Florida’s First District Court of Appeal unanimously upheld the legality of the Florida Tax Credit Scholarship Program (FTCSP), dismissing a lawsuit the state’s teachers union and other groups brought against the program.
Florida launched FTCSP in 2001 to provide students of low-income households with scholarships worth up to $5,886 per year to spend on private school tuition. Corporations that donate to the scholarship program receive a tax credit on corporate income and insurance premium taxes. The Tampa Bay Times reported in August participation in FTCSP had hit a “record level.” The program awarded 92,011 scholarships for the 2016–17 school year, “up 17 percent from a year ago, and more than 550 percent from 2005,” the Times reported.
Blaine Amendment Lawsuit Filed
The Florida Education Association (FEA), the state’s largest teachers union, the League of Women Voters of Florida, the NAACP Florida State Conference, and others sued the state in 2014, alleging FTCSP is unconstitutional because it violates the state’s Blaine amendment, which states, “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of … any sectarian institution.”
The plaintiffs also argued the scholarships violate a constitutional mandate stating “adequate provision shall be made by law for a uniform … system of free public schools.”
In May 2015, a Leon County Circuit Court judge dismissed the case, ruling the plaintiffs did not have standing to sue because they failed to show FTCSP harmed public education. In August 2016, a three-judge panel reaffirmed the 2015 ruling, writing in their decision, “Despite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined.”
The judges also wrote in their decision, “No funds under the FTCSP are appropriated from the state treasury or from the budget for Florida’s public schools. Rather, all funds received by private schools under the FTCSP come from private, voluntary contributions to [scholarship funding organizations], after a parent or guardian has exercised their choice to enroll their child in a private school.”
The plaintiffs have not announced whether they will appeal the ruling to the Florida Supreme Court.
Victory ‘Not Surprising’
Leslie Hiner, vice president of programs for EdChoice, formerly the Friedman Foundation for Education Choice, says tax credit scholarship programs have typically been upheld by courts.
“In tax credit scholarships, we have a strong record of winning in the courts, so Florida follows a line of other successfully litigated cases,” Hiner said. “From that standpoint, it’s actually not surprising that we have a good victory. Going forward, this should signal to other states that might [not only] be pursuing tax credit scholarships but other types of school choice as well that proponents of school choice have the winning track record in the courts. The [state] constitutions actually are on our side.”
‘Fighting Against Parents’
Hiner says school choice opponents are not interested in doing what is best for parents and their children.
“Anyone who is fighting against school choice is fighting against the parents and their right to do what is best for their own children,” said Hiner. “The teachers union is simply trying to keep their own power, their own money they collect, and that is not in the best interest of parents or children.”
Hiner says the teachers union’s lawsuit, brought 13 years after FTCSP went into effect, could harm thousands of children.
“Today, 100,000 children are benefiting from these scholarships, and now [the teachers union] steps in to try to kick those kids to the curb, try to kick them out of this opportunity they’re enjoying where they’re learning,” Hiner said. “That action is despicable.”
Possible PR Fallout
Bill Mattox, director of the Marshall Center for Educational Options at the James Madison Institute in Florida, says the public relations damage done by FEA’s campaign against FTCSP may undermine the union’s support from the public.
“Not only have there been repeated television advertisements that have been very winsome and persuasive, largely telling stories about students who would be adversely [impacted] by taking away the scholarships, but then this past January, there was a huge rally, the largest school choice rally ever in the State of Florida,” said Mattox. “More than 10,000 people gathered on the day after Martin Luther King Jr. Day for a rally to protest the lawsuit.
“What has been especially interesting about this is that the response to the lawsuit has so elevated the issue of school choice, and done so in ways that are constructive to our side and damaging to the unions, that I could see them saying they need to cut their losses, because if this continues, they may end up in an even weaker position to fight against future legislation,” Mattox said. “I think they’ve been completely blindsided in some respects. I don’t think they anticipated the public relations response in any way. I think they have really been damaged by it.”
Elizabeth BeShears ([email protected]) writes from Trussville, Alabama.
Florida First District Court of Appeal, “An appeal from the Circuit Court for Leon County,” August 16, 2016: https://heartland.org/publications-resources/publications/florida-court-of-appeal-dismisses-lawsuit-challenging-tax-credit-scholarship-program