In 1973, the Florida legislature enacted a dual enrollment law allowing eligible high school students to enroll in free college or vocational classes for high school and college credit.[1]

School choice did not become a significant issue until 1996, when the state enacted a charter school law. House Bill 403 allowed for the creation of three to seven charter schools per district, depending on the size of the district. It also required school districts to develop limited open enrollment among their public schools.[2] The plan was subject to desegregation plans. The state did not require the districts to implement their school choice plans.[3] Districts were limited to 12-28 new charter schools, depending on the size of the districts. An unlimited number of traditional public schools could convert to charter schools.

Subsequent reauthorizations have strengthened the law and eliminated the restriction on the number of charter schools in each district. Each school receives 100 percent of the funding minus administrative services fees, not to exceed 5 percent of the total funding. Teachers do not have to be certified.[4]

In June 1999, Governor Jeb Bush signed the A+ Plan for Education, which offers state-paid tuition scholarships to children in failing public schools to attend a public, private, or religious school of choice. The Florida House approved the A+ plan by a vote of 70 to 48, and the Senate approved it by a vote of 25 to 15.[5] The legislation set up a grading system for Florida's public schools based on test scores on the Florida Comprehensive Assessment Test (FCAT). Students at schools receiving a grade of "F" for two years in a four-year period can transfer to a higher-scoring public school or a private school with an Opportunity Scholarship, valued at the state per-pupil expenditure or the tuition and fees of the private school, whichever is less.[6]

The day after the governor signed the A+ plan into law, People for the American Way, teachers unions, the American Civil Liberties Union (ACLU), and others filed suit, claiming the program violates both the state constitution and the U.S. Constitution. A month later, the American Federation of Teachers filed a second lawsuit against the plan. The Institute for Justice represented the five Pensacola families participating in the program and the Urban League of Greater Miami. A state judge struck down the private school choice provision of the program on March 14, 2000. The court ruled that the Florida scholarship program violated the constitutional mandate that the state "provide a free education through a system of public schools."[7]

In October 2000, the Florida First District Court of Appeals ruled that the school voucher program was constitutional and may remain in effect. The decision reversed the March ruling by the Leon County Circuit Court judge that the Opportunity Scholarships violated the state constitution, which bars aid to sectarian institutions. The appellate court found that lawmakers experiment with different ways of working "for the common good" and that the state constitution "does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system."[8]

No other schools received a failing grade during the 1999-2000 school year; all of the schools that had received an "F" the prior year had made substantial progress on the writing part of the Florida Comprehensive Assessment Test.[9]

A 2000 survey of more than 750 public school teachers found significant support for the possibility that the availability of vouchers caused a dramatic improvement in test scores at some of Florida's worst-performing public schools. Of the teachers surveyed, 65 percent responded that the A+ plan played a "minor" or "major" role in the test score changes. Only 17 percent said that the plan played "no role."[10]

In late October 2000, the Pinellas School Board approved a public school choice plan. According to the plan, students entering the district's schools for the first time in fall 2003 will have to choose a school within the attendance area. Some students will be "grandfathered" into the system and allowed to attend their original neighborhood school. Black students who have been bused will be able to choose a school closer to their homes.[11]

On the private scholarship front, in 1998, Miami and Tampa Bay became Florida's first two Children's Scholarship Fund (CSF) "partner cities." The CSF matches the funds raised by residents in these cities to offer four-year scholarships to low-income children entering kindergarten through 8th grade to attend a school of choice.[12]

In April 2000, Tampa businessman John Kirtley announced that he would donate $2 million to private inner-city schools that agree to accept students using Opportunity Scholarships. Grants from Kirtley's nonprofit School Choice Fund could be used for books, computers, transportation, building expansion and renovation, or other needs, excluding tuition. At least 35 private schools in Florida applied for the grants.[13] Kirtley was the founder of the Florida Children's Fund, a private voucher program. In 2002, he became the president of Children First America, a national organization that provides scholarships, information to the public, and support for new choice organizations.[14]

During the 2000 legislative session, H.B. 1127 was introduced to give tax credits for contributions to scholarship organizations or public schools. Individuals would have received a credit of 65 percent of their contribution. The bill died in committee.[15]

In 2001, Jay P. Greene, Ph.D., released an analysis of the Florida A+ program. He found that during 1999-2000, the 76 failing schools had improved an average of 17.59 points in reading and 25.66 points in math on the state assessment (the FCAT), which uses a scale of 100 to 500, compared with 10.02 points in reading and 16.06 points in math for schools that had received a "D" rating.[16]

In July 2000, Volusia County became the state's first charter school district. The plan, approved by the governor, allows the district freedom from certain state regulations and laws in exchange for improved academic achievement. Volusia County is now the nation's largest charter district, with 65 schools serving roughly 60,000 students.[17]

In 2001, the governor signed into law Senate Bill 1180, which expanded a pilot voucher program enacted in 1999. Under the original pilot program, two disabled students received vouchers to attend private schools. The new law made all special-needs students eligible. Parents who are dissatisfied with their children's academic progress may transfer their children to another public or private school using a publicly funded McKay Scholarship.[18] The McKay Scholarship was named after the bill's sponsor, then-State Senator John McKay, who has a child with a disability. In 2001, 4,000 students participated at an average cost of $6,000 per student; in 2002, 8,082 students participated.[19]

The governor also signed a bill to provide tax credits to corporations that donate to organizations that award scholarships to children from low-income families. A corporation can receive a dollar-for-dollar tax credit up to 75 percent of its state income tax liability. The state may award a maximum of $50 million in credits a year.[20] The scholarships, available to recipients who meet income eligibility thresholds, are worth $3,500 or the cost of tuition plus books and transportation, whichever is less. As of December 2002, 14, 520 students had received scholarships funded through the tax credit program.[21]

Finally, the School Crowding Relief Intervention for Parents and Teachers Act, H.B. 303 and its companion bill (S.B. 504), was introduced to give each student in schools where enrollment exceeds 120 percent of capacity a $3,000 grant to use toward tuition at a private school. The House passed H.B. 303 by a vote of 63 to 54 on March 22, 2001. The Senate bill died in committee.[22]

On April 26, 2001, the Florida Supreme Court declined to review the October 2000 appeals court ruling to allow public funds to flow to private schools under the Opportunity Scholarship Program. The case was sent back to the Leon County Circuit Court, to consider the union's other claims.[23]

During the 2002 legislative session, H.B. 1587, the No Strings Attached Act, was introduced to enable all students to participate in the state's voucher program. Under the program, a school district could have opted to have more flexibility within the state accountability plan in exchange for offering its students Freedom Scholarships. The bill died in committee.[24]

The number of students using Opportunity Scholarships jumped from 45 in 2001 to 575 in 2002. In 2002, 80 schools received failing grades; for 10 of these schools, it was their second "F." Of 9,000 students affected, 900 have transferred to other public schools, and 577 have transferred to private schools. The number of students receiving McKay Scholarships surged to 9,000.[25]

The state's accountability plan has also produced systemwide improvements. On September 6, 2002, Governor Bush held a press conference to announce the release of four-year student FCAT gains in reading. Since implementation of the A+ plan in 1999, reading scores have improved significantly in three grade levels and among African-American, Hispanic, and white students. Steady gains were also noted for students in exceptional education programs.[26]

In July 2002, opponents of vouchers urged Leon County Circuit Judge P. Kevin Davey to rule against the Opportunity Scholarship program because they believe it violates the Florida constitution's Blaine amendment prohibiting tax money from aiding religious institutions. Barry Richard, attorney for Governor Bush, argued that funds do not go to aid religious institutions; rather, they go to parents who decide their destination. Under the opponents' argument, he said, the Florida constitution would prohibit students from using state scholarships to attend religiously affiliated colleges and universities.[27]

In June, the Supreme Court of the United States upheld a similar program in Cleveland, Ohio, in Zelman v. Simmons-Harris. The Court ruled that it did not matter that government indirectly aided a religious institution. Nor did it matter what percentage of parents might ultimately choose a religious school as long as the program involved "true parental choice" and the choice plan was enacted for a valid secular purpose, such as improving educational opportunities for poor children.

On August 5, 2002, Judge Davey struck down the Opportunity Scholarship program, saying that the state constitution is "clear and unambiguous" in prohibiting the state from sending public funds to sectarian institutions.[28] The state has appealed the decision, and the judge has allowed the program to continue while the case makes its way through the courts.[29]

Higher courts could reverse the decision on federal constitutional grounds, finding that the exclusion of religious institutions in a publicly funded voucher program violates the First Amendment. Even if the Florida Supreme Court supports the circuit court's ruling, the decision could be appealed to the U.S. Supreme Court. According to Eugene Volokh, a University of California constitutional law expert, the result would be a ruling against a state law that excludes religious schools from voucher programs. A challenge to the Florida constitution in federal court would have a similar result.[30]

In 2003, several voucher and tax credit proposals were introduced. At the beginning of the year, Governor Bush proposed vouchers as a way to meet the mandate for smaller class sizes that was passed by referendum in November 2002. The cost of enabling students to transfer from overcrowded public schools to private schools would be lower than the cost of building additional public school capacity. In a statement to the Miami Herald, Governor Bush said, "It's a cost-effective way of dealing with this issue. Many [districts] won't take it, but so what? That option should be there for them to consider."[31]

The legislature reacted with the introduction of several bills. S.B. 1646 would have allowed public school districts to implement vouchers to lower class sizes. Under the program, interested parents would have received a Florida Learning Access Grant to send their child to a school of choice. On March 13, an Appropriations Subcommittee removed the grants from the bill. S.B. 2532 and H.B. 213 would have created the Reduce Class Size Scholarship Opportunity Program, which would have provided vouchers for low-income children. H.B. 45 would have provided scholarships to students to attend a private school if their public school district did not comply with the class size mandate. The bills died in committee.[32]

Other efforts were directed at expanding Florida's current parental choice programs. S.B. 2062 would have increased the cap on the corporate tax credit for donations to scholarship organizations from $50 million to $75 million. The bill passed the Senate on April 15 but died in the House. H.B. 805 would have enabled military families to participate in the tax credit scholarship program; $10 million of credits would have been set aside for this purpose. The bill was passed by the House on March 25 and approved by the Senate Military and Veteran's Affairs Committee on May 2 but died in the Senate Committee on Education. H.B. 703 would have provided students a Florida Learning Access Grant of $3,500 for use at an eligible private school. The bill stalled after passing several committee votes.[33] On May 27, the Florida legislature approved the state budget, which increased the cap on the state's corporate tax credit program to $88 million.[34]

In June 2003, H.B. 55-A was signed into law and removed the cap on the number of charter schools that can exist per district. The bill also stipulates that community colleges can charter schools that offer students the option of receiving an associates degree upon graduation.[35]

Superintendent of Catholic Schools for the Diocese of Pensacola-Tallahassee Sister Mary Caplice reported that the 34 students attending Catholic schools in the Diocese under Florida's Opportunity Scholarship program showed significant progress by December 2003. These students, the first to enter the Florida program that began in 1999, had improved by more than one full grade level for each year since they changed schools.[36]

In March 2004, the Milton and Rose D. Friedman Foundation released a scorecard rating school choice programs around the nation, and the report rated Florida's McKay program first and the Opportunity Scholarship program sixth. The McKay program received a perfect score on five of the seven criteria.[37]

Several charter applications were approved in July 2004. Five applications were approved for Polk County, and the other approved applications created the Lake Wales Charter District, which is a school district composed exclusively of converted public schools.[38]

In August 2004, the state's 1st District Court of Appeals ruled against Florida's Opportunity Scholarship program, deciding 2-1 that the program is unconstitutional. One month later, however, the full 15-member court agreed to review the decision. The program will continue while the case is being reviewed.[39]

S.B. 2882 was introduced in the 2004 session to place regulations on the McKay Scholarship program. The bill would have required more student testing and for each participating school to register with the state. The bill passed in the Senate but died in the House.[40]

Companion bills S.B. 1544 and H.B. 549 were introduced in the 2004 session to create a voucher program for students of veterans and active members of the military.[41] Eligible students would have been able to attend another public school within or outside their district or a private school, using a voucher worth up to $3,600.[42] S.B. 1544 died in the Senate Education Committee. H.B. 549 passed in House but died in the Senate.[43]

A study of Florida's school choice programs released in the summer of 2004 reported that between the 2001-2002 and 2002-2003 school years, "voucher-eligible schools" (schools where students could transfer out) improved more than other public schools. Using FCAT scores as their measure, Manhattan Institute researchers Jay P. Greene and Marcus A. Winters found that voucher-eligible schools improved by 15.1 scale score points more in mathematics than other public schools.[44]

S.B. 3000 was signed into law in the summer of 2004. This bill provides for an expanded appeals process for charter applicants whose application has been denied or not renewed, and the bill also states that building requirements for charter schools cannot be more stringent than requirements in the state building code.[45]

In November 2004, Florida's 1st District Court of Appeal ruled that the state's Opportunity Scholarships Program violated the state constitution--particularly its "Blain Amendment," which requires that no state money should aid religious institutions.[46] The state Supreme Court is now considering the case.[47]

On January 2, 2005 Governor Jeb Bush signed H.B.1A, creating a pre-kindergarten voucher program. The legislation meets the requirements of the constitutional amendment enacted by voters in 2002 that the state establish a pre-kindergarten program for four-year-olds. Families may use the voucher at public or private institutions for a three-hour-a-day program during the school year or a summer program. Under the Governor's proposed budget the voucher will be worth $2,500.[48]

In February of 2005, State Representative Anthony Traviesa (R-56) introduced H.B. 1021. This bill would create the Reading Compact Scholarship Program, which would provide vouchers to students who have low scores on the FCAT for two consecutive years.[49] The House Choice and Innovation Committee approved the bill on March 15. Some 350,000 Florida students would be eligible.[50] The voucher amount would be equal to either a school's tuition or the state's average per-pupil expenditure and an estimate of the cost of providing services specific to that student's needs, whichever is less. H.B. 1021 was tabled in April, but substitute H.C.B. 6007 passed the House on May 2 by an 80-34 vote.[51] The bill died in the Senate in early May.

State Representative Frank Attkisson (R-79) introduced H.B. 1323 in March 2005. This bill would create a new chartering authority for charter schools in the state called the "Florida Charter School Accountability Authority." The bill would also revise the provisions for charter applications and review.[52] The bill was tabled on April 26.

In the 2005 session, Representative Attkisson also introduced H.B. 439, which would create a voucher program for children of parents serving in or retired from the military. The vouchers would be worth the lesser of $3,600 or the cost of tuition at the school of choice. H.B. 439 is now with the full House for consideration after passing three committees (Choice and Innovation Committee, Education Appropriations Committee, and the Education Council).[53] The bill died in the House on May 6.

In January 2006, the Florida Supreme Court ruled the state's Opportunity Scholarship Program unconstitutional, saying the program "diverts public dollars into separate private systems parallel to and in competition with the free public schools." The court ruled the program violated the state constitution's "uniformity clause" and did not reach the issue of the state's Blaine Amendment.[54] Some 700 students are participating in the program.[55] Governor Bush said he would "explore all legal options and ask the Florida Legislature to enact any available legislative fixes or amend the Florida Constitution once again" to allow the program to continue.[56]