Throw enough mud at the wall, and some of it will stick. That seems to be the hope behind the several legal challenges brought against education tax credit scholarship programs. In some cases, choice opponents use the Blaine Amendment as an excuse to extinguish any hint of education freedom. In other cases, they use technicalities, such as a suit saying the statute violates a law requiring each piece of legislation concern only a single subject.
I’ve often wondered how those who bring these lawsuits justify it to themselves. How can you feel good about trying to eliminate a program that simply provides choices for low-income families or families with children who have special needs?
I’ve concluded the answer is simple: Ignore the truth, and then exploit the legal system.
Blaine Amendments prohibit spending public money on religious education. However, tax scholarships don’t involve the spending of any public money. Instead, businesses voluntarily donate money to be used for the education tax scholarship program, and parents are then able to decide where they want their children to go to school using the scholarship money they are allotted. This can be a religious school, but it doesn’t have to be. There is not a penny of public money being spent here. It is all private money. Therefore, the Blaine Amendment does not apply. That’s exactly what the court decided in a recent New Hampshire case.
In one of two Florida cases against the education tax scholarship program, the suit filed by the statewide teachers union alleged the scholarship law violates a constitutional requirement that each law be limited to a single subject. Leon County Circuit Court Judge Charles Francis dismissed the lawsuit, stating the social studies teacher who brought the suit had no standing because there was no injury or damages shown.
Another lawsuit pending in Florida claims the voucher program conflicts with the state’s constitutional obligation to provide a “uniform, efficient, safe, secure and high quality system of free public schools.” The lawsuit argues the voucher program violates the constitutional limits on aid to religious institutions and the state’s responsibility to fund public education. Andrew Coulson, director of the Cato Institute’s Center for Educational Freedom, says people across the country will be watching to see what the court decides in this case.
In 2006 the Florida Supreme Court ruled against the Opportunity Scholarship Program, the first statewide voucher program in the nation, citing the Uniformity Clause. The Florida Supreme Court “invented a new interpretation” of that law, Coulson says. The law says the state must create a uniform public education system, but it also allows the legislature to create whatever other programs it deems necessary. The court decided that did not apply to school choice programs and declared such programs unconstitutional.
Modern tax credit scholarship programs, however, have a perfect legal record of being upheld time and time again, Coulson notes. If the Florida courts were to make a creative interpretation this time around, it would be unprecedented.
However, the history of the courts playing fast and loose with legal interpretation is enough to make school choice proponents nervous about the case.
“Florida is a bit exceptional in having such a loose-cannon … Supreme Court,” said Coulson. “I am much less worried about the fate of education tax credit programs around the country because there seem to be very few other state supreme courts that behave in such a cavalier way with the law.”
A coalition of parents, school choice advocates, and religious leaders has formed to urge the Florida Education Association and Florida School Board Association to drop the lawsuit.
At this point, all we can do is hope truth and the law will prevail in this Florida case. Then wait for the next time someone decides to throw mud at the wall—and fight again.
Heather Kays is a policy advisor to The Heartland Institute and former managing editor of School Reform News, a national monthly publication.
