Voucher supporter: Rick Scott's plan for universal vouchers NOT a good idea
Florida Gov.-elect Rick Scott's plans for vouchers for all ("education savings accounts") has drawn plenty of heat from advocates of traditional public schools. But some criticism is coming from unlikely sources too - like from Andrew Coulson, director of the Cato Institute's Center for Educational Freedom and as hardcore a voucher guy as you'll find anywhere.
Coulson has been circulating an email to folks in Florida that essentially says universal vouchers have no legal chance, given the earlier Florida Supreme Court ruling in Bush v. Holmes, and that forcing the issue could upend the remaining voucher programs. Read for yourself:
The goals of the ESA proposal are clearly laudable and I can see why it would have wide appeal. There’s interest in Florida for extending school choice to the middle class, and the current scholarship donation tax credit program serves only low-income families. The scholarship donation program also depends in large part on the corporate income tax, which the Gov.-elect has said he wants to abolish. Since the ESA would be funded directly by the state, and not through private tax-credited donations, it would theoretically allow for school choice to continue in the absence of the corporate income tax.
But what if the ESA has no serious hope of passing muster with the state Supreme Court, and in the process of being struck down would jeopardize successful existing programs? Sadly, that appears to be the most likely outcome.
In light of the Florida Supreme Court’s 2006 Bush v. Holmes ruling, in which it struck down the OSP voucher program, there does not seem to be any way for the Court could uphold any sort of voucher program in Florida even if it wanted to (see below)—and there’s no reason to think it wants to. In fact, it seems likely that a lower court would grant an injunction against any voucher program even being implemented in Florida, pending the outcome of the inevitable lawsuit.
The result of simultaneously passing the ESA program and abolishing the corporate income tax would thus be to gut Florida’s existing, successful, popular, money-saving scholarship donation tax credit program without providing a viable alternative. That would decimate school choice in Florida. Furthermore, an additional anti-voucher ruling by the Court might expand on its earlier Bush v. Holmes ruling, thereby jeopardizing the McKay voucher program for special needs children that is also successful, popular, and far more efficient than the public school system.
There are certainly options worth considering for expanding the base of taxes to which existing education credits can be applied, and these can be explored whether or not the corporate income tax is abolished. But it is hard to see any advantage to abolishing the corporate income tax that rises to the level of value conferred by the existing scholarship tax credit program. The scholarship donation tax credit is already the most promising and fastest growing private school choice program in the nation. It has been found to improve the performance of public school students and to save taxpayers many millions of dollars each year. As it continues to grow, it will present an ever-greater lure to businesses looking to relocate their operations. The net effect of endangering this program would thus be to injure rather than help the state’s families, business climate and economy.
Certainly there are many people who would like to see an ESA program implemented, but there are also many states in which that could be done—states with less hostile legal climates and no existing choice programs that would be jeopardized in the process.
Legal Prospects of the ESA Proposal
When the Florida Supreme Court struck down the OSP voucher program in Bush v. Holmes, it defined the issue as follows:
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.
It ruled that a program doing this is impermissible, and the ESA proposal would clearly do this—but in a slightly different way. Would the Bush precedent still apply? That depends on the grounds the Court gave for overturning the earlier program. The Court summarized those grounds by saying that the OSP program
diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.
All of the underlined text in the above paragraph would seem to apply to an ESA program. As a result, I can see no way in which the Court could uphold the ESA program without overturning its own earlier ruling, and I’m not aware of any reason to think the court would want to overturn the ruling it handed down just four years ago. It seems almost certain that the ESA would be struck down.