Holmes v. Bush
COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
RUTH D. HOLMES; GREGORY and SUSAN WATSON, on behalf of themselves and their minor children
Sarah Watson, Seth Watson, and Sybil Watson; LINDA LERNER; BETSY H. KAPLAN; FLORIDA STATE
CONFERENCE OF BRANCHES OF NAACP; and CITIZENS' COALITION FOR PUBLIC SCHOOLS,
JOHN ELLIS "JEB" BUSH, in his official capacity as Governor of the State of Florida and Chairman of the
State Board of Education; TOM GALLAGHER, in his official capacity as Florida Commissioner of
Education; ROBERT F. MILLIGAN, in his official capacity as Florida Comptroller; ROBERT A.
BUTTERWORTH, in his official capacity as Florida Attorney General; and FLORIDA DEPARTMENT OF
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. This is a lawsuit for declaratory and injunctive relief, in which plaintiffs challenge the constitutionality of
the "Opportunity Scholarship Program," Fla. Stat. º 229.0537 ("OSP"). Under this privateschool tuition
voucher program, public funds will be used to pay the tuition and fees for students to attend private
schools, most of which are sectarian. The OSP is to be implemented as of the beginning of the 19992000
school year, and preparations for such implementation presently are underway.
2. The OSP violates three provisions of the Florida Constitution: (a) Article I, º 3, which provides that "[n]o
revenue of the state or any political 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 sectarian
institution"; (b) Article IX, º 1, which requires the state to provide a "high quality education" for the children
within its borders in "a uniform, efficient, safe, secure, and high quality system of free public schools"; and
(c) Article IX, º 6, which provides that "[t]he income derived from the state school fund shall, and the
principal of the fund may, be appropriated, but only to the support and maintenance of free public
schools." The OSP also violates the Establishment Clause of the First Amendment to the United States
Constitution, which is made applicable to the states by the Fourteenth Amendment and prohibits Florida
from enacting a law "respecting an establishment of religion," as well as 42 U.S.C. º 1983.
JURISDICTION AND VENUE
3. This Court has jurisdiction over this lawsuit pursuant to Article V, º 20(c)(3), of the Florida Constitution,
and Fla. Stat. º 26.012(2)(c), (3).
4. Venue lies in this Court because defendants maintain their principal places of business in Leon County.
5. Plaintiff Ruth D. Holmes is a Florida citizen and taxpayer. Holmes is employed as a curriculum
coordinator in the Escambia County schools. She is a resident of Santa Rosa County.
6. Plaintiffs Gregory and Susan Watson are Florida citizens and taxpayers. The Watsons are residents of
Escambia County. They are the parents of three minor children, Sarah, Seth, and Sybil, who will be
enrolled in the Escambia County public schools in grades 8, 4 and 3 during the 19992000 school year.
The Watsons bring this suit on their own behalf and on behalf of their aforementioned minor children.
7. Plaintiffs Linda Lerner and Betsy H. Kaplan are Florida citizens and taxpayers. Lerner is a resident of
Pinellas County and is a member of the Pinellas County School Board. Kaplan is a resident of MiamiDade
County and is a member of the MiamiDade County School Board.
8. Plaintiffs Florida State Conference of Branches of NAACP ("Florida NAACP") and Citizens' Coalition for
Public Schools ("Citizens' Coalition") are organizations that are committed to the preservation and
improvement of Florida's system of public education. Most of the members of Florida NAACP and
Citizens' Coalition are Florida citizens and taxpayers. Florida NAACP and Citizens' Coalition bring this
lawsuit on behalf of their aforementioned members.
9. Defendant John Ellis "Jeb" Bush is Governor of the State of Florida and, in that capacity, serves as
Chairman of the State Board of Education. Bush is sued in his official capacity.
10. Defendant Tom Gallagher is Florida Commissioner of Education. In that capacity, Gallagher oversees
the operation of the Florida Department of Education, which (as set forth below) is charged with
implementing the OSP. Gallagher is sued in his official capacity.
11. Defendant Robert F. Milligan is Comptroller of Florida. As Comptroller, Milligan is charged under with
authorizing the disbursement of state funds for payments to private schools pursuant to the OSP. Fla.
Stat. º 229.0537(6)(b). Milligan is sued in his official capacity.
12. Defendant Robert A. Butterworth is Attorney General of Florida. The Attorney General is the state's
chief legal officer. Butterworth is sued in his official capacity.
13. Defendant Florida Department of Education ("Department") is the administrative agency that has
responsibility for implementing Florida's education policies and programs, including the OSP. In particular,
the Department is charged (a) under º 229.0537(6)(a)(3) with transferring school districts' appropriated
funds to a separate account to be used for the OSP; and (b) under º 229.0537(6)(b) with mailing OSP
vouchers to the private schools that participate in the OSP.
14. The OSP was created by Fla. Stat. º 229.0537, which became law in June, 1999. Section 229.0537 is
appended hereto as Attachment A, and incorporated herein by reference.
15. Under the OSP, parents of children who during the previous school year attended a public school that
for the second year in a fouryear period has been designated a "failing" school pursuant to the school
grading system of Fla. Stat. º 229.57 ("designated public school"), or who have been newly assigned to a
designated public school, "may request and receive from the state an opportunity scholarship for the child
to enroll in and attend a private school . . ." ("OSP voucher"). Fla. Stat. º 229.0537(2). The statute does
not limit eligibility for OSP vouchers to children from lowincome families.*
16. Section 229.0537 does not require that the private school a student attends with an OSP voucher
offer a higher quality education than the public school the student would have attended; indeed,
participating private schools are not subject to the school grading system of º 229.57 or any other state
school grading system.
17. Once a student receives an OSP voucher, the student may continue to attend a private school at
public expense at least until he or she finishes middle school, regardless of any change in the "grade"
assigned to the student's public school in the interim. Unless the student has chosen a private school that
does not offer a highschool education, the student will remain eligible for an OSP voucher through high
school as well, even if the public high school to which he or she otherwise would have been assigned has
never been designated a "failing" school. Fla. Stat. º 229.0537(2).
18. OSP vouchers will be in an amount that is the lesser of (a) the tuition and fees charged to the student
the participating private school, and (b) a "calculated amount" determined by a formula set forth in º
229.0537(6)(a)(1), which is roughly equivalent to the public funds that would be spent on the student's
education in a public school. As a condition of participation in the OSP, private schools are required to
accept the OSP voucher as full payment of the tuition and fees of OSP students. Fla. Stat. º
229.0537(4)(i). Section 229.0537 does not prohibit a participating private school from raising the tuition
and fees it charges to OSP students to a level that permits the school to capture the full "calculated
19. The Department is required, for each student receiving an OSP voucher, to transfer the "calculated
amount" from the funds appropriated for that student's public school district to a separate account that will
be used for the OSP. Fla. Stat. º 229.0537(6)(a)(3). The "calculated amount" is withdrawn from the public
school district's account even if it exceeds the amount of tuition actually paid under the OSP.
20. Section 229.0537(6)(b) directs the Comptroller to disburse OSP vouchers in four equal installments
during the school year. Such disbursements are to be in the form of warrants made out in the name of the
participating student's parent or guardian. Section 229.0537(6)(b) provides, however, that the Department
is to mail the warrant directly to the student's private school, rather than to the parent or guardian, and it
directs that "the parent or guardian shall restrictively endorse the warrant to the private school."
21. Section 229.0537(4) expressly provides that the public funds made available through the OSP may be
used to pay tuition and fees for students to attend "sectarian" schools.
22. Under º 229.0537(4)(j), private schools may not "compel" any OSP student "to profess a specific
ideological belief, to pray, or to worship." The OSP does not bar participating private schools from
compelling OSP students to participate in other religious activities, such as, for example, religious training
and instruction. Nor are such schools prohibited from requiring the passive attendance of OSP students
at worship services and prayers.
23. Although the OSP requires that participating private schools admit OSP students on a
"religiousneutral basis," Fla. Stat. º 229.0537(4)(e), it does not prohibit such schools from discriminating
on the basis of religion in the admission of other students or in the employment of faculty and staff.
24. The OSP places no restrictions on how participating private schools may expend the public funds that
are paid to them. Thus, sectarian schools are free to use these public funds for religious purposes, such
as worship, prayer, and religious training and instruction whether participation in such activities is
voluntary or compelled. Public funds provided under the OSP could be used, for example, to pay the
salaries or stipends of clergy, members of religious orders, and others who provide religious training and
instruction; to purchase Bibles, religious textbooks, textbooks that present other subjects from a religious
point of view, and other religious literature; to purchase and display crucifixes and other religious
symbols; and to build and maintain chapels and other facilities used for religious worship.
25. The OSP will be implemented in phases. Upon information and belief, during the 19992000 school
year students at two designated public schools in Escambia County will be eligible to receive OSP
vouchers to attend participating private schools. According to the Department's projections, students at
approximately 169 designated public schools could be eligible for OSP vouchers to attend private schools
during the 20002001 school year.
26. Upon information and belief, during the 20002001 school year, as many as 156,000 students could be
eligible to receive OSP vouchers to attend participating private schools; and the average amount of such
OSP vouchers will be between $4,000 and $5,000. Accordingly, hundreds of millions of dollars in public
funds that otherwise would have been used to fund public education potentially could be diverted to pay
for OSP vouchers.
27. Most private schools in Florida are affiliated with a religious group, institution, or organization, or
include a religious component in their educational program ("sectarian schools"). Almost all of these
sectarian schools are "pervasively sectarian," as that term has been used by the United States Supreme
Court, in that the secular and sectarian aspects of the education that they provide are "inextricably
intertwined." Meek v. Pittinger, 421 U.S. 349, 366 (1975). The educational programs at these pervasively
sectarian schools include religious indoctrination, worship, and the inculcation of religious beliefs, and are
designed to advance the religious missions of the schools and their sponsoring churches. Because these
pervasively sectarian schools are generally larger than other private schools, they enroll a
disproportionately high percentage of all Florida private school students.
28. Most of the private schools that participate in the OSP will be pervasively sectarian, and these
pervasively sectarian schools will enroll an even larger proportion of the students who receive OSP
a. In Escambia County the location of the two designated public schools whose students are expected to
be eligible to receive OSP vouchers during the 19992000 school year there were during the preceding
school year 25 private schools that enrolled students in grades K12 and are thus potentially eligible to
enroll OSP students. (The Department's listing of Escambia County private schools is provided in
Attachment B, which is incorporated herein by reference.) Twenty of these 25 private schools are
sectarian, and these sectarian schools enroll over 93 percent of the K12 privateschool pupils in Escambia
County. It is therefore to be expected that the vast majority of students attending private schools with
OSP vouchers will be enrolled in sectarian schools.
b. All or almost all of the Escambia County sectarian schools are pervasively sectarian. By way of
illustration, excerpts from informational materials published by several of these schools are provided as
Attachment C, and incorporated herein by reference. For example, Pensacola Christian Academy states
that its "purpose" is "to give Christian training along with a solid academic foundation . . . ." The
"philosophy of education" of Little Flower School explains that the school is
committed to educating our students in accord with the educational mission of the Church. . . . We believe
that the mission of Catholic education is the Christian formation of students. The young people in Little
Flower School must experience the Gospel in order to proclaim it now and throughout their adult lives.
According to the parent/student handbook of Aletheia Christian Academy, the school seeks "to lead the
pupils into a personal, saving relationship with Christ as Lord and Savior" and "to help pupils develop a
consistent Christian philosophy of life by integrating all subjects with the Bible." The student handbook of
Beulah Christian Academy asserts the school's objective "[t]o secure a decision from each student that
Jesus Christ is Lord of his or her life." At St. Paul Catholic School, "[a] strong program of religious
education is emphasized . . . and prayer is an integral part of the day. Parish priests visit classrooms
regularly to supplement religious instruction and sacramental preparation."
c. Upon information and belief, during the 20002001 school year and subsequent school years, the
percentage of private schools that are eligible to participate in the OSP that are pervasively sectarian, and
the percentage of OSP students enrolled in such schools, will be similar to the counterpart percentages
set forth above for the 19992000 school year.
FIRST CAUSE OF ACTION
(Violation of Article I, º 3, of the Florida Constitution)
29. The allegations in Paragraphs 128 are realleged and incorporated herein by reference.
30. Article I, º 3, of the Florida Constitution provides that "[n]o revenue of the state or any political
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 sectarian institution."
31. Under the OSP, state and school district revenues will be taken from the public treasury and used in
aid of churches, sects, religious denominations, and sectarian schools, in violation of Article I, º 3, of the
SECOND CAUSE OF ACTION
(Violation of Article IX, º 1, of the Florida Constitution)
32. The allegations in Paragraphs 128 are realleged and incorporated herein by reference.
33. Article IX, º 1, of the Florida Constitution obligates the state to provide a "high quality education" for
the children of Florida in "a uniform, efficient, safe, secure, and high quality system of free public schools."
34. The OSP unconstitutionally directs the state to fulfill in part the education obligation imposed upon it
by Article IX, º 1, in a manner other than that prescribed therein, namely by paying tuition for certain
children to attend private schools rather than the "free public schools" called for by Article IX, º 1.
35. Because the private schools to which the state will pay tuition pursuant to the OSP will not necessarily
provide a system of education that is "uniform" or of "high quality," the state's attempt to fulfill its
constitutional obligation by paying tuition to such schools violates Article IX, º 1.
36. By withdrawing resources from the public schools that are encountering the greatest difficulty in
fulfilling their educational mission, the OSP will prevent those schools from providing a "highquality
system of" public education, in violation of Article IX, º 1.
THIRD CAUSE OF ACTION
(Violation of Article IX, º 6, of the Florida Constitution)
37. The allegations in Paragraphs 128 are realleged and incorporated herein by reference.
38. Article IX, º 6, of the Florida Constitution provides that "[t]he income derived from the state school fund
shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free
39. The OSP will use the state school fund for a purpose other than "the support and maintenance of free
public schools," in violation of Article IX, º 6, of the Florida Constitution.
FOURTH CAUSE OF ACTION
(Violation of the Establishment Clause of First Amendment
to the United States Constitution and 42 U.S.C. º 1983)
40. The allegations in Paragraphs 128 are realleged and incorporated herein by reference.
41. Under the OSP, the state will pay unrestricted public funds to sectarian schools, where such funds will
be used for religious education, worship, and other religious activities. This use of public funds violates
the Establishment Clause of the First Amendment to the United States Constitution, which is made
applicable to the states by the Fourteenth Amendment, as well as 42 U.S.C. º 1983.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this Court:
(1) Declare the OSP unconstitutional under (a) Article I, º 3, of the Florida Constitution, (b) Article IX, º 1,
of the Florida Constitution, (c) Article IX, º 6, of the Florida Constitution, and (d) the Establishment Clause
of the First Amendment to the United States Constitution;
(2) Enjoin defendants, and all persons and entities acting under their direction or in concert with them,
from taking any measures to implement the OSP;
(3) Award to plaintiffs the attorneys' fees, expenses, and costs that are incurred in prosecuting this
(4) Order such other and further relief as this Court may deem appropriate.
RONALD G. MEYER, ESQUIRE
On Behalf Of:
RONALD G. MEYER
Florida Bar No. 0148248
Meyer and Brooks, P.A.
2544 Blairstone Pines Drive
Post Office Box 1547
Tallahassee, FL 32302
PAMELA L. COOPER
Florida Bar No. 0302546
Florida Teaching ProfessionNEA
213 South Adams Street
Tallahassee, FL 32301
ANDREW H. KAYTON
Florida Bar No. 0889563
American Civil Liberties Union
Foundation of Florida, Inc.
3000 Biscayne Blvd., Suite 215
Miami, FL 33137
Florida Bar No. 0341355
2 South Biscayne Blvd.
Miami, FL 33131
ELIZABETH J. COLEMAN
STEVEN M. FREEMAN
823 United Nations Plaza
New York, NY 10017
STEVEN K. GREEN
AYESHA N. KHAN
Americans United for Separation
of Church and State
1816 Jefferson Place, N.W.
Washington, D.C. 20036
ROBERT H. CHANIN
ANDREW D. ROTH
Bredhoff & Kaiser, P.L.L.C.
1000 Connecticut Avenue, N.W.
Washington, D.C. 20036
ELLIOT M. MINCBERG
JUDITH E. SCHAEFFER
People For the American Way
2000 M Street, N.W., Suite 400
Washington, D.C. 20036
STEVEN R. SHAPIRO
American Civil Liberties Union
125 Broad Street, 17th floor
New York, NY 10004
MICHAEL A. SUSSMAN
National Association for the
Advancement of Colored People
Law Offices of Michael A.
25 Main Street
Goshen, NY 10924
MARC D. STERN
American Jewish Congress
15 East 84th Street
New York, NY 10028
Counsel for Plaintiffs
JEFFREY P. SINENSKY
KARA H. STEIN
American Jewish Committee
165 East 56th Street
New York, NY 10022
* Section 229.0537 also contains provisions requiring public school districts to allow the parents of
students enrolled in or assigned to designated public schools to enroll their children in higher rated public
schools in the same or an adjacent school district. Fla. Stat. º 229.0537(3)(a)(2), (b). This lawsuit does not
challenge the constitutionality of these or other provisions of law that determine which public schools
students may attend.