Florida Tax Credit Scholarship Program Under Attack Led by Teachers Union

Published June 13, 2016

The Florida Education Association (FEA), the state’s largest teachers union, is leading an effort to end the Florida Tax Credit Scholarship program by bringing a lawsuit against the state, alleging Florida’s fourteen-year-old voucher program is unconstitutional.

The tax credit scholarship program enables businesses to make private, voluntary contributions to the program and receive a tax credit for their donations. The scholarships grant funds to more than 78,000 low-income children, many of them black or Hispanic, to attend private schools. According to the Florida Department of Education website, the tax credit cap for the current year is $447,265,625, and it will increase to $559,082,031 for the 2016-17 state fiscal year.  

FEA is arguing the scholarship program violates the state constitution because money that would otherwise go into the state treasury is going to private schools.

A Leon County circuit court judge dismissed the FEA’s lawsuit in May 2015, saying the plaintiffs failed to prove students and school districts were suffering because of the scholarship program. A three-justice panel heard oral arguments in their appeal on May 10, 2016, and a decision is pending. The FEA says it’s committed to taking the case to the Florida Supreme Court if necessary.

Dueling Precedents

The FEA is the lead plaintiff in the suit. Other plaintiffs include the NAACP, the Florida League of Women Voters, and the National Education Association.

FEA spokesman Mark Pudlow told School Reform News in an email a prior legal challenge to vouchers supports the plaintiffs’ challenge to the tax credit scholarship program.

“In the Bush v. Holmes case in 2006, the Florida courts struck down the Opportunity Scholarship Program, a similar program that provided publicly funded vouchers to pay private-school tuition,” Pudlow wrote. “The courts used two different reasons for declaring the Opportunity Scholarship vouchers unconstitutional, both of which are applicable in the instance of the tax credit vouchers.

“The First District Court of Appeal held that the vouchers violated the ‘no aid’ clause of Article I, Section 3 of the Constitution, which prohibits taking revenue ‘from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution,'” Pudlow wrote.

Pudlow says the Florida Supreme Court ruled the program was “in direct conflict with the mandate in Article IX, Section 1(a),” which proclaims it the state’s duty “to make adequate provision for education and that the manner in which this mandate must be carried out is ‘by law for a uniform, efficient, safe, secure, and high quality system of free public schools.'”

Jon East, vice president of policy and public affairs at Step Up for Students, the biggest administrator of the Florida Tax Credit Scholarship program, says the program does not involve vouchers, but tax credit scholarships. He also says there’s a reason FEA’s case was dismissed last year.

“The reason they lost the first ruling in trial court on standing was because they couldn’t actually prove the education system was harmed,” East said. “Because the courts do not deem this to be taxes, because they are tax-credited contributions [and] not money out of the treasury, they said [the suit] lacked standing.”

Potential for Chaos

East says there will be far-reaching effects on students if the FEA gets its way.

“[The FEA is] not asking merely for the court to declare this type of education program inconsistent with the Florida constitution, but as a part of that they are asking the courts essentially to take 78,000 of the poorest of schoolchildren of Florida out of schools that we know from test scores are working for them,” East said.

Parents and organizations, including a group of black ministers, are calling for the plaintiffs to drop the suit.

“On January 19th, 2016, about 10,000 parents, students, teachers, and school administrators and supporters marched on Tallahassee in support of the Tax Credit Scholarship and to ask the teacher’s union to drop the lawsuit against the program,” Step Up’s website states.

FEA argues there would be time to find new schools for the displaced children, should the judges rule in their favor.

“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,” East told the Tampa Bay Times

Andrea Dillon ([email protected]) writes from Holly Springs, North Carolina.