER 1 INTRODUCTION The primary goal of schools is teaching and learning 1 There has been considerable debate in recent years about how to best approach this responsibility 2 This debate is heightened by a number of reports which have shown that American public schools are not adequately educating students, as evidenced by large achievement gaps on standardized exams between white students and minority students Specifically, the National Assessment of Educational Progress ( NAEP ) has shown the gap s between white and Hispanic students were unchanged when comparing scores from 1990 to 2009 in both reading and mathematics at both the fourth and eighth grade levels 3 Further, the N AEP has shown that when comparing white and black students, the achievement gap in eighth grade mathematics narrowed in only four states from 1990 to 2007 and the gap was unchanged in all states in eighth grade reading from 1998 to 2007 4 Due to the lackluster performance of American schools at closing this achievement gap, policymakers have suggested allowing parents to choose the best school for their children through a number of school choice programs, such as charter schools and educat ional tax credits. However, one of the most controversial and debated systems of school choice have been educational vouchers. 1 Anita W. Hoy and Wayne K. Hoy, Instructional Leadership: A Research Based Guide to Learning in Schools (Boston: Allyn & Bacon, 2009), 1. 2 See i.e., traditional schools, private schools, virtual schools, charter schools, school vouchers, educational tax credits, school within a school, and class size amendments. 3 students in public schools perform in mathematics and reading on the National Assessment of http://nces.ed.gov/nationsreportcard/studies/gaps/ 4 : How black and white http://nces.ed.gov/nationsreportcard/studies/gaps/

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10 Educational Vouchers Defined Educational vouchers refer to a system of public finance where parents are directly given money by t he government to pay for costs at a state approved school, public or private, chosen by the pa rents of the child 5 In the United Stat es, the democratic nature of society assumes that schools have a need to provide benefits to parents and b enefits to societ y 6 Parents have the right to raise their children the way they see most fit, and this applies to allowing the parents to choose the school that best matches with their parenting style. Parents also choose to send their children to private schools because they believe private schools offer higher academic standards, character development and the potential for positive friendships, all of which can be related to the upbringing of their child 7 However, society also has the right to ensure that through school ing, children have been given knowledge about the nature o f American society 8 Children have to be inoculated into society and taught the civic behavior and structure of society in order for a democracy to thrive. Democratic societies also have the mission of providing an educational system that is fair to all students so that inequities do not develop among members. These opposing goals of parental versus societal needs present a paradox. 5 Educational Evaluation and Policy Analysis 24, no. 3 (2002): 159. 6 Levin, 160. 7 American Journal o f Education 111, no. 4 (2005): 573. 8 Levin, 161.

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11 Differing Viewpoints on Vouchers Due to the dual purposes of educat ion presented, many scholars debate about educational vouchers. Conservatives generally fall on the pro voucher si de of the debate 9 One of the arguments for vouchers is that this system will increase competition among American schools 10 This argument says that American public schools generally have a monopoly on education and since they do not have to compete for students, they do not have the highest quality programs available for students. In fact, the concept of educational vouchers in the United States were first introduced in 1955 by Milton Friedman who proposed that using public funds to support privatized education could break the monopoly state governments have on education and help improve schools 11 By giv in the free market for schools, this will cause schools to be more competitive in attracting students. According to theorists, competition would lead to a greater range of choice and rising efficiency and innovation in education as schools have financial incentives to attra ct and retain thei r en rollments 12 Another argument voucher proponents put forth is that educational vouchers will lead to better equity among s tudents 13 This argument proposes that students from disadvantaged backgrounds will be able t o afford tuition at schools that 9 Journal of Policy Analysis and Management 10, no. 1 (1991): 112. 10 Wyckoff, 112. 11 In Economics and the Public Interest ed. R.A. Solo (New Brunswick: University of Rutgers Press, 1955). 12 Levin, 159. 13 American Journal of Education 111, no. 4 (2005): 548.

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1 2 they were unable to afford in the past. In effect, these students will be afforded the same opportunities as students from a higher socioeconomic status. Liberals generally do not support a voucher system for a n umber of reasons 14 First, some argue that vouchers will take away from the common schooling experien ce of all students 15 This common schooling experience, it is argued, is central to preparing students to become citizens in a democratic society. Thus, this argument is closely tied to societal rights of education in society. Another argument against vouchers is purely economic; public funds are currently scarce and if vouchers systems were implemented, these funds will beco me even scarcer 16 Thus, by implementing thes e systems it is possible that with dwindling funds, the amount of dollars per student in all schools will decrease and this could lead to an adverse effect on all students. Another argument against voucher systems in the United States is that they could be interpreted as being a public endorsement of parochial schools, which could potentially entangle governme nt with religious institutions 17 This could be rela ted to the fact that 85 percent of all private schools in the United States are affiliated with rel igion 18 A final argument used against vouchers runs counter to a strength of vouchers used by proponents. Dissenters claim that voucher systems cause increased segreg ation in society 19 Scholars using this argument claim that while the federal government wo uld subsidize educational costs for 14 Wyckoff, 113. 15 Levin, 160. 16 Paquette, 570. 17 Wyckoff, 112. 18 American Journal of Education 101, no. 3 (1993): 210. 19 Wyckoff, 112.

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13 public and private schools in the market, these vouchers would not be enough to defray the entire cost of tuition. This would not allow low income families to afford the high quality education, putting them in a position similar to where they are currently. Howeve r, families with higher incomes would still be able to afford these schools and be subsidized part of the cost. Some theorists go so far as to claim that, historically, voucher systems have generally been proposed by wealthy white families with the purpose to segregate their children an d flee from integration 20 This has been posited more recently by Lubien ski, Gulosino and Weitzel in a study which showed that schools operating under voucher programs used exclusio nary strategies to enhance the market position for other students a nd families 21 opening up options for all students, competitive incentives may also cause schools to arrange themselves in ways that may limit access for the most disadvantaged 22 Establishment Clause and Free Exercise Clau se A number of legal issues surround educational voucher programs. M any of these challenges to the C onstitutionality of voucher programs center around the doctrine of separation of church and state. Two clauses in the U nited S tates Constitution that are heavily cited in these cases are the Establishment Clause 23 and the Free Exercise Clause 24 The Establishment Clause is part of the First Amendment to the United States 20 Educational Researcher 29, no. 7 (2000): 16. 21 Incentives: Mapping the Distribution of Ed American Journal of Education 115, (2009): 601. 22 Lubienski, Gulosino and Weitzel, 642. 23 24 U.S. Constitution, amend. I.

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14 Constitution that prohibits the government from establishing religious doctrines. 25 The Free Exercise Clause as part of the First Amendment prohibits the government from interfering in the religious practices of its citizens. 26 Under the Free Exercise Clause, historically, the Supreme Court has protected an act as ind ividual religious belief under the law if it was required by a central religious belief, was substantially burdened by a government action, and was not outweighed by a compelling state interest. 27 As stated by Justice Rehnquist in delivering the majority op inion in Locke v. Davey these two 28 These issu es were brought to question regarding school vouchers in Zelman v. Simmons Harris 29 Zelman questioned the C onstitutionality of the Cleveland Scholarship and Tutoring Program 30 (CSTP), which allowed parents the option of choosing tutoring assistance to students in low performing schools or a voucher to attend a private school. The CSTP was challenged in the court system as violating the Establishment Clause. The main iss ues su rrounding the case were that 82 percent of participating private schools were religiously affiliated and, of the students receiving vouchers, 96 percent were enrolled in a religious institution. 31 25 U.S. Constitution, amend. I. 26 U.S. Constitution, amend. I. 27 See e.g. Thomas v. Review Board of the Indiana Employment Security Division 450 U.S. 707 (1981); Wisconsin v. Yoder 406 U.S. 205 (1972). 28 Locke v. Davey 5 40 U.S. 712 (2004). 29 Zelman v. Simmons Harris 536 U.S. 639 (2002). 30 Ohio Stat. §3313.975 (2003). 31 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 647.

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15 In 2002, Supr eme Court ruled that the CSTP did not violate the Establishment Clause and was thus, constitutional. 32 The reasons for this were as follows. First, the program had a secular purpose in giving aid to underprivileged children in a failing school district and since the money was given direct ly to parents to choose for themselves where the money would be spent, the Establishment Clause was not violated. 33 Second, the Court reaffirmed that the program was neutral to religion and offered a variety of secular options to parents including tutoring options, attend ing a magnet school or remain ing in public school. 34 It also had the added effect that parents choosing private, religious schools generally had the added burden of having to pay the remainder of th e tuition. The Court said that they could no t reflect upon why most of the private schools in the area were religious or why the majority of parents cho se to send their children there, simply that since the program wa s targeting a wide range of students and th e program itself was neutral to religion it did not violate the Establishment Clause. 35 The Court stated that this program wa s one of true private choice, with no added benefits being channeled toward private schools. 36 Funding for Public Schools While the decision in Zelman seemed to open the door for new voucher programs, this has not been the case. While Zelman did not ban vouchers as unco nstitutional under the U.S. C onstitution, vouchers still need to meet the 32 Id. 33 Id. 34 Id. 35 Id. 36 Id.

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16 requirements under state constitutions. The Tenth Amendment to the United States Constitution 37 states that any power not directly granted to the central government falls to the states. Since education i s not mentioned in the U.S. C onstitution, the establishment of rules and guidelines for the education of its citizen s is left to the individual states. 38 Because education has been left as a power to the individual states, nearly fifty different funding schemes have emerged which represent the economic and political motives of each of the states. 39 Many state constitution s have included terms such as quality, uniform, thorough and efficient in describing the educational mandates setting a level of expectation of the quality of education prescribed by the citizens of the states. 40 These wordings have proven decisive in allowing decisions to be made regarding the finance of education at the state level which is not possible at the federal level. 41 B ecause education is a state matter, per the Tenth Amendment, it is ultimately a decis ion of the individual state Supreme Court to decide whether the voucher program is allowable under the wording of the state constitution. Wide spread voucher programs have been found unconstitutional in several states. One such voucher program was the Flor ida Opportunity Scholarship 42 which allowed any student who attended Florida 37 U.S. Const., amend. X. 38 David C. Thompson, R. Craig Wood and Faith E. Crampton, Money and Schools (Larchmont, NY: Eye on Education, 2008), 44. 39 Thompson, Wood and Crampton, 50. 40 Kern Alexander and M. David Alexander, American Public School Law (Belmont, CA: Wadsworth, 2012), 1055. 41 See e.g., Serrano v. Priest 5 Cal.3d 584 (1971); Serrano v. Priest 18 Cal.3d 728 (1976); Rose v. Council for Better Education 790 S.W.2d 186 (1989); Bush v. Holmes 919 So.2d 392 (2006). 42 Fla. Stat. §1002.38(2)(a)(3) (2005).

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17 public schools the option of moving to a higher performing public school or receiving a voucher to be used at a state approved private school. 43 In Bush v. Holmes 44 the plaintiffs alleged the Opportunity Scholarship program was in violation of Article IX, secure, and high quality system of free public schools that allows studen ts to obtain a 45 In Bus h the Florida Supreme Court ruled that the private school clause of the Florida Opportunity Scholarship Program was unconstitutional under the Florida State Constitution since it violated Article IX, Section 1 of the state Constitution. 46 Specifically, the Florida Supreme Court found that the program violated the language of Article IX, Section 1 by diverting public tax money into private schools which were in direct competition with public schools and away from public schools which were the sole means set out in the state constitution to provide education for the children of Florida. 47 The directive allowing the money to be used to send a student from a failing public school to a higher performing public school w as found to be acceptable under the Florida State Constitution. 48 43 Fla. Stat. §1002.38(1)(2005). 44 Bush v. Holmes 919 So. 2d 392 (2006). 45 Fla. Const. art. IX, §1(a). 46 Bush v. Holmes 919 So. 2d 392 (2006). 47 Id. 48 Id.

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18 Current Voucher Programs Recently, voucher programs in other states have come under challenge due to the specific wording of individual state constitutions. 49 In 2009, the Arizona Supreme Court ruled that statewide voucher programs providing financial assistance for students with disabilities and students in foster care was found unconstitutional as they violated 50 which prohibits the trans fer of state funds from the state treasury to religiously affiliated institutions. 51 Most recently, the Louisiana Supreme Court affirmed the decision of a lower court as it program unconstitutional per the s ution as it relied on money that is unambiguously earmarked for public education. 52 M any voucher programs curre ntly in operation rely on targeting student populations that are seen as disadvantaged; specifically targeted are students from low socioeconomic background and students with disabilities. Voucher programs which target students from low socioeconomic backgrounds are the following: DC Opportunity Scholarship Program 53 the Indiana Choice Scholarship Program 54 the Louisiana Student Scholarship for Educational Excellence Program (New Orleans Program) 55 the 49 See e.g. Cain v. Horne 202 P.3d 1178 (2009); Louisiana Federation of Teachers v. State of Lo uisiana 118 So.3d 1033 (Louis. 2013). 50 Ariz. Const. Art. IX, §10. 51 Cain v. Horne 202 P.3d 1178 (2009) at 1184. 52 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033(Louis. 2013) at 1071. 53 H.R. 471 (2011). 54 Ind. Stat. §20 51 4 (2012). 55 Lo. Rev. Stat. 17 §4014 No. 509 Sec. 1 (2008).

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19 Ohio Cleveland Scholarship and Tutoring Program 56 the Milwaukee Parental Choice Program 57 and the Wisconsin Racine Parental Choice Pilot Program 58 Voucher programs which target students with disabi lities are the following: the Arizona Empowerment Scholarship Account 59 the Florida McKay Scholarship for Students with Disabilities 60 the Georgia Special Needs Scholarship Act 61 Louisiana Pilot Program for Certain Students with Exceptionalities 62 the Ohio Jon Peterson Special Needs Scholarship 63 the Ohio Autism Scholarship Program 64 the Oklahoma Lindsey Nicole Henry Scholarship for Students with Disabilities 65 and the Utah Carson Smith Scholarship Program 66 One additional voucher program which do e s not fall into the categories cited is the Ohio EdChoice Scholarship Program 67 which provides students who attend failing public schools the option of moving to a higher performing school (including private schools) 56 Oh. Stat. §3313.97 (2003). 57 Wis. Stat. §119.23 (2011). 58 Wis. Stat. §180.60 (2011). 59 Ariz. Stat. §15 802. 60 Fla. Stat. §1002.39 (2010). 61 Ga. Stat. §20 2 2110 2118 (20 10). 62 Lo. Rev. Stat. 17 §4031. 63 Oh. Stat. §3301 101 02 (2012). 64 Oh. Stat. §3310.41 (2006). 65 Ok. Stat. §13 102.2. 66 Ut. Stat. §R227 602 (2013). 67 Oh. Stat. §3310.02 (2005).

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20 Statement of the Problem While voucher programs w hich have been instituted state wide have been challenged in court 68 many vouchers which are tailored to meet the needs of specific groups of individuals (especially underprivileged groups) have yet to be challenged. 69 More specifically with regard to the number of vouchers which are tailored to students really no one wants to stand in the way of a disabled 70 Opportunity Scholars hip program was deemed unconstitutional, yet its McKay Scholarship for Students with Disabilities has not yet been challenged in court. While both of the programs have the same general aim of providing vouchers for students to transfer from public into pri vate schools, the main difference is the classification of students being served. The McKay Scholarship funds the vouchers by providing a scholarship to students that is the lesser amount of the per pupil expenditure the student would have received in pub lic schools or the amount of private school tuition and fees. 71 The money and mailed directly to the chosen school; the parent is required to endorse the check to the pri 72 The money being 68 See Student Scholarship for Educational Excellence Program 69 Georgetown Journal on Poverty and Law Policy 17, no. 1 (2010): 38. 70 Human Events 57, no. 23 (2001): 1. 71 Fla. Stat. §1002.39 (10)(a)(5)(b). 72 Fla. Stat. §1002.39 (9)(f).

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21 used to fund the McKay Scholarship Program is being pulled from the pool of funds used to support the public schools of the state of Florida. However, as stated in Bush v. Hol mes 73 the Florida State Constitution is clear in providing funding solely to state public schools which are the only method outlined for educating students in the state of Florida. 74 The Court also found in Bush v. Holmes 75 that providing funding for private schools violated the wording of the state constitution 76 and that funding be provided for a uniform system of schools. 77 Purpose of the Study The purpose of this study wa s to examine the constitutionality of the McKay Scholarship Program for Students with Disabilities 78 under the Florida State Constitution. Specifically, th e study address ed the following research question: Can the logic used in the decision of Bush v. Holmes 79 in finding the Florida Opportunity Scholarshi p Program unconstitutional under the Florida State Constitution be applied to the McKay Scholarship for Students with Disabilities? To perform this analysis, background rese arch on voucher programs was completed. Furthermore, a comprehensive analysis of le gal preced ence on voucher programs must be understood to provide a basis for the framework under which the McKay Scholarship is analyzed. The overall goal of the analysis was to examine whether the McKay Scholarship for 73 Bush v. Holmes 919 So. 2d 392 (2006). 74 Fl. Const. art. IX §1(a). 75 Bush v. Holmes 919 So. 2d 392 (2006). 76 Id. at 398. 77 Fl. Const. art. IX §1(a). 78 Fl. Stat. §1002.39 (2012). 79 Bush v. Holmes 919 So. 2d 392 (2006).

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22 Students with Disabilities can be ch allenged under the current wording of the Florida State Constitution. Significance of the Study While the McKay Scholarship has yet to be challenged in Flor ida State Court, this study provide s insight s into the legal precedence of the program in the ev ent that the program was to be challenged. The logic of such a challenge emerges from Cain v. Horne 80 I n 2009 a voucher program for students with disabilities in Arizona was challenged on its legality under the Arizona State Constitution. 81 Under this progr am, students with disabilities were eligible to attend any public school in their district or receive a scholarship (equivalent to the amount their school would have received had they attended their public school) toward tuition at a private school 82 Students utilizing this voucher must have been enrolled in a public institution the previous year and be accepted under the normal processes of the private school; under this program, once a student was accepted into the program they were eligible to rema in i n it until grade 12 83 Furthermore, the program allowed parents to request their children participate in statewide standardized testing, but did not requir e the participation 84 The money was distributed to the parents in the form of a check which they w ould endorse the funds to 80 Cain v. Horne 202 P.3d 1178 (2009). 81 Ariz. Stat. §15 82 Shannon E. Trebe Arizona Law Review 51, no. 817 (2009): 817 818. 83 Ariz. Stat. §15 891 (2007). 84 Ariz. Stat. §15 891.01 (2007).

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23 the private school 85 T he Arizona S upreme Court examined the constitutionality of the program in Cain v. Horne 86 In the ruling, the c ourt ruled unanimously that the program violated the Aid Clause of the Arizona State Constitution 87 and, was thus, unconstitutiona l 88 According to the Arizona State Constitution, the Aid Clause forbids or any public service corporation 89 Because of this ruling, th e state of Arizona was required to develop a new voucher program for students with disabilities, which the legislature named the Arizona Empowerment Scholarship Account 90 which gives parents a debit card with 90 used for private school tuition, textbooks, online learning, therapy and a variety of other options. As can be seen, voucher programs for disadvantaged populations (such as students with disabilit ies) may not be immune from legal challenge. As a result, this study aimed to identify whether the logic of Bush v. Holmes can be used if a challenge against the M cKay Scholarship were to come before the Florida court s This will allow policymakers to iden tify whether the program will withstand a legal challenge and whether new programs should begin to be developed for students with disabilities or whether existing programs should be eliminated 85 Ariz. Stat. §15 891.04 (2007). 86 Cain v. Horne 202 P.3d 1178 (2009). 87 Ariz. Const. art. IX § 10. 88 Cain v. Horne 202 P.3d 1178 (2009). 89 Ariz. Const. art. IX §10. 90 Ariz. Stat. §15 802.

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24 Method of Study To determine whether the logic used in Bush v. Holmes applies to the constitutionality of the Florida McKay Scholarship for Students with Disabilities, legal into the law that can be described as a form of historical legal research that is neither 91 Primary and secondary sources are used to develop the analysis of the constitutionality of the voucher program. Primary sources to be analyzed are constitutions, statutes, case law and adminis trative law. Limitations of the Study P er the Tenth Amendment to the U S Constitution 92 the power for developing schools and educational systems falls to the states. Because of this, nearly fifty different systems for financing and running systems of education have been developed. Due to the variety of structures in developing educational sy stems, the analysis performed in this study can only be used to identify the constitutionality of the voucher program in the state of Florida. As other states have constitutions with different and unique wording the results developed in this analysis cann ot be generalized to other states. Organization of the Study Chapter 1 provided background on vouchers and a brief legal history of important voucher cases in the United States and Florida. It also provided a list of all current voucher programs in operation in the United States. Chapter 2 outlined a history of relevant court cases argued before the United States Supreme Court regarding voucher 91 Research That Makes a Difference: Complimentary Methods for Examining Legal Issues in Education (Topeka, KS: National Organization on Legal Problems of Education, 1996), 33. 92 US Const. amend. X

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25 programs. Chapter 3 provided information on court cases argued before the various state Supreme Courts, sp ecifically Bush v. Holmes an d highlighted clauses in state c onstitutions which have been used in these challenges Chapter 4 provided background information on special education laws, including the Individuals with Disabilities Education Act, as well as i nformation on special education vouchers The c hapter also provided information on the McKay Scholarship and a n examination of whether the logic used in the case can be applied to the McKay Scholarship. Chapter 5 offered conclusions regarding the McKay Scholarship, implications and recommendations for policymakers regarding the future of the McKay Scholarship.

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26 CHAPTER 2 UNITED S TATES SUPREME COURT DECISIONS RELATING TO VOUCHER PROGRAMS This chapter provided an overview of the Establishment and Free Exercise Clauses as they related to the history of voucher programs in the United States and an overview of case law which led to th e transition from contesting voucher programs at the federal level to the state level. The chapter examined the evolution of case law and programs. The chapter concluded w ith an analysis of Zelman v. Simmons Harris 1 and relates the decision to previous jurisprudence. Early Voucher Programs Established in 1990, the Milwaukee Parental Choice Program 2 was the first publically funded voucher program established in the United States for the purpose of providing low income students to transfer to a higher performing public school of their choice; 3 in 1995, the program allowed for the transfer of students to private, religiously affiliated schools. Soon after the inclusion of religiously affiliated schools into the program, the Milwaukee Parental Choice Program was challenged at the Wisconsin State Supreme Court 4 for violating the Establishment Clause of th e First Amendment to the United States Constitution 5 and the Wisconsin State Constitution. 6 The Wisconsin 1 Zelman v. Simmons Harris 536 U.S. 639 (2002). 2 Wis. Stat. §119.23 (2011). 3 Journal of Education Finance 32, no. 3 (2007): 353. 4 Jackson v. Benson 578 N.W.2d 602 (Wis. 1998). 5 U.S. Const., amend. I.

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27 Supreme Court ruled that the program did not violate either the Wisconsin State Constitution or the U.S. Constitution. 7 Many voucher programs which a llowed for public funding of religious institutions would follow the Milwaukee Parental Choice Program. With the development of these programs came the inevitable challenge of the program under the Establishment Clause. 8 This issue was finally decided in Z elman v. Simmons Harris 9 in which the U.S. Supreme Court ruled that voucher programs which allowed state aid to funnel to religiously affiliated schools did not violate the Establishment Clause of the U.S. Constitution. However, with this ruling the court did not endorse the incl usion of aid flowing to private schools through vouchers satisfies the federal Constitution does not necessarily mean that it will pass judicial scrutiny under state constitutional 10 As a result, whereas it was once thought that voucher programs which allowed public aid to flow to religiously affiliated, private schools could be contested at the federal level under the U.S. Constitution, now these programs need to be argued at the various state supreme courts under the unique wording of the state constitutions. by state 6 Wis. Const. art. I, §18; Wis. Const. art. IV, §18; Wis. Const. art. X, §3. 7 Jackson v. Benson 578 N.W.2d 602 (Wis. 1998). 8 See Zelman v. Simmons Harris 536 U.S. 639 (2002); Bush v. Holmes 767 So.2d 668, 675 (Fla. 1 st DCA 2000). 9 Zelman v. Simmons Harris 536 U.S. 639 (2002). 10 McCarthy, 359.

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28 basis and may depend on more on the dispositions of respective state high courts than 11 Establishment Clause and Free Exercise Clause The concept of an educational voucher was spearheaded by economist Milton Friedman in 1955 when he suggested giving all ele mentary and secondary school students a voucher equal to their per pupil expenditure and allowing the students and their families the opportunity to shop in the free market for a school. 12 Scholars of this ere more productive than the public sector in generating student achievement, this sectoral [ sic ] shift would increase the 13 In a study conducted to determine the effectiveness of the Milwaukee Parental Choice Program, students who enrolled in private schools under the voucher program were compared to a control group of students who were either unsuccessful at receiving a voucher or chose to remain at their public school. 14 After analysis of test data and controlling for individual fixed effects, the researcher found that students enrolled in private schools under the voucher program had faster math score gains and comparable reading score gains when compared to students who did not participate in the voucher program. 15 Ho wever, not all individuals agree with these claims. Discussing the concept of an equality model in 11 McCarthy, 367. 12 Economics and the Public Interest ed. RA Solo (New Brunswick: University of Rutgers Press, 1955). 13 The Journal of Economic Perspectives 16, no. 4 (2002): 8. 14 Quarterly Journal of Economics 113, no 2 (1998): 553. 15 Rouse, 593.

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29 which it is assumed that voucher programs will be limited to low income children, it can mands an immediate response for a small number of children but that the vast majority of children 16 Further, some opponents claim that discussing the competition between public and pr ivate schools is not practical as private schools do not have to conform to the regulations placed on public schools. 17 With the opportunity of shopping in a free market for schools, however, comes the problem of the separation of church and state. With th e opportunity to shop in the free market for schools, parents and their children have the option of selecting a private, religiously affiliated school. This is compounded by the fact that during the 2009 2010 school year, 68.1 percent of all private school s were religiously affiliated 18 and 80 percent of all students who attended a private school attended one which was religiously affiliated. 19 Voucher programs were challenged at the United States Supreme Court and various state Supreme Courts in the mid to l ate 1990s 20 and early 2000s, 21 16 75, no. 2 (2001): 213 214. 17 The Clearing House 76, no. 1 (2002): 28. 18 Urbanicity Type and Selected Characteristics: United States, 2009 http://nces.ed.gov/surveys/pss/tables/table_2009_04.asp 19 Students, by Urbanicity Type and Selected Characteristics: United States, 2009 http://nces.ed.gov/surveys/pss/tables/table_2009_05.asp 20 See Jackson v. Benson 578 N.W.2d 602 (Wis. 1998). 21 See Zelman v. Simmons Harris 536 U.S. 639 (2002); Bush v. Holmes 767 So.2d 668, 675 (Fla. 1 st DCA 2000); Locke v. Davey 540 US 712 (2004).

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30 citing violations of the Establishment Clause of the U.S. Constitution. The Establishment 22 Thomas Jefferson claimed this clause in the First Am 23 In contrast to the Establishment Clause, the First Amendment to the U.S. Constitution also includes a Free Exercise clause which prohibits Congress from establishing laws which prohibit the free exercise of religion by individuals. 24 When applied to educational matters, proponents for vouchers use the Free Exercise Clause able to choose the t ype of school that best matches their child 25 faith based organizations from voucher plans that permit expenditures in secular private organizations vio 26 The U.S. Supreme Court has ruled that parents have the right to send their children to private schools and are not required to send their children to public schools in the 1925 case of Pierce v. Society of Sisters 27 A more recent case from the Sixth Circuit Court presents an interesting contrast to that of the Pierce case. In Mozert v. Hawkins County Board of 22 U.S. Const. amend. I. 23 Congress, Washington, D.C., http://www.loc.gov/loc/lcib/9806/danpost.html 24 U.S. Const. amend. I. 25 Educational Evaluation and Policy Analysis 24, no. 3 (2002): 161. 26 Journal of Education Finance 36, no. 3 (2011): 244. 27 Pierce v. Society of Sisters 268 US 510 (1925).

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31 Education 28 in 1987, a group of parents was concerned that the Hawkin County, Tennessee school d Christian messages which were in direct opposition to the values they were espousing at home. The parents argued, under the Free Exercise Clause, that parents who have objections with the school reading c urriculum request to excuse their children from the classroom during reading instructional time and participate in an alternate program. 29 The Sixth Circuit Court of Appeals ruled that parents which were dissatisfied with the public their children to church schools or private schools, as many of 30 While sending students to private schools is a legal alternative for parents who are unhappy with the education at public schools, 31 what occurs if th e parents cannot afford the tuition to send their students to private schools? The Sixth Circuit Court in Mozert supplies an interesting line of reasoning by simply stating that parents send their children to these alternative placements. For some parents, vouchers may be the only supporters believe that vouchers would improve equality by giving low income families educational opportunities and choices that are already availabl e to middle and upper 32 28 Mozert v. Hawkins County Board of Education 827 F.2d 105 8 (6 th Cir. 1987). 29 Id. at 1060. 30 Id. at 1067. 31 Pierce v. Society of Sisters 268 US 510 (1925). 32 Metcalf and Legan, 27.

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32 It is evident that a paradox is present between the Establishment Clause and Free Exercise Clause when related to voucher programs. While the national government cannot work to establish a religion, they also cannot hinder the free will of individuals to practice any religion they choose. What follows is an overview of case law argued before the United State Supreme Court relating to public aid to private schools. The case law starts with general public aid pro grams to private schools and then moves into specific cases surrounding voucher programs. Early Supreme Court Cases: Indirect Aid to Private Schools Starting around the mid Twentieth Century, a number of cases were brought to the attention of the Supreme Court that centered on public financial aid to private schools. Many of the cases required the Court to determine if the aid given to private schools (many of which were also parochial) violated the Establishment Clause of the First Amendment. The Court ha the First Amendment has consistently presented this Court with difficult questions of 33 One of the earliest cases is the 1947 case Everson v. Board of Education of the Township of Ewing 34 Everson questioned the Constitutionality of a New Jersey statute that reimbursed parents money that was spent sending children to school on public transportation. The law also allowed for parents who sent their children to Catholic scho ol to receive reimbursement. 35 The contention 33 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986) at 485. 34 Everson v. Board of Education of the Township of Ewing 330 U.S. 1 (1947). 35 Id. at 3.

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33 and maintain schools which are dedicated to, and which regularly teach, the Catholic 36 The Court ruled that this l aw did not violate the Establishment Clause. 37 The law was held to be Constitutional since it provided general aid to all parents in the township and did not provide direct aid to parochial schools; specifically, the law does not support the parochial schoo help parents get their children, regardless of their religion, safely and expeditiously to 38 The Court further postulated, regarding the Establishment Clause of the First A a neutral in its relations with groups of religious believers and nonbelievers; it does not 39 Justice Black, in writing for the majority, said these financial servi 40 Establishment Clause of the First Amendment: First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over anot her. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, f or church attendance or non attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or 36 Id. at 5. 37 Id. at 17 38 Id. at 18. 39 Id. at 18. 40 Id. at 18.

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34 secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against 41 Another important early Supreme Court decision regarding indirect private school aid was Board of Education of Central School District No. 1 v. Allen 42 This case wed public schools to lend textbooks to students who attended private schools. 43 The question of to students attending parochial schools. The Court ruled that the law was C onstitutional since it did not advance religion in general. 44 Namely, the Court held that since the books that were lent were not religious in nature and not all teaching that occurs at a parochial school is secular, there was no evidence that the borr owed textbooks were 45 While the complainants argued that lending textbooks had a direct impact on the learning process which could be used to i ndoctrinate religion, the Court did not agree. The Court stated: agree with appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are, in fact, instrumental in the teaching of religion. 46 41 Id. at 15 16. 42 Board of Education of Central School District No 1 v. Allen 392 U.S. 236 (1968). 43 Id. at 238. 44 Id. at 238. 45 Id. at 245. 46 Id. at 248.

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35 Furthermore, the Court reasoned that since textbooks were loaned directly to parents and students, the financial benefit was afforded to the students and parents rather than the schools themselves. 47 The cases of Everson and Allen share some interesting comparisons. Namely, the Court during this time ruled that since the aid was provided to a broad cate gory of individuals who attended both secular and non secular schools and that the aid was provided to the betterment of parents and students and not the school, the aid was Constitutional. The Court in Allen stated that similarities existed between the Al len and the Everson that some children choose to attend a sectarian school, but that was true of the state paid bus fares in Everson and does not alone demonstrate an unconstit utional degree 48 Allen presented policymakers with many questions regarding state aid to private schools. The language of the majority opinion to religious schools so long as the aid was provided for only secular services in the operation of 49 mean that a state could permissibly provide funds to parochial schools f or such things 50 47 Id. at 222 224. 48 Id. at 244. 49 Kern Alexander and M. David Alexander, American Public School Law (Belmont, CA: Wadsworth, 2012), 192. 50 Alexander and Alexander, 192 193.

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36 The Lemon Test In 1971, Lemon v. Kurtzman 51 brought two state acts to the attention of the Supreme Court which, it was argued, were unconstitutional under the U.S. Constitution. The first act was the Rhode Island 1969 Salary Supplement Act that allowed for a 15 percent salary supplement to be given to teachers at non public schools that had below average per pupil spending on secular services in relation to public schools. 52 The act fu rther required the recipient of the aid to teach a subject that was also taught in Rhode Island Public Schools. 53 The problem in the state revolved around the fact that of the 25 percent of students who attended private schools, 95 percent attended schools which were affiliated with Catholicism and only about 250 Catholic school teachers benefitted from the act. 54 The act was found to be in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. 55 Specifically, the Court ruled th at the act because of the religious activity and purpose of the church affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious 56 The Court cern for religious 51 Lemon v. Kurtzman 403 U.S. 602 (1971). 52 Id. 53 Id. at 608. 54 Id. 55 Id. at 603. 56 Id. at 603.

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37 values does not necessarily affect the content of secular subjects, it also found that the 57 8 Nonpublic Elementary and Secondary Education Act which allowed the Superintendent of state public schools to purchase secular educational services from non public schools. 58 As in the Rhode Island act, the state only reimbursed teachers and courses which taught secular subjects and which used state approved textbooks. 59 The act entered into contract with schools which educated 20 percent of all students in the state; of these 20 percent of all students, 96 percent attended schools which had a church affilia tion, most of which were Catholic. 60 As with the Rhode Island act, the Pennsylvania act was deemed Th e entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly non ideological role and the state supervision of non public school accounting procedures required to establish the cost of secular, as distinguished from religious, education. 61 This act further faltered from providing aid directly to the schools in question. 62 57 Id. at 609. 58 Id. 59 Id. at 610. 60 Id. at 610. 61 Id. at 603. 62 Id. at 603.

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38 63 64 Justice Berger went on to state 65 which include st ate sponsorship, financial support, and active involvement in religious institutions. 66 As a result, the Court developed what has become known as the Lemon test for determining a violation of the Establishment Clause to the First Amendment of the U.S. Const itution: Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its pr incipal or primary effect must be one that neither 67 The Court ruled that the aspect of the three prong test as outlined was violated in this 68 The concept of excessive entanglement, as discussed, can be defined as a religion by becom 69 The Lemon Court 63 Id. at 612. 64 Id. at 612. 65 Id. at 612. 66 Id. at 612. 67 Id. at 612 613. 68 Id. at 614. 69 Alexander and Alexander, 193.

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39 whether the government entanglement with religion is excessive, we must examine the character and pu rposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the 70 In order for the state to aid religious institutions, they would have to cons tantly monitor classrooms to ensure that the religious instruction was not being infused with non surveillance this is the other horn of the dilemma there would be excessive enta nglement between government and religion, the image being government spies 71 The Lemon Test provided a basis for the Supreme Court to examine the Establishment Clause, includ ing those dealing with public aid to private schools. Since the establishment of the Lemon Test, the most difficult part of the test has been the primary effects section. 72 Thus, many statutes relating to public aid to private religious schools have been r uled unconstitutional under the primary effects clause, with the speculation that the aid was advancing religion. 73 In determining the primary effects of statutes under the Lemon law, scholars have identified two principals that the Court relies upon: the n umber of people served and the initial recipient of the aid. 74 Generally, the greater number of students who benefit from aid, the more likely the Court is to find 70 Lemon v. Kurtzman 403 U.S. 602 (1971) at 615. 71 California Law Review 75, no. 5 (1987): 6. 72 unds for Private Schools: Political and First Amendment American Journal of Education 101, no. 3 (1993): 216. 73 See e.g., Wolman v. Walter 433 U.S. 229 (1977); Meek v. Pittenger 421 U.S. 350 (1975); Levitt v. Committee for Public Educa tion 413 U.S. 472 (1973). 74 Wells and Biegel, 217.

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40 the aid constitutional (as in offering aid to all parents in the Ewing Township in Everson v. Board of Education ). 75 Also, if the aid was given directly to parents and students rather than to the schools themselves (as in Board of Education v. Allen ), the aid is likely to be found constitutional and pass the primary effects clause. 76 Shift in the in terpretation of the Lemon test The three prong Lemon 77 However, the use of this test has been downgraded in a number of the decisions which were made by the Supreme Court surrounding the Establishment Clause. 78 For example, one of the first was the 1973 case of Committee for Public Education v. Nyquist 79 This case centered around three amendments to the New York Education and Tax Laws as providing aid to nonpublic schools. The first gav e aid to nonpublic schools (serving students primarily from low income families) for the maintenance and repair of facilities; the aid was in the amount of $30 per child (or $40 if the school was older than twenty five years old), which must not exceed 50 percent of the per pupil cost for equivalent services in public school. 80 The second gave some tuition reimbursement to parents of children attending nonpublic schools if the annual taxable income of the family were less than $5,000; the aid provided was $50 for grade school children and $100 for high school students as long as the aid was not more than 75 Wells and Biegel, 217. 76 Wells and Biegel, 217. 77 Alexander and Alexander, 201. 78 Alexander and Alexander, 202. 79 Committee for Public Education v. Nyquist 413 U.S. 756 (1973). 80 Id. at 756.

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41 50 percent of the tuition paid. 81 The third provided tax relief to parents that did not qualify for the tuition reimbursement described; the act allowed parents who had children attending non public schools to deduct a specific su m from their gross, taxable income which decreases as taxable income increases. 82 The Court held that all of the Amendments violated the Establishment Clause under the Lemon Test. 83 Using the Lemon test, the Court found that the three different parts of the act did not have a secular purpose and had the effect of advancing religion as it would subsidize the mission of the non public, religious schools. 84 Further, the Court specifically stated the following regarding the tuition reimbursement part of the act: would similarly violate the Establishment Clause, and the fact that they are delivered to the parents, rather than the schools, does not compel a contrary result, as the effect o f the aid is unmistakably to provide financial support for nonpublic, sectarian institutions. 85 The Lemon test was stated as being only a guideline in determining this case, and the entirety of Establishment Clause cases should be applied in determining d ecisions relating to Establishment Clause statutes. 86 Interestingly, Nyquist highlights the distinction between this type of aid to private, religious institutions and some voucher nificantly religious character of the statute's beneficiaries might differentiate the present cases 81 Id. at 756. 82 Id. at 757. 83 Id. at 798. 84 Id. at 773. 85 Id. at 757 758. 86 Id. at footnote 31.

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42 from a case involving some form of public assistance ( e.g., scholarships) made available generally without regard to the sectarian nonsectarian, or public n onpublic 87 By making this claim, the Court allowed the issue of public vouchers to be argued in the future. Mueller v. Allen 88 further brought doubt into the importance the Court placed on the Lemon test. The central is sue in the case involved a Minnesota law that allowed secondary education from their state taxes; this deduction was limited to $500 for dependents in grades K 6 and $700 for dependents in grades 7 12. 89 Parents who sent their children to parochial schools were also allowed to use this deduction. 90 In fact, of parents who claimed the tax benefits, 96 percent sent their children to private schools, most of which were religiou sly affiliated. 91 The Court ruled that the law was Constitutional and did not violate the Establishment Clause; the Lemon test was utilized to determine the Constitutionality of the statute. 92 The most important element of the law came from the fact that the deduction was available to all parents in Minnesota (including those who sent their children to public schools), keeping the state neutral in terms of entanglement; specifically, the Court claimed that this aid was different from that which was struck dow n in Nyquist 87 Id. at footnote 38. 88 Mueller v. Allen 463 U.S. 388 (1983). 89 Id. at 391. 90 Id. at 392. 91 Id. at 401. 92 Id. at 394.

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43 assistance amounting to tuition grants was provided only to children in nonpublic 93 Chief Justice Rehnquist, in writing for the majority, stated that this program was one that demonstrated true private choice by parents and did not provide incentive to send children to religious schools. 94 Specifically, Rehnquist made the following claim: It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves. The exception, of course, was Nyquist, which, as discussed prev iously, is distinguishable from this case on other grounds. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents. 95 Witters v. Washington Department of Services 96 Zobrest v. Catalina Foothills 97 and Ago stini v. Felton 98 99 which is the second prong in the Lemon test. The Agostini decision also helps to amend the third prong, the excessive entan glement clause, from the Lemon test. 100 The evolution of these three cases helps to trace the Lemon test through its new interpretation by the Court; in effect amounts to a neg ation of the effects of the Establishment Clause as it had before 93 Id. at 398 94 Id. at 399. 95 Id. at 399. 96 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986). 97 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993). 98 Agostini v. Felton 521 U.S. 203 (1997). 99 Alexander and Alexander, 203. 100 Alexander and Alexander, 203.

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44 101 It is important to note that even though the shift in interpretation of the Lemon sic 102 the Lemon test is still at the heart of the decision making process in cases involving the Establishment Clause. 103 Specifically, Kritzer and Richards make the following claim about the pervasiveness of the Lemon The point we wish to make here is not that the justices always follow Lemon or that Lemon has dictated outcomes since it was established as precedence. Few, if any, legal or judicial scholars argue that law matters for the Supreme Court in such a deterministic manner. Inste ad, what we see is that the justices continue to reference Lemon such as entanglement or effect as relevant to their decisionmaking, even if those categories do not determine outcomes and if dissenting or concurring justices question whether the majority or plurality opinion has correctly interpreted Lemon and its analytic framework. 104 Witters centered around a student who suffered from an eye condition who wanted to use available Washington state money from a fund for vocational rehabilitation for the blind to attend a Christian college to become a minister or youth director. 105 The district cou rt 106 said funds could not be allocated because of the Establishment Clause; 107 however, the Supreme Court said the funds could be given to the student since it did not violate the Lemon Test. 108 First, the act did not violate the 101 Alexander and Alexander, 202. 102 Kritzer and Richards, 830. 103 Kritzer and Richards, 830. 104 Kritzer and Richards, 831. 105 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986). 106 Witters v. The Commission for the Blind 102 Wn.2d 624 (1984). 107 Id. at 632. 108 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986) at 485.

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45 first prong since the law was d miniscule amount of the aid awarded under the program is likely to flow to religious 109 The Court stated that determining whether the second prong of the test is violated is more difficult 110 Establishment Clause is not violated every time money previously in the possession of a 111 Further, the Court declared: As far as the record shows, vocatio nal assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington's program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid rehabilitation aid on wholly secular education, and, as a practical matter, have rather greater prospects to do so Aid recipients' choices are made among a huge variety of possible careers, of which only a small handful are sectarian. In this case, the fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State. 112 As a result, the Court determined that the Lemon test was not violated and, as a result, the Establishment Clause had not been violated. Interestingly, the Court allowed that the stronger wording of the Washington State Constitution may prevent the act from being legal under the state constitution. 113 In writing the opinion of the Court, Justice Marshall wrote about implications for the case in developing voucher programs and 109 Id. at 486. 110 Id. at 486. 111 Id. at 486. 112 Id. at 487 488. 113 Id. at 489.

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46 included suggestions on setting Establishment Clause on these pr ograms. 114 While parallels can be made between Nyquist and Witters the Court in Nyquist makes an important point which can be used to distinguish between the two cases: York's program calls for reimbursement for tuition already paid, rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment by the parents. The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. There is no element of coercion attached to the reimbursement, and no assurance that the money wil l eventually end up in the hands of religious schools. 115 Thus, by allowing money to be provided before the tuition has been paid, the state was not entangled in being tied to religion. It has been suggested that Witters simply makes this case for institute s of higher education, but the case of Zobrest 116 negates this fact and allows for this type of flow to elementary and secondary schools in allowing federal grant money for students with disabilities to be used at a private, religiously affiliated school. 117 In Zobrest v. Catalina Foothills 118 the central issue involved assigning a state paid sign language interpreter to a deaf child attending a sectarian, Roman Catholic Educat ion Act 119 (IDEA) and the Free Exercise Clause of the First Amendment required 114 Mark Tushnet The Supreme Court Review 2002 (2002): 6. 115 Committee for Public Education v. Nyquist 413 U.S. 756 (1973) at 785 786. 116 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993). 117 Id. at 13 14. 118 Zobrest v. Catalina F oothills School District 509 U.S. 1 (1993). 119 Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004).

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47 respondent to provide the interpreter and that the Establishment Clause did not bar 120 Initially the district court ruled against the child saying that the interpreter would be furthering religious beliefs and violates the Establishment Clause; however, the Supreme Court ruled that the Establishment Clause did not allow the school board to dismiss the service of the interpreter. 121 The Court utilized the same line of reasoning that was found in Witters and Mueller in the decision for Zobrest 122 First, the IDEA is a broad law which provides benefits to a large range of individuals and does not p rovide financial incentive for the family to choose the religious school, so there is no excessive entanglement. 123 government program that distributes benefits neutrally to any child qu alifying as nonsectarian, or public non 124 The Court goes on to state that a sectarian 125 While the school district argued that placing the interpreter in the school made the case different from Mueller and Witters the Court opined that the stu dent himself is the direct beneficiary from the aid of the interpreter and that this decision comes from one of true 120 Id. at 1. 121 Id. at 3. 122 Id. at 10. 123 Id. at 10. 124 Id. at 10. 125 Id. at 10.

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48 private choice. 126 are the primary beneficiaries of the IDEA; to the e xtent sectarian schools benefit at all 127 A parallel can be drawn between Nyquist and Zobrest in that the direct beneficiary is of particular importance in deciding the constitutionality of acts; in Nyq uist when the school was deemed to be the direct beneficiary the law was struck down, but in Zobrest when the student is seen to directly benefit, the law is held. The Court further claimed that the role of an interpreter is different from that of a tea cher or a counselor since they are interpreting what is said in the classroom. 128 neither add to nor subtract from that environment, and hence the provision of such a 129 The Court makes a point of stating throughout the opinion the importance of free choice in the decision making scho 130 131 This same idea of free will and free choice was seen in the decision in Witters 126 Id. at 12. 127 Id. at 12. 128 Id. at 13. 129 Id. at 13. 130 Id. at 10. 131 Id. at 13.

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49 The decision in Zobrest presents a drastic c hange from that of the 1985 decision in Aguilar v. Felton 132 Aguilar ruled a New York act unconstitutional which allowed the state to use Title I funds to pay the salaries of public school teachers who went to low income schools to provide remediation for s tudents as the act did not pass the excessive entanglement clause of the Lemon test. 133 As the act required teachers to avoid any contact with secular materials, the Court ruled this would be difficult for the state to monitor and, thus, created an excessive entanglement between government and religion. 134 The Court in Zobrest comments on the apparent similarities between the two cases by saying that an interpreter is simply interpreting what a teacher, funded by the private school, is saying. However, in the d issenting opinion, Justice Blackmun claims the logic used was incorrect. Further, he clearly stated the shift in interpretation of the Lemon employee to participate directly in religious 135 Justice Blackmun states that the material presented by the interpreter would be assisting the school with the stated goal of religious indoctrination 136 137 Justice Blackmun makes a further interesting point about the individual liberties that may be infringed upon the state supplied interpreter; in stating a number of t raditions held by various religions, Blackmun stated 132 Alexander and Alexander, 203. 133 Aguilar v. Felton 473 U.S. 402 (1985). 134 Id. 135 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993) at 18. 136 Id. at 22. 137 Id. at 19.

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50 impermissibly threaten individual liberty, but to fail to do so might endanger religious 138 This departure from pr evious decisions is further highlighted by a decision in Grand Rapids School District v. Ball 139 in which the Court ruled a program where public school teachers provided classes to nonpublic school students in nonpublic schools unconstitutional, in part beca state inherent in the provision of secular state provided public instruction in the religious school buildings threatens to convey a message of state support for religion to students 140 Toward Lemon test Agostini 141 Clause case law and, in effect, modify their interpretation of the Lemon test. Agostini was an attempt to reverse Aguilar 142 as the pet itioners felt that the decision reached in Aguilar was no longer consistent with the updated interpretation of Establishment Clause law by the Court. 143 The question of whether the decision reached in Aguilar needed to be revisited was highlighted by a concu rring opinion in Kiryas Joel v. Grumet 144 138 Id. at 23. 139 Grand Rapids School District v. Ball 473 U.S. 373 (1985). 140 Id. at 374 141 Agostini v. Felton 521 U.S. 203 (1997). 142 Aguilar v. Felton 473 U.S. 402 (1985). The placement of public school teachers on public school grounds to provide Title I services was unconstitutional. 143 Agostini v. Felton 521 U.S. 203 (1997) at 208 209.

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51 proper case, be prepared to reconsider Aguilar in order to bring our Establishment Clause jurisprudence back to what I think is the proper trac k government impartiality, 145 In writing the opinion for the majority in Agostini issues that needed to be examined from Aguilar and its companion case Grand Rapids v. Ball 146 in order to deter mine if the ruling in Aguilar needed to be overturned: program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i ) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all p ublic aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Additionally, in Aguilar there was a fourth assumpt program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion. 147 In analyzing past precedence, the Court ruled in a 5 4 decision that the reasoning applied in Aguilar was no longer accurate and that the decision reached was 148 144 Board of Education of Kiryas Joel Village School District v. Grumet 512 U.S. 687 (1994). The Court ruled a plan for developing a school district around the borders of a strict Jewish community uncon stitutional. The State of New York ruled this decision was made as a direct result of Aguilar as the community would not allow their students to be bused to public schools for services. 145 Id. at 717 718. 146 Grand Rapids School District v. Ball 473 U.S. 3 73 (1985). 147 Agostini v. Felton 521 U.S. 203 (1997) at 222. 148 Id. at 235.

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52 cases have unde rmined the assumptions upon which Ball and Aguilar 149 150 The opinion of the cour 151 of the Establishment Clause. The previous cases of Zobrest and Witters provided importance guidance in deciding Agostini and aiding the Court in their new determination of the Establishment Clause Zobrest 152 allowed the Court to abandon the conception that placing public school employees on private school grounds creates a symbolic link between church Zobrest therefore expressly rejected the notion relied on in Ball and A guilar that, solely because of her presence on private school property, a 153 While Justice Souter claimed that the ruling in Zobrest was unique because the interpreter was only workin 154 Witters 155 allowed the court to abandon the belief held in Ball and Aguilar government aid that directly assists the educational function of religious schools is 149 Id. at 222. 150 Id. at 223. 151 Id. at 233. 152 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993). 153 Agostini v. Felton 521 U.S. 203 (1997) at 224. 154 Id. at 228. 155 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986).

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53 156 The Court made a point of stating that the money dispersed in Witters was distributed to the students who, through complete private choice, decided to use the state money to finance a religious e ducation. 157 158 The elevant respects, the provision of instructional services under Title I is indistinguishable from the provision of sign language interpreters under 159 As a result of both programs being offered to all eligible recipients, regardless of the type of school the child chooses to attend (by parental, private choice), the aid is not working to finance religious education. 160 Just as in Witters where money was g public agency (an LEA) that dispenses services directly to the eligible students within its 161 Further, the Court was of the view that since Title I services were, by law, supplementary, the money being used to provide services to children in private, religious schools cannot be said to relieve religious schools of costs they otherwise would have had to incur. 162 As a result of Zobrest and Witters Aguilar 156 Agostini v. Felton 521 U.S. 203 (1997) at 225. 157 Id. at 226. 158 Id. at 226. 159 Id. at 228. 160 Id. at 228. 161 Id. at 229. 162 Id. at 228.

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54 placing full time employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination. 163 One final aspect of Aguilar that the Court turned their attention to was whether the Title I program set up an excessive entanglement between the church and state. The Court claimed that some level of interaction between church and state was to be expe cted and they have always been tolerable of some interaction. 164 Relying on previous precedence, the Court ruled that the Title I program did not result in an excessive entanglement. 165 The Court supplied the following as the reasoning for their decision: In A guilar the Court presumed that full time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties fa ithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. 166 The Court further stated that there is no evidence that the previous practice of requiring unannounced monthly visits by supervisors to the secular classrooms is 167 Most importantly, this decision led to the abandonment of excessive entanglement as a separate test and combined it with 163 Id. at 230. 164 Id. at 233. 165 Id. at 233. 166 Id. at 234. 167 Id. at 234.

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55 168 we use to assess 169 As a result, this new effects test, which determines whether government aid not result in governmental indoctrination; define its recipients by reference to religion; or create an 170 As a result, Agostini can be seen as shortening the Lemon neral principals we use to evaluate whether government aid violates the Establishment Clause have not changed since Aguilar 171 So, while the Lemon test has been modified, the Court makes a clear point in stating that it is still the outline bei ng used to decide Establishment Clause cases and that it is still good law. Some scholars have gone as Agostini modification of the Lemon 172 It can also be questioned, now that excessive entanglement is combined with the effects clause, whether the Court will ever find violations of excessive entanglement. 173 168 Pepperdine Law Review 29, no. 2 (2002): 383. 169 Agostini v. Felton 521 U.S. 203 (1997) at 232. 170 Id. at 234. 171 Id. at 222. 172 Pepperdine Law Review 26, no. 2 (1999): 431. 173 Johnston, 429.

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56 Mitchell v. Helms 174 Lemon test as outlined in Agostini Mitchell ruled on the question of whether the enactment of Chapter 2 of the Education Consolidation and Improvement Act of 1981, 175 which channeled federal funds through the state education agencies to local education agencies to use for secular programs, was in vio lation of the Establishment Clause as it allowed loans to be made to religious schools. 176 The Court ruled, in a plurality opinion, 177 that the program was not in violation of the Establishment Clause, even though 30 percent of the funds went to religious scho ols in Jefferson Parish, Lousiana (the local education agency in question). 178 The Court made use of the revised Lemon test as described in Agostini Specifically Justice Thomas, in writing the opinion of the Court, stated that the decision in Agostini 179 by revising the Lemon test in examining only the first two factors. 180 acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as ha d our cases discussing primary effect, and we therefore 174 Mitchell v. Helms 530 U.S. 793 (2000). 175 C hapter 2 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C. §§ 7301 73 (1981). 176 Mitchell v. Helms 530 U.S. 793 (2000) at 793. 177 A plurality opinion is the opinion of a court when no single opinion received the support of the majority of the court; the plurality opinion received the most support of any opinion but did not receive support from more than half of the judges. In Mitchell a plurality of four justices gave the opinion of the court with an additional two justices occurring o nly in part. 178 Mitchell v. Helms 530 U.S. 793 (2000) at 794. 179 Id. at 807. 180 Id. at 807.

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57 recast Lemon 181 In determining that the secular nature of the law was not under question, the Court turned t heir attention to whether the effect of the law presented a conflict with the Establishment Clause. 182 The Court used the revised effects test as outlined in Agostini ; specifically, they identified whether the law created an indoctrination of religion, defin ed its recipients with reference to religion or created an excessive entanglement between government and religion. 183 As excessive entanglement was not being challenged, 184 the Court focused on the first two aspects of the effects test outlined in Agostini 185 I n identifying whether Chapter 2 defined its recipients with respect to religion, the Court looked at whether the aid created a financial incentive to choose religious education. 186 Furthering this idea, Justice Thomas stated: [S]imply because an aid program offers private schools, and thus religious schools, a benefit they did not previously receive does not mean that the program, by reducing the cost of securing a religious education, creates, under Agostini choose such an education for their children. 187 181 Id. at 807 808. 182 Id. at 808. 183 Agostini v. Felton 521 U.S. 203 (1997) at 234. 184 Mitchell v. Helms 530 U.S. 793 (2000) at 808. 185 Id. at 808. 186 Id. at 813. 187 Id. at 814.

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58 The Court concluded that since aid was based on enrollment and that aid was dispersed without respect to the type of school the child attends, Chapter 2 satisfied this criteria. 188 In discussing whether the law developed an indoctrination of religion, Justice 189 Justice Thomas further alike eligible for governmental aid, no one would conclude that any indoctrination that 190 The Court deter broad array of schools eligible for aid without regard to their religious affiliations or lack 191 In referencing the decisions made in Agostini Zobrest and Witters Justice Tho mas stated that the aid under Chapter 2 reaches these schools only after the private decisions of students and their families. 192 parents not the government who, through their choice of school, determine who 193 188 Id. at 829 830. 189 Id. at 809. 190 Id. at 809. 191 Id. at 830. 192 Id. at 830. 193 Id. at 830.

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59 plurality announces a rule of unprecedented breath for the evaluation of Establishment 194 agreed with the plurality that Chapter 2 had many similarities with the Title I program at question in Agostini and, as a result, must satisfy the Establishment Clause, 195 she stated the following as her two reasons for writing separately: factor singular importance in the future adjudication of E stablishment Clause challenges to government school aid programs. Second, the indoctrination is in tension with our precedents and, in any event, unnecessary to decide the instant case 196 was an important principal to uphold in determining the constitutionality of law, 197 the aid program passes constitutional mus ter solely 198 Justice decisions of Witters and Zobrest ; for while the plurality determined that private choice as seen in Witters and Zobrest were present in Helms do not believe that we should treat a per capita aid program [Chapter 2] the same as the true private choice programs considered in Witters and Zobrest 199 Th is line of 194 Id. at 837. 195 Id. at 867. 196 Id. at 837 838. 197 Id. at 838. 198 Id. at 839. 199 Id. at 842.

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60 government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious 200 the student beneficiary, that student can attend a religious school and yet reta in control over whether the secular government aid will be applied toward the religious 201 fact that the aid flows to the religious school and is used for the advancement of religion is therefore wholly 202 By providing aid that the public would perceive the aid as being a government endorseme nt of religion; and could not indicate to a reasonable observer that the inculcation of religion is endorsed only by the individuals attending the religious school, who each affirmatively choose to direct the secu lar government aid to 203 that this decision could lead to the constitutionality of providing direct government subsidies to religious organizations based on the number of p eople belonging to each organization. 204 200 Id. at 842 843. 201 Id. at 842. 202 Id. at 842. 203 Id. at 843. 204 Id. at 843 844.

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61 four justices, proposed a rule that would up hold any statute that provided aid to private institutions as long as the criterion for distributing the aid was neutral as between 205 her opinions of direct public aid to religious schools as opposed to programs which provide aid to students who then choose to use the money in religious institutions. Zelman v. Simmons Haris 206 presented the Court with an issue which questioned the Constitutionality of the Cleveland Scholarshi p and Tutoring Program (a voucher 207 and support the Constitutionality of the program. Zelman v. Simmons Harris In Zelman v. Simmons Harris 208 the Court directly addressed the issue of whether voucher programs violated the Establishment Clause to the U.S. Constitution known as the Cleveland Schol arship and Tutoring Program 209 (CSTP). The CSTP was developed to provide parents and their children, most of who came from low income 205 Tushnet, 8. 206 Zelman v. Simmons Harris 536 U.S. 639 (2002). 207 Tushnet, 8. 208 Zelman v. Simmons Harris 536 U.S. 639 (2002). 209 Ohio Stat. §3313.975 (2003).

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62 households, 210 the opportunity of receiving a better quality education as the Cleveland public schools were found to be one of the worst in the nation. 211 The voucher was developed to assist students in extremely low performing school districts in Ohio; 212 The voucher program offered tw o types of assistance to families: tuition choosing or tutorial aid for students who chose to remain in the public schools. 213 The tuition assistance could be applied to a ny private school (religious or nonreligious) located in the boundaries of the district that agrees to accept students in a nondiscriminatory manner; public schools from adjacent districts were also able to participate in the program. 214 Low income families were the top priority in the distribution of tuition aid; low income families who chose to attend a private school received 90 percent of tuition up to $2,250 with all other families receiving 75 percent of tuition up to $1,875. 215 Public schools from adjace nt districts received the $2,250 tuition grant in addition to the state, per pupil spending. 216 students in a covered district must equal the number of tuition aid scholarships prov ided 210 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 644. 211 Id. at 644. 212 Id. at 645. 213 Id. at 645. 214 Id. at 645. 215 Id. at 646. 216 Id at 645.

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63 217 The tuition assistance is provided directly to the parents should the families choose to send their child to private schools. 218 nds solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks 219 The following represents the characteris tics of the CSTP during the 1999 2000 school year: In the 1999 2000 school year, 56 private schools participated in the program, 46 (or 82 percent ) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have ele cted to participate. More than 3,700 students participated in the schola rship program, most of whom (96 percent ) enrolled in religiously affiliated schools. 220 To answer the question on the violation of the Establishment Clause, the Court applied the revis ed Lemon test as outlined in Agostini As the Court pointed out that purpose of providing educational assistance to poor children in a demonstrably failing public sch 221 revised Lemon test. 222 In analyzing the program under the effects test, the Court drew on decisions handed down in previous cases for guidance. The Court specifically stated that while their jurisprudence with respect to direct aid programs has changed over the 217 Id. at 646 647. 218 Id. at 646. 219 Id. at 646. 220 Id. at 647. 221 Id. at 649. 222 Id. at 649.

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64 sprudence with respect to true private choice programs has remained 223 Recalling the decisions outlined in Mueller 224 Witters 225 and Zobrest 226 Clause challenges to neutr al government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their 227 Drawing on these previous cases, the Court found a number of commonalities between previous cases and the case of Zelman in aiding them to find the CSTP did not violate the Establishment Clause. One of these elements was private choice for parents and students and neutrality in who received the state aid. In Mueller discussing the law in which parents were able to deduct educational costs associated with sending their children to school, the Court attenuated f inancial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax 228 This idea was furthered in Witters when declaring a scholarsh ip used by a student to attend a Christian college was not in violation of the 223 Id. at 649. 224 Mueller v. Allen 463 U.S. 388 (1983). 225 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986). 226 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993). 227 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 649. 228 Mueller v. Allen 463 U.S. 388 (1983) at 400.

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65 ultimately flows to religious institutions does so only as a result of the genuinely independent 229 In discussing the neutrality of the petitioner has chosen to use neutrally available state aid to help pay for his religious educat 230 Finally, Zobrest adds to the precedence established in the previous cases; in discussing the decision which allowed a student to use federal IDEA funds to pay for a sign language interpreter in his private, religious school the Court, once again, drew on private, parental choice: that a government paid interpreter will be present in a sectarian school only as a re sult 231 The Court highlighted the secular nature of the program which distributes money to all students regardless of religious affiliation overnment program 232 All of these programs highlighted the guiding principle taken into consideration for Zelman that state aid is permissible to flow to private, reli become available only as a result of numerous private choices of individual parents of school 233 229 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986) at 487. 230 Id. at 488 489. 231 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993) at 10. 232 Id. at 10. 233 Mueller v. Allen 463 U.S. 388 (1983) at 399.

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66 Justice Rehnquist, in writing for the majority in Zelman makes the following statement which shows the precedence that was followed: Mueller Witters and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious school s wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by th e way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. 234 As the program under question distributed funds to a wide class of individuals (all students in Cleveland, with a focus on low income students) regardless of their religious affiliation and, importantly, distr ibuted money directly to the parents to be handed over true private choice, consistent with Mueller Witters and Zobrest and thus 235 The Court also too k past precedence in responding to claims that the program should be stricken down because of the large percentage of students choosing to enroll in private, religious schools. Mueller addressed a similar issue in which 96 percent of all parents taking tax deductions had students who attended private, religious schools. The constitutionality of a facially neutral law on annual reports reciting the extent to which 234 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 652. 235 Id. at 653.

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67 various classes o 236 Regarding the high percentage of families of students who attended religious institutions, the Court opined regarding the lack of relief sought by families of students who did not attend religious instit relief to which they are entitled -under a facially neutral statute -should be of little importance in determining the constitutionality of the statute permitting such rel 237 To the other extreme, the Court, in Zobrest had, at the time of litigation, been the only child using a publically funded sign language 238 The Court used this line of reasoning in Zelman to respond to claims by the respondents and Justice Souter, who was in the dissenting group of justices, who claimed that the high percentage of religiously affiliated participating schools and high percentag e of students who used the vouchers to attend these schools led to the unconstitutionality of the program. 239 The Court makes clear that even though 82 percent of the private schools participating were religiously affiliated, this in itself was not a violati question is whether Ohio is coercing parents into send their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoo lchildren, only one of which is to obtain a program scholarship and then 236 Mueller v. Allen 463 U.S. 388 (1983) at 401. 237 Id. at 401. 238 Agostini v. Felton 521 U.S. 203 (1997) at 229. 239 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 655 658.

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68 240 The Court furthered this claim by stating this figure was not abnormal as a high percentage of private schools were religiously affiliated in Cleveland an d Ohio, in general. 241 In arguing that the number cannot be taken into constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school choice program might be permissible in some parts of Ohio, such as 242 In arguing against the significance of the high percentage of students who use the scholarship to attend religious schools, the Court viewed this issue as moot due to Mueller 243 program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose 244 The Court in Zelman made a point of sayi ng that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without 245 The Court also found that the program at question did not provide financial incentives for parents to choose to send their students to religious schools; as in 240 Id. at 655 656. (emphasis in original) 241 Id. at 657. 242 Id. at 657. 243 Id. at 658. 244 Id. at 658. 245 Id. at 662.

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69 previous programs that have been upheld, the Court found the program actually created financial disincentives for both the private schools and the fam ilies. 246 This had been shown in both Zobrest 247 and Witters 248 as the programs were both shown to provide no financial incentive for parents to choose a private school over a public school. In Zelman the same line of reasoning was used in discussing the disinc entive for parents enroll their children in a private school (religious or nonreligious) must copay a portion of 249 The private schools themselves have financial disincentives as schools and one 250 As the program was not found to violate the effects clause of the revised Lemo n test, the Court found the program to not be in violation of the Establishment Clause; specifically: In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits to a wide spectrum of individuals, defined only by financial n eed and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line o f decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause. 251 246 Id. at 654. 247 Zobrest v. Catalina Foothills School District financial incentive fo 248 Witters v. Washington Department of Services for the Blind 249 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 654. 250 Id. at 654. 251 Id. at 662 663.

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70 As a result of this decision, Zelman in effect, became the definitive word on vouchers at the federal level. 252 t would be difficult to envisage any type of government aid program, vouchers or otherwise, to church schools that would be so blatantly religious that this Supreme Court would strike it as violative of the 253 W hile many proponents of vouchers felt that the decision in Zelman would allow for the widespread implementation of voucher programs, this has not been the case. 254 However, while Zelman has cleared the way for vouchers to be permissible at a federal level, t he programs still have to be admissible under the various state constitutions. 255 256 Specifically, there are 257 hurdle to vouchers is likely to be legislative rather than judicia 258 in these states which 252 Alexander and Alexander, 220. 253 Alexander and Alexander, 220. 254 Zelman Educational Policy 21, no. 1 (2007): 73. 255 By the Tenth Amendment to the US Constitution, education is left to the individual states as it was not mentioned as the power was not granted to the federal government. 256 Alexander and Alexander, 223. 257 Michigan Bar Journal (Sept. 2002): 22. 258 Athens, 22.

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71 have more restrictive state clauses. Bush v. Holmes 259 in Florida showcased this on a national level as it was one of the first state wide voucher programs to be stricken down in a state, post Zelman due to legislative problems. Su mmary This chapter examined the policy issues regarding the Establishment Clause to understanding of the Establishment Clause. The Lemon test was developed by th e Court to assist the Court in determining whether federal aid to private institutions was permissible under the Establishment Clause, and was later revised in the Agostini decision. In deciding the case in Zelman the Court relied on previous precedence t o determine the legality of the CSTP including the neutrality of the program, whether the program provided true private choice, whether the program provided financial incentive to the religious school and whether the aid went to the schools indirectly thro ugh the parents. The decision in Zelman made it so that vouchers will more than likely not violate the U.S. Constitution. However, voucher programs will have to also be found in compliance with the individual state constitutions. 259 Bush v. Holmes 919 So. 2d 392 (2006).

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72 CHAPTER 3 STATE SUPREME CO URT DECISIONS RELATING TO INDIVIDUAL STATE VOUCHER PROGRAMS With the decision in Zelman 1 proponents for voucher programs believed that the path was clear for the widespread implementation of vouchers in expanding school Zelman 2 Instead of idealistically large scale program s which were thought to be an avenue to reform 3 The reason for this seemingly lackluster imple mentation of voucher programs lies in the wording and policies of the state constitutions. For, while the decision in Zelman 4 cleared the federal legal barrier in allowing public money to fund student education at private schools, the ultimate decision for whether vouchers can be implemented is left to the individual states. 5 Since education is not specifically mentioned in the wording of the United States Constitution, its governance is left to the control of the states via the Tenth Amendment. 6 The impac t of the Zelman decision on voucher programs is then clear: Zelman decision determined that vouchers do not offend the U.S. Constitution but 1 Zelman v. Simmons Harris 536 U.S. 639 (2002). 2 Educational Policy 21 no. 1 (2007): 41. 3 4 Zelman v. Simmons Harris 536 U.S. 639 (2002). 5 Not the B.Y.U. Education and Law Journal no. 2(2010): 278. 6 prohibited by it to the States, are reserved to the States respectively, or to the peopl

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73 state courts remain free to apply far stricter antiestablishment provisions found in state 7 In U.S. Constitution in terms of evaluating government programs that, in effect, provide 8 schools through vouchers satisfies the federal Constitution does not necessarily mean 9 federal Constitution does not preclude the adoption of voucher plans that include r eligious schools. But it also does not require a state supported voucher plan to include 10 The determination of whether religious institutions can participate in state voucher programs is dependent upon the wording of educational mandates in the individual state constitutions. As education is a function of the individual state, various methods for carrying out this power are observed which impact the wording in the state constitution. St 11 to free thorough and efficient uniform suitable or adequate 12 Interpreting the wording of state 7 8 Columbia Journal of Law and Social Problems 43, no. 1 (2009): 121. 9 Journal of Education Finance 32, no. 3 (2007): 359. 10 McCarthy, 358. (emphasis in original) 11 Kern Alexander and M. David Alexander, American Public School Law (Belmont, CA: Wadsworth, 2012), 36. 12 Alexander and Alexander, 36.

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74 constitutions, such as the terms mentioned previously, is important in the creation of voucher programs in the states, for when these terms are interpreted by the state courts he basis to which the legislature must conform in establishing a 13 The interpretation of these terms and phrases will be decided on a state by state basis and, while state courts can use the results from other state courts in making d ecisions, there is no precedence by which states had to follow the decisions of other state supreme courts. For example, the Florida Supreme Court ruled in 2006 in Bush v. Holmes 14 that its statewide voucher program (which allowed private, religious institu tions) was not constitutional as it did not provide a uniform system of schools. 15 If another state legislature has a similar challenge, while they may be influenced by the decision in Florida, they are not bound to follow the decision set in the state. Thi s is most clearly seen in the disparity between the decision in Bush 16 and the decision on a Milwaukee voucher program in Wisconsin Supreme Court under the uniformity clause in Davis v. Grover 17 While the Florida Supreme Court ruled the Florida program unco nstitutional, 18 the Wisconsin state court ruled the Wisconsin program constitutional under a similar state uniformity mandate. As can be seen by this example, the interpretation from state to state can be different and may have significant impact on the con stitutionality of voucher programs under state constitutions in various 13 Alexander and Alexander, 36. 14 Bush v. Holmes 919 So. 2d 392 (2006). 15 Id. at 412. 16 Id. 17 Davis v. Grover 480 N.W.2d 460, 474 (Wis. 1992). 18 Bush v. Holmes 919 So. 2d 392 (2006) at 398.

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75 respective state high courts than on the exact wording of the state constitutional 19 In looking at potential challenges that voucher programs may face at the state level, scholars have identified three categories under which the challenges can fall: funding provisions, local control provisions and uniformity provisions. 20 Funding provisio 21 22 quire 23 Oftentimes, when arguing the present an array of legal theories and the plaintiffs need only convince the court on one of them in order to bring down a school 24 In the different interpretation of similar uniformity clauses in Florida and Wisconsin, challenging programs on multiple fronts may be needed for p laintiffs to secure a victory. Interestingly, while the legal challenges at the United State Supreme Court were based around the Establishment Clause to the United States Constitution, scholars feel that many challenges at the state level will be most succ essful under non 19 McCarthy, 367. 20 Green and Moran, 275. 21 Green and Moran, 278. 22 Green and Moran, 278. 23 Green and Moran, 278. 24 Brigham Young University Law Review no. 2 (2008): 345.

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76 religious, state education clauses (such as the uniformity and local control provisions). 25 sic ] legislatures to provide for a system of free public education, interpretation s of state education clauses may pose a significant obstacle to implementation of large 26 What follows is an analysis of how voucher programs could be challenged under funding provisions, local control provisions and uniformity provisi ons, and relevant state cases which fall into each category. Funding Provisions Funding provisions in state constitutions include language which place limitations on the funding of schools. 27 Some of the ways in which these funding provisions are only, requiring all education to be under state control, and requiring the legislature to ensure that education 28 One additional class of funding provisions that have shaped a number of challenges against voucher programs are no aid provisions, prohibiting states from funding secular, private education. These funding provisions have general 29 Some researchers have argued that Blaine Amendments began surfacing in state constitutions after Representative James Blaine (R Me.) proposed a constitutional 25 Green and Moran, 278. 26 McCarthy, 365. 27 Green and Moran, 294. 28 ty (New York, 2002), 9. 29 Harvard Journal of Law and Public Policy 26, no. 2 (2003): 556.

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77 amendment which would have barred federal funds en tering religious schools. 30 the United States Senate 31 and as a response, these researchers have argued that various states passed amendments to state constitutions barring funding of secular Catholic sentiment in response to Irish Catholic 32 These researchers argue that after being defeated at the national level, 33 H owever, more recent research Catholic hysteria, three of thirty states had made this principle [no 34 To compound the issue, there is no universally agreed upon definition of what constituted a Blaine Amendment and, as a result, it is unclear how many state constitution contain these amendments. 35 When defined to include the term sectarian, Blain e Amendments include language 36 30 DeForrest, 556 557. 31 Alexander and Alexander, 211. 32 Boyer, 118. 33 DeForrest, 573. 34 Illinois State Education Law and Policy Journal 30, n o. 4 (2010): 37. 35 Johnson and Wood, 34. 36 Johnson and Wood, 38.

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78 erefore not driven by, anti Catholic 37 38 violate 39 more recent research, again suggests this is not the case. It has been suggested more o Catholic, or even anti 40 exercises of state efforts to avoid the excessive entanglement of church and state. 41 As origins, the modern clauses no longer bear any anti 42 In sum: failed federal amendment establishes a particular point in time and an historical context for a specific expression of Constitutional thinking related to the flow of tax dollars into religious insti tutions, an examination of state constitutions makes clear that there is little legitimacy to localizing the the long standing Constitutional tradition concerning the separation of nothing less, than a legitimate continuance of that tradition. 43 37 Johnson and Wood, 39. 38 DeForrest, 625. 39 DeForrest, 625. 40 Johnson and Wood, 36. 41 Johnson and Wood, 48. 42 Johnson and Wood, 34. 43 Johnson and Wood, 46.

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79 Blaine Amendments were one of the issues present in the United States Supreme Court case Locke v. Davey 44 The case centered on the Washington Promise Scholarship Program which assisted academically talented students with post educational expenses; however, the scholarship could not be used to pursue a degree in theology. The program was challenged under the Free Exercise Claus e of the United States Constitution and the Supreme Court ruled the program was not in violation of the clause. 45 The program, according to the Court, was not hostile toward religion as it allowed students to attend religious institutions as long as they we re accredited, the lone exception being denial of funding for vocational religious instruction. 46 The Court makes note of the difference between the Washington state constitution and the federal onstitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to 47 In writing for the majority, Justice Rehnquist furthers this id an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using 48 In finding that the program did not hold hostility toward religion, Justice Rehnquist state of devotional degrees is substantial and the exclusion of such funding places a relatively 44 Locke v. Davey 540 U.S. 712 (2004). 45 Id. at 725. 46 Id. at 724 725. 47 Id. at 722. 48 Id. at 723.

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80 49 Justice Rehnquist concludes by noting the constant struggle between upholdin g both the federal Establishment and Free Exercise 50 The impact of this decision on individual state constitutions is explained as follows: The Supreme Court decision in Locke upholding the Washington Promise Scholarship Program complicates the aspirations by Blaine Amendment opponents. At the same time, it does not simplify the picture for Blaine paradoxically agreed with Blaine opponents that Blaine Amendments were expressions of anti Catholic animus but then observed that because there was no such animus documented in Washington, the Washington sig nificant policy implications for state legislatures and educational policy makers because the future will now require state by state examination of Blaine clauses, with attendant court challenges, to determine whether a state demonstrates specific anti Cat holic hostility in its adoption of its constitutional language and whether any intervening history ameliorates that anti Catholic past. 51 the amendment taking a moderate view toward state aid to private religious education 52 by state examination 53 becomes increasingly important to state voucher programs. Two cases which produced resu lts in favor of voucher programs with respect to a funding clause can be seen in Wisconsin and Ohio. In the Wisconsin Supreme Court 49 Id. at 725. 50 Id. at 725. 51 Johnson and Wood, 35. 52 DeForrest, 625. 53 Johnson and Wood, 48.

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81 case of Jackson v. Benson 54 the Milwaukee Parental Choice Program (MPCP) was challenged under a number of state and federal mandates, including a state funding provision. The MPCP allowed for students in grades K 12 whose families had an income a certain percentage below the national poverty line to be eligible for a voucher to attend either religious or nonreligious participat ing private schools in Milwaukee. 55 The question to the Wisconsin Supreme court was whether the MPCP violated the no aid provision of Article I, Section 18 of the Wisconsin State Constitution; specifically, r the benefit of religious societies, or 56 This clause of the state constitution was referred equivalent of the Establishment Clause of th 57 The Wisconsin Supreme Court made the note that the language of Article I, Section 18 is more specific than the language of the First Amendment. 58 The Wisconsin Supreme Court notes that the lower court of appeals ruled the MPCP unconstit utional by focusing on whether schools were religious seminaries; rather than looking at this part of the statute, the Wisconsin Supreme Court looked at whether the voucher program benefitted the religious institution. 59 To decide this question, the Wiscons in Supreme Court turned to 54 Jackson v. Benson 218 Wis.2d 835 (1998). 55 Wisc. Stat. §119.23(2) (2011). 56 Wisc. Const. Art. I, §18. 57 Jackson v. Benson 218 Wis.2d 835 (1998) at 876. 58 Id. at 876. 59 Jackson v. Benson 218 Wis.2d 835 (1998) at 878.

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82 the Lemon test 60 61 In finding this, the Wisconsin Supreme Court concluded that since the MPCP did not violate the federal p rimary effects test, it therefore did not violate Article I, Section 18 and was thus constitutional under the state constitution. 62 The court claimed that this finding was in tune with the tradition of the state and the past findings of the state court in w accorded parents the primary role in decisions regarding the education and upbringing 63 public funds may be placed at the disposal of th ird parties so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of 64 The court, in this case, made many references to the MPCP rep 65 thus, in indirect 66 67 in Zelman 68 Thi s is in spite of the Wisconsin State Supreme 60 Lemon v. Kurtzman 403 U.S. 602 (1971). 61 Jackson v. Benson 218 Wis.2d 835 (1998) at 878 879. 62 Id. at 879. 63 Id. at 879. 64 Id. at 879. 65 Id. at 881. 66 McCarthy, 360. 67 McCarthy, 360. 68 Zelman v. Simmons Harris 536 U.S. 639 (2002).

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83 Clause was stricter and more specific than its federal counterpart. Another victory at the state level for supporters of vouchers came in the Ohio Supreme Court in Simmons Harris v. Goff 69 Simmons Harris 70 centered on the Cleveland Scholarship and Tutoring Program (CSTP) which was argued prior to its debate at the United States Supreme Court in Zelman 71 The CSTP was argued under a nu mber of clauses, including Article VI, Section 2, the state no aid clause, which states 72 In interpreting this statute seemingly restrictive nature of these provisions, the Ohio Supreme Court interpreted 73 Having had previously discussed a claim against both the federal and state version of the Establishment Clause, the Ohio Supreme Court used the Lemon Test in determining that the program was not unconstitutional. 74 This same test was used in Jackson 75 While the Court in Jackson felt the Lemon reasoned and provides the appropriate line of demarcation for considering the 76 the Ohio Supreme Court 69 Simmons Harris v. Goff 86 Ohio St.3d 1 (1999). 70 Id. 71 Zelman v. Simmons Harris 536 U.S. 639 (2002). 72 Ohio Const. Art. VI, §2. 73 Kemerer, 10. 74 Simmons Harris v. Goff 86 Ohio St.3d 1 (1999) at 12. 75 Jackson v. Benson 218 Wis.2d 835 (1998).

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84 Lemon remains the law of the land, and we 77 After the Ohio Supreme Court ruled that the CSTP was not in violation of the Establishment Clause, they also found the no aid clause was not violated for reasons similar to those found in J ackson Drawing on the concepts of neutrality and parental choice used in Jackson the Ohio Supreme Court stated as the result of independent decisions of parents and stu 78 The court then reasoned that since the money did not flow directly from the state to the school, but rather through the parents of the children, it was not in violation of the no aid clause. 79 Just as in Jackson this decision in Simmons Harris was similar to the interpretation that would be reached by the United States Supreme Court in Zelman 80 While the previous two cases reflect voucher proponents prevailing in Wisconsin and Ohio, other state supreme courts have taken a different view of the no aid statutes and have used the wording to strike down voucher programs. One of the earliest cases of this comes from the state of Washington. In 1986 the United States Supreme Court ruled in Witters v. Washington 81 that a state program which provided financ ial assistance to postsecondary education for disabled students would not violate the federal Establishment Clause by using funding for a student wishing to pursue a 76 Id. at 879. 77 Simmons Harris v. Goff 86 Ohio St.3d 1 (1999) at 5. 78 Id. at 14. 79 Id. at 14. 80 McCarthy, 360. 81 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986).

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85 religious vocation. However, the Supreme Court noted the differences between the federal a nd state constitutions when, on remand, they allowed the Washington Supreme 82 Washington State Constitution. schoo l fund and the state tax for common schools shall be exclusively applied to the 83 On remand, the Washington Supreme Court struck down the program under the wording of the state constitution. 84 Two more recent cases in Arizona and Louisiana have reached similar conclusions to that in Washington by striking down voucher programs due to the wording of state no aid statutes. In 2006 the state of Arizona established two voucher programs: the Scholarship for Pupils with Disabilities Program 85 and the Arizona Displaced Pupils Choice Grant Program. 86 Under the Scholarship for Pupils with Disabilities Program, students with disabilities were eligible to attend any public school in their district or receive a scholarship (equivalent to the amount their school would have received had they attended their public school) toward tuition at a private school if their parents were dissatisfied with their progress in the public school. 87 The Arizona Displaced Pupils Choice Grant Program was targeted at providing vouchers for students in foster care; the parent satisfaction with public schools was not a factor for this 82 Id. at 489. 83 Wash. Const. Art. IX, §2. 84 Witters v. State Commission for the Blind 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989). 85 Ariz. Stat. §15 891. 86 Ariz. Stat. §15 817.01. 87 Cain v. Horne Arizona Law Review 51, no. 3 (2009): 817 818.

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86 program, the only requirement being the student was in foster care. 88 For both programs, the voucher check was endorsed to the parent wh o then endorsed the money to the private school in question. The programs were challenged under the Aid and Religion Clauses of the Arizona Constitution in Cain v. Horne 89 The two statutes in ed for or applied to any religious worship, exercise, or instruction, or to the support of any religious 90 of any church, or private or sectarian school, or any public ser 91 Similar to Wisconsin and Ohio, the Arizona Supreme Court held the Religion Clause of the state constitution should be interpreted in a manner similar to the federal Establishment Clause; in doing this the Arizona Supreme Court found tha t the program was not in violation of the Religion Clause as it did not provide incentives for people to favor secular over nonsecular schools and provided parents with true private choice. 92 However, the Arizona Supreme Court did find the program in violat ion of the Aid Clause in the state constitution. 93 While Horne tried to convince the court that the Religion and of the Aid Clause support the conclusion that the clause requires a construction 88 Trebe, 818. 89 Cain v. Horne 202 P.3d 1178 (2009). 90 91 92 Cain v. Horne 202 P.3d 1178 (2009) at 1181 1182. 93 Id. at 1185.

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87 94 The court reasoned that this was because the Aid Clause not only encompassed more than the Religion Clause, but also because the two clauses serve different purposes, with the purpose of the Aid Clause to be that Arizona develop a strong public school system. 95 In interpreting the Aid Clause, the court made note that they would be following the plain wording of the constitution and the intent of the framers of the state constitution. 96 I n doing so, the court reached the following conclusion regarding the Aid Clause: No one doubts that the clause prohibits a direct appropriation of public funds to such recipients. For all intents and purposes, the voucher programs do precisely what the Aid Clause prohibits. These programs transfer state funds directly from the state treasury to private schools. That the checks or warrants first pass through the hands of parents is immaterial; once a pupil has been accepted into a qualified school under eith er program, the parents or guardians have no choice; they must endorse the check or warrant to the qualified school. 97 permit the appropriations these voucher programs provide 98 The court made this conclusion even though ten years earlier in Kotterman v. Killian 99 the Arizona Supreme Court ruled that educational tax credits which allowed for the financing of private, religious education for students were constitutional. Cain st Kotterman were credits against tax liability, not withdrawals from the state treasury, the 94 Id. at 1182. 95 Id. at 1182 1183. 96 Id. at 1181. 97 Id. at 1184. 98 Id. at 1184. 99 Kotterman v. Killian 972 P.2d 606 (Ariz. 1999).

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88 funds were never in the state's treasury; therefore, the credits did not constitute an 100 In contrast, the funds used for the voucher programs argued in Cain 101 A final case which ruled against voucher programs was Louisiana Federation of Teachers v. State of Louisiana 102 This case centered around two pieces of legislation Scholarships for Educational Excellence Program (SSEEP), a voucher program for the state. 103 The amended program requi red the funds in the Louisiana treasury earmarked for public education to transfer money directly to the participating private schools on behalf of the local public schools. Act 2 also created the Course Choice Program which required the payment of state f providers, postsecondary education institutions, and entities that offer vocational or 104 The second piece of legislation under question was the Senate Concurrent Resolution No. 9 adopted by the BESE [Board of Elementary and Secondary Education] for funding the 105 The legislation was challenged on a number of fronts, most notably Article VIII, Section 13 of the Louisiana Constitution, 100 Cain v. Horne 202 P.3d 1178 (2009) at 1183. 101 Id. at 1183. 102 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 103 Id at 1037. 104 Id at 1038. 105 Id at 1038.

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89 to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish 106 107 In deciding the constitutionality of the statutes, the Louisiana Supreme Court to ok a similar approach to the Arizona Court in Cain in that the court took the intent of the framers of the state constitution into account as well as focusing on the clear meaning of the wording in the constitution. The Court made this point clear by stati unambiguous and its application does not lead to absurd consequences, its language 108 The court focused its attention on the wording of Article VIII, Section 13 which stated that treas ury money earmarked for education must be 109 By taking this viewpoint, the court concluded that there was a restriction on t 110 In making this claim, the court was quick to note the type of aid 106 La. Const. Art. VIII, §13(B). 107 La. Const. Art. VIII, §13(B). 108 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013) at 1050. 109 Id at 1051. 110 Id at 1051.

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90 that can be provided to nonpublic schools by juxtaposing Article VIII, Section 13(A) and Section 13 (B): reason for finding a restriction against MFP [the funding method used in Louisiana to determine funding for schools] funds going to nonpublic schools, in the history of Article VIII, we find a sharply defined dichotomy: under Section 13(A) 111 there is assistance made available to nonpublic schools, but that assistance is limited to textbooks and other instructional arish 112 approved through the unique MFP process cannot be diverted to nonpublic schools or other nonpublic course providers according to the clear, specific, and unambiguous 113 The legislation under question was found to then be in violation of Article VIII, Section 13 of the state constitution and, as a result, the SSEEP was noted unconstitutional. The findings as disc ussed reflect the wide variety of findings at the state level. Of particular interest was the finding in Louisiana 114 when viewed against the findings in Wisconsin, 115 and Ohio. 116 For while the Wisconsin and Ohio state constitutions specifically mention disallo wing the use of state funds for private schools, the Louisiana constitution makes no specific mention of disallowing state funding for private 111 prescribed by the State Board of Elementary and Secondary Education to the children of this state at the 112 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013) at 1053. 113 Id at 1054. 114 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 115 Jackson v. Benson 218 Wis.2d 835 (1998). 116 Simmons Harris v. Goff 86 Ohio St.3d 1 (1999).

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91 schools. 117 Yet, the voucher programs in Wisconsin and Ohio were found constitutional while the program in Louisian a was found in violation of the state constitution. These cases seem to show two broad categories of interpretations of no aid clauses in state constitutions. The cases in Ohio and Wisconsin seem to show an interpretation that focuses on whether the funds go directly to religious schools; focusing more on the neutrality and private choice evident in the Lemon test, the states ruled in favor of the programs. In contrast, the supreme courts of Arizona and Louisiana struck down voucher programs by interpreting the state constitution by an exact word for word definition. Boyer makes a salient point in highlighting this struggle in understanding the type of aid being afforded to private, religious schools under state voucher programs: t benefit and no benefit is difficult to draw. Conceivably as money changes hands, the benefit to religious interests will trend from direct to indirect 118 How state courts view the benefit for the private school could strongly influence any futu re rulings on voucher programs in other states. This, supported by the findings from Wisconsin, 119 Ohio, 120 Washington, 121 Arizona, 122 and Louisiana, 123 help to reflect the difficulty in ruling on the no aid clauses in state constitutions with regard to voucher prog rams. 117 Sutton and King, 247. 118 Boyer, 134. 119 Jackson v. Benson 218 Wis.2d 835 (1998). 120 Simmons Harris v. Goff 86 Ohio St.3d 1 (1999). 121 Witters v. State Commission for the Blind 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989). 122 Cain v. Horne 202 P.3d 1178 (2009). 123 Louisiana Federation of Teachers v. State of Lo uisiana 118 So.3d 1033 (Louis. 2013).

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92 Local Control Provisions A second method that has been used to argue for the disbandment of state voucher programs involves local control provisions in state constitutions. While many states center the authority of education in state legislatures, there are six states which 124 These six states are Colorado, 125 Florida, 126 Georgia, 127 Kansas, 128 Montana, 129 and Virginia. 130 One way in which local control provisions coul d be used to 131 Colorado is currently the only state which has argued against a voucher plan using 132 This point was seen in the Colorado Supreme Court in Denver Board of Educ. v. Booth 133 in which the court ruled tha t there must be a balance of state and local power in running schools in which local school boards have control of instruction and the state maintain general supervision of 124 Alexander and Alexander, 130. 125 Colo. Const. Art. IX, §15. 126 Fla. Const. Art. IX, §4(b). 127 Ga. Const. Art. VIII, §5. 128 Kan. Const. Art. VI, §5. 129 Mont. Const. Art. X, §8. 130 Va. Const. Art. VII, §7. 131 Green and Moran, 288. 132 Alexander and Alexander, 130. 133 Denver Board of Education v. Booth 984 P.2d 639 (Colo. 1999).

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93 the schools. 134 Further, the Colorado Supreme Court ruled in Lujan v. Colorado State Bd. of Educ. 135 that the state system of finance preserves local control over locally raised tax revenues. With this background in place, a challenge to a Colorado voucher program, the Colorado Opportunity Contract Pilot Program 136 (COCPP) was brought before t he Colorado Supreme Court in Owens v. Colorado Congress of Parents, Teachers and Students 137 in which it was argued that the program violated the local control provision in the state constitution. The COCPP was a voucher program targeted at meeting the needs of students from low income households who qualified for free or reduced price lunch and performed at the unsatisfactory level on the state standardized exam or the ACT. 138 School districts which had at least eight schools ranked as performing low or unsati sfactory were required to participate in the program with participation being voluntary for all other districts. 139 If a child participating in the program were accepted into a private school, the local school district was required to make four payments to t 140 The main challenge for the program originated from the Colorado Constitution, which stated: The General Assembly shall, by law, provide for organization of school districts of conv enient size, in each of which shall be established a Board 134 Id. at 649. 135 Lujan v. State Board of Education 649 P.2d 1005 (Colo. 1982). 136 Colo. Rev. Stat. §22 56 101 (2003) (repealed 2006) 137 Owens v. Colorado Congress of Parents, Teachers, and Students 92 P.3d 933 (Colo. 2004). 138 Id. at 936. 139 Id. at 936. 140 Id. at 936.

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94 of Education, to consist of three or more directors, to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their respect ive districts. 141 To decide the issue of constitutionality, the Court in Owens analyzed the intent of the framers of the constitution, 142 just as the courts did in Cain 143 and Louisiana Federation of Teachers 144 stating that the constitution was drafted in 1876 145 With this framework, the Court was of the view 146 While the defendants tried to make the case that l ocal control of instruction did not equate to local control of locally raised funds, the Court counters this point by stating clearly linking control over instruction to dis cretion to spend locally 147 sic ] locally raised funds, the program not only violates the clear mandates of our cases construing article IX, section 15, but also undermines th e basic rationale of our state wide school finance 148 As a result, the Court concluded that since the local school boards were required to turn over locally raised 141 Colo. Const. Art. IX, §15. 142 Owens v. Colorado Congress of Parents, Teachers, and Students 92 P.3d 933 (Colo. 2004) at 938. 143 Cain v. Horne 202 P.3d 1178 (2009). 144 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 145 Owens v. Colorado Congress of Parents, Teachers, and Students 92 P.3d 933 (Colo. 2004) at 938. 146 Id. at 940. 147 Id. at 943. 148 Id. at 943.

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95 revenue to private schools, over whic h they did not have control of the instruction being offered, the COCPP was in violation of Article IX, Section 15 of the Colorado Constitution and, thus, unconstitutional. Owens presented one additional parallel between Cain 149 and Louisiana Federation of Teachers 150 In these cases, the courts have made a specific point of noting that their role is simply to interpret the law under the wording of the state constitution and not rule on the efficacy of the enacted law. In Cain 151 the Court stated programs appear to be a well intentioned effort to assist two distinct 152 In Louisiana Federation of Teachers 153 the Court stated this position at the beginning of the outset, we note this court's limited role in this matter, which concerns educational funding and other legislative restrictions found in the Louisiana Constitution. As appropriately acknowledged by counsel at oral argument, we will not per se address 154 Similar wording can be found in Owens judgment on the wisdom of the General Assembly's policy choices. Rather, it is solely to determine wh 155 149 Cain v. Horne 202 P.3d 1178 (2009). 150 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 151 Cain v. Horne 202 P.3d 1178 (2009). 152 Id. at 1185. 153 Louisiana Federation of Teachers v. S tate of Louisiana 118 So.3d 1033 (Louis. 2013). 154 Id. 155 Owens v. Colorado Congress of Parents, Teachers and Students 92 P.3d 933 (Colo. 2004) at 943.

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96 Further, both Cain and Owens claim that for the program to be continued either the state needs to amend the constitution or by changing the fundamental structure of the program. 156 Uniformity Provisions One final class of provisions which have been used to discredit voucher programs at the state level are uniformity provisions. These provisions require states to create a uniform system of public schools. Currently sixteen states hav e a state constitution which includes a uniformity clause. 157 The most difficult aspect of this argument is determining the meaning of uniformity in the wording of the state constitution. 158 The difficulty is compounded by voucher proponents and opponents feel ing that the term uniform is beneficial to their arguments. For example, voucher 159 Further, courts in a number of states have offered voucher proponents favorable equal funding, others that it denotes equality of opportunity, and still others that it refers 160 However, voucher opponents are using these 156 Cain v. Horne 202 P.3d 1178 (2009) at 1185; Owens v. Colorado Congress of Parents, Teachers and Students 92 P.3d 933 (Colo. 2004) at 944. 157 Ariz. Const. Art. IX, §1; Colo. Const. Art. IX, §2; Fla. Const. Art. IX, §1; Id. Const. Art. IX, §1; Ind. Const. Art. VII, §1; Ky. Const. §183; Minn. Const. Art. XII, §1; Nev. Const. Art. II, §2; N.M. Const. Ar t. IX, §1; N.C. Const. Art. XII, §1; Ore. Const. Art. VII, §3; S.D. Const. Art. VII, §1; Vt. Const. Ch. II 1793, §68; Wash. Const. Art. IX, §2; Wisc. Const. Art. X, §3; Wy. Const. Art. VII, §1. 158 Bush v. Holmes and the Appl ication of State Constitutional Uniformity Journal of Law and Education 35, no. 4 (2006): 417. 159 Bolick, 346. 160 Dycus, 417.

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97 provisions in a different light; these provisions could be used in the legal battle against the same 161 Voucher opponents further 162 ate courts generally upheld school choice 163 Supporting this claim is Jackson v. Benson 164 which was discussed earlier. The argument in these case relied 165 in which the voucher prog rams were argued against the state no aid provisions, uniformity clauses, and a number of other state provisions. The establishment of district schools, which shall be as ne arly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages 166 The first argument against the voucher program on claims of violating the uniformity clause is that since private schools will be receiving tax payer money in accepting voucher students, the school is transformed into a district school, bound by nonsectarian laws 161 Green and Moran, 279. 162 Dycus, 415 416. 163 Rutgers Law Review 64, no. 1 (2011): 317. 164 Jackson v. Benson 218 Wis.2d 835 (1998). 165 Bolick, 345. 166 Wisc. Const. Art. X, §3

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98 and guidelines. 167 The Court rejected the argument claiming that the wording of the legislation outlines, specifically, private schools participating in the voucher program and not transform that school into a district school under art. X, § 3. This conclusion is not 168 The second argument made for the disbandment of the program is that the voucher program siphons student funds into private schools, away fr om district schools which, they argued, are the only means outlined in the state constitution for providing education to children. 169 In responding to this claim, the Court referred to Davis v. Grover 170 in which the constitutionality of the MPCP was challenged on uniformity provisions before the amendments which refueled the argument in Jackson In Davis the Court stated the following: public school with a uniform character of education. Ev en these students participating in the program may withdraw at any time and return to a public school. The uniformity clause clearly was intended to assure certain minimal educational opportunities for the children of Wisconsin. It does not require the leg islature to ensure that all of the children in Wisconsin receive a free uniform basic education. Rather, the uniformity clause requires the legislature to provide the opportunity for all children in Wisconsin to receive a free uniform basic education. The legislature has done so. The MPCP merely reflects a legislative desire to do more than that which is constitutionally mandated. 171 167 Jackson v. Benson 218 Wis.2d 835 (1998) at 893. 168 Id. at 894. 169 Id. at 894. 170 Davis v. Grover 166 Wis.2d 501 (1992). 171 Id. at 538 539.

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99 Jackson makes a similar argument saying that the MPCP does not deprive students the opportunity to participate in the uniform system of public schools as they may return to the school system at any time. 172 The uniformity clause represents a floor, rather than a reflects a legislative desire to do 173 As a result, the Jackson court did not find the MPCP in violation of the uniformity clause as it did not transform private schools to district schools or deny students their constitutional rights to a ba sic education. While school choice programs, like the MPCP, were generally upheld in state courts until 2006 under uniformity provision arguments that would change with Bush v. Holmes 174 which was argued in front of the Florida Supreme Court. The Florida le gislature has, historically, been interested in educational reform and, in the same vein, the development of voucher programs. 175 The reasons for this interest can be described as follows: One is that because Florida has historically contributed a large port ion of the funds for school, it felt it had the right and the obligation to oversee its effectiveness, hence the accountability measures. Two, the poor legitimated a more active state role. 176 172 Jackson v. Benson 218 Wis.2d 835 (1998) at 895. 173 Id. at 895. 174 Bush v. Holmes 919 So. 2d 392 (2006). 175 Educational Policy 21, no. 1 (2007): 226. 176 Harris, Herrington and Albee, 226.

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100 Bush challenged the constitutionality of the Florida Opportunity Scholarship Program 177 (OSP) which, unlike the voucher program in Wisconsin, was a statewide program. Also unlike the decision in Jackson the Florida Supreme Court found the program in viola 178 Florida Opportunity Scholarship Program The Florida Opportunity Scholarship Program 179 (OSP ) was signed into law in June 1999. The OSP focused on providing vouchers for students who attended failing public schools, determined by state standardized test scores, which could be used to attend private schools or higher performing public schools. 180 The OSP allowed for students from schools which had been deemed failing in the state school grading system, had not made adequate progress and had been failing two years in a four year period to be eligible for a voucher. 181 Students who were entering kinder garten or first grade in a school with a failing designation in two of the past four years were also eligible for an immediate voucher. 182 The OSP allowed for students attending these chronically failing schools to attend a higher performing public school or an eligible private school into which the student has been accepted. 183 The requirements for 177 Fla. Stat. §1002.38 (2005). 178 Sutton and King, 259. 179 Fla. Stat. §1002.38 (2005). 180 Fla. Stat. §1002.38 (1) (2005). 181 Fla. Stat. §1002.38 (2)(a)(1) (2005). 182 Fla. Stat. §1002.38 (2)(a)(3) (2005). 183 Fla. Stat. §1002.38 (3)(a)(2) (2005).

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101 private school eligibility included: (a) demonstration of fiscal soundness, 184 (b) notify the Florida Department of Education and local school district of interest in participating in the program, 185 (c) comply with antidiscrimination policies, 186 (d) meet healthy and safety laws, 187 (e) accept students randomly without regard to religious affiliation and/or academic history, 188 (f) abide by instruction, curriculum and attenda nce criteria required of state private schools, 189 experience or special expertise in the subject being taught, 190 (h) comply with state statutes for private schools, 191 (i) accept the state voucher as ful l tuition and fees for students, 192 (j) agree to not require voucher students to profess a specific ideological or religious belief, 193 and (k) adhere to published disciplinary procedures prior to expelling an opportunity scholarship student. 194 The funding for the OSP voucher was written as follows: The maximum opportunity scholarship granted for an eligible student shall be a calculated amount equivalent to the base student allocation multiplied by the appropriate cost factor for the educational program that wo uld have been provided for the student in the district school to which he or she was 184 Fla. Stat §1002.38 (4)(a) (2005). 185 Fla. Stat. §1002.38 (4)(b) (2005). 186 Fla. Stat. §1002.38 (4)(c) (2005). 187 Fla. Stat. §1002.38 (4)(d) (2005). 188 Fla. Stat. §1002.38 (4)(e) (2005). 189 Fla. Stat. §1002.38 (4)(f) (2005). 190 Fla. Stat. §1002.38 (4)(g) (2005). 191 Fla. Stat. §1002.38 (4)(h) (2005). 192 Fla. Stat. §1002.38 (4)(i) (2005). 193 Fla. Stat. §1002.38 (4)(j) (2005). 194 Fla. Stat. §1002.38 (4)(k) (2005).

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102 assigned, multiplied by the district cost differential. In addition, the calculated amount shall include the per student share of instructional materials funding, technolo gy funding, and other categorical funds as provided for this purpose in the General Appropriations Act. The amount of the opportunity scholarship shall be the calculated amount or the amount of the private school's tuition and fees, whichever is less. Fees eligible shall include textbook fees, lab fees, and other fees related to instruction, including transportation. The district shall report all students who are attending a private school under this program. The students attending private schools on opport unity scholarships shall be reported separately from those students reported for purposes of the Florida Education Finance Program. The public or private school that provides services to students with disabilities shall receive the weighted funding for suc h services at the appropriate funding level consistent with the provisions of s.1011.62(1)(e). 195 Payments for the scholarship were made in the name of the parent, mailed by the Department of Education to the participating private school at which point the parent would endorse the check to the private school. 196 Participation in the private portion of the OSP generally increased from its enactment in 1999 with fifty seven students participating in the first year of operation and that number growing to 733 in 2006. 197 Most of the students who enrolled in the OSP were minority students. 198 199 However, it was difficult for the state to keep tr ack of students using the OSP to transfer to a higher 195 Fla. Stat. §1002.38 (6)(a d) (2005). 196 Fla. Stat. §1002.38 (6)(g) (2005). 197 egal Issues and Policy Considerations Raised by the Challenge to the Interim Project Report 2006 139 The Florida Senate (Feb. 2006): 2. 198 Dycus, 419 420. 199 Dycus, 420.

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103 performing public school as state statutes allow parents to choose among various schools in a district. 200 It is interesting to note that the legislature made a point of stating that the purpose of the O gain the knowledge and skills necessary for postsecondary education, a technical 201 The Legislature pointed to the amendment of the educational clause of 202 to the people of the state and requires education to be treated as a 203 of the state. In interpreting this amendment to the state constitution, student should not be compelled, against the wishes of the student's parent, to remain in a school found by the state to be failing for 2 years in a 4 204 opportunity to ob tain a high 205 program was in compliance with the wording of the state constitut ion. The day after the passing of the OSP into law, a group of parents, students and school employees filed 200 Committee on Judiciary, 1 2. 201 Fla. Stat. 1002.38 (1) (2005). 202 Fla. Const. Art. IX, §1. 203 Fla. Const. Art. IX, §1. 204 Fla. Stat. 1002.38 (1) (2005). 205 Fla. Stat. 1002.38 (1) (2005).

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104 suit over the program. 206 The lawsuit cited a number of state and federal mandates the OSP violated, one of which was Article IX, Section 1 of the edu cation clause of the state constitution which the legislature used to support the passing of the OSP. 207 Holmes I When the OSP was initially challenged in court, it was challenged under the following four claims: (a) Article I, Section 3 of the Florida Con stitution 208 clause), (b) Article IX, Section 1 of the Florida Constitution 209 (c) Article IX, Section 6 of the Florida Constitution 210 and (d) the Establishment Clause of the United States Constitution. 211 The initial tria l court granted parties judgment to argue the facial constitutionality of the OSP under Article IX, Section 1. 212 The trial court ruled that the OSP was facially unconstitutional; the defendants appealed to the First District Court of Florida. 213 At the district court, it was argued that the trial court erred by 206 Dycus, 421. 207 Bush v. Holmes 767 So.2d 668 (Fla. 1 st DCA, 2000) at 670. [hereinafter Holmes I ]. 208 exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any polit ical subdivision or agency thereof 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 209 e people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made 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 and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may 210 211 Holmes I 767 So.2d 668 (Fla. 1 st DCA, 2000) at 671. 212 Id. at 671 6 72. 213 Id. at 672.

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105 applying the principle of expressio unius est exclusio alterius 214 to find the OSP unconstitutional. 215 The trial court ruled that since Article IX, Section 1 specifically mentioned public sch ools as the method for providing education for the children of the state of Florida, money could not be used from the state treasury to fund private school education not outlined in the constitution. The First District Court outlined an apparent error in t IX, section 1, by its terms, expressly prohibits state funded scholarships for children to attend a private school; instead, the trial court found an implied prohibition. 216 The prohibits the Legislature from allowing the well delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is 217 Using this logic, the First District Court concluded that Article IX, Section to a single, specified engine, that being the public school 218 The District Court concluded by stating that the Legislature was acting in the best interest of the students in enacting the OSP by not penalizing students who attend failing schools while simultaneously raising expectations and creating competi tion amongst schools. 219 They further add that the intent of the framers of the constitution should be taken into account 214 The expressed mention of one item excludes all others. 215 Holmes I at 673. 216 Id. at 674. 217 Id. at 675. 218 Id. at 675. 219 Id. at 676.

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106 intended it to be; its dominant note is the genera l welfare; it was not intended to bind like a strait 220 The First District Court concluded that the trial court erred by declaring Article IX, Section 1 facially unconstitutional and remanded the case back to trial court to decide the remaining allegations which the trial court originally did not decide. 221 Holmes II While on remand at the trial court, the Supreme Court ruled on their decision in Zelman 222 and, as a result, the plaintiffs withdrew the ir First Amendment claim as well as their claim against Article IX, Section 6 of the Florida Constitution. 223 These withdrawals left only the issue of whether the OSP was in violation of Article I, Section 3. The trial court found on remand that the OSP viol Florida Constitution, a decision which was appealed to the First District Court en banc 224 In discussing the language of Article I, Section 3, the District Court made a distinction between two parts. They claim that the first sentence of the clause stating 225 is akin to the Establishment Clause of the First 220 Id. at 676 (citing State v. State Board of Admin. 157 Fla. 360, 25 So.2d 880, 884 (1946)) 221 Id. at 677. 222 Zelman v. Simmons Harris 536 U.S. 639 (2002). 223 Bush v. Holmes 886 So.2d 340 (Fla. 1 st DCA, 2004) at 345 [hereinafter Holmes II ]. 224 Id. at 346. 225 Fla. Const. Art. I, §3.

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107 Amendment to the United States Constitution. 226 However, the third sentence stating taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institu 227 which expands the restrictions on religion in the state, explicitly restricting the expenditure of funds toward secular institutions. 228 This line of reasoning is similar to that used by the Arizona Supreme Court in Cain 229 In responding to the claims by the state that the wording of Article I, Section 3 places no additional restrictions on state aid then the federal Establishment aid provision of article I, section 3 as imposing no further restrictions on the state's involvement with religious institutions than the Establishment Clause, it would have to ignore both the clear meaning and intent of the text and the unambiguous history of the no aid 230 The District Court claim the passage of Blaine Amendments in various state constitutions in the Nineteenth Century; however, while many states simply prohibited the direct funding of religious institutions, Florida adopted a more restrictive clause in denying direct and indirect funding of secular institutions. 231 The District Court cited Locke 232 226 Holmes II at 344. 227 Fla. Const. Art. I, §3. 228 Holmes II at 344. 229 Cain v. Horne 202 P.3d 1178 (2009). 230 Holmes II at 344. 231 Id. at 348 350.

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108 constitutional amendments such as Florida's no aid provision prohibit the state from using tax dollars to supp 233 The District Court furthered this Constitution in 19 66 68, included in pertinent part in the record on appeal, confirms that the no aid language was intended to impose restrictions beyond what is restricted by 234 District Court discussed a test for whether a program was in violation of the clause: (a) the program must involve the use of state revenues, (b) the state revenues directly or indirectly benefits prohibited entities, and (c) the beneficiaries are secular institutions. 235 Analyzing the clear wording of the OSP, the court first affirmed the finding from the trial court that state revenues 236 Second, since Article I, Section 3 restr icted aiding secular institutions directly or indirectly, the District Court claimed the OSP was in violation of the second prong since having parents endorse voucher checks to secular institutions was a form of indirect aid. 237 While it was argued that the funds from the OSP did not fuel the entire operation 232 Locke v. Davey 540 U.S. 712 (2004). 233 Holmes II at 350. 234 Id. at 351. 235 Id. at 352. 236 Id. at 352. 237 Id. at 352.

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109 mission. 238 Regarding the final pro of the schools receiving state funds from OSP vouchers at the time of the hearing below were operated by religious or church groups with an intent to teach to their attending students the religious an 239 Analyzing the plain wording of the text of the state constitution and the OSP was a similar strategy that was taken by the courts in Cain 240 and Louisiana Federation of Teachers 241 Drawing upon the legis lative history and the clear wording of the text, the District Court took to analyzing the main argument by the state Article I, Section 3 was clause been synonymous wi th the federal Establishment Clause, the decision in the case would be different as the OSP would pass the Lemon test and fall in line with the Zelman 242 The Court, however, referred back to the more restrictive conditions of funding of secular institutions. 243 The District Court utilized Witters 244 as a prime example, in which the United States Supreme Court remanded their decision back to 238 Id. at 353. 239 Id. at 354. 240 Cain v. Horne 202 P.3d 1178 (2009). 241 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 242 Holmes II at 359. 243 Id. at 359. 244 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986).

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110 the state of Washington to decide un der the stricter provisions of the state constitution. While the state tried to utilize Jackson 245 from Wisconsin as an example, the District Court ruled that there are clear differences between the Florida and Wisconsin constitutions: The Florida no aid pro vision, however, is drafted to be substantially more restrictive than the "benefits clause" in the Wisconsin Constitution. First, the Wisconsin provision lacks a prohibition on both direct and indirect benefits. Second, the prohibition in the Wisconsin Con stitution does not expressly bar benefit to all "sectarian institutions," as does Florida's no aid provision. As a result, we find the Jackson case distinguishable and the analysis in Jackson unpersuasive. 246 As a result of the analysis, the District Court 247 In reaching this conclusion, the Court notes, just as the courts in Cain 248 Louisiana Federation of Teachers 249 and Owens 250 that the program passed by the legislature has a truly noble purpose in trying to support 251 Further, just as in Cain 252 and Owens 253 the District Court re commended that amending the state 245 Jackson v. Benson 218 Wis.2d 835 (1998). 246 Holmes II at 361. 247 Id. at 366. 248 Cain v. Horne 202 P.3d 1178 (2009). 249 Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 250 Owens v. Colorado Congress of Parents, Teachers and Students 92 P.3d 933 (Colo. 2004). 251 Holmes II at 366 367. 252 Cain v. Horne 202 P.3d 1178 (2009). 253 Owens v. Colorado Congress of Parents, Teachers and Students 92 P.3d 933 (Colo. 2004).

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111 constitution to lessen the restrictions on government aid to secular institutions is one method that could be taken to provide for the constitutionality of the OSP. 254 Interestingly, while the state claimed that finding the OSP in violation of Article I, Section 3 would impact other state programs involving church affiliated institutions or use of institutions affiliated with a religion t o provide social services, such as substance abuse transitional housing or assistance to victims of crime; to the use of healthcare 255 the District Court claimed this assumption could not be made. Drawing on the intent of the framers of the state enacted, in no small part, to prohibit the state from using its revenue to benefit religious 256 The Court claim ed the decision made with regard to the OSP applies specifically to that program as it undoubtedly moved state funds into sectarian schools. 257 Making a distinction between the mandates of the OSP and other programs, g in the Florida no aid provision would create a constitutional bar to state aid to a non profit institution that was not itself sectarian, even if the institution is [ sic 258 254 Holmes II at 367. 255 Id. at 362. 256 Id. at 362. 257 Id. at 362. 258 Id. at 362.

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112 Holmes III As the First District Court found the OSP unconstitutional, state law required an appeal to be heard by the Florida Supreme Court. 259 On hearing the appeal, the Florida Supreme Court chose to rule on whether the OSP violated Article IX, Section 1 which provides for a uniform system of public schools 260 the First District Court; while this uniformity article was found facially unconstitutional by the initial trial court, the First District Court ruled in Holmes I that the OSP was not in violation of this mandate. 261 The Florida Supreme Court made the point that the court 262 Further, they sta ted that there was no distinction between a small violation of the wording of the state constitution and a large violation, as a small violation could eventually lead to a large violation. 263 264 o f Article IX, state to make adequate provision for the education of all children residing within its 265 orm, efficient, safe, 259 Bush v. Holmes 919 So.2d 392 (2006) at 397. [hereinafter Holmes III ] 260 Id. at 397 398. 261 Holmes I at 677. 262 Holmes III at 398. 263 Id. at 398. 264 Id. at 398. 265 Fla. Const. Art. IX, §1(a).

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113 266 In discussing the wording of this education clause, the court took note of the effect Coalition v. Chiles 267 had on Article IX, Section 1(a). In Coalition v. Chiles in 1996, plai ntiffs alleged that the Florida State Constitution stated that education was a fundamental right for the citizens of Florida and that the state government was violating that right by not making adequate provisions for education. 268 The plaintiffs further cla imed that the state violated the state constitution by having an inadequate funding mechanism which exacerbated socioeconomic status (SES) differences and failed to make provisions for special education students, among other things. 269 The plaintiffs sought a ruling which gave a declaration that education was a fundamental right under the state constitution and that the state had failed to provide the resources necessary for this right. 270 The Florida e defendants basing its decision on the fact that the plaintiffs failed to demonstrate a way to define adequacy that would not endanger the separation of powers, as this was a matter for the state legislature. 271 Even though the court ruled in favor of the state, there was acknowledgement that the current method of financing education might be inadequate. Because of this acknowledgement, the Constitution Revision Committee brought forth two proposals for 266 Fla. Const. Art. IX, §1(a). 267 Coalition v. Chiles 680 So. 2d 400 (1996). 268 Id. at 402. 269 Id. at 402. 270 Id. at 402. 271 Id. at 407.

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114 amendments to Article IX, Section 1 of the state const address the questions raised in Coalition for Adequacy 272 The initial wording of these burden on the state, opening the door for strict legal battles. 273 Eventually, the wording 274 to amend Article IX, Section 1(a) to its current standing. The amendment also added the word of the state. 275 Using this background, the court in Holmes III claimed that after amending the in classified as a Category IV clause, imposing a maximum duty on the state to provide for public education that is uniform and of high 276 The court further found that the language in Article IX, Section 1(a) presented a limitation on legislative p ower by what is expressly omitted from the wording of the mandate. 277 The court stated that Article IX, Section 1(a) was a limitation iction on the execution of that mandate. The second 272 Florida Law Review 52 (2000): 363. 273 Mills and McLendon, 364. 274 Mills and McLendon, 366. 275 Holmes III at 403. 276 Id. at 404. 277 Id. at 406.

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115 and third sentences must be read in pari material, 278 rather than as distinct and 279 The Florida Supreme Court also used the mandate of expressio unius est exclusion alterius in interp reting the constitutionality of the OSP, as did the initial trial court. The court cited the following: [W]here the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even t hough the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Consti tution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. 280 The court made their interpretation clear by 281 nonuniform systems of education in direct violation of the constitutional mandate for a 282 Because of this violation, the court ruled that the OSP was in violation of Article IX, Section 1(a) and, thus, was unconstitutional. As the court ruled the OSP was in violation of Article IX, Section 1(a), they held there was no reason to rule on whether the program was in violation of the no aid clause, as determined by the First District Court. 283 278 Statutes which must be interpreted in light of one another. 279 Holmes III at 406 407. 280 Id. at 407 (citing Weinberger v. Bd. Of Pub. Instruction 93 Fla. 470, 112 So. 253, 256 (1927)). 281 Id. at 407. 282 Id. at 398. 283 Id. at 398.

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116 Two of the main arguments used by the court in ruling in this manner were the diversion of funds from public schools and exemption from uniformity of schools. In terms of diverting money to the private schools, the court claimed that the OSP transferred tax dollars unconstitutionally to the pr ivate schools which provided the same function as the public schools for which the money had been earmarked. 284 This is supported by the court in highlighting the language of Article IX, Section 6 of the Florida d from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of 285 in pari materia evinces the clear intent that public funds be used to support the public 286 While the state attempts to claim that the OSP and private schools were supplementing public education, the Florida Supreme Co urt maintained the clear wording of the constitution free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provis 287 In returning to earlier comments about the distinction between small and large violations of the state constitution, the court found that while the OSP may have been small at the time of trial, its scope was much larger The court stated: 284 Id. at 408. 285 Fla. Const. Art. IX, §6. 286 Holmes III at 411. 287 Id. at 408 409.

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117 Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent's view of the Legislature's authority i n this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the ayments reduce funding for the public education system, the OSP by its very nature undermines the means of fulfilling the constitutional mandate to provide for the education of all c hildren residing in Florida. The systematic diversion of public funds to private schools on either a small or large scale is incompatible with article IX, section 1(a). 288 While the attorney general attempted to make the claim that the uniformity clause est ablished a floor of educational opportunity, similar to the reasoning handed down in Jackson 289 the Florida Supreme Court rejected this argument. 290 s that the state's obligation is to provide for the education of Florida's children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivale 291 The difference in rulings between Holmes III in Florida and Jackson in Wisconsin could which shall be as nearly 292 288 Id. at 409. 289 Jackson v. Benson 218 Wis.2d 835 (1998). 290 Holmes III at 408. 291 Id. at 408. 292 Wisc. Const. Art. X, §3.

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118 The court further highlighted the intent of Article IX, Section 1(a) as reserving state funds for the public school system by contrasting the wording with Article IX, Section 1(b). Article IX, Section 1 (b) of the Florida Constitution states: Every four year old child in Florida shall be provided by the State a high quality pre kindergarten learning opportunity in the form of an early childhood development and education program which shall be voluntary, h igh quality, free, and delivered according to professionally accepted standards. An early childhood development and education program means an organized program designed to address and enhance each ropriate range of settings in the development of language and cognitive capabilities and emotional, social, regulatory and moral capacities through education in basic skills and such other skills as the Legislature may determine to be appropriate. 293 While the wording of Section 1(b) required the state to supply a prekindergarten education for all four year old students in the state, notably different from Section 1(a) was that the wording did not prescribe the manner by which to run the program. 294 Using this reasoning, the court stated: Thus, in contrast to the Legislature's obligation under section 1(a) to make adequate provision for kindergarten through grade twelve education through a system of free public schools, the Legislature is free under section 1( b) to provide for pre kindergarten education in any manner it desires, consistent with other applicable constitutional provisions. 295 The second argument made by the Florida Supreme Court regarding the unconstitutionality of the OSP was the lack of unifor mity between public and private the private school alternative to the public school system meets the criterion of 293 Fla. Const. Art. IX, §1(b). 294 Holmes III at 411. 295 Id. at 411.

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119 296 Citing state statutes, the court claimed th is oversight for uniformity was 297 The court expanded upon this lack of oversight and uniformity by highl ighting other areas where there was a disparity between the public and private schools including teacher qualifications 298 and school curriculum. 299 The Florida Supreme Court summarized their findings as follows: In sum, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida's children through a system of public education. The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the "uniformity" requirements for public schools. Thus, in two significant respects, the OSP violates the mandate set forth in article IX, section 1(a). 300 The court made t he point to state that other publically funded educational and welfare programs would not be affected by the decision. The court stated other programs which may move public dollars into private corporations were structurally different from the 296 Id. at 409. 297 Fla. Stat. §1002.42(2)(h). 298 Holmes III at 409 410. Teachers at private s they have 3 years experience or specialized training, are not required to be certified by the state and may not be required to submit to a background check. 299 Id. at 410. While public schools are r equired to abide by the state Sunshine State Standards, which include the teaching of topics such as the contents of the Declaration of Independence, the essentials of the United States Constitution, the elements of civil government, Florida state history, African American history, the history of the Holocaust, and the study of Hispanic and women's contributions to the United States, private schools are not required to teach these subjects. 300 Id. at 412.

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120 OSP or were not bound by the wording of the Educational Clause in the Florida Constitution. 301 The court also noted that while they agreed with the First District Court that the OSP was unconstitutional, they chose not to agree nor disagree with the determination that i t was unconstitutional due to the no aid provision in the state constitution. 302 In writing a dissent to the majority opinion, Justice Bell stated that the initial finding of the District Court in Holmes I that the OSP did not violate Article IX, Section 1( a) is the only finding that should be reached. 303 Justice Bell stated that, with regard to favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative 304 which the majority failed to do. Using the wording of Article IX, Section 1(a), as did the majority, Justice Bell comes to a different interp retation of the clear meaning, 305 306 with regard to public schooling being the sole means set out by the state constitution for the education of t he children of the state. The reasoning is made through the following claim: 301 Id. at 412. 302 Id. at 413. 303 Id. at 413. 304 Id at 413. (citing Build Inc. 753 So.2d 49, 51 (Fla. 2000).) 305 Id. at 415. 306 Id. at 415.

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121 This mandate is to make adequate provision for a public school system. The text does not provide that the government's provision for education shall be "by" or "through" a system of free public schools. Without language of exclusion or preclusion, there is no support for the majority's finding that pu blic schools are the exclusive means by or through which the government may fulfill its duty to make adequate provision for the education of every child in Florida. 307 Furthering this point, Justice Bell stated that the intent of the framers of the amendmen t to Article IX, Section 1 was not to limit the manner by which students in the state could be educated pro 308 309 Justice Bell concludes with the following: Nothing in the plain language or history of articl e IX requires a finding that the Opportunity Scholarship Program is unconstitutional. The clear purpose behind article IX is to ensure that every child in Florida has the opportunity to receive a high quality education and to ensure access to such an educa tion by requiring the Legislature to make adequate provision for a uniform system of free public schools. There is absolutely no evidence before this Court that this mandate is not being fulfilled. 310 e seen as akin to the finding in Jackson 311 that mandates required a system of public schools to be available to students; by providing the system which students can return to at any time, Justice Bell finds the system of public schools met the mandate of Ar ticle IX, Section 1(a). 307 Id. at 416. 308 Id. at 418. 309 Id. at 418. 310 Id. at 425. 311 Jackson v. Benson 218 Wis.2d 835 (1998).

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122 Impact of the Holmes III decision While many states which have had voucher programs challenged have decided Supreme Court departed from this path and decided the constitutionality based on the uniformity education clause. 312 At the time of trial, Florida was only one of three states which decided the question of constitutionality of voucher programs based on a state education clause. 313 However, the impact uniformity provides little guidance for other state courts that may hear similar 314 Further, while most states 315 While the strong wording of case applicable only to states w ith strongly worded educational mandates, the focus of the court on uniformity may make the decision persuasive to a larger number of states. 316 It is noted, however, that the decisions in Jackson and Simmons Harris v. Goff may limit the impact of Holmes III as a persuasive argument in states with less stringent educational clauses. 312 Sutton and King, 260. 313 Bush v. Holmes: Journal of Legislation and Public Policy 9, no. 2 (2006): 843. 314 Sutton and King, 260. 315 Kahn, 840. 316 Kahn, 842.

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123 Scholars also comment on the decision of the Florida Supreme Court to decide on the constitutionality of the OSP under the uniformity clause, when the First District Court had m ost recently ruled that the program violated the state no aid clause. One which is known for its results oriented jurisprudence, decided to invalidate the program on a state constitutional provision that would not be reviewable by the U.S. Supreme Court (uniformity clause), rather than on one that would be subject to review on First 317 Because of the finding by the Florida Supreme Co all funding of students attending private schools (such as students whose disabilities cannot be accommodated in the public schools), or funding of any schools (such as magnet or public 318 This claim is moot, however, as the Florida Supreme Court directly addresses the issue of students with disabilities attending private schools because their needs cannot be met in public schools. issue in Scavella v. School Board of Dade County 319 under which exceptional students special 320 The p rogram under question in Scavella allowed school districts to use state funds to pay for a private education for students with disabilities if the public school did 317 Bolick, 346 347. 318 Bolick, 347. 319 Scavella v. School Board of Dade County 363 So.2d 1095 (Fla. 1978). 320 Holmes III at 411.

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124 not have the facilities to provide the services needed for a child to receive an education at the public school. 321 for Students with Disabilities 322 is constitutional under the Florida state constitution. The McKay Scholarship allows students with disabilities that have a documented Individualized Education Plan (IEP) or 504 Plan to attend a public school of their choice or be eligible for a voucher w hich can be used to attend an eligible private school. 323 The McKay Scholarship was distinguishable from the program mentioned in Scavella 324 as it allowed students with disabilities to be eligible for a voucher towards a private school education in spite of t listed in their IEP or 504 Plan. In this sense, the McKay Scholarship was more like that of the OSP 325 in that it allowed general categories of students 326 to be eligible for vouchers which can be used to attend private schools. Due to the similarities between the OSP and the McKay Scholarship, the research question becomes: Can the logic used in the decision of Bush v. Holmes 327 in finding the Florida Opportunity Scholarship Program unconstitutional under the Florida State Constitution be applied to the McKay Scholarship for Students with Disabilities? 321 Id. at 412. 322 Fla. Stat. §1002.39. 323 Fla. Stat. §1002.39 (1). 324 Scavella v. School Board of Dade County, 363 So.2d 1095 (Fla.1978). 325 Fla. Stat. §1002.38 (2005). 326 S tudents attending chronically failing schools for the OSP and students with a documented disability for the McKay Scholarship. 327 Bush v. Holmes 919 So. 2d 392 (2006).

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125 Summary Chapter 3 looked at case law pertaining to the legality of vouchers under state constitutions. For while Zelman cleared the way for vouchers at the federal level, state constitutions can be more restrictive than the U.S. Constitution in allowing vouchers to pass. Three of the main avenues under which vouchers have been argued at the state level include no aid provisions, local control provisions, and uniformity provisions. Looking at past case law it becomes clear that questions of legality of vouchers truly become a state by state decision under the various wordings and interpretations of state constitutions. For while voucher programs in Wisconsin a nd Ohio passed state constitutionality under no aid clauses in the state constitutions, programs in Washington, Arizona, and Louisiana were found in violation of no aid clauses in the individual state constitutions. Bush v. Holmes in Florida whi ch questioned the legality of the Florida Opportunity Scholarship under the state constitution has been called the seminal case for voucher challenges in the nation. The challenge initially moved from a trial court which found the OSP in violation of the s tate uniformity clause to the First District Court which overruled the trial court. The case was remanded back to the trial court which found the program in violation of the state no aid clause, which the First District Court concurred. When the challenge was finally brought to the Florida Supreme Court, the the state uniformity clause. The Florida Supreme Court cited reasons such as lack of consistency in curriculu m and teacher credentials in making this claim. The court also reasoned that since tax payer money was meant to be earmarked for the proliferation of

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126 public schools, the only method outlined in the state constitution for educating children, the OSP was in

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127 CHAPTER 4 SPECIAL EDUCATION VOUCHERS AND THE CONSTITUTIONALITY OF THE JOHN M. McKAY SCHOLARSHIP FOR STUDENTS WITH DISABILITIES Since the passage of the Education for All Handicapped Children Act 1 (EAHCA) in 1975 and continuing through its reauthorization as the Individuals with Disabilities Education Act 2 (IDEA), the United States government has played a central role in reforming education for students with disabilities. Some claim, however, that this change was moving slowly in providing appropriate education for students with disabilities. 3 Specifically regarding the growing number of students who were eligible for o address such concerns each time it has amended the IDEA, at least some continue to believe that the current delivery model cannot meet the highly diverse and at times 4 As a res ult of this perceived lack of efficiency in meeting the needs of students with disabilities, several state legislatures established voucher programs targeted specifically at this group of students. 5 Hansel proposed the following reason for why state legisl perceived deficiencies within the existing system, these states instead facilitate the exit 1 Pub. L. No. 94 142, 89 Stat. 773 (1975) (codified as amended at 20 U.S.C. §1400 et se q. (2006)). 2 20 U.S.C. §1400 et seq. (2008). 3 Journal of Law and Education 39, 3 (2010): 292. 4 Hensel, 291. 5 Ariz. Stat. §15 802; Fla. Stat. §1002.39 (201 0); Ga. Stat. §20 2 2110 2118 (2010); La. Stat. §4031; Oh. Stat. §3301 101 02 (2012); Oh. Stat. §3310.41 (2006); Ok. Stat. §13 102.2; Ut. Stat. §R227 602 (2013).

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128 6 As opposed to vouch ers for students from low socioeconomic households, special education vouchers had an added political advantage of targeting a group of students who span all social and economic boundaries. 7 8 the Arizona Supreme Court in Cain v. Horne 9 found two state voucher programs 10 unconstitutional as they violated the wording of the Arizona State Constitution. Cain helped to showcase that special education voucher programs were not immune from challenge at the state level. This then begged the question, in light of the decision in Bush v. Holmes 11 in which the Florida Opportunity Scholarship Program 12 (OSP) was found to violate the wording of the Florida State Constitution, cholarship for Students with Disabilities Program 13 (McKay Scholarship) would be vulnerable to a state constitutional challenge using the same logic under which the OSP was found to be unconstitutional. This chapter began by looking at the history of spec ial education programming under the IDEA. The chapter continued looking at the history of special education law regarding private school placement at the United States Supreme Court. The chapter 6 Hensel, 292. 7 Education Next (2010): 37 38. 8 Greene and Buck, 37. 9 Cain v. Horne 202 P.3d 1178 (2009). 10 Scholarship for Pupils with Disabilities Program (Ariz. Stat. §15 891) and Arizona Displaced Pupils Choice Grant Program (Ariz. Stat. §15 817.01). 11 Bush v. H olmes 919 So. 2d 392 (2006). 12 Fla. Stat. §1002.38 (2005). 13 Fla. Stat. §1002.39.

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129 concluded by providing an overview of the McKay Scholarship a nd provided an analysis of whether the logic used in Bush could be applied in a future constitutional challenge to the McKay Scholarship. Special Education Vouchers The education of students with disabilities has seen dramatic change over the last three h undred years. Throughout much of the Eighteenth and Nineteenth Centuries, students with specific disabilities (e.g. blind, deaf) were educated in schools separate from the traditional population of students. 14 However, starting around the mid Twentieth Cent 15 In the early 1970s, Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania 16 and Mills v. Board of Education 17 provided further support for the inclusion of students with disabilities in public schools. With this background, the United States Congress enacted the Education for All Handicapped Children Act 18 (EAHCA) in 1975. Public schools who accepted funding under this act were required to provide an equal education for all students with disabilities, place students with 14 Larry D. Bartlett, Susan Etscheidt and Greg R. Weisenstein, Special Education Law and Practice in Public Schools (Upper Saddle River, NJ: Pearson, 2007), 5. 15 Bartlett, Etscheidt and Weisenstein, 5. 16 Pennsylvania Association for Retarded Children v. Pennsylvania 334 F. Supp. 1257 (E.D. Pa. 1971); 343, F. Supp. 279 (E.D. Pa. 1972). The plaintiffs in this case argued that two Pennsylvania state laws which denied a free, Under a consent decree, the state agreed to provide a free, public education to all students with disabilities between the ages of 6 and 21. Further, the cases pro vided due process to parents and 17 Mills v. Board of Education 348 F. Supp. 866 (D.D.C. 1972). The plaintiffs in this case argued against the denial of a free, public education for stude nts with disabilities in the District of Columbia. The ruling in the case provided for the inclusion of all students in public education, as well as for the option for students with disabilities to attend an alternate placement if their needs could not be met by the public schools. 18 20 U.S.C. §1400 et seq. (2006).

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130 disabilities in the least restrictive educational environment so as to allow the students to interact with non disabled peers, and provide procedu ral safeguards for parents and became known as the Individuals with Disabilities Education Act 19 (IDEA). The IDEA is, like the EAHCA, a funding act which provides financial assistance from the United States government to public schools which choose to participate in the program. Under the IDEA, a student with a disability is defined as being a child: speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as injury, other health impairments, or specifi c learning disabilities. 20 A central component of the IDEA, borne out of the decisions in PARC 21 and Mills 22 is the guarantee of a free, appropriate public education (FAPE) for all students with disabilities. 23 Under the IDEA, FAPE is defined as providing a public education to students at public expense, which meets the standards of the state education agency, and is appropriate for the needs of the child under their Individualized Education Program (IEP). 24 Som 25 In Board of Education v. 19 20 U.S.C. §1400 et seq. (2008). 20 20 U.S.C. §1401 (3)(a)(i). 21 Pennsylvania Association for Retarded Children v. Pennsylvania 334 F. Supp. 1257 (E.D. Pa. 1971); 343, F. Supp. 279 (E.D. Pa. 1972). 22 Mills v. Board of Education 348 F. Supp. 866 (D.D.C. 1972). 23 20 U.S.C. §1400 (c)(3). 24 20 U.S.C. §1401 (9). 25 Bartlett, Etscheidt and Weisenstein, 67.

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131 Rowley 26 specialized educational serv ices to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's 27 Rather, the goal of the IDEA, according to the Court, is to provide some educational benefit on the child wit h a disability. 28 In concluding, the Court interpreted the IDEA as follows: instruction with sufficient support services to permit the child to benefit educationally from that instructi on. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education and must comport with the child's IEP. In addition, the IEP, and the refore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to ac hieve passing marks and advance from grade to grade. 29 Some courts have compared the wording of the IDEA and the mandate of FAPE to education. 30 26 Board of Education v. Rowley 458 U.S. 176 (1982). Rowley the first case argued in fro nt of the United States Supreme Court which questioned an interpretation of IDEA, questioned the appropriateness of the education of Amy Rowley, a deaf student, under IDEA. The parents and the school disagreed over the need of a full time sign language int erpreter for the student when she was progressing well through the school curriculum with other services in place. The United States Supreme Court said the education was appropriate under FAPE without the sign language interpreter, as the IDEA requires the student to receive some form of specialized service, which Amy was receiving. In concluding this case, the Court developed a two part test which has been used to determine if a school were providing FAPE to a child by questioning whether the state complie d with procedures set forth in the IDEA, and whether the IEP developed through the IDEA ensured the child received educational benefits. 27 Id. at 198. 28 Id. at 200. 29 Id. at 203 204. 30 Doe v. Board of Education 9 F.3d 455 (6 th Cir. 1993) at 459 460.

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132 The individualized education plan (IEP) is the key to providing a student with 31 According to the IDEA, the IEP is a written statement which includes functional performance, a statement of measureable, annual goals, how progress toward the annual goals will be measured, a statement of related and supplemental services and other supports to be provided to the child, an explanation (if necessary) of when the student will not participate with the non disabled students in their class, and accommodations needed on state standardized or alternative assessments. 32 The 11 th e than a mere exercise in public relations. It forms the basis for a handicapped child's entitlement to an individualized and 33 Another central component of the education of students with disabilities under the IDEA is the guarantee for the child to be educated in the least restrictive environment 34 (LRE). Regarding placement of students with disabilities, the following is stated in the IDEA: To the maximum extent appropriate, children with disabilities, including children in public o r private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature o r severity of the disability of a child is such that education in regular classes with the 31 Bartlett, Etscheidt and Weisenstein, 64. 32 20 U.S.C. §1414 (d)(1)(A). 33 Doe v. Alabama State Department of Education 915 F.2d 651 (11 th Cir., 1990) at 654. 34 20 U.S.C. §1412 (a)(5).

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133 use of supplementary aids and services cannot be achieved satisfactorily. 35 is meant by an education in the LRE. 36 37 only when placement in a regular classroom cannot be achieved through the use of supplementary aids and resour ces can an alternate placement be suggested for the child. It has been suggested that as the amount of time the student spends out of the general education classroom increases, the more restrictive the environment becomes. 38 To ensure appropriate that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. 39 The IDEA also provides procedural safeguards for parents to request due process hearings when they feel the placement suggested by the school is not the LRE for their child. 40 As mentioned, there are no specifics written into the IDEA which describe det ermining an LRE placement. While there have been no rulings from the United States Supreme Court interpreting the wording of the meaning of LRE in the IDEA, 35 20 U.S.C. §1412 (a)(5)(A). 36 Michael Rozalski, Angie Stewart and Exceptionality 18: 152. 37 Bartlett, Etscheidt and Weisenstein, 97. 38 Rozalski, Stewart and Miller, 156 157. 39 Bartlett, Etscheidt and Weisenstein, 95. 40 20 U.S.C. §1412 (a)(6).

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134 41 In the 11 th Circuit Court, which includes the state of Florida, the best practice comes from Greer v. Rome City School District 42 The 11 th Circuit Court ruled that the school district, which did not consider all available placement options for a student with Down Syndrome, 43 did not meet the requirement of placing the student in the LRE. 44 In reaching a conclusion, the court made the following point: would receive more benefit from education in a self contained special education classroom than in a regular classroom is due no deference because school officials failed to consider what benefit she would receive from education in a regular classroom with appropriate supplemental aids and services 45 The case of Greer underlines the importance of schools and districts in making placement decisions only after carefully considering all options available to the child and making significant efforts to ensure t he child is educated in the LRE. 46 While the United States Supreme Court has not decided a case on the LRE of a student under the IDEA, they have been clear in their decisions regarding placement of 41 Rozalski, Stewart and Miller, 153. 42 Greer v. Rome City School District 950 F.2d 688 (11 th Cir., 1991). This case centered around the placement of Christy Greer, a student with Down Syndrome. While the school district claimed that Christy needed to be placed in a self contained classroom in a school other than the neighborhood school, the parents and their psychologist disagreed, claiming Christy would receive more benefit in a general education classroom. Throughout the proces s, the school district only considered the following three placement in a regular education classroom with speech services, and placement in a self containe d placement in a general education classroom with instructional support in a resource room, the 11 th Circuit Court determined the school district did not meet the requirements of LRE placement under the IDEA, and required the school district to reconvene an IEP meeting to determine the best placement for Christy. 43 Id. at 692 44 Id. at 699. 45 Id. at 698 [emphasis in original] 46 Rozalski, Stewart and Miller 162.

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135 a student in a private school at public expense if the sc hool or district has not provided the student with FAPE. 47 School Comm. of Burlington v. Department of Ed. of Massachusetts 48 Florence County School District v. Carter 49 and Forest Grove School District v. T.A. 50 provided clear decisions from the Court when it came to private school placements at public expense. From the decisions in these three cases, parents were eligible for tuition reimbursement of a private school placement during a case contesting an IEP if it was determined the original placement by the school district was not appropriate, 51 parents were eligible for tuition reimbursement when they place their child 47 See e.g. School Comm. of Burlington v. Department of Ed. of Mass. 471 US 359 (1985); Florence County School District v. Carter 510 US 7 (1993); New York City Board of Education v. Tom F. 552 US ___ (2007); Forest Grove School District v. T.A. 557 US ___ (2009). 48 School Comm. of Burlington v. Department of Ed. of Mass. 471 US 359 (1985). This case questioned whether parents can place their child at an interim, private school at public expense during a case contesting the appropriateness of an IEP, which could take several years to complete. The Court ruled that as long as the placement was appropriate to the needs of the child, the parents were able to receive reimbursement if the original placement was deemed inappropriate. This decision wa s determined based on the length of time that it often takes to settle a disagreement surrounding the appropriate placement of students with disabilities. 49 Florence County School District v. Carter 510 US 7 (1993). This case was similar to Burlington but differed as the parents placed their child in an interim, private school which had not been approved by the state. In deciding that the IEP of the child in question was inadequate, the Court ruled in favor of the parents and required the school distri ct to reimburse the parents for the private school expenses. The Court reasoned that the failure of the school district was the reason the parents had to look elsewhere for placement and, as the state did not publish a list of approved private schools, the parents had no way of knowing what schools were approved. 50 Forest Grove School District v. T.A. 129 S.Ct. 2484 (2009). This case questioned whether parents could be reimbursed for a private school placement even if the student had not received services under IDEA while attending a public school. The student in question in this case had been diagnosed with attention deficit hyperactivity disorder (ADHD) by an independent evaluator after the parents had asked his public school to evaluate him for a disabi lity. As a result of the diagnosis, the parents removed their son from the public school and enrolled him in a private school focusing on the needs of students with disabilities. The Court ruled that the parents were eligible for reimbursement for the priv ate school expenses because the school district, by not providing services under the IDEA for a child with a disability, was not providing an appropriate education for the student in question. 51 School Comm. of Burlington v. Department of Ed. of Mass. 471 where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" r elief would include a prospective injunction directing the school officials to develop and

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136 in a private school which was not approved by the state, 52 and parents were eligible for tuitio n reimbursement at a private school placement even when the student in question had never received services under the IDEA at their original school. 53 The Court has made a point in these cases that parents move their children to these interim, private schoo l placements at their own risk, and are eligible for tuition reimbursement only if the court finds the IEP and placement proposed by the school was inappropriate, and the private school placement was appropriate given the needs of the child. 54 In Burlington 55 Carter 56 and T.A. 57 the students were awarded private school tuition reimbursements when it was found the school did not provide FAPE under the IDEA. Vouchers aimed at providing a private education at public cost for students with disabilities differ in parents of any child found in need of a special education can ask the school district to 58 Whereas the s tudents in the aforementioned United States Supreme Court cases only received reimbursement when they showed that FAPE was not provided, special 52 Florence County School District v. Carter 510 US 7 (1993) at 13. 53 Forest Grove School District v. T.A. education services, a school district's failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. It is thus clear that the reasoning of Burlington and Carter 54 See e.g. School Comm. of Burlington v. Department of Ed. of Mass. 471 US 359 (1985) at 374; Florence County School District v. Carter 510 US 7 (1 993) at 15. 55 School Comm. of Burlington v. Department of Ed. of Mass. 471 US 359 (1985). 56 Florence County School District v. Carter 510 US 7 (1993). 57 Forest Grove School District v. T.A. 129 S.Ct. 2484 (2009). 58 Greene and Buck, 37.

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137 education vouchers allow students with a documented disability under the IDEA to receive payment toward a priva te school education without the need to show FAPE was not provided. A debate had emerged which discussed the positives and negatives of offering vouchers to special education students. One of the claims made by voucher proponents for students with disabi better tailored to meet the individualized needs of children who simply do not respond 59 Graduation and dropout rates of students with disabilities have been used to support this call for more individualized instruction in meeting the needs of students with disabilities. In the 2008 2009 school year, 77.2 percent of all eligible students graduated with a high school diploma; 60 however, the graduation r ate for all eligible students with disabilities who were being served under the IDEA was 60.6 percent. 61 In terms of high school dropouts during the 2008 2009 school year, 22.4 percent of all students being served under IDEA dropped out of high school 62 whil e only 8.1 percent of all students enrolled in high school dropped out during the same school year. 63 Proponents for vouchers make the claim that low graduation rates 59 Hensel, 29 4. 60 Schools: Selected Years, 1869 1870 through 2020 http://nces.ed.gov/prog rams/digest/d11/tables/dt11_111.asp 61 Number of 14 through 21 year old students served under Individuals with Disabilities Education Act, Part B, who exited school, by exit reason, age, and type of disability: 2007 08 and 2008 http://nces.ed.gov/programs/digest/d11/tables/dt11_118.asp 62 Id. 63 Percentage of high school dropouts among persons 16 through 24 years old (status dropout rate), by income level, and pe rcentage distribution of

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138 and high dropout rates could be due to the public school system not meeting the needs of s tudents with disabilities and special education vouchers could allow parents to search for a private school better tailored to meet the specific needs of their child. Some researchers stated that the current structure of funding special education in the pu blic schools of providing additional per pupil money from the state, provides an incentive to not serve students with disabilities to the greatest extent possible. 64 It was stated that the additional funds schools receive for special education funding may b e diverted to general education programs in order to attract more general education students to the 65 Another aspect that special education voucher proponents ref er to in supporting this funding strategy is the reduction in the amount of students recommended for special education services; specifically, according to proponents of vouchers, the identifying disabled stu dents, because any student identified as disabled becomes a potential choice student who might leave 66 This argument is directly related to the previous argument made by vo ucher proponents that schools are over identifying students with disabilities to gain additional revenue for the http://nces.ed.gov/programs/digest/d11/tables/dt11_117.asp 64 Jay P. Peabody Journal of Education 82, 4(2007): 712. 65 Greene, 712 713. 66 Greene and Buck, 41.

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139 education regardless of whether they are truly disab led; this is detrimental to disabled 67 One of the areas under the IDEA that has seen the greatest increase in identification is the category of specific learning disabilities, which some feel may be simply due to labeling ra ther than a true increase in the disability. 68 Voucher proponents have argued that this increase in the prevalence of specific are more subjective in their diagnosis a nd less expensive in their treatment than the 69 Researchers state that this over identification may have more to do with students receiving a poorer education and, as a result, scoring more poorly on standardized asse ssments than having a true learning disability. 70 The benefit of over identifying students with specific learning disabilities, according to proponents of special education vouchers, is highlighted by the following ating specific learning disabilities may further incline schools and educators to assign that label, especially if the additional funds produced by identifying a child with a specific learning disability exceed the marginal cost of providing that student w 71 Individuals who are opposed to vouchers for special education have arguments which revolve around a central idea voucher programs for students with disabilities r than improving the delivery of 67 Greene, 704. 68 Greene, 706. 69 Greene, 706. 70 Greene, 706. 71 Greene, 706.

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140 72 Opponents of vouchers for this population of students question whether the benefits received from a voucher can match the benefits and legal protection they are afforded in the public scho ol setting. 73 These opponents cite a lack of regulation over the private schools as a major concern and identify a number of problems that students with disabilities may face when moving to a private school, including lack of specialized instruction, limite d teacher qualifications, lack of accountability, and loss of legal protection. 74 For example, research has shown that a majority of students who use special education voucher attend schools with little to no differentiated programming 75 which could be detri mental to their progression through the curriculum, especially in the absence of clearly delineated benchmarks and standardized exams at private schools. 76 Furthering the argument, opponents cite the waiver of legal rights by parents under the IDEA when the y accept a special education voucher. 77 Opponents of vouchers feel this may be a strategy by schools which were ctually encourage 78 The following statement summarizes this argument: 72 Hensel, 324. 73 Hensel, 321. 74 Hensel, 322 330. 75 Hensel, 323 76 Hensel, 331. 77 Hensel, 330. 78 Hensel, 330 331.

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141 As a result, the exit option for many parents will provide a choice between the Scylla and Charybdis e ither they must burden their already struggling child with removal, or they must remain in a school that does vouchers leaves parents operating with no legal safety net and few meaningful options when things go wrong. 79 Another argument used against vouchers for special needs students is that they 80 opponents claim that special edu cation students place a gaining public acceptance for some funding of private school, special needs vouchers ce for all students in 81 Some opponents claim that using this group to pave the way for future voucher programs is not serving the intended population: [W]hile special needs vouchers offer an attractive option for mildly impaired children with s ufficient resources to attend specialized schools, they offer considerably less to the majority of children with disabilities who use vouchers to enter private schools with no individualized instruction. The benefits secured by the former group, moreover, are offset by the costs to those children with disabilities who remain in a public setting. Because state and federal legislatures should look to the well being and advancement of all children with disabilities rather than a select few in setting policy ag endas, voucher programs should be rejected or approached with extreme caution in the future. 82 79 Hensel, 332. 80 Hensel, 296. 81 Hensel, 296. 82 Hensel, 293 294.

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142 John M. McKay Scholarship for Students with Disabilities Program 83 84 According to state statutes, the program was established to allow students with a documented disability through an IEP or 504 Plan 85 the option of attending an alternate publ ic school than the one they had been assigned or receive a scholarship to attend a private school. 86 The disabilities which were covered under the McKay Scholarship were as follows: Students with disabilities include K 12 students who are documented as havi ng an intellectual disability; a speech impairment; a language impairment; a hearing impairment, including deafness; a visual impairment, including blindness; a dual sensory impairment; an orthopedic impairment; an other health impairment; an emotional or behavioral disability; a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; a traumatic brain injury; a developmental delay; or autism spectrum disorder. 87 By April 1 and within 10 days of an IEP o r 504 Plan meeting, the local school districts are required to inform parents of the choice options available under the McKay Scholarship. 88 Students were eligible for the private option of the McKay Scholarship if they received specialized instruction unde program, spent the prior school year in attendance at a Florida public school or the 83 Fla. Stat. §1002.39. 84 Hensel, 297. 85 A document providing for accommodations for students with disabilities outlined by the Americans with Disabilities Act (not included under the IDEA) which need accommodations to access general education. 86 Fla. Stat. §1002.39 (1). 87 Fla. Stat. §1002.39 (1). 88 Fla. Stat. §1002.39 (5)(a)(1).

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143 Florida School for the Deaf and Blind, or is the dependent child of a member of the Armed Services who transferred to Florida due t o a permanent change and meets all other requirements outlined in the program. 89 After choosing to apply for a private school voucher, the parents must obtain an acceptance for admission from an approved private school and sent a written notification to the state at least sixty days prior to the first voucher payment. 90 Families who chose the private school option, had the opportunity to receive a reevaluation on the IEP or 504 Plan every three years 91 and may request for the student to participate in the stat e standardized assessments at the local public schools. 92 If the parent chose the public school option, the parent had the choice of which public school the child attended 93 and the local school district must provide transportation to the school for the chil d. 94 Regardless of the choice of private or public school placement, the voucher remained in effect until the student returned to public school (from private placement), graduated high school, or turned twenty two years of age. 95 According to state statute s, private schools were eligible to participate in the McKay Scholarship Program if they were sectarian or nonsectarian. 96 Other 89 Fla. Stat. §1002.39 (2)(a)(1 2). 90 Fla. Stat. §1002.39 (2)(b). 91 Fla. Stat. §1002.39 (5)(c). 92 Fla. Stat. §1002.39 (5)(f). 93 Fla. Stat. §1002.39 (5)(a)(2). 94 Fla. Stat. §1002.39 (5)(a)(3). 95 Fla. Stat. §1002. 39 (4)(a). 96 Fla. Stat. §1002.39 (8).

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144 requirements that must be met by private schools participating in all Florida scholarship programs are as follows: (a) must abid e by all antidiscrimination provisions, 97 (b) notify the Florida Department of Education of its intent to participate in the programs, 98 (c) director, address or physical location within fifteen days of the change, 99 (d) complete student enrollment and attendance verification requirements, 100 (e) complete an annual notarized compliance statement verifying that all employees who have direct contact with students have undergone a background screening, 101 (f) demonstrate fiscal soundness, 102 (g) meet state and local health and safety laws, 103 with teachers who hold baccalaureate or higher degrees, have at least 3 years of teaching experience in public or private schools, or have special skills, knowledge, or 104 and (i) require all employees to undergo a background screening and fingerprinting. 105 Further, under the McKay Scholarship, all private schools were required to provide documentation to 97 Fla. Stat. §1002.421 (2)(a). 98 Fla. Stat. §1002.421 (2)(b). 99 Fla. Stat. §1002.421 (2)(c). 100 Fla. Stat. §1002.421 (2)(d). 101 Fla. Stat. §1002.421 (2)(e). 102 Fla. Stat. §1002.421 (2)(f). 103 Fla. Stat. §1002.421 (2)(g). 104 Fla. Stat. §1002.421 (2)(h). 105 Fla. Stat. §1002.421 (2)(i).

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145 schedules at least 30 days before a scheduled payment. 106 Private schools were also required to maintain an actual ph ysical location for the student to attend class. 107 Finally, private schools were to be academically accountable to the parents by with any families who chose to particip ate in state standardized testing. 108 State statutes clearly state: The inclusion of eligible private schools within options available to Florida public school students does not expand the regulatory authority of the state, its officers, or any school distr ict to impose any additional regulation of private schools beyond those reasonably necessary to enforce requirements expressly set forth in this section. 109 is exercising his o 110 As a result, parents are required to comply with the published policies of the private school. 111 As private schools are not eligible to participate in the federally funded IDEA, this cou ld involve students not receiving services under their documented IEP or 504 [special education voucher] program requires participating private schools to implement an 112 In addition to abiding by all private school 106 Fla. Stat. §1002.39 (8)(b). 107 Fla. Stat. §1002.39 (8)(d). 108 Fla. Stat. §1002.39 (8)(c). 109 Fla. Stat. §1002.39 (12). 110 Fla. Stat. §1002.39 (9). 111 Fla. Stat. §1002.39 (9)(d). 112 Hensel, 315.

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146 policies, all children participating in the McKay Scholarship Program must remain in attendance in the private school for the entirety of the school year. 113 Finally, any parent who selected the private option of the McKay Scholarship was required to comply with the following requirement regarding the endorsement of the state money to the school: Upon receipt of a scholarship warrant, the parent to whom the warrant is made must r estrictively endorse the warrant to the private school for deposit into the account of the private school. The parent may not designate any entity or individual associated with the participating private scholarship warrant. A participant who fails to comply with this paragraph forfeits the scholarship. 114 In terms of funding, students who opted to use the McKay Scholarship to pay toward the tuition at a private school, the scholarship awarded the lesser a mount of the Finance Program (FEFP). 115 The FEFP calculation was determined by taking the state base student allocation and multiplying both the cost factor for the st program and the district cost differential. 116 For students in special education, evident cost differentials are multipliers of 1.117 for general special education services in grades K 3, 1.000 for students in grades 4 8, 1.020 for studen ts in grades 9 12, 3.524 for students in Support Level IV and 5.044 for students in Support Level V. 117 Students receiving general special education services can fall into Support Levels I III which call 113 Fla. Stat. §1002.39 (9)(c). 114 Fla. Stat. §1002.39 (9)(f). 115 Fla. Stat. §1002.39 (10)(b). 116 Fla. Stat. §1002.39 (9)(a)(1). 117 2013 Funding for Florida School Districts, http://www.fldoe.org/fefp/pdf/fefpdist.pdf

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147 for supports ranging from no services or assistance be yond the normal services available to all students (Level I), periodic services or assistance with minor accommodations (Level II), or more frequent services and accommodations to access the general curriculum. 118 Support Level IV required students to receiv e specialized instruction, using specialized equipment or receive extensive modifications to access the learning environment. 119 Support Level V required students to receive intense modifications to the learning environment, including very small group or one on one assistance. 120 The local school district was required to submit a list of students who are participating in the private school option of the McKay Scholarship and are reported separately from other students for the purposes of the FEFP. 121 After the Florida Department of Education has received the proper documentation of students who are participating in the private option of the McKay Scholarship: equal amounts no late r than September 1, November 1, February 1, and April 1 of each academic year in which the scholarship is in force. The initial payment shall be made after department verification of admission acceptance, and subsequent payments shall be made upon verifica tion of continued enrollment and attendance at the private school. Payment must parent shall restrictively endo rse the warrant to the private school for deposit into the account of the private school. 122 118 http://www.broward.k12.fl.us/studentsupport/ese/PDF/MatrixHandbook6 13 12.pdf 119 Id. 120 Id. 121 Fla. Stat. §1002.39 (9)(c)(1). 122 Fla. Stat. §1002.39 (9)(e).

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148 After the checks have been endorsed by parents to the participating private schools, the cial Services a sample of endorsed warrants to review and confirm compliance with 123 In June 2005, 15,910 students were participating in the McKay Scholarship; 124 in June 2013 the number of students participating in the program had increased to 26,611. 125 In the June 2013 Quarterly Report, it was reported that during the 2012 2013 school year 46.9 percent of all students participating in the McKay Scholarship Program were white, 24.9 percent were Black/African American, 23.9 percent we re Hispanic/Latino, and 4.3 percent were of another ethnic background. 126 Further, during the 2012 2013 school year, 49.8 percent of all students participating in the McKay Scholarship were eligible for either free or reduced price lunch. In June 2013 there were 1,163 schools participating in the McKay Scholarship Program with 64.5 percent of these schools identified as religious institutions; 127 in June 2005 there were 702 schools participating with 65.1 percent identifying as religious. 128 In 2012 2013 school y ear 85.7 percent of all students participating in the McKay Scholarship were from IEP Support Levels I III, 6.6 percent were from IEP Support Level IV, 1.5 percent were from IEP 123 Fla. Stat. §1002.39 (9)(f). 124 http://www.floridaschoolchoice.org/Information /McKay/quarterly_reports/mckay_report_june2005.pdf 125 http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_report_june2013.pdf 126 Id. 127 Id. 128 http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_report_june2005.pdf

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149 Support Level V, and 6.2 percent were eligible due to a 504 Plan. 129 Further, th e breakdown for students participating in the program by primary exceptionality was as follows: 33.7 percent were specific learning disabled, 10.3 percent were language impaired, 10.8 percent were speech impaired, 5.6 percent had an emotional/behavioral di sability, 7.2 percent had an intellectual disability, 10.2 percent had autism spectrum disorder, 19.4 percent were labeled as other health impaired, and 2.8 percent were labeled as having some other category of disability. 130 The total payment for all studen ts participating in the McKay Scholarship during the 2012 2013 school year was $168,890,915.55. 131 During the 2012 2013 school year, the range of payments for students with a documented IEP was $4,395 to $19,105, with an average payment of $7,019; 132 students who were eligible for the McKay Scholarship due to a 504 Plan averaged payments of $3,977. 133 The Constitutionality of the McKay Scholarship There are clear similarities between the McKay Scholarship and the Florida Opportunity Scholarship Program 134 (OSP) wh ose private school options was found to be in violation of the wording of the Florida State Constitution in Bush v. Holmes 135 129 http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_report_june2013.p df 130 Id. 131 Id. 132 http://www.floridaschoolchoice.org/Information/McKay/files/Fast _Facts_McKay.pdf 133 Id. 134 Fla. Stat. §1002.38 (2003). 135 Bush v. Holmes 919 So.2d 392 (2006).

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150 Central to this list of similarities is the ability of students under both programs to attend private schools, 136 the ability of the student to choose to attend a higher performing public school, 137 the use of public money from the FEFP to fund the voucher programs, 138 having parents endorse the check to the private school, 139 providing the voucher to a specific classification of students, 140 a nd providing that teachers at the years of teaching experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide 141 This similarity has been noted in the literature as well. 142 Specifically, the following has been stated: of the OSP because parents of enrolled and eligible students are given state money in the form of vouchers, and they then use the vouchers at the school of their choice. Both programs have the same two step payment process, and both allow for the students to use the vouchers at religious schools. T he only true difference in the programs is who is eligible to receive the vouchers. 143 136 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 137 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 138 Fla. Stat. §1002.39 (10)(a)(1); Fla Stat. §1002.38 (6)(a) (2003). 139 Fla. Stat. §1002.39 (9)(f); Fla. Stat. §1002.38 (6)(g) (2003). 140 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 141 Fla. Stat. §1002.39 (8)(a); Fla. Stat. §1002.421 (2)(h) ;Fla. Stat. §1002.38 (4)(g) (2003). 142 Educational Policy 21 no. 1 (2007): 221. 143 Stetson Law Review Vol. XXXIII (2004): 598.

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151 Due to the similarities between the programs, the logic of the Florida Supreme Court in Bush 144 could be applied to the McKay Scholarship to provide insights into the const itutionality of the program under the Florida State Constitution. As the Bush court focused their attention on the clear wording of Article IX, Section 1 145 of the Florida Constitution, so too will this analysis. Further, as the Bush 146 court only determined t he private school option of the OSP to be in violation of the Florida Constitution, this analysis will focus on the constitutionality of the private school option of the McKay Scholarship and, like the decision in Bush allow for the public school option o f the McKay Scholarship to be constitutional. The Florida Supreme Court made reference to the point that they chose to 147 of Article IX, Section 1 of the Florida State Constitution. The Bush court chose to focus their analysis on their interpretation of the following two make adequate provision for the education of all children residing within its border 148 149 The Bush court ruled that the private 144 Bush v. Holmes 919 So.2d 392 (2006). 145 Flor ida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free p ublic schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and 146 Bush v. Holmes 919 So.2d 392 (2006). 147 Id. at 398. 148 Fla. Const. Art. IX, §1(a). 149 Fla. Const. Art. IX, §1(a).

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152 school portion of the OSP was in violation of the Florida State Constitution, specifically Article IX, Section 1, for two main reasons: diverting public money from the state funding public schools and a lack of uniformity of schools. In highlighting the aspect of the OSP diverting money from the public school system, the Bush court referenced Article IX, Section 6 of the Florida Constitution, the fund may, be appropriated, but only to the support and maintenance of free public 150 In rea ding Article IX, Section 6 in pari material with Article IX, Section 1(a), the Bush court concluded that public funding could only be used to finance a system of free, public schools and not a competitive, private system of schools. 151 To further this point, the Bush court made note that Article IX, Section 1(a) 152 which provided for public K 12 education, differed from the wording of Article IX, Section 1(b) 153 which provided for universal, free, prekindergarten education. While the Florida Constitution mandated K public 154 (emphasis added), universal, prekindergarten was mandated to be delivered through professional 155 Because of the difference of wording, the Bush 150 Fla. Const. Art. IX, §6. 151 Bush v. Holmes 919 So.2d 392 (2006) at 411. 152 Fla. Const. Art. IX, §1(a). 153 Fla. Const. Art. IX, §1(b). 154 Fla. Const. Art. IX, §1(a). 155 Fla. Const. Art. IX, §1(b).

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153 court claimed that public money earmarked for education must be used to fund the free, public school system that is mandated in the Florida Constitution. Using this logic espoused by the Bush court, it would seem that the McKay Scholarship would be found to be in violation of Article IX, Section 1(a) 156 of the Florida Constitution because of the diversion of money away from the free, public school system. According to Florida State Statu tes, money was set aside for the McKay Scholarship from state General Revenue funds in the following manner: Following notification on July 1, September 1, December 1, or February 1 of the number of program participants, the department shall transfer, from General Revenue funds only, the amount calculated under paragraph (b) Education Finance Program and from authorized categorical accounts to a separate account for the scholarship progr am for quarterly disbursement to the parents of participating students. 157 The General Revenue fund comprised a large portion of Florida state funding toward education and was financed through a number of tax sources, most prevalent of which was the 6 perce nt sales tax on goods and services. 158 The format by which the McKay Scholarship was funded was similar to the method by which the OSP was funded. According to state statutes, the OSP was funded in the following manner: Following annual notification on July 1 of the number of participants, the Department of Education shall transfer from each school district's appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical accounts to a separate account for the Op portunity Scholarship Program for quarterly disbursement to the parents of participating students. 159 156 Fla. Const. Art. IX, §1(a). 157 Fla. Stat. §1002.39 (10)(d). 158 http://www.fldoe.org/fefp/pdf/fefpdist.pdf 159 Fla. Stat. §1002.38 (6)(f) (2003).

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154 According to the wording of state statutes, both the McKay Scholarship and the OSP divert money that had been earmarked for public schools in the FEFP to a separate fund which is used, in part, to fund private school education for students. As the Bush court noted that Article IX, Section 1(a) prohibited the funding of alternate systems of education other than the system of free, public schools outlined in t he state constitution, the McKay Scholarship should be found to be in violation just as the Bush court found the OSP to be in violation. 160 private schools on either a small or large scale is incom patible with article IX, section 161 While the beneficiary class of students differs between the two programs, the method by which the vouchers were funded is, for all intents and purposes, equivalent. Because of the diversion of public funds into an a lternate system of private schools which are in direct competition with the free, public schools, the McKay Scholarship violated this mandate of Article IX, Section 1(a). The second reason the Bush court supplied for the unconstitutionality of the OSP wa s that it violated the uniformity wording of the Florida State Constitution. The Bush court summarized their findings as follows: In sum, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provisi on for the education of Florida's children through a system of public education. The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools tha t are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the 160 Bush v. Holmes 919 So.2d 392 (2006) at 409. 161 Id. at 409.

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155 "uniformity" requirements for public schools. Thus, in two significant respects, the OSP violates the mandate set forth in article IX, section 1(a). 162 Regarding the uniformity provision, one of the areas which private schools may not be uniform in relation to the state public school system is the curriculum taught. Public schools were required to teach curriculum in line with the Next Generation in the state an d specify the core content knowledge and skills that K 12 public school 163 Provided within the Next Generation Sunshine State Standards were specific, required topics that all schools must teach, including the history of th e Declaration of Independence, 164 the history of the Constitution of the United States and its amendments, 165 the arguments for adopting a republican form of government, 166 flag education, 167 the elements of civil government, 168 the history of the United States, 169 th e history of the Holocaust, 170 the history of African Americans, 171 elementary principals of agriculture, 172 the effects of alcohol on the body and mind, 173 162 Id. at 412. 163 Fla. Stat. §1003.41 (1). 164 Fla. Stat. §1003.42 (2)(a). 165 Fla. Stat. §1003.42 (2)(b). 166 Fla Stat. §1003.42 (2)(c). 167 Fla. Stat. §1003.42 (2)(d). 168 Fla. Stat. §1003.42 (2)(e). 169 Fla. Stat. §1003.42 (2)(f). 170 Fla. Stat. §1003.42 (2)(g). 171 Fla. Stat. §1003.42 (2)(h). 172 Fla. Stat. §1003.42 (2)(i).

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156 kindness to animals, 174 the history of the state of Florida, 175 conservation of natural resources, 176 comprehensive health education, 177 the study of contributions of Hispanics 178 and women 179 in the development of the United States, the nature of free enterprise, 180 character education which is secular in nature, 181 and patriotism including highlighting the sacrif ices of veterans. 182 While state statutes require private schools participating in the McKay Scholarship to meet a number of health, safety, and fiscal requirements, 183 there are no specific requirements as to the curriculum that should be taught in these scho ols; the Bush 184 As previously stated, the McKay Scholarship statute makes note of the limited scope the state has in enforcing directives in priv ate schools: The inclusion of eligible private schools within options available to Florida public school students does not expand the regulatory authority of the state, its officers, or any school district to impose any additional regulation 173 Fla. Stat. §1003.42 (2)(j). 174 Fla. Stat. §1003.42 (2)(k). 175 Fla. Stat. §1003.42 (2)(l). 176 Fla. Stat. §1003.42 (2)(m). 177 Fla. Stat. §1003.42 (2)(n). 178 Fla. Stat. §1003.42 (2)(p). 179 Fla. Stat. §1003.42 (2)(q). 180 Fla. Stat. §1003.42 (2)(r). 181 Fla. Stat. §1003.42 (2)(s). 182 Fla. St at. §1003.42 (2)(t). 183 Fla. Stat. §1002.421 (2). 184 Bush v. Holmes 919 So.2d 392 (2006) at 410.

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157 of private sch ools beyond those reasonably necessary to enforce requirements expressly set forth in this section. 185 As the statute does not specifically address curricular requirements at participating private schools, the Florida Department of Education does not have t he legal authority to require private schools to teach the curriculum required of state public schools. Because of this, the Department of Education cannot be assured that all students are receiving instruction on the same topics and, specifically, those o utlined in state statutes as required of all children. A second uniformity issue that emerged with the McKay Scholarship involved teacher certification requirements. This issue was addressed in Bush ; the court concluded that the requirements to teach in p rivate schools under the OSP differed greatly from that of public school teachers. 186 In the McKay Scholarship Program, as in perience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in 187 Teachers in public schools are only eligible to teach if they possess have obtained a 2.5 grade point average on a four point scale in their field of study, 188 and passed state certification exams in general knowledge, 189 the subject area they were teaching, 190 and professional educator 185 Fla. Stat. §1002.39 (12). 186 Bush v. Holmes 919 So.2d 392 (2006) at 409 410. 187 Fla. Stat. §1002.421 (2)(h). 188 Fla. Stat. §1012.56 (2)(b). 189 Fla. Stat. §1012.56 (2)(g).

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158 knowledge and competencies. 191 The Bush court concluded that this difference in teacher certification provided a lack of uniformity between the state public schools and the private schools funded under the OSP. 192 Because of the similarities between the teacher qualifications needed in private schools u nder the McKay Scholarship, it would seem to follow that this could be a second aspect of the program which would be found non uniform. One final aspect of the McKay Scholarship which could be found to be in violation of the uniformity provision is the re quirement that students using the McKay Scholarship are not required to take the Florida standardized exams. This is one area where the OSP and the McKay Scholarship differ in their wording. For students participating in the OSP, it was the requirement of the parent to ensure that their child participated in all statewide, standardized exams. 193 The Bush court highlighted this requirement as one aspect of the OSP as meeting the uniformity requirement present in the Florida Constitution. 194 This requirement is n ot present in the McKay Scholarship Program; rather, the parent has the option of allowing their child to take state standardized exams, with the wording of the state statute stating that the parent has the 195 for the student to take the state standardized exams. In fact, the only accountability the private school is required to provide for the parents of McKay 190 Fla. Stat. §1012.56 (2)(h). 191 Fla. Stat. §1012.56 (2)(i). 192 Bush v. Holmes 919 So.2d 392 (2006) at 410. 193 Fla. Stat. §1002.38 (5)(c) (2003). 194 Bush v. Holmes 919 So.2d 392 (2006) at 409. 195 Fla. Stat. §1002.39 (9)(e).

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159 minimum, annually. 196 Florida standardiz ed assessments measure student progress on their understanding of the Next Generation Sunshine State Standards. 197 According to state and all students attending public 198 However, a purpose of the assessment 199 As the McKay Scholarship is funded through money from the General Fund which, as mentioned, receives most of its funding throu gh state taxes on goods and services, why the McKay students are exempt from state assessments would be raised and examined by the parties. The Bush 200 court summarized their conclusion that the OSP violated the Florida State Constitution as follows: In su m, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida's children through a system of public education. The OSP contravenes this constitutional provision be cause it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the "uniformity" requirements for public schools. Thus, in two significant 196 Fla. Stat. §1002.39 (8)(c)(1). 197 Fla. Stat. §1008.22 (3). 198 Fla. Stat. §1008.22 (3). 199 Fla. Stat. §1008.22 (1). 200 Bush v. Holmes 919 So.2d 392 (2006).

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160 respects, the OSP violates the mandate set forth in arti cle IX, section 1(a). 201 As the McKay Scholarship has been shown to be akin to the OSP in a number of regards, the two programs can be seen as being equivalent, with each serving a different classification of students. As a result, the logic used in finding the OSP unconstitutional under Article IX, Section 1(a) 202 of the Florida Constitution can be used to show the McKay Scholarship unconstitutional. As the McKay Scholarship diverted money from the constitutionally mandated system of free public schools, and violated the uniformity clause with regards to curriculum, teacher qualifications, and state standardized testing, the private portion of the McKay Scholarship violates Article IX, Section 1(a) 203 of the Florida Constitution and, thus, is unconstitutional. Summary Chapter 4 examined the history of special education programs at the national level, focusing on the mandates outlined in the Individuals with Disabilities Education Act (IDEA). 204 Burlington 205 Carter 206 and T.A. 207 showed the decisions of the United States Supreme Court in reimbursing families for expenses incurred in placing students with disabilities in private schools; the general finding of the Court was to reimburse parents if the school did not provide a free, appropriate education for the child. The 201 Id. at 412. 202 Fla. Const. Art. IX, §1. 203 Id. 204 20 U.S.C. §1400 et seq. (2008). 205 School Comm. of Burlington v. Department of Ed. of Mass. 471 US 359 (1985). 206 Florence County School District v. Carter 510 US 7 (1993). 207 Forest Grove School District v. T.A. 129 S.Ct. 2484 (2009).

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161 placements in the aforementioned cases were contrasted with special education vouchers which are general funding plans for placing any student with a disability in a private school, regardless of the ability of the public school to provide an appropriate education for the child. The John M. McKay Scholarship for Students with Disabilities 208 was discussed, which was a voucher program in the state of Florida providing funding for students with disabilities t o attend private schools. The dictates of the state statute were outlined including allowing students with disabilities via an IEP or 504 plan to apply for a voucher through the state for payment toward a private school education at a state approved privat e school. The mandates of the McKay Scholarship were compared with the mandates of the Opportunity Scholarship Program 209 (OSP) for which the private school portion had been declared unconstitutional by the Florida Supreme Court in Bush v. Holmes 210 It was sh own that the McKay Scholarship and the OSP could be seen as equivalent to one another due to a number of similarities including the method of payment to the private schools, and the requirements for private schools to be approved as eligible for participat ion in the two programs. As a result, the logic used by the Bush 211 court in finding the private portion of the OSP unconstitutional was applied to the McK ay Scholarship. Thus, if the court were to apply the Bush standard, it was determined the McKay Scholar ship would be found unconstitutional under the Florida Constitution as the program diverts public money from the system of free, public 208 Fla. Stat. §1002.39. 209 Fla. Stat. §1002.38 (2005). 210 B ush v. Holmes 919 So.2d 392 (2006). 211 Id.

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162 schools outlined in the state constitution, and does not provide for a system of uniform schools due to differences in c urriculum, teacher qualifications, and assessment. Like the OSP, however, it was noted that the public school option of the McKay Scholarship would be upheld as constitutional.

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163 CHAPTER 5 CONCLUSION Purpose M. McKay Scholarship for Students with Disabilities Program 1 under the Florida State Constitution. Specifically, the study addressed the following research question: Can the logic used in the decision of Bush v. Holmes 2 in finding the Florida Opportunity Scholarship Program 3 (OSP) unconstitutional under the Florida State Constitution be applied to the McKay Scholarship for Students with Disabilities? Legal analysis was perform ed to answer the research question. Specifically, Florida Supreme Court cases and Florida State Statutes were analyzed to gather information which could be used in supplying information on the state constitutionality of the McKay Scholarship Program. The M cKay Scholarship Program had to be analyzed at the state level in spite of the fact that the United States Supreme Court ruled in Zelman v. Simmons Harris 4 that programs which provided students an option of receiving scholarships to attend private schools did not violate the Establishment Clause 5 of the United States Constitution. 6 For while Zelman did not ban vouchers as unconstitutional under the U.S. Constitution, 1 Fl. Stat. §1002.39 (2012). 2 Bush v. Holmes 919 So. 2d 392 (2006). 3 Fla. Stat. §1002.38(2)(a)(3) (2005). 4 Zelman v. Simmons Harris 536 U.S. 639 (2002). 5 6 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 653.

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164 vouchers still need to meet the requirements under state constitutions per the Tenth Amendm ent 7 to the United States Constitution. This question was of particular interest due to the finding in Bush v. Holmes that the private school portion of the OSP was unconstitutional as it violated the uniformity clause 8 in the Florida Constitution by diverting public dollars from the free system of public schools to a non uniform system of private schools. 9 This study aimed to identify whether the logic of Bush v. Holmes could be used if a challenge against the McKay Sch olarship were to come before the Florida courts. Due to the number of similarities between the OSP and the McKay Scholarship, the logic used in Bush v. Holmes 10 was applied to the McKay Scholarship in the event that a challenge to its constitutionality shou ld arise in the future. Summary Educational vouchers refer to a system of public finance where parents are directly given money by the government to pay for costs at a state approved school, public or private, chosen by the parents of the child. 11 The conc ept of educational vouchers in the United States were first introduced in 1955 by Milton Friedman who proposed that using public funds to support privatized education could break the 7 pr 8 9 Bu sh v. Holmes 919 So. 2d 392 (2006) at 398. 10 Bush v. Holmes 919 So. 2d 392 (2006). 11 Educational Evaluation and Policy Analysis 24, no. 3 (2002):159.

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165 monopoly state governments have on education and help improve schools. 12 B y giving market for schools, this would cause schools to be more competitive in attracting students. There are currently fifteen voucher programs in various states which provided students the option of receivin g a scholarship which could be used to attend private schools at public expense: six programs targeted students from low socioeconomic backgrounds, 13 eight programs targeted students with disabilities, 14 and one provided the option for students who attended failing public schools to move to a higher performing public school, or private school. 15 The United States Supreme Court analyzed the impact of the Establishment Clause 16 and the Free Exercise Clause 17 of the United States Constitution in deciding early ca ses on indirect public aid to private schools. These early cases looked at issues such as reimbursing parents for transportation costs incurred in sending their children to private school, 18 loaning non religious textbooks to private schools, 19 and providing 12 Economics and the Public Interest ed. R.A. Solo (New Brunswick: University of Rutgers Press, 1955). 13 H.R. 471 (2011); Ind. Stat. §20 51 4 (2012); Lo. Rev. Stat. 17 §4014 No. 509 Sec. 1 (2008); Oh. Stat. §3 313.97 (2003); Wis. Stat. §119.23 (2011); Wis. Stat. §180.60 (2011). 14 Ariz. Stat. §15 802; Fla. Stat. §1002.39 (2010); Ga. Stat. §20 2 2110 2118 (2010); La. Stat. §4031; Oh. Stat. §3301 101 02 (2012); Oh. Stat. §3310.41 (2006); Ok. Stat. §13 102.2; Ut. S tat. §R227 602 (2013). 15 Oh. Stat. §3310.02 (2005). 16 17 prohibiting 18 Everson v. Board of Education of the Township of Ewing 330 U.S. 1 (1947). 19 Board of Education of Central School District No 1 v. Allen 392 U.S. 236 (1968).

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166 salary supplements to private school teachers who taught non religious classes. 20 In deciding Lemon the Court determined the purpose of the Establishment Clause was to provide protection against state sponsorship, financial support, and active involvement in religious institutions. 21 As a result, the Court developed the Lemon test for determining a violation to the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that 22 A shift in Establishment Clause jurisprudence occurred when the Court upheld the Constitutionality of a Minnesota law whic h allowed parents of public or private school students to deduct tuition, textbooks, and other fees from their state taxes. 23 The key element of this law which the Court used in finding its Constitutionality was the fact that the tax deduction was available to a large class of beneficiaries (parents who had students attending public or private school) which kept the state neutral in terms of entanglement. 24 Witters v. Washington Department Services for the Blind 25 and Zobrest v. Catalina Foothills 26 further cl 20 Lemon v. Kurtzman 403 U.S. 602 (1971). 21 Id. at 612. 22 Id. at 612 613. 23 Mueller v. Allen 463 U.S. 388 (1983). 24 Id. at 394. 25 Witters v. Washington Department of Services for the Blind 474 U.S. 481 (1986). 26 Zobrest v. Catalina Foothills School District 509 U.S. 1 (1993).

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167 Constitutionality of laws providing indirect aid to public schools as long as the laws allowed for independent choice on the part of the student and parents, allowed for multipl e secular and nonsecular options, and had the student as the direct beneficiary of the government aid. With this background, the Court, in Zelman v. Simmons Harris 27 found the Cleveland Scholarship and Tutoring Program 28 (CSTP) Constitutional as it did not violate the Establishment Clause of the United States Constitution. The CSTP allowed for students who were attending low performing schools the option of remaining at their current school and receiving tutorial aid, or receiving financial assistance in th e form of a voucher to attend a higher performing public or private school. In applying the Lemon test, the Court found the CSTP was enacted with a valid, secular purpose, 29 and it did not provide excessive government entanglement or have a primary effect t hat advanced or prohibited religion as it provided true private choice for students and parents, provided multiple options for placements in alternate schools (both religious and non religious), and directly benefited students. 30 While Zelman showcased that voucher programs would not violate the United States Constitution, per the Tenth Amendment 31 to the United States Constitution, voucher programs still had to be found constitutional under the 27 Zelman v. Simmons Harris 536 U.S. 639 (2002). 28 Ohio Stat. §3313.975 (2003). 29 Zelman v. Simmons Harris 536 U.S. 639 (2002) at 649 30 Id. at 652. 31 U.S. Const. amend. X.

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168 e Zelman decision determined that vouchers do not offend the U.S. Constitution but state courts remain free to apply 32 The determination of whether a voucher program would be allowed i n individual states varied due to the differences in wordings in state constitutions with regard to education; for while some states call ed for general educational provisions, others use d 33 Voucher programs have been challenged in state supreme courts under three main categories: funding provisions, local control provisions and uniformity provisions. 34 Funding provisions, which place limitations on the funding of schools, 35 have been the mo st commonly used means by which to challenge voucher programs in state courts; the results have been mixed with some states upholding the voucher programs, 36 and others finding the programs unconstitutional. 37 A reason for the differences in the findings und er funding provision challenges, aside from the w ording of state constitutions, wa s the interpretation of the state statutes by the courts; courts which focus ed on the 32 Suburban Re Educational Policy 21 no. 1 (2007): 51. 33 Kern Alexander and M. David Alexander, American Public School Law (Belmont, CA: Wadsworth, 2012), 36. 34 B.Y.U. Education and Law Journal no. 2(2010): 275. 35 Green and Moran, 294. 36 Jackson v. Benson 218 Wis.2d 835 (1998); Simm ons Harris v. Goff 86 Ohio St.3d 1 (1999). 37 Witters v. State Commission for the Blind 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989); Cain v. Horne 202 P.3d 1178 (2009); Louisiana Federation of Teachers v. State of Louisiana 118 S o.3d 1033 (Louis. 2013).

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169 mandates of the Lemon test and focus ed more on neutrality and private choice seem ed to u phold voucher programs, 38 while states which interpret ed the wording of the state constitution directly seem ed to find voucher programs unconstitutional. 39 Florida was the first state to find a voucher program unconstitutional under the state uniformity cla use in Bush v. Holmes 40 Bush v. Holmes challenged the constitutionality of the Florida Opportunity Scholarship Program 41 (OSP) which provided vouchers for students who were attending low performing public schools to attend a higher performing public or priv ate school. 42 After a lengthy battle in lower state courts, 43 the case was eventually argued in front of the Florida Supreme Court where it was determined that the private portion of the OSP violated the state uniformity clause. 44 The two main arguments the F lorida Supreme Court used in striking down the private portion of the OSP were the diversion of funds from public schools for which the money had been earmarked, 45 and exemption from uniformity of schools. 46 The Florida Supreme Court summarized their finding s as follows: 38 Jackson v. Benson 218 Wis.2d 835 (1998); Simmons Harris v. Goff 86 Ohio St.3d 1 (1999). 39 Witters v. State Commission for the Blind 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989); Cain v. Horne 202 P.3d 1178 (2009); Louisiana Federation of Teachers v. State of Louisiana 118 So.3d 1033 (Louis. 2013). 40 Bush v. Holmes 919 So. 2d 392 (2006). 41 Fla. Stat. §1002.38 (2005). 42 Fla. Stat. 1002.38 (2)(a)(1) (2005); Fla. Stat. 1002.38 (3)(a)(2) (200 5). 43 Bush v. Holmes 767 So.2d 668 (Fla. 1 st DCA, 2000); Bush v. Holmes 886 So.2d 340 (Fla. 1 st DCA, 2004). 44 Bush v. Holmes 919 So. 2d 392 (2006) at 398. 45 Id. at 408.

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170 In sum, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida's children through a system of public education. The OSP contravenes this constitu tional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduce s public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the "uniformity" requirements for public schools. Thus, in two significant respects, the OSP violates the mandat e set forth in article IX, section 1(a). 47 Currently, the John M. McKay Scholarship for Students with Disabilities Program 48 has not been challenged at the Florida Supreme Court. The purpose of this analysis was to determine whether the logic used in Bush v. Holmes 49 in finding the private portion of the OSP unconstitutional could be applied to the McKay Scholarship. Analyzing the wording of state statutes, it was determi ned that the McKay Scholarship wa s akin to the OSP in a number of key aspects, including the ability of students under both programs to attend private schools, 50 the ability of the student to choose to attend a higher performing public school, 51 the use of public money from the FEFP to fund the voucher programs, 52 having parents endorse the check to the private school, 53 providing the voucher to a 46 Id. at 409. 47 Id. at 412. 48 Fl. Stat. §1002.39 (2012). 49 Bush v. Holmes 919 So. 2d 392 (2006). 50 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 51 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 52 Fla. Stat. §1002.39 (10)(a)(1); Fla. Stat. §1002.38 (6)(a) (2003). 53 Fla. Stat. §1002.39 (9)(f); Fla. Stat. §1002.38 (6)(g) (2003).

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171 specific classification of students, 54 and providing that teachers at the approved of teach ing experience in public or private schools, or have special skills, knowledge, or expertise that qualifies them to provide instruction in subjects 55 As the two programs were deemed similar in their wording, the logic used in Bush v. Holmes 56 was ap plied to the McKay Scholarship to determine whether the program would withstand a constitutional challenge in state courts. The analysis focused on the plain wording of Article IX, Section 1(a) 57 of the Florida State Constitution as did the Florida Supreme Court in deciding Bush v. Holmes Based on the Bush standard, t he analysis showed that the private portion of the McKay Scholarship would not withstand a legal challenge at the Florida Supreme Court. One o f the reasons for this finding wa s that the McKay Sc holarship, like the OSP, diverted money earmarked for public schools to pr ivate schools which we re in direct competition with public schools. Specifica lly, the McKay Scholarship funded the vouchers in the following manner: Following notification on Jul y 1, September 1, December 1, or February 1 of the number of program participants, the department shall transfer, from General Revenue funds only, the amount calculated under paragraph (b) 54 Fla. Stat. §1002.39 (1); Fla. Stat. §1002.38 (1) (2003). 55 Fla. Stat. §1002.39 (8)(a); Fla. Stat. §1002.421 (2)(h) ;Fla. Stat. §1002.38 (4)(g) (2003). 56 Bush v. Holmes 919 So. 2d 392 (2006). 57 ducation of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made 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 and for the establishment, maintenance, and operation of institutions of higher learning and other public ed

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172 ida Education Finance Program and from authorized categorical accounts to a separate account for the scholarship program for quarterly disbursement to the parents of participating students. 58 According to the Bush ic funds to private schools on either a small or large scale is incompatible with article IX, section 59 A second aspect which was used to determine the unconstitutionality of the McKay Scholarship, similar to the OSP, was the lack of uniformity betw een the private schools and the state mandated system of public schools. According to the Bush court: The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the "uniformity" requirements for public schools. Akin to the OSP, the McKay Scholarship was shown to foster non uniform schools as the curriculum and teacher certification requirements for private schools were different from publi c schools. Further, the McKay Scholarship program did not require students to take state standardized exams if they attended private schools but, rather, allowed parents the option to request an administration of these exams. 60 58 Fla. Stat. §1002.39 (10)(d). 59 Id. at 409. 60 Fla. Stat. §1002.39 (9)(e).

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173 The McKay Scholarship had f ailed to meet the un iformity provisions with regard to curriculum, teacher certification, and state standardize d testing, and also channeled money earmarked for public schools into a competing system of private schools. As the McKay Scholarship was found t o be akin to the OSP and it violated the same mandates as this program which was found to be in violation of Article IX, Section 1(a) 61 of the Florida State Constitution, should the McKay Scholarship be challenged at the Florida Supreme Court it would also fail to withstand a constitutional challenge. Implications Based on the standard as found in Bush v. Holmes 62 and the similarities between the McKay Scholarship and the private portion of the OSP, it is likely that should the constitutionality of the McKay Scholarship be challenged it will be found to be in violation of the Florida State Constitution and, specificall y, the uniformity clause of the education statutes. Like the OSP, the private school option of the McKay Scholarship would likely be the one component found to be unconstitutional, with the public school option meeting the constitutional mandates outlined by the state. This finding could have a significant implication for Florida public schools. As of June 2013, 26,611 students with disabilities were participating in the private school option of the McKay Scholarship Program. 63 If the McKay Scholarship 61 Fla. Const. Art. IX, §1. 62 Bush v. Holmes 919 So. 2d 392 (2006). 63 http://www.floridaschoolchoice.org/Information /McKay/quarterly_reports/mckay_report_june2013.pdf

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174 were challenged in Florida courts, these students would have to be placed in their local, public schools. Local schools and school districts would need to prepare for the influx of these students back into the public school system and ensure that proper progra mming wa s developed to meet the needs of the students. This would impact some school districts more than others; for example, Orange County School District would have to enroll 2,101 students, Duval County School District would have to enroll 3,154 student s, and Dade County School District would have to enroll 4,717 students. 64 Recommendations for Florida Policymakers For policymakers that wish to maintain a program whereby students with disabilities can receive financial assistance to attend participating private schools, an option could be to develop a tax credit scholarship program for this group of students in the state of Florida. This type of tax credit offers nonrefundable credits to individuals or corporations who make charitable donations to school tuition organizations who, in turn, distribute scholarships to students and families who sign up receive assistance. 65 Florida currently offers the Florida Tax Credit Scholarship Program 66 (FTC) which provided scholarships for students who enrolled in publi c school for a year and qualified for free or 64 http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_report_june2013.pdf 65 Zelman Educational Policy 21, no. 1 (2007): 77. 66 Fla. Stat. §1002.3 95.

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175 household income did not exceed 230 percent of the federal poverty level. 67 The 68 and the schola rship was distributed through eligible nonprofit scholarship funding organizations. 69 The FTC was funded by voluntary donati ons by private taxpayers toward scholarship 70 As the state of Florida does not have an individual state income tax, t he FTC was established in 2001 to encourage private, voluntary donations from corporate sponsors to state scholarship funding organizations who, in turn, distributed the scholarships to eligible students 71 Specifically, the donations allowed the granted by this section shall be reduced by the difference between the amount of federal corporate income tax taking into account the credit granted by this section and the amount of federal corporate income tax without application of the credit 72 The program has since been expanded to include tax cr edits for the insurance premium tax, 73 which requires insurance companies to 67 Fla. Stat. §1002.395 (3)(b). 68 Fla. Stat. §1002.395 (3)(b). 69 Fla. Stat. §1002.395 (2)(f). 70 Fla. Stat. §1002.395 (1)(b)(1). 71 Fla. Stat. §220.187 (2001). 72 Fla. Stat. §220.187 (3)(a) (2001). 73 Fla. Stat. §1002395 (2)(a); Fla. Stat. §624.51055 (1).

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176 receipts on account of life and health insurance policies covering persons 74 The FTC differed from the McKay Scholarship and OSP, as the latter programs were financed by the state of Florida with money which was earmarked in the state treasury for public education. 75 Due to the differences in the types of programs, many scholars feel t hat tax credit scholarships may have a stronger legal standing under state constitutions than voucher programs. 76 Specifically, 77 One of thes e legal advantages at the state 78 Tax credits have a legal history at the United States Supreme Court, where the Court has upheld tax credits for individual families as long as the tax c redits were available to a wide beneficiary class of individuals, and not only to individuals attending private schools. 79 At the state level, the Arizona Supreme Court ruled the state tax credit scholarship program 80 constitutional in Kotterman v. Killian 81 The Arizona tax 74 Fla. Stat. §624.509 (1)(a). 75 Fla. Stat. §1002.39 (10)(d); Fla. Stat. §1002.38 (6)(f) (2003). 76 Columbia Journal of Law and Social Problems Brigham Young University Law Review no. 2 (2008): 344 77 78 Bolick, 335. 79 See e.g. Everson v. Board of E ducation of the Township of Ewing 330 U.S. 1 (1947); Mueller v. Allen 463 U.S. 388 (1983).

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177 credit scholarship program is similar in structure to the FTC in Florida in that individuals can make voluntary donations to non profit school tuition organizations that, in turn, fund scholarships for students that apply to receive assistance. 82 In deciding the legality of the tax credit scholarship, the Kotterman mechanism for equalizing tax burdens and encouraging educational 83 Ten years late r in Cain v. Horne 84 the Arizona Supreme Court ruled voucher programs targeted at meeting the needs of students with disabilities 85 and students in foster care 86 were unconstitutional under the Arizona State Constitution. 87 The Cain court claimed that the dif ference in finding between Kotterman and Cain was the location from which the funds were drawn Kotterman were credits against tax liability, not withdrawals from the state treasury, the funds were never in 88 The financing of the scholarships in the Arizona tax credit scholarship came from 80 Ariz. Stat. §43 1089. 81 Kotterman v. Killian 972 P.2d 606 (1999). 82 Ariz. Stat. §43 1089 (A). 83 Kotterman v. Killian 972 P.2d 606 (1999) at 625. 84 Cain v. Horne 202 P.3d 1178 (2009). 85 Ariz. Stat. §15 86 Ariz. Stat. §15 87 Cain v. Horne 202 P.3d 1178 (2009) at 1185. 88 Id. at 1183.

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178 private, voluntary donations, whereas the funding for the voucher programs in Cain came f 89 While the Florida Supreme Court would not be required to follow the finding of the Kotterman court, the parallel decisions in Kotterman 90 and Cain 91 showcase the additional legal strength a ta x credit scholarship can hold over a voucher program. Further, while Kotterman centered on individual tax credits and the FTC was based on corporate tax credits, both programs involve private, voluntary donations which resulted in a tax credit being awarde d. Based on the analysis in the dissertation, the McKay Scholarship would be found unconstitutional should a challenge be raised. As a result, taking guidance from Kotterman Florida policymakers could extend the availability of scholarships to students wi th disabilities by either creating a corporate tax credit scholarship specifically for this group of students, or amending the FTC to include students with disabilities By ensuring that the money which funded the program does not come from funds that had been earmarked for public education, the scholarship program would have more legal strength and, potentially, withstand a constitutional challenge. Recommendations for Further Research The analysis presented in this dissertation has looked at one specific program in one specific state. Future research might center upon the Bush 89 Id. at 1183. 90 Kotterman v. Killian 972 P.2d 606 (1999) 91 Cain v. Horne 202 P.3d 1178 (2009).

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179 standard as it applied to the Florida Tax Credit Scholarship Program 92 in challenging the constitutionality of the program. 92 Fla. Stat. §1002.395.

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180 APPENDIX CITED CONSTITUTIONS, STATUTES, REGULATIONS, AND CASES United States U.S. Constitution Amendment I Establishment Clause Free Exercise Clause Amendment X Statutes Chapter 2 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C. §§ 7301 73 (1981). H.R. 471 (2011). Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004); §1400 (c)(3); §1401 (3)(a)(i); §1401 (9); §1412 (a)(5); §1412 (a)(5)(A); §1412 (a)(6); §1414 (d)(1)(A); Pub. L. No. 94 142, 89 Stat. 773 (1975) (codified as amended at 20 U.S.C. §1400 et seq. (2006)). Cases Agostini v. Felton, 521 U.S. 203 (1997). Aguilar v. Felton, 473 U.S. 402 (1985). Board of Education v. Rowley, 458 U.S. 176 (1982). Board of Education o f Central School District No 1 v. Allen, 392 U.S. 236 (1968). Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). Committee for Public Education v. Nyquist, 413 U.S. 756 (1973). Doe v. Alabama State Department of Ed ucation, 915 F.2d 651 (11 th Cir., 1990) Doe v. Board of Education, 9 F.3d 455 (6 th Cir. 1993). Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947).

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181 Florence County School District v. Carter, 510 US 7 (1993). Forest Grove School District v. T.A., 557 US ___ (2009). Grand Rapids School District v. Ball, 473 U.S. 373 (1985). Greer v. Rome City School District, 950 F.2d 688 (11 th Cir., 1991). Lemon v. Kurtzman, 403 U.S. 602 (1971). Levitt v. Committee for Public Education, 413 U. S. 472 (1973). Locke v. Davey, 540 U.S. 712 (2004). Meek v. Pittenger, 421 U.S. 350 (1975). Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972). Mitchell v. Helms, 530 U.S. 793 (2000). Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6 th Cir. 1987). Mueller v. Allen, 463 U.S. 388 (1983). New York City Board of Education v. Tom F., 552 US ___ (2007). Pierce v. Society of Sisters, 268 US 510 (1925). School Committee of the Town of Burlington, Massachusetts v. Department of Educatio n of Massachusetts, 471 US 359 (1985). Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981). Wisconsin v. Yoder, 406 U.S. 205 (1972). Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986). Wolman v. Walter, 433 U.S. 229 (1977). Zelman v. Simmons Harris, 536 U.S. 639 (2002). Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

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182 Arizona Arizona Constitution Article II, §12 Article IX, §1 Article IX, §10 Arizona Revised Sta tutes Annotated §15 802 §15 817.01 §15 891 (2007) §15 891.01 (2007) §15 891.04 (2007) §43 1089 §43 1089 (A) Cases Cain v. Horne, 202 P.3d 1178 (2009). Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999). California Cases Serrano v. Priest, 5 Cal.3d 584 (1971). Serrano v. Priest, 18 Cal.3d 728 (1976). Colorado Colorado Constitution Article IX, §2 Article IX, §15 Colorado Revised Statutes Annotated §22 56 101 (2003) (repealed 2006) Cases Denver Board of Education v. Booth, 984 P.2d 639 (Colo. 1999).

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183 Lujan v. State Board of Education, 649 P.2d 1005 (Colo. 1982). Owens v. Colorado Congress of Parents, Teachers, and Students, 92 P.3d 933 (Colo. 2004). Florida Florida Constitution Article I, §3 Article IX, §1 Article IX, §1(a) Article IX, §1(b) Article IX, §4(b) Article IX, §6 Florida Statutes Annotated §220.187 (3)(a) (2001) §624.509 (1)(a) §624.51055 (1) §1002.38 (2005) (Florida Opportunity Scholarship Program) §1002.38 (1) (2005) §1002.38 (2)(a)(1) (2005) §1002.38(2)(a)(3) (2005) §1002.38 (3)(a)(2) (2005) §1002.38 (4)(a) (2005) §1002.38 (4)(b) (2005) §1002.38 (4)(c) (2005) §1002.38 (4)(d) (2005) §1002.38 (4)(e) (2005) §1002.38 (4)(f) (2005) §1002.38 (4)(g) (2005) §1002.38 (4)(h) (2005) §1002.38 (4)(i) (2005) §1002.38 (4)(j) (2005) §1002.38 (4)(k) (2005) §1002.38 (5)(c) (2003) §1002.38 (6)(a d) (2005) §1002.38 (6)(f) (2003) §1002.38 (6)(g) (2005) §1002.39 (2010) (John M. McKay Scholarship Program for Students with Disabilities) §1002.39 (1) §1002.39 (2)(a)(1 2)

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184 §1002.39 (2)(b) §1002.39 (4)(a) §1002.39 (5)(a)(1) §1002.39 (5)(a)(2) §1002.39 (5)(a)(3) §1002.39 (5)(c) §1002.39 (5)(f) §1002.39 (8) §1002.39 (8)(a) §1002.39 (8)(b) §1002.39 (8)(c) §1002.39 (8)(c)(1) §1002.39 (8)(d) §1002.39 (9) §1002.39 (9)(a)(1) §1002.39 (9)(c) §1002.3 9 (9)(c)(1) §1002.39 (9)(d) §1002.39 (9)(e) §1002.39 (9)(f) §1002.39 (10)(a)(1) §1002.39 (10)(a)(5)(b) §1002.39 (10)(b) §1002.39 (10)(d) §1002.39 (12) §1002.395 §1002.395 (1)(b)(1) §1002.395 (2)(f) §1002.395 (3)(b) §1002.42 (2)(h) §1002.421 (2) §1002.421 (2)(a) §1002.421 (2)(b) §1002.421 (2)(c) §1002.421 (2)(d) §1002.421 (2)(e) §1002.421 (2)(f) §1002.421 (2)(g) §1002.421 (2)(h) §1002.421 (2)(i) §1003.41 (1) §1003.42 (2)(a) §1003.42 (2)(b) §1003.42 (2)(c) §1003.42 (2)(d) §1003.42 (2)(e)

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185 §1003.42 (2)(f) §100 3.42 (2)(g) §1003.42 (2)(h) §1003.42 (2)(i) §1003.42 (2)(j) §1003.42 (2)(k) §1003.42 (2)(l) §1003.42 (2)(m) §1003.42 (2)(n) §1003.42 (2)(p) §1003.42 (2)(q) §1003.42 (2)(r) §1003.42 (2)(s) §1003.42 (2)(t) §1008.22 (1) §1008.22 (3) §1012.56 (2)(b) §1012.56 (2)(g) §1012.56 (2)(h) §1012.56 (2)(i) Cases Bush v. Holmes, 767 So.2d 668 (Fla. 1 st DCA 2000). (Holmes I) Bush v. Holmes, 886 So.2d 340 (Fla. 1 st DCA, 2004). (Holmes II) Bush v. Holmes, 919 So.2d 392 (2006). (Holmes III) Coalition v. Chiles, 680 So. 2d 400 (1996). Scavella v. School Board of Dade County 363 So.2d 1095 (Fla. 1978). Georgia Georgia Constitution Article VIII, §5 Georgia Statutes Annotated §20 2 2110 2118 (2010)

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186 Idaho Idaho Constitution Article IX, §1 Indiana Indiana Constitution Article VII, §1 Indiana Statutes Annotated §20 51 4 (2012) Kansas Kansas Constitution Article VI, §5 Kentucky Kentucky Constitution §183 Cases Rose v. Council for Better Education, 790 S.W.2d 186 (1989). Louisiana Louisiana Constitution Article VIII, §13(B) Louisiana Revised Statutes Annotated §4014 No. 509 Sec. 1 (2008) §4031 Cases Louisiana Federation of Teachers v. State of Louisiana, ___So.3d____(Louis. 2013).

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187 Minnesota Minnesota Constitution Article XII, §1 Montana Montana Constitution Article X, §8 Nevada Nevada Constitution Article II, §2 New Mexico New Mexico Constitution Article IX, §1 North Carolina North Carolina Constitution Article XII, §1 Ohio Ohio Constitution Article VI, §2 Ohio Revised Code Annotated §3301 101 02 (2012) §3310.02 (2005) §3310.41 (2006) §3313.97 (2003) §3313.975

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188 Cases Simmons Harris v. Goff, 86 Ohio St.3d 1 (1999). Oklahoma Oklahoma Statutes Annotated §13 102.2 Oregon Oregon Constitution Article VII, §3 Pennsylvania Cases Pennsylvania Association for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971); 343, F. Supp. 279 (E.D. Pa. 1972). South Dakota South Dakota Constitution Article VII, §1 Utah Utah Statutes Annotated §R227 602 (2013) Vermont Vermont Constitution Chapter II 1793, §68 Virginia Virginia Constitution Article VII, §7

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189 Washington Washington Constitution Article IX, §2 Cases Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash.) ( en banc ), cert. denied 493 U.S. 850 (1989) Witters v. The Commission for the Blind, 102 Wn.2d 624 (1984). Wisconsin Wisconsin Constitution Article I, §18 Article IV, §18 Article X, §3 Wisconsin Statutes Annotated §119.23 (2011) §119.23(2) (2011) §180.60 (2011) Cases Davis v. Grover, 480 N.W.2d 460, 474 (Wis. 1992). Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998). Wyoming Wyoming Constitution Article VII, §1

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190 LIST OF REFERENCES Alexander, Kern and M. David Alexander. American Public School Law 8 th ed. Belmont, CA: Wadsworth, 2012. Michigan Bar Journal (Sept. 2002): 18 22. Bartlett, Larry D., Susan Etscheidt & Greg R. Weisenstein. Special Education Law and Practice in Public Schools 2 nd ed. Upper Saddle River, NJ: Pearson, 2007. American Journal of Education 111, no. 4 (2005): 548 567. Brigham Young University Law Review no. 2 (2008): 335 352. Columbia Journal of Law and Social Problems 43, no. 1 (2009): 117 149. Educational Researcher 29, no. 7 (2000): 15 20. An California Law Review 75, no. 5 (1987): 5 14. Interim Project Report 2006 139 The Florida Senate, Feb. 2006. How Tax Credit Scholarships Will Fare in New Rutgers Law Review 64, no. 1 (2011): 295 332. Educational Policy 21 no. 1 (2007): 40 72. Harvard Journal of Law and Public Policy 26, no. 2 (2003): 551 626. Bush v. Holmes and the Application of State Journal of Law and Education 35, no. 4 (2006): 415 459.

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191 http://www.fldoe.org/fefp/pdf/fefpdist.pdf http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_r eport_june2005.pdf http://www.floridaschoolchoice.org/Information/McKay/quarterly_reports/mckay_r eport_june2013.pdf http://www.broward.k12.fl.us/studentsupport/ese/PDF/MatrixHandbook6 13 12.pdf http://www.floridaschoolchoice.org/Information/McKay/files/Fast_Facts_McKay.p df Economics and the Public Interest Robert A. Solo, ed. New Brunswick, N.J.: University of Rutgers Press, 1955: 123 144. B.Y.U. Education and Law Journal no. 2(2010): 275 306. 75, no. 2 (2001): 209 218. Peabody Journal of Education 82, 4(2007): 703 723. Greene, Jay P. and Stuart Education Next (2010): 36 43. Educational Policy 21, no. 1 (2007): 215 244. Journal of Law and Education 39, 3 (2010): 291 349. Hoy, Anita W. and Wayne K. Hoy. Instructional Leadership: A R esearch Based Guide to Learning in Schools 3 rd ed. Boston, MA: Allyn & Bacon, 2009.

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192 Zelman Educational Policy 21, no. 1 (2007): 73 109. Library of Congress, Washington, D.C., http://www.loc.gov/loc/lcib/9806/danpost.html Johnson, Douglas F. and R. Craig Wood. Illinois State Education Law and Policy Journal 30, no. 4 (2010): 34 65. ent of Religion Pepperdine Law Review 26, no. 2 (1999): 407 431. Bush v. Holmes: Journal of Legislation and Public Policy 9, no. 2 (2006): 833 845. College, Columbia University, New York, 2002. The Journal of Economic Perspectives 16, no. 4 (2002): 3 24. Educational Evaluation and Policy Analysis 24, no. 3 (2002): 159 174. Lubienski, Christopher, Charisse Gul Competitive Incentives: Mapping the Distribution of Educational Opportunities American Journal of Education 115, (2009): 601 647. School Vouchers: Are State Courts the Journal of Education Finance 32, no. 3 (2007): 352 372. Georgetown Journal on Poverty and Law Policy 17, no. 1 (2010): 33 50. The Clearing House 76, no. 1 (2002): 25 29. Florida Law Review 52 (2000): 329 409.

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193 and white students in public schools perf orm on the National Assessment of http://nces.ed.gov/nationsreportcard/studies/gaps/ perform in mathematics and reading on the National Assessment of Educational http://nces.ed.gov/nationsreportcard/studies/gaps/ and Percentage Distribution of Private Schools, by Urbanicity Type and Selected Characteristics: United States, 2009 http://nces.ed.gov/surveys/pss/tables/table_2009_04.asp __ Urbanicity Type and Selected Characteristics: United States, 2009 http://nces.ed.gov/surveys/pss/tables/ table_2009_05.asp Years, 1869 1870 through 2020 http://nces.ed.gov/programs/digest/d11/ta bles/dt11_111.asp Percentage of high school dropouts among persons 16 through 24 years old (status dropout rate), by income level, and percentage distribution of status dropouts, by labor force status and educational attainment: 1970 through http://nces. ed.gov/programs/digest/d11/tables/dt11_117.asp Number of 14 through 21 year old students served under Individuals with Disabilities Education Act, Part B, who exited school, by exit reason, age, and type of disability: 2007 08 and 2008 http://nces.ed.gov/programs/digest/d11/tables/dt11_118.asp Pepperdine Law Review 29, no. 2 (2002): 343 400. American Journal of Education 111, no. 4 (2005): 568 595. Human Events 57, no. 23 (2001): 1 7 8 Quarterly Journal of Economics 113, no. 2 (1998): 553 602. Rozalski, M Exceptionality 18: 151 163.

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194 Research That Makes a Difference: Complimentary Methods for Examining Legal Issues in Education Topeka, KS: National Organization on Legal Problems of Education, 1996. Stetson Law Review Vol. XXXIII (2004): 581 622. Journal of Education Finance 36, no. 3 (2011): 244 267. Thompson, David C., R. Craig Wood and Faith E. Crampton. Money and Schools 4 th ed. Larchmont, NY: Eye on Education, 2008. Arizona Law Review 51, no. 817 (2009): 817 828. The Supreme Court Review 2002 (2002): 1 39. American Journal of Education 101, no. 3 (1993): 209 233. Journal of Policy Analysis a nd Management 10, no. 1 (1991): 112 116.

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195 BIOGRAPHICAL SKETCH John Omundsen was born in Staten Island, New York, but was raised in south Florida. He earned his Bachelor of A rts in mathematics and a Master of Education in mathematics education from the University of Florida. He started his career working in a charter school in Cape Cor a l, Florida teaching mathematics and he has been teaching in this system for six years. During this time, he has taught all levels of mathematics to students in grades 7 12, and he had established an interdisciplinary STEM (science, technology, engineering, mathematics) program at the middle school. During this time he earned his Education Specialist degree in educational l eade rship from the University of Florida.