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If court strikes down private school tax credit program, public school crowding could follow

Published May 31, 2016

Surging student enrollment isn't the only pressure Florida school districts face as they try to keep up with growth.

Tens of thousands of kids attending private schools using tax credit scholarships could pour back into the system, too, if the courts find that voucher-like program unconstitutional. Combined, they are the size of a large school district.

"If a judge were to rule tomorrow that we need to abolish these scholarships, you'd be hard-pressed to figure out where to put them," said Jon East, vice president of policy for Step Up For Students, the state's biggest scholarship administrator.

Almost 80,000 students — more than a quarter of whom live in Miami-Dade County — use the scholarships this year. That number is expected to surpass 90,000 next fall.

Started in 2001, the scholarships are intended to help low-income students afford more educational choices than their neighborhood schools. The funding comes from corporations that donate the amount they would have paid in state taxes, receiving a tax credit in return.

The Florida Education Association has sued to end the 15-year-old program, arguing it uses money that would otherwise be paid in taxes and steers it to private schools, in violation of the state Constitution.

Step Up leaders say the number of students receiving scholarships makes the legal challenge a tough sell, particularly in growing parts of the state.

State economists project limited growth of about 2,000 students in Miami-Dade over five years. But other counties with high participation — including Orange, Hillsborough and Palm Beach — expect large enrollment gains in already crowded areas.

"There could be, conservatively, a $1.3 billion impact for building new schools," East said, if half the students returned to their schools. "That's the part that's frustrating when we talk about constitutional issues in the abstract. This is actually having very significant impacts on school districts in a negative way."

FEA leaders called the Step Up argument a scare tactic. Not all children would attend the same school, they say, and not all would show up on the same day.

Even if the courts rule against the program, union president Joanne McCall said, that decision is far off and would face appeals.

"The Florida Legislature certainly would have time enough to figure out how to integrate those kids," McCall said, adding that the FEA must first win legal standing. If that occurs, "they should be thinking about what will happen if we win the case."

Because a result appears distant, few are making plans.

"The impact of a potential ruling would be an issue a future Legislature may need to consider," said Katie Betta, spokeswoman for the state Senate president's office.

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But it's not far from mind that many districts already lack student seats, and have limited money to add new ones. Orange County, with the second-highest number of scholarship recipients, is building three new schools a year and reallocating resources, yet struggling to keep pace with growth.

Fast-growing Hillsborough County, with more than 3,500 scholarship students, is in a similar situation.

"We currently don't have the capacity. It's true. So it would have to be a concern," said Andrea Messina, Florida School Boards Association executive director.

It won't necessarily cause a crisis, though, said John Schuster, a spokesman for the Miami-Dade school district.

Miami-Dade has several communities where adjacent ZIP codes include thousands of scholarship students.

The Hialeah area, for instance, has 4,530 such students in six neighboring ZIP codes. Homestead has 1,794 students in three abutting ZIP codes.

If they all came calling at once, Schuster said, the district would go into its emergency plan, developed years ago to deal with influxes of refugees.

The district used the plan to settle about 600 children into one K-8 school as they arrived amid Venezuela's economic woes, he said. It also employed the model after Hurricane Andrew devastated the southern half of the county in 1992.

"If we were one day faced with 20,000 kids coming back to us, it would be a similar task," Schuster said, noting that the district has computer tools that didn't exist in past situations.

Officials in other districts had fewer concerns. They said many scholarship students would return to schools with space available, in part because the children left them.

The families often moved out of their traditional schools because they were poor performing. Districts are working to improve those campuses.

For instance, the Duval County ZIP code (33210) with Florida's 11th-most scholarship students also has schools that are under capacity.

"The district has been doing some rezonings and new programs specifically to bring in more students," spokeswoman Laureen Ricks said. "We'd welcome them with open arms."

Pinellas County, which has about 2,900 scholarship students, is in a similar position. Its enrollment has remained flat for years, and leaders have closed schools because of low numbers.

The district "has the physical capacity to accommodate all students who reside in Pinellas County," spokeswoman Lisa Wolf said. "If the district were to see an influx in student enrollment, the district would hire additional teachers and work with returning families."

Messina, from the Florida School Boards Association, noted the scholarship topic is "difficult" for school districts. Board members who supported the constitutional challenge found themselves challenged politically and, in many cases, lost their seats.

The FSBA, along with school administrator organizations, dropped out of the lawsuit to stem the fallout, saying other issues were more pressing.

The teachers union can stick with the suit, Messina said, because it's outside the taxpayer-funded system.

By highlighting the cost of returning students, Step Up and others are pressuring the FEA to drop the suit, too.

McCall said that won't happen. The potential financial fallout should not confuse the legal debate, FEA attorney Ron Meyer added.

"The Constitution says the state of Florida has the paramount duty to do this," Meyer said, referring to providing a free public school system. "It's not the duty to shuttle off students to unregulated schools in a parallel system."

If a change costs money, they argued, it will be up to lawmakers to set priorities.

East remained confident the case law is against the FEA. Still, he said, anything can happen.

"The court must follow the Constitution," he said. "If it believes the program is unconstitutional, it will just be a pickle for the state."

Contact Jeffrey S. Solochek at jsolochek@tampabay.com or (813) 909-4614. Follow @JeffSolochek.

(EDITOR'S NOTE: This story has been edited to reflect the correct year when Hurricane Andrew occurred. A previous version contained an incorrect year.)