Appeals court deals setback to opponents of Florida's voucher-like program for schools

Photo illustration. [iStock]
Photo illustration. [iStock]
Published Aug. 17, 2016

A Florida appeals court has dealt another blow to the state teachers union and others who oppose a public program that uses tax credits to steer money to private schools.

In a ruling Tuesday, the First District Court of Appeal found that the Florida Education Association had no legal standing to bring its 2014 lawsuit challenging the state's corporate tax credit scholarship program. The court said the union didn't show it was harmed by the program, and it also rejected the idea that diverting money from public schools to private schools had harmed anyone else.

Rather, the court asserted, the money supporting the 15-year-old program did not come from tax collections at all. Corporations make voluntary contributions to private organizations and then apply for tax credits from the government. The result is a pool of money used by the private organizations to award private school scholarships to mostly low-income families.

If the amount were paid in taxes, the court noted, there's no proof the Legislature would put it into public schools, as the FEA contended.

The plaintiffs' quarrel is "with the Legislature's policy judgments regarding school choice and funding of Florida's public schools," the court concluded. "This is precisely the type of dispute into which the courts must decline to intervene."

The remedy, it stated, is at the polls.

RELATED: Visit the Gradebook blog for links to the ruling and more reaction.

The ruling falls in line with a 2011 U.S. Supreme Court case of out Arizona. In that instance, the justices found that tax-credited donations to private organizations are not the same as government spending.

"The state can give you a tax credit, but it does not claim your money as its own," said Leslie Hiner, vice president of programs for EdChoice, an Indiana-based school choice advocacy group. "Tax credit scholarships are constitutional for all the reasons the Supreme Court indicated."

Hiner praised the appellate court ruling as a win for the nearly 100,000 low-income children who will use the program to attend private schools using its resources. Many of them are clustered in areas where the traditional public schools have long struggled, with Miami-Dade home to about a quarter of them.

"Their futures have been threatened by this litigation," she said. "Florida's courts have clearly recognized the importance of these scholarships to these children."

Bishop Victor Curry, of New Birth Baptist Church in Miami and chairman of the Save Our Scholarships Coalition, suggested that the time had come to focus on the students and end the lawsuit.

"It's long past time for all of us who care so passionately about public education to put aside our differences and work together," Curry said in a statement. "This sweeping ruling should compel us to focus on the real enemies — despair, hopelessness and the ravages of generational poverty."

FEA leaders said they would consider their options in the coming week and decide whether to appeal to the Florida Supreme Court.

"I don't want to be in the position of beating a dead horse," FEA attorney Ron Meyer said. "On the other hand, we believe the horse still has some vitality."

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Meyer suggested that the constitutionality of the scholarship program should be heard on its merits, and not languish on issues of standing. He argued that the FEA has the legal right to sue over what it sees as unconstitutional acts by the state Legislature, specifically, taking money out of the public schools to fund a private education system not provided in the state Constitution.

"Obviously, we came to the courthouse to fight for public schools," he said. "But before the first punch could be thrown, the court stopped the fight."

Kevin Welner, a professor of education policy at the University of Colorado-Boulder, has studied tax credit scholarships nationally. He said the concept of standing should be used to ensure the courts are dealing with true controversy.

"In light of that purpose, these decisions — including this one in Florida — don't make much sense to me," he said via email. "In effect, what the courts are doing is preventing judicial consideration of important constitutional challenges."

Welner did not see Florida's case as particularly critical nationally, except as one more example of a court "sidestepping a substantive decision" on a constitutional issue.

FEA president Joanne McCall, however, remained frustrated by the turn of events.

"If we don't have standing, who does have standing?" McCall asked. "The taxpayers of this state deserve better than what the court is giving them at this time."

The FEA has 30 days to decide whether to take its case to the state Supreme Court.

Contact Jeffrey S. Solochek at (813) 909-4614 or Follow @jeffsolochek.