Jason Marques, Florida Constitutional Law: Circumscribing Legislative Authority in The Absence of a Clear Prohibition

58 Fla. L. Rev. 957 (2006) | | | |

TEXT :: The Opportunity Scholarship Program (OSP), a state-funded, parent- choice voucher system, was designed to provide private school scholarships to students enrolled in certain Florida public schools. Upon its enactment in 1999, Respondents assailed the OSP as facially defective under both the state and federal constitutions. The trial court found the program violative of article IX, § 1 of the Florida Constitution insofar as the OSP utilized public school funds for the payment of private school tuition. Finding no language that prohibited such appropriation, the Florida First District Court of Appeal reversed. Subsequent proceedings invalidated the OSP on separate grounds, and a question was certified to the Florida Supreme Court. Using maxims of statutory construction, the court interpreted article IX, § 1(a) to mandate that free education be provided solely through the state public school system. Because the OSP effectively diverted public funds to private institutions, the court HELD, that the program frustrated public school uniformity, which is mandated by the state constitution.

Article IX, § 1(a) of the Florida Constitution provides that “[i]t is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders,” and requires that “[a]dequate provision . . . be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools . . . .” When interpreting the validity of legislative action upon such constitutional mandates, Florida courts are bound to resolve “every doubt . . . in favor of . . . constitutionality.” As a result, legislation should not be invalidated unless it clearly contravenes the constitution.


In Taylor v. Dorsey, the Florida Supreme Court noted that Florida’s constitution is a limitation on, not a grant of, state legislative power. In light of this principle, the court considered whether legislation could be abrogated by the judiciary in the absence of an express or implied constitutional prohibition. While acknowledging the utility of expressio unius est exclusio alterius, the court found that this maxim should be used only sparingly in constitutional interpretation. Where no prohibition is clearly evident, the court reasoned, expansive judicial deference to the legislature is appropriate. Because the legislation in Taylor did not violate the primary purpose behind the constitutional provision in question, the court concluded that expressio unius was inapplicable.

When presented an opportunity to disallow the public funding of private school programs via expressio unius in Scavella v. School Board of Dade County, Florida’s highest court declined to do so. The primary purpose behind § 1, according to Scavella, was the establishment of a right to free public school education for all state residents. In Scavella, the court considered the constitutionality of a statutory cap on public funds used to subsidize the private schooling of special needs children. The court noted that although no specific case law declared the existence of a right to free education, such is the “clear implication” of § 1. Analyzing whether a cap might deprive students of this right, the court was compelled to construe the legislation “so as to prevent its being rendered unconstitutional.” Recognizing the legislature’s authority to appropriate school funds, the court held that such a limitation was constitutional only to the extent that it did not violate any student’s right to free education.

Subsequent to its implicit approval of a public fund/private scholarship system in Scavella, the Florida Supreme Court was asked to quantify the level of funding necessary to constitute “adequate provision” for education in Coalition for Adequacy & Fairness in School Funding, Inc. v. Chiles. The court stressed that determination of adequacy in the abstract was impossible without inquiry into whether legislative appropriations had fostered the required “uniform” system. Creation of ultimate standards measuring uniformity, the court posited, was a task for the legislature. In light of this deference, the court found that uniformity should not be construed restrictively, but rather as a framework within which legislative innovation is possible. The court noted that absent judicially measurable standards, “the constitution has committed the determination of ‘adequacy’ to the legislature.” The court therefore declined the invitation to announce such standards itself.

In light of amendments to the education article enacted post- Chiles, the instant court observed that Florida residents had charged the legislature with a maximum duty. According to the instant court, this fortified mandate also redefined the allowable legislative means of providing adequate, uniform, and high quality public education. Specifically, the instant court construed § 1(a) to require that the education of Florida’s children be addressed solely through the vehicle of free public schools in order for it to meet the uniformity requirement. Because the OSP funded private institutions not subject to the same statutory requirements as the public school system, the instant court concluded that the program fostered an inherent lack of uniformity.

The instant court reasoned that failure to reference another system by which the legislature could deliver on its mandate was clearly indicative of the people’s intent. Such a constitutional omission, the instant court explained, served to limit state funding of education to the public school system alone. Without acknowledging the lack of an express constitutional prohibition, the instant court interpreted the use of the words “‘free public schools’” as impliedly forbidding diversion of public funds to the private educational system. In so doing, the instant court distinguished the legislation at issue in Taylor, reasoning that the comprehensive § 1(a) served a broader purpose and was therefore more amenable to interpretation via expressio unius.

On the basis of disparate issues, the instant court dismissed comparisons between the OSP and the special needs program addressed in Scavella. To accomplish this, the instant court noted that in Scavella, the public funding itself did not face a constitutional challenge. In addition, the instant court drew a line between “special” and “routine” students, stressing the inability of the former to receive an adequate education without assistance due to the inferior resources of the public school system. In making this distinction, the instant court attempted to allay fears that its decision would have repercussions on other publicly-funded special needs programs.

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