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Florida vouchers ruled unconstitutional
January 5, 2006 8:49 PM   Subscribe

"We make no distinction between a small violation of the Constitution and a large one. Both are equally invalid. Indeed, in the system of government envisioned by the Founding Fathers, we abhor the small violation precisely because it is precedent for the larger one." (PDF) By a 5-2 count, the Florida Supreme Court ruled Thursday that public monies may not be used to fund private schools, thus closing off avenues for embezzlement and violations of the Establishment Clause that otherwise prevents a US state from endorsing, or establishing specific religious organizations.
posted by Rothko (59 comments total)

 
Yay!
posted by bshort at 8:53 PM on January 5, 2006


Actually, they based their decision on the constitution of the State of Florida. It had nothing whatever to do with the establishment clause of the First Amendment.
posted by Steven C. Den Beste at 8:54 PM on January 5, 2006


pwned.
posted by wakko at 8:54 PM on January 5, 2006


Actually, they based their decision on the constitution of the State of Florida. It had nothing whatever to do with the establishment clause of the First Amendment.

Please read the court's opinion. Hey, I even quoted one of the best bits!
posted by Rothko at 8:57 PM on January 5, 2006


"The issue we decide is whether the State of Florida is prohibited by the Florida Constitution from expending public funds to allow students to obtain a private school education in kindergarten through grade
twelve, as an alternative to a public school education."

"The narrow question we address is whether the second option violates a part of the Florida Constitution . . ."

"The plaintiffs in this case then voluntarily dismissed their challenges under the Establishment Clause, leaving undecided only the issue of whether the OSP was facially constitutional under article I, section 3 of the Florida Constitution."
posted by JekPorkins at 9:04 PM on January 5, 2006


Um, "Founding Fathers" of Florida?
posted by Rothko at 9:05 PM on January 5, 2006


"Founding Fathers" of Florida?

Yes. Who did you think wrote the Florida Constitution? Cap'n Crunch?
posted by JekPorkins at 9:08 PM on January 5, 2006


Jeb Bush, maybe? John Wayne? Charlton Heston?
posted by Rothko at 9:09 PM on January 5, 2006


You think Jeb Bush was one of the 56 delegates who wrote the Florida Constitution in 1838? Or perhaps you think he was one of the folks who amended it to its current form in 1968?

Just as Hans Sprongfeld was the "founding father" of Springfield, so were the framers of the Florida Constitution the "founding fathers" of the Florida Constitution.

Is it really that hard to grasp?
posted by JekPorkins at 9:13 PM on January 5, 2006


I'm with Steven C. Den Beste. This is about the Florida constitution, not about the establishment clause.

Relevant quote from the brief, with my emphasis added:

While the case was pending on remand, the United States Supreme Court held that the Ohio Pilot Project Scholarship Program, a voucher program similar to the OSP, was constitutional under the Establishment Clause. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The plaintiffs in this case then voluntarily dismissed their challenges under the Establishment Clause.

That's about all the Establishment Clause you're going to get out of this brief.

P.S. A pdf warning would have been nice.
posted by bugmuncher at 9:15 PM on January 5, 2006


Sorry, you lost me when you dropped your Simpsons reference. No sure what fiction has to do with reality.
posted by Rothko at 9:15 PM on January 5, 2006


P.S. A pdf warning would have been nice.

Um, there was one.
posted by Rothko at 9:16 PM on January 5, 2006


Sorry, you lost me when you dropped your Simpsons reference. No sure what fiction has to do with reality.

Sorry. When you rejected the idea that Florida could have founding fathers, I figured I needed to illustrate the point in the most basic conceivable way. I didn't mean to lose you. The fact that you recognized the reference suggests that I didn't really lose you.

Fiction: That this ruling has anything to do with the U.S. Constitution.

Reality: That this ruling is entirely about the Florida Constitution.

You're right. Fiction has nothing to do with reality.
posted by JekPorkins at 9:21 PM on January 5, 2006


Whatever you care to believe.
posted by Rothko at 9:24 PM on January 5, 2006


According to the NYTimes article that Rothko linked to:

The Florida ruling cannot be appealed to the United States Supreme Court because no federal issues are involved, lawyers on both sides of the litigation said.

In other words, because the Florida ruling was solely based on the constitution of the State of Florida, federal courts don't have jurisdiction.

In Florida, as in pretty much all other states, the state constitution can be amended by a direct vote of the people. If the people of Florida want school vouchers, they'll alter the clause of the Florida Constitution which was the basis for this decision, which will render it null and void.

That same NYTimes article also said: The United States Supreme Court has ruled that the federal Constitution does not prohibit vouchers, but it also held last year that states were not obliged to finance religious education as well as secular education. Which is to say that any given state may decide to permit vouchers to be used at religious schools without violating the Establishment clause, but they are not obligated to do so if they have a voucher system.

This decision in Florida is much less momentous than you seem to think. It doesn't establish any precedent at all for the other 49 states and it may not even establish a precedent even for Florida, depending on what the voters there decide to do.
posted by Steven C. Den Beste at 9:26 PM on January 5, 2006


Either Jeb has to appeal or has to rig voting to rewrite his state's Constitution. Good news either way.
posted by Rothko at 9:29 PM on January 5, 2006


Either Jeb has to appeal or has to rig voting to rewrite his state's Constitution.

He can't appeal. It's a Florida Supreme Court opinion with no Federal issues. See Steven C. Den Betste's comment immediately above yourse for a nice quote from the article you linked to. And do you think he really cares enough about this to try to amend the state constitution? I sincerely doubt it.
posted by JekPorkins at 9:32 PM on January 5, 2006


I have not read the decision, but agree with it as a general proposition. Public schools need to be supported and nourished. On the other hand, they should not have money thrown at them, as is done in many places, e.g., NYC. The healthiest system is one of private and public schools, just as is the case with higher education.
posted by ParisParamus at 9:33 PM on January 5, 2006


And do you think he really cares enough about this to try to amend the state constitution? I sincerely doubt it.

I don't. There are rumblings for Jeb to run in 2008 or 2012. Something like this would definitely help with the Christian fundamentalists that voted for the GOP in 2004.
posted by Rothko at 9:35 PM on January 5, 2006


good for Florida, but i bet the Supremes overturn it.
posted by amberglow at 9:35 PM on January 5, 2006


One more time, with emphasis: the federal courts don't have jurisdiction. It cannot be appealed to the federal courts, which means the "Supremes" won't be overturning anything.
posted by Steven C. Den Beste at 9:39 PM on January 5, 2006


Non-reg link to the NYT story
posted by RylandDotNet at 9:51 PM on January 5, 2006


Something like this would definitely help with the Christian fundamentalists that voted for the GOP in 2004.

Amending the Florida Constitution to be more like the U.S. Constitution, which does not prohibit the activity that was at issue in this case, would probably help him with anyone who thinks the U.S. Constitution is better than the Florida one.

Hey, maybe to counter that whole movement, Hillary can introduce a constitutional amendment to the U.S. Constitution to make it more like the Florida Constitution! That'd show 'em!
posted by JekPorkins at 9:54 PM on January 5, 2006


Great news - I've always been against school vouchers because I think they're retarded, but now there's a precedent for finding them unconstitutional as well, at least in Florida. Hopefully other states have similar enough clauses that public money for private schools will be thwarted in other locales.

And ParisParamus, you're right - as long as the private schools are truly private (and expensive) and the public schools are well funded, there should exist a pretty good balance.
posted by BlackLeotardFront at 9:58 PM on January 5, 2006


One more time, with emphasis: the federal courts don't have jurisdiction. It cannot be appealed to the federal courts, which means the "Supremes" won't be overturning anything.

Go read Bush v. Gore--they didn't have jurisdiction there either. You know they're going to get involved in this.
posted by amberglow at 10:00 PM on January 5, 2006


*Tears hair out*

From the linked article:

The Florida ruling cannot be appealed to the United States Supreme Court because no federal issues are involved, lawyers on both sides of the litigation said.

SCOTUS doesn't just "get involved." You have to petition them. If lawyers on both sides say there's no SCOTUS issue, then that's the end of it.

Furthermore, they did have jurisdiction in Bush v. Gore.
posted by JekPorkins at 10:11 PM on January 5, 2006


and also in that NY Times article: ...Since Wisconsin established the nation's first voucher program in Milwaukee in 1990, a handful of other states have followed suit, including Ohio, Colorado and Utah. In 2004, Congress enacted a voucher program for the District of Columbia.

Some of the state programs have come under legal challenge and the verdicts have been mixed. The Wisconsin Supreme Court upheld the Milwaukee program's constitutionality in 1998. The United States Supreme Court upheld the Ohio program in 2002. ...


(And just because they took the case in Bush v. Gore, and assumed he had standing when he didn't, doesn't mean that they really did have jurisdiction. State court-mandated processes had not been completed, and there was no direct injury to Bush, nor any resolution at all yet.)
posted by amberglow at 10:26 PM on January 5, 2006


amberglow,

do Wisconsin, Ohio, Colorado, Utah, and/or the District of Columbia have clauses (?) in their respective state constitutions, like Florida apparently has, that would prohibit public monetary support of private schools?

If so, then is seems like there may be a case. Otherwise, I'm guessing that if there's nothing in a state's constitution regarding the practice (for or against), it defaults to the supreme court?

/no snark. I'm actually asking questions.
// Canadian; doesn't know too much about American law
posted by C.Batt at 10:41 PM on January 5, 2006


the Florida Supreme Court ruled Thursday that public monies may not be used to fund private schools

Pretty much par for the course here in Australia. Well, "help fund" at least.
posted by uncanny hengeman at 10:41 PM on January 5, 2006


A presidential election is a federal issue.

This isn't, so under the Tenth Amendment the feds would not be able to rule even if one of the parties to the suit appealed to them. And neither party to the suit intends such an appeal in any case.

The Florida Constitution doesn't contain an explicit clause forbidding vouchers. Rather, the Florida Supreme Court came to this conclusion based on more general language in the Florida Constitution relating to education issues.

This decision applies only to the State of Florida because it is based on the Florida Constitution, and because the Supreme Court of Florida only has jurisdiction within that state. Therefore it has no meaning or application whatever to any of the other 49 states.
posted by Steven C. Den Beste at 10:52 PM on January 5, 2006


of course it has meaning and application--all cases start out as state or local cases. The Georgia State Supreme Court (more than 10 years after Bowers v. Hardwick, but before Lawrence v. Texas) used their constitution too, to strike the state's sodomy laws, but Lawrence v. Texas made it moot.

US Supreme Court cases can overrule state laws and state constitutions (especially interpretations of state constitutions, like here) if it's decided that whatever it is was ruled wrongly.
posted by amberglow at 11:02 PM on January 5, 2006


all cases start out as state or local cases

No. Many, many cases start in the federal District Courts.
posted by JekPorkins at 11:06 PM on January 5, 2006


amberglow: all cases start out as state or local cases

...except federal cases.

US Supreme Court cases can overrule state laws and state constitutions

...when those state laws and constitutions conflict with the U.S. Constitution in an impermissible way.

The U.S. Supreme Court could get involved if, for example, Florida enacted a law that permitted state cops to search someone's house without a warrant. (Or, more likely, if Florida changed its evidence code so that evidence from a warrantless search was admissible.) However, if Florida does something neither specifically prohibited by the U.S. Constitution nor incompatible with a federal statute, the Supreme Court can't get involved. (Of course, a crafty attorney might be able to come up with some theory that implicated the U.S. Constitution or federal law, but that doesn't seem to have happened in this case.)
posted by spacewrench at 11:17 PM on January 5, 2006


well, if the FL thing isn't going to the Supremes, this nationwide voucher thing for kids affected by Katrina probably will.
posted by amberglow at 11:52 PM on January 5, 2006


Actually, under U.S. law, presidential elections are entirely state issues, with each state empowered to determine how the election is run and tabulated within the confines of that state.

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..."

and all of that.

Possibly it should be a federal issue, but, as the constitution is written, it's entirely a state matter, and the Supreme Court shouldn't have, at least in theory, gotten involved. For what it's worth.
posted by kyrademon at 12:25 AM on January 6, 2006


amberglow is correct in that this will almost certainly be appealed to the Federal judiciary. Whether the federal judges in whose lap it falls find that there are federal issues at stake is a more discerning question, to which I do not know the answer.
posted by dhartung at 2:28 AM on January 6, 2006


they should not have money thrown at them, as is done in many places, e.g., NYC.

When and where is the next money-throwing to happen? I'd like to be there in case any of it bounces off.
posted by Kirth Gerson at 2:55 AM on January 6, 2006


A problem with public school is that they finance the formation of good researchers ; similarly, air force finances the formation of excellent plane pilots that were used to leave USAF for the better paying private sector (now it doesn't happen nearly as much for obvious reasons).

Now what's the point of financing the formation of researchers if the best ones are privatized by private companies and the less good (but relatively still very good ones) don't have a chance to do the public good because they can hardly find jobs ? For instance some outstanding italian researchers are routinely "stolen" from our resource pool because they're offered better economical condition and less corruption expecially by U.S. companies and universities ; obviously offering them better conditions costs less then preparing the researchers so the italian taxpayer took the shaft.

Privatizing profits, socializing costs.

So what's the point of financing religious school ? Expecially during the formation phase of childhood one doesn't need to be exposed to any religious illusion as children are less resistant then adults to indoctrination, therefore are favoured targets.
posted by elpapacito at 4:19 AM on January 6, 2006


Never thought I'd write this, but Go Florida!
posted by Civil_Disobedient at 4:25 AM on January 6, 2006


It cannot be appealed to the federal courts, which means the "Supremes" won't be overturning anything.

Normally, I'd accept this, since I agree that it's well within Florida's jurisdiction.

But this Supreme Court? I wouldn't be surprised if Scalia is writing up the emegencey cert even as we speak.
posted by eriko at 5:15 AM on January 6, 2006


Metafilter:Who did you think wrote the Florida Constitution?
posted by BeerGrin at 5:48 AM on January 6, 2006


So what's the point of financing religious school ? Expecially during the formation phase of childhood one doesn't need to be exposed to any religious illusion as children are less resistant then adults to indoctrination, therefore are favoured targets.
posted by elpapacito at 7:19 AM EST on January 6 [!]


elpapacito, having gone to an American religious school myself, I can tell you that it's a bit different that what you are picturing. Religious schools teach the same subjects as other schools, and there are lots of students there that aren't even Christian. The only differences are that there's a religion class you take, and a short weekly church service. I'm not saying that there aren't grounds for saying that you don't want public funding for them, I'm just saying that it's not like were proposing sending kids to some indoctrination center where everyone has to be of the same religion and become a monk or something. Most of American religious schooling is pretty secular, and there are a lot of non-religious parents that choose to send their kids to religious schools because of the quality of education.
posted by unreason at 5:58 AM on January 6, 2006


But this Supreme Court? I wouldn't be surprised if Scalia is writing up the emegencey cert even as we speak.
posted by eriko at 5:15 AM PST on January 6 [!]


What? There is no such thing as "emergency cert" made by a Justice. One of the parties would have to file a petition, and they've seemingly both said they won't.

As many others have said, there seems to be no federal question here for review anyway. The way a case like this might come before the Supreme Court is if the language of the decision made it unclear whether the state court decided the question on state or federal grounds. See Michigan v. Long. The reason it might be unclear is that many state constitutions have language identical to the US constitution, and many state courts have held that their state constitutional rights are "coterminous" with the federal right. So in those situations, deciding on state grounds might be equivalent to deciding the federal right.

But here it seems like the Florida court made it really clear that it was basing its decision on its own constitution, which provides greater protections than the federal constitution. So, it seems quite clear that there's no federal question, the sine qua non of Supreme Court review.

At the same time, I disagree with S.C. Den Beste that "This decision in Florida is much less momentous than you seem to think. It doesn't establish any precedent at all for the other 49 states and it may not even establish a precedent even for Florida, depending on what the voters there decide to do." Using state constitutions is actually the forefront of civil rights litigation these days, since so many avenues have been closed to federal litigation. State constitutions are an untapped goldmine of substantive rights, and this case is an important example of that that will doubtless inspire similar litigation in other states.
posted by footnote at 7:08 AM on January 6, 2006


Typical level of legal analysis here. Which is to say, people not even bothering to read or understand a legal opinion and accepting a one sentence partisan summary of it as fact.

This is about the Florida Constitution; it involves a state issue about state funding. There is no federal court jurisdiction. (And amberglow is wrong about Bush v. Gore; the Supreme Court, as they do, explained the basis for jurisdiction in their opinion.)

One of the neat things about the law is that it is written down. We don't have to speculate about it. It is right there, written down. If you just read the statute or opinion, then you don't have the problem of missing on what the thing said.

US Supreme Court cases can overrule state laws and state constitutions (especially interpretations of state constitutions, like here) if it's decided that whatever it is was ruled wrongly.
posted by amberglow at 1:02 AM CST on January 6


Uh, no. There has to be a federal question involved or a constitutional right.
posted by dios at 7:33 AM on January 6, 2006


Anyone interested in how a case on states banning religious school vouchers would actually become a federal question should check out the Becket Fund's cases. Their theory is basically that since governments fund all sorts of other kinds of private organizations, including religious, for purposes other than edication, it's discrimination not to fund private religious schools. But again, that question was not decided or even argued before the Florida court in this case.

And if you really, really want to learn more about federal jurisdiction, here's a helpful brochure. [PDF]
posted by footnote at 7:46 AM on January 6, 2006


Typical level of legal analysis here.

Do we need to get into your demonstrated lack of knowledge about states rights, representation, filbustering etc.?
posted by Rothko at 8:02 AM on January 6, 2006


Uh, no. There has to be a federal question involved or a constitutional right.
There are federal questions and/or constitutional rights involved in many if not most if not all cases. And the Supreme Court was wrong both for getting involved in Bush v. Gore, and for doing so in the midst of state and state court-ordered proceedings.

Education is both a local, state, and federal matter--if any of the funding for the districts affected is coming from DC, and if the federal govt. mandates what you can and cannot teach then it has relevance beyond FL. I don't want the FL people to take it to the Supremes but a case can easily be made. And they've ruled on it before, for Ohio.
posted by amberglow at 8:05 AM on January 6, 2006


I don't want the FL people to take it to the Supremes but a case can easily be made. And they've ruled on it before, for Ohio.

This is just plain wrong. The Ohio case was expressly based on the Establishment Clause of the U.S. Constitution. In this case, the plaintiffs intentionally and voluntarily dismissed their religious freedom claims under both the U.S. and Florida constitutions to avoid any possibility of federal review. There is no federal question here.
posted by monju_bosatsu at 8:12 AM on January 6, 2006


Amberglow, you're just wrong that this particular case presents a federal question. The larger issue might some day, but this case doesn't. Even if it did decide also on federal constitutional grounds, the "adequate and independent state ground" doctrine would mean that the Court would be extremely unlikely to grant cert.

It's simply not true that "most if not all" state cases involve federal questions. Hundreds of cases are decided every day in state courts which have nothing to do with federal law. Many cases based on state laws might involve issues that can later be spun into separate, independent litigation on federal questions -- but that's very different from saying that the case itself is eligible for Supreme Court review. I know it must seem to you after Bush v. Gore that the rules don't matter, but for the most part they still do.
posted by footnote at 8:15 AM on January 6, 2006


Do these vouchers use federal funds? Yes.

That makes it easily a federal interest case, doesn't it?
posted by nofundy at 8:48 AM on January 6, 2006


Do these vouchers use federal funds? Yes.

So? What does that have to do with interpreting this specific provision of the Florida constitution? What federal question is presented?
posted by monju_bosatsu at 8:59 AM on January 6, 2006


Do these vouchers use federal funds? Yes.

That makes it easily a federal interest case, doesn't it?
posted by nofundy at 8:48 AM PST on January 6 [!]


I don't know if they use federal funds, but it wouldn't make a difference. The federal government has no right to force federal funds on a state contrary to the state's own constitution.

Look, federal jurisdiction is really, really complex. I'm talking hardest-class-in-law-school, worse-than-Paper-Chase stress. The leading casebook, Hart &Weschler's Federal Courts, is an icon of inscrutability. So I don't blame anyone for having a hard time understanding this. But believe us: this case is not going to the Supreme Court.
posted by footnote at 9:17 AM on January 6, 2006


I believe you footnote. And I am definitely in the IANAL category. But still there seems to be a vested interest when federal money is spent. Are states free to spend federal money as they see fit, even when it violates federal law, most especially the Constitution? Is this a valid point?
posted by nofundy at 6:31 PM on January 6, 2006


That's absolutely a valid point. For example, if a state used federal education funds to directly subsidize private religious schools. In other words, imagine a situation where the state is cutting a check directly to the schools, as opposed to a voucher program. By doing so, the state is pretty clearly violating the Establishment clause, and there is clearly a federal question that confers jurisdiction on a federal court to hear the case.

In this case, however, the state had created a voucher program like the program in Ohio. Initially, the plaintiffs sought to strike down the Florida program based on the Establishment clause in the U.S. Constitution and a similar provision in the Florida constitution. However, while their case was pending, the Supreme Court decided the Ohio case, concluding that such a voucher program was constitution, and did not violate the Establishment clause. If the plaintiffs in Florida continued with their case as originally conceived, any decision in the state court would be appealable to the U.S. Supreme Court based on the Establishment clause issue. If the Supreme Court were to grant certiorari, if would reverse based on the decision in the Ohio case.

In order to avoid review by the U.S. Supreme Court, the plaintiffs in Florida voluntarily dismissed their claims under the Establishment clause and, just to be safe, the religious freedom clauses under the Florida constitution. In fact, as the case was decided by the Florida court, it has nothing to do with religion at all. Instead, the plaintiffs based there challenge on a provision of the Florida constitution requiring the Florida legislature to spend state funds to fund a public education system. In other words, a voucher system arguably violated that provision because the state funds were no longer being used for a public system, and instead funding private schools. Because the decision is based purely on the interpretation of the state constitution, and because there is probably no argument that the state constitution itself violates the federal constitution, there is likely no avenue of appeal.

The fact that federal money might be spent in this program probably matters little for this kind of review. In fact, because the Establishment clause binds both the state and federal governments, in doesn't matter where the money comes from. Also, consider that the voucher program is not prohibited by federal law. However, it is also not required. I guess there might be a situation in which the federal government mandates that the states create a voucher program for education, but a state decides that such a program violates its own constitution. The federal law in that case, assuming that it's consistent with the U.S. Constitution (questionable), would likely override the state constitution by virtue of the Supremacy Clause. However, in this case, the program was not required, and therefore a decision by the state court that the state can't create such a program by virtue of the state constitution doesn't conflict with federal law.
posted by monju_bosatsu at 9:31 PM on January 6, 2006


public schools are retarded. so are private schools. we can all agree about that right? the problem with this decision is it stops innovative new types of schools emerging. this doesnt just stop tax money going to religious schools but also secular schools. school vouchers would create the biggest boom in educational innovation this country has ever seen. too bad for florida residents
posted by tranceformer at 7:04 AM on January 7, 2006


Thanks monju. I must admit it's still unclear to me how state issues end up in federal court at times. For example, the Terry Schiavo case. Looked to me clearly a matter of state law but there was the Congress and Prez meeting in emergency session in the middle of the night to intervene! I suppose though that was not a matter of the chain of escalation through the courts. But then when the Florida
Supreme court decided against the perceived best interests of
Bush we had the federal courts immediately intervene in what seemed a case of state law. It's enough to confuse me.

public schools are retarded. so are private schools. we can all agree about that right?

Err ... no. There are however ineffectual educational institutions as evidenced by your statement. Can't make a silk purse from a sow's ear.
posted by nofundy at 7:25 AM on January 7, 2006


Ach, nofundy, you're almost making me dig up my hated and feared copy of Hart & Wechsler!

What happened in the Schiavo case is that Congress did step in at the 11th hour to give federal jurisdiction over the case where none had existed before. That's quite different from the case we're talking about here, where the law is quite clear still that there's no jurisdiction.

So, could Congress now step in and grant jurisdiction over this case? They could try, but they'd have to do more than give jurisdiction -- they'd have to create a new substantive federal right, since there's not one implicated here as it is.

What's much more likely, I think, is that Congress might start attaching a condition to its federal aid to states, saying that if states want the federal money, they have to allow school vouchers. That could still raise serious constitutional questions, though, since it would be coercing Florida to change its own constitution.
posted by footnote at 1:07 PM on January 7, 2006


and what about the interstate voucher program for Katrina kids that Bush signed off on?
posted by amberglow at 1:39 PM on January 7, 2006


That's a good question. The program does pretty clearly condition receipt of the aid on the states' administration of funding to private schoolsbut the voucher program only applies to Louisiana, Mississippi, Alabama, and Texas, so the question isn't raised as directly as is would be in Florida. But if any of the receipient states have also clearly rejected vouchers, maybe through a referendum or failed legislation, (I don't know if they have) they might be able to make a case that the Spending Clause is being used coercively to undermine the rights reserved to the states by the 10th Amendment.

The Spending Clause/10th Amendment theory is sometimes raised with respect to the No Child Left Behind Act. But it's still a pretty unformed area of constitutional law, one of those places where the law professors say "In theory there are limits to the Spending Clause, but nobody knows where they actually are."
posted by footnote at 2:14 PM on January 7, 2006


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