In the Florida decision handed down yesterday, Judge P. Kevin Davey granted summary judgment to parties challenging the Florida Opportunity Scholarship Program — including the National Education Association — declaring the program, which allows students in Florida’s most decrepit schools to take a voucher to a private or parochial school, in violation of Florida’s constitution. “We knew when a judge looked at it that he would side with us,” the president of the Florida Education Association, Maureen Dinnen, told the Associated Press. That might not have been the whole story though, to read the judge’s opinion. Wrote Judge Davey: “While this Court recognizes and empathizes with the salutary purpose of this legislation — to enhance the educational opportunity of children caught in the snare of substandard schools — such a purpose does not grant this Court authority to abandon the clear mandate of the people as enunciated in the constitution.”

It doesn’t sound like Judge Davey is making a ringing endorsement of Florida’s public schools, but he may be right about the language of Florida’s constitution, which in Article I, Section 3 states: “No 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.” The question that Florida’s supreme court will have to answer on appeal is whether this language is compatible with the federal Constitution. The Ninth Circuit’s decision last month in Davey held that denying aid specifically to religious institutions was a form of viewpoint discrimination, forbidden by the Supreme Court’s interpretation of the First Amendment. A decision to the contrary by Florida’s highest court could induce the Supreme Court to decide once and for all whether the Blaine amendments can continue to stand between children and the chance for a decent education. “Now we can focus on public schools again,” Ms. Dinnen said after yesterday’s decision. Perhaps once the fig leaf of Blaine is removed from those seeking to uphold the status quo, we can start focusing on the students.

In the wake of the Supreme Court upholding the constitutionality of school vouchers to private and parochial schools in its shining decision in Zelman v. Simmons-Harris, there have now been two decisions regarding the fate of the notorious Blaine amendments, which blight the constitutions of 36 states, including New York. Named after James G. Blaine of Maine, a speaker of the House of Representatives in the 19th century who tried to append an anti-Catholic amendment to the federal Constitution, these provisions block state money from flowing to religious schools — impeding the burgeoning school choice movement. In the previous Blaine decision in late July, the justices who ride the Ninth United States Circuit held in Davey v. Locke that Washington State’s Blaine Amendment violates the Free Exercise Clause of the First Amendment. A state circuit court in Florida has now taken a position at odds with the Ninth Circuit, moving the issue of Blaine’s constitutionality one step closer to the High Court.