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

Abstract

This article analyzes the Florida Supreme Court’s recent decision in Bush v. Holmes, in which the court struck down Florida’s school voucher program as a violation of Florida\u27s constitutional uniformity clause. It argues that the court erred by applying a simplistic and ahistorical definition of uniformity, and recommends that future courts applying state constitutional uniformity clauses to school voucher schemes take a different approach. Specifically, it argues that courts in future cases should begin by acknowledging frankly the necessity of determining the meaning of uniformity. Next, drawing on case law and historical evidence, they should fashion definitions of uniformity that accurately reflect the purposes for which their states’ uniformity clauses were adopted. Finally, in applying these definitions, they should take account of relevant empirical data. This article does not generalize about the outcomes courts in other states might reach, if they followed this approach. Nor does it express a normative judgment about what outcome state courts should reach, as a general matter, when applying uniformity clauses to school choice programs. But it contends that the approach described here will produce outcomes more solidly grounded in historical, doctrinal, and empirical reality than the outcome reached by the Florida Supreme Court in Holmes