Florida Voucher Decision

[Marty Lederman]

I don't have time just now to respond to Tom's question.  But I did want to make clear that the argument about which Tom is concerned is not the argument of the Florida court majority.

The majority's argument is:

1.  The Florida Constitution prohibits the use of vouchers in religious schools.

2.  The voucher statute is not severable as between secular and religious private schools, i.e., the Florida legislature would not have intended that vouchers could be used at secular schools if they cannot be used at religious schools.

3.  Hence, the entire statute is invalid and enjoined, and vouchers may not be used at any private schools.

4.  Because that injunction does not favor secular over religious private schools, it is facially and formally neutral, and therefore does not implicate Lukumi or the Free Exercise Clause.  (The dissent takes issue with this conclusion; but as I understand Tom's earlier post, he agrees with me that the majority is probably correct.)

5.  Even if there were discrimination against religious schools here -- i.e., even if the statute were severable, or the legislature were to enact a new statute permitting use of vouchers at private secular schools only -- that disparate treatment would be constitutional under Davey.

I am interested in others' views on point No. 4.

Tom's question, by contrast, assumes arguendo that point No. 5 came out the other way, and asks whether, in that case, a state court or legislature could permit the use of vouchers at all private schools, or whether, instead, the state constitution would require that the voucher plan be prohibited for all private schools, unless and until the state constitution is amended.  In my view, that is a question of state law. 
 
----- Original Message ----- 
From: "Berg, Thomas C." <TCBERG at stthomas.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Saturday, November 13, 2004 2:02 PM
Subject: RE: Florida Voucher Decision


> I'll let others opine on the specific question Marty asks.  Since I'll be
> unable to post for a while this afternoon, let me just make one comment on
> the issue I raised, in response to Marty.  It may be true, as Marty says,
> that the Florida constitutional provision doesn't "require the singling out
> of religious schools" for no aid -- it just requires that they not receive
> aid.  But the provision unquestionably does single out religious schools for
> no aid:  it forbids aid to them while not forbidding aid to nonreligious
> schools.  In that sense, the provision is surely discriminatory, even if the
> state could also deny aid to other schools in order to produce an overall
> nondiscriminatory result.  I don't see why a provision that is inherently
> discriminatory in this way should be given the effect of forcing the state's
> hand in this way.
> 
> Marty, do you agree with my claim that if the Florida court's argument is
> right, it would not only require the invalidation of private-school
> vouchers, but also would require the closure of forums in many of the
> equal-access cases (all the ones where there was a general state or local
> rule above the individual-school level that forbade, or was interpreted to
> forbid, the use of classrooms for religious purposes) -- and that it could
> also require the closure of forums in many cases where the excluded
> perspective was not religious?  In other words, do you agree that the
> Florida court's rationale could cut a very wide swath through the previous
> equal-access logic of "accept the excluded group or close the forum
> altogether"?
> 
> Tom Berg
> 
> 
>  _____  
> 
> From: Marty Lederman [mailto:marty.lederman at comcast.net]
> Sent: Sat 11/13/2004 10:45 AM
> To: Law & Religion issues for Law Academics
> Subject: Florida Voucher Decision
> 
> 
> If I understand Tom's post correctly, he agrees with the majority in the
> Florida case that there is no Free Exercise violation here because Florida
> (i.e., the state courts, construing the legislature's intent as to
> "severability") is not treating religious schools unfavorably vis-a-vis
> other private schools.  And that was the principal question that I was
> asking -- i.e., could the university in Widmar have opted to close all
> classrooms to student groups once it learned that religious groups would
> have to be included?  Tom says "yes."  But the dissent in the Florida case
> says "no"! -- that if the closure was motivated by the objective of
> excluding religious groups, then the facially neutral closure itself
> violates the Free Exercise Clause.  I think that's probably wrong, and it
> appears Tom agrees.
> 
> If possible, I'd like to hear from any listmembers who disagree with this
> conclusion, before the discussion veers away to the very interesting
> subsidiary question that Tom addresses.
> 
> The next question -- the one Tom's e-mail principally addresses -- is this:
> If (i) the Free Exercise Clause would prohibit discrimination against
> religious schools (which is contrary to the Florida's court's holding, but
> assume arguendo that the dissent is correct to distinguish Davey), and (ii)
> the Florida Constitution prohibits use of vouchers in religious schools,
> could the Florida Legislature ignore the Florida Constitution and enact a
> plan that permits vouchers to be used at religious and nonreligious schools
> alike?  Tom is absolutely correct that nothing in the federal Constitution
> would prohibit the legislature from doing so.  In Tom's words, the state has
> the "choice" between all or nothing.  The problem, as I see it, is that the
> state has chosen -- the State Constitution appears to compel the answer of
> "nothing."
> 
> Tom suggests that the effect of the federal constitutional command is not
> only to require nondiscrimination, but also to, in effect, erase, or
> invalidate, the "flawed" state constitutional provision, or, in any event,
> to make it "not binding" on lower-level state decisionmakers.  That's a very
> interesting jurisprudential question, I think.  Of course, we all know that
> when a court declares a statute (or state constitutional provision)
> "invalid," it does not mean that the provision magically disappears, or is
> thereby repealed.  What it means is that the courts will enjoin any
> application of the statute that violates the federal constitutional norm.
> 
> If, therefore, the state constitution required that religious schools be
> "singled out" for disfavored treatment, as Tom suggests, then of course the
> lower-level state actors could never apply that provision in a manner
> consistent with a federal rule that such discrimination is unconstitutional
> -- because any such application would be enjoined.  The difficulty with
> Tom's analysis, as I see it, is that the state constitutional norm here does
> not require religious schools to be singled out -- it merely requires that
> they not receive aid.  The federal Constitution has not "invalidated" the
> refusal of Florida to give aid to religious schools -- Tom concedes that
> Florida need not do so as long as secular and religious schools alike.  It
> has merely (that is to say, hypothetically, if the Florida court is wrong)
> prohibited discrimination.  Therefore there is no conflict between the two
> constitutions, and the lower-level state actors must honor both.
> 
> I genuinely do not know whether this is correct -- but I think that it is a
> question of state, not federal, law.  This is essentially the conclusion
> that Van Alstyne reached in an analogous context in his "Thirty Pieces of
> Silver" article -- that if Congress offers the state funds only on a
> condition that the state do something that is independently barred by the
> state's own constitution, the state has no choice but to decline the federal
> funds.  On the other hand, Lead/Deadwood suggests otherwise, and would
> probably be support for Tom's theory.
> 
> 
> 
>  
> ----- Original Message ----- 
> From: "Berg, Thomas C." < <mailto:TCBERG at stthomas.edu> TCBERG at stthomas.edu>
> To: "Law & Religion issues for Law Academics" <
> <mailto:religionlaw at lists.ucla.edu> religionlaw at lists.ucla.edu>
> Sent: Saturday, November 13, 2004 11:03 AM
> Subject: RE: Florida Voucher Decision
> 
> 
>>I haven't read the Florida decision yet; but I've heard such reasoning
>> before.  As Marty describes the reasoning, it is inconsistent with the
>> premises and result of Widmar, and indeed of a vast number of other
>> public-forum cases.  In Widmar, the Missouri state constitutional
> principle
>> singling out religious groups for exclusion (in the name of strict
>> separation) was overridden by the federal constitutional right of equal
>> access.  The result was that the state university must *either* close its
>> classrooms to student groups on a religion-neutral basis *or* allow the
>> religious group to meet.  Had the Widmar Court given any shrift to the
> kind
>> of argument in Florida that Marty describes, the only permissible remedy
>> would have been to close the classrooms.  Widmar clearly did not do that:
>> it gave the state the choice of how to comply with the federal
> equal-access
>> requirement.  I realize that Widmar does not explicitly reject the
>> Florida-type reasoning; but it seems to me that it does so implicitly. 
>> 
>> The Florida court's argument wouldn't just apply in Widmar, it seems to
> me;
>> it would apply, and change the result, in *every* equal-access case in
> which
>> the direct decisionmaker who denied equal access (such as a local school
>> principal) was acting under a rule promulgated by higher authority -- say,
> a
>> school-district rule, or a state statutory or administrative rule.  The
>> latter, as I recall, was at issue in every one of the equal-access cases
>> from New York, including Lamb's Chapel, Good News Club, and Bronx
> Household.
>> In those cases, too, under the Florida court's logic, the direct
>> decisionmaker would have *no choice* but to close its forum -- in order to
>> comply with both the federal Constitution and the local/state rule
> governing
>> the direct decisionmaker.  The fact that the local/state rule is not a
> state
>> constitutional provision makes no difference to the theory.  Nor does it
>> make any difference that the equal access is to generally available
> funding
>> rather than generally available faciltities.  In any of these cases, under
>> the Florida court's theory, the court *must* order the closing of the
> forum
>> so that both provisions can be complied with.
>> 
>> Nor is the Florida theory limited to cases involving exclusions of
> religion,
>> it seems to me.  It would apply to the exclusion of any viewpoint --
>> political, gay rights, etc. -- whenever that exclusion was mandated by a
>> state or local rule above the level of the actual decisionmaker in the
> case.
>> In any such case, the court could, and therefore *must*, satisfy both the
>> state/local rule and the federal free speech rule of viewpoint neutrality
> by
>> ordering the decisionmaker to close its forum more broadly.
>> 
>> Needless to say, accepting this argument would dramatically alter the
>> equal-access principle in a very large number of cases and would remove
> what
>> I and others have taken to be a fundamental premise of the principle:
> that
>> the decisionmaker has a choice of closing the forum *or* allowing access
> to
>> the excluded group.  I don't have a set of string cites on hand that the
>> result is such a choice, but I'm sure that such statements exist.
>> 
>> I think that the implicit premise of Widmar and other equal-access
> decisions
>> is that if a state provision requires the singling out of religious groups
>> for exclusion beyond the extent demanded by the Establishment Clause, then
>> that provision cannot be given effect so as to limit the decisionmaker's
>> discretion.  Such a provision is itself constitutionally flawed because it
>> is inherently discriminatory in singling out religious activity for
>> exclusion.  Such an inherently flawed provision cannot bind the
>> decisionmaker -- even if the court also throws in some other restrictions
> in
>> order to make its ultimate order nondiscriminatory.  In Widmar, the
> Missouri
>> constitutional provision for strict separation of church and state singled
>> out religious activity beyond the degree demanded by the Establishment
>> Clause.  It therefore was discriminatory and could not be given effect to
>> force the state university into denying access to classrooms across the
>> board.  The state or local decisionmaker *may* follow such a neutral
> course
>> of forum closure, but it cannot be forced to do so by a state provision
> that
>> is itself unconstitutional.
>> 
>> Put differently, the federal constitutional flaw is in the discriminatory
>> nature of the state provision itself, not just in that it might actually
>> lead to a discriminatory treatment of the religious group.  And the legal
>> challenge in equal-access cases -- including in the voucher context --
>> includes a challenge to the state provision itself, not just to the
>> discriminatory decision by the direct decisionmaker.
>> 
>> Therefore, I would argue, a court in a voucher case has to decide whether
>> the state no-aid provision is itself flawed -- under a Lukumi or "Blaine
>> Amendment animus" type challenge.   It can't avoid such a challenge by
>> saying "even if the state provision is fundamentally flawed, we can still
>> apply it and also give equal treatment by requiring the closure of the
>> entire voucher program."  Perhaps Davey will ultimately be read to reject
>> the challenge, but courts can't avoid deciding it.
>> 
>> Tom Berg
>> University of St. Thomas (Minnesota)
>>  
> 
>


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