Judges consider teachers union's ability to sue in school voucher case

TALLAHASSEE — A three-judge panel of the 1st District Court of Appeal on Tuesday grilled attorneys for the state and for Florida's largest teachers union, as the union argued why it should have its day in court to challenge a voucher-like education program the Legislature approved 15 years ago.

There was no immediate ruling from the judges after the 50-minute hearing. The judges are considering two primary questions at this stage in the lawsuit: whether the union and its allies have standing to sue the state over the Florida Tax Credit Scholarship program and whether the union is articulating a specific harm the program does to public schools.

The Florida Education Association and other plaintiffs argue that the scholarships are unconstitutional because the program diverts money that would otherwise go to the state's coffers and help fund public K-12 education.

They also argue that the scholarship program pulls poor students out of the public school system in favor of private schools, diminishing the state funding that's available to the nearly 2.8 million children served by public schools.

But attorneys representing both the state and the parents of scholarship recipients argue that the union has no standing to sue because of how the scholarships are funded.

It's not technically a voucher, they said, because no scholarship money actually enters or leaves the state treasury. The scholarships are funded directly through private donations from businesses, which can then earn dollar-for-dollar tax credits from the state for their contributions.

Leon County Circuit Court Judge George Reynolds III agreed with that explanation almost a year ago, when he issued a ruling to toss the teachers' lawsuit. The FEA wants the appeals court to overturn that ruling so it can argue its case on its merits.

The program funds scholarships for more than 78,000 children to go to private, often religious, schools. Jacksonville-based Step Up For Students facilitates almost all of the money; $447 million was doled out this school year.

Proponents of the scholarship argue that if the teachers union is successful in its lawsuit, then the students would be "evicted" from private school because their families wouldn't be able to afford it anymore.

More than a quarter of the scholarship recipients — almost 20,900 — live in Miami-Dade County, and almost 70 percent of them are black or Hispanic.

The appeals judges were critical of both sides but particularly of the specifics of the plaintiffs' general claim that the scholarships harm Florida's public education system.

"There are a lot of speculations you're asking this court to make at this point," presiding Judge Lori S. Rowe told the plaintiffs' attorney, Lynn Hearn. "You haven't alleged that any individual student is suffering, you haven't alleged that per-student funding has been reduced, you haven't even alleged that the education budget has been reduced."

Hearn said, "We didn't put a name on the student, but we absolutely allege that the students and the participants are harmed."

Attorney Jay Lefkowitz, who represents parents of scholarship recipients, argued that in order to have standing, the plaintiffs need to challenge a legislative appropriation of taxpayer money. He said the scholarship program doesn't fit that bill because the money doesn't ever reach state coffers.

"The fact is taxpayer standing is a very narrow exception to the basic principle that the Supreme Court in Florida has acknowledged, which is that most of these political disputes are best left for resolution at the ballot box," he said.

Supporters of the scholarship program have waged a monthslong marketing campaign that has vigorously criticized the teachers union and urged it to "drop the suit." That continued with news releases Tuesday from scholarship supporters, and before the hearing, several black ministers held a news conference in Tallahassee to call on the NAACP to withdraw as one of the plaintiffs in the case.

"That great organization is on the wrong side of history on this," said the Rev. Dr. R.B. Holmes of Tallahassee's Bethel Missionary Baptist Church.