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Fate of Florida's School Voucher Program Back Before Court

As Florida schoolkids return to classrooms this month, more of them qualify for vouchers to attend private schools.

Teachers led by their union, the Florida Education Association, and parents of k-12 public school students just lost a court battle to upend the expanding voucher program. They claim it diverts about $300 million from public schools to a competing, faith-based education system. And that violates the constitutional separation of church and state, the teachers and other public school stakeholders argue.

On Aug. 16, the First District Court of Appeal agreed with state officials and a Tallahassee trial judge that the voucher system cannot be challenged, at least not by this coalition. They have no legal right or standing to oppose the Florida Tax Credit Scholarship Program because it's funded not by taxes but by corporate donations to nonprofit scholarship groups, the court decided.

"At most, appellants quarrel with the Legislature's policy judgments regarding school choice and funding of Florida's public schools," Judge Lori Rowe wrote for a unanimous panel. "This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine."

"Appellants' remedy is at the polls," she added.

The Florida Supreme Court could be asked for its opinion, but FEA president Joanne McCall would not immediately commit to another appeal in an interview with the Tampa Bay Times.

"It seems political to us," she said about the First District ruling. "If we don't have standing, who does have standing?"

Bush's Legacy

The tax-credit voucher idea is a legacy of Jeb Bush, who radically revamped Florida public education when he was governor. In 1999, his first year in office, the Legislature created two voucher programs, one for children with disabilities and the other tied to school performance.

The Opportunity Scholarship Program used tax dollars to fund tuition for students who enrolled in private schools after leaving public schools that had scored poorly. Bush hailed the approach as a viable, lawful alternative to a faltering system.

The Florida Supreme Court disagreed with the lawful part. In 2006, the court decided Bush v. Holmes, voting 5-2 to abolish the scholarship voucher structure on state constitutional grounds.

"It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children," then-Chief Justice Barbara Pariente wrote. "This diversion not only reduces money available to the free schools but also funds private schools that are not 'uniform' when compared with each other or the public system."

Bush denounced the ruling and vowed to explore a constitutional amendment. Proponents of other voucher methods, including one that Congress passed to help 350,000 students displaced by Hurricane Katrina, said they feared their efforts also were jeopardized.

A Bush-backed amendment never made it to the Florida ballot. It wasn't necessary. The Legislature had already launched a new voucher system that arguably meets constitutional standards: No money passes directly from the state treasury to voucher beneficiaries.

Starting in 2001, the Tax Credit Scholarship Program has awarded exemptions to businesses that contribute to nonprofit scholarship organizations. Then these groups give students tuition vouchers to attend private schools, almost three-quarters of which are religiously affiliated.

In the beginning, students from families earning less than 185 percent of the federal poverty level—$44,122 for a family of four—were subsidized. That covered nearly 70,000 students in 2014. This school year, the cutoff rises to $62,010 for a four-member family.

Covert Support

It seems clear that the Legislature sidestepped constitutional potholes by using tax credits to private enterprise in support of private schools. But does that mean courts should rely on Bush v. Holmes as authority to scrap the voucher system?

The issue percolated through oral argument May 10 in the FEA case.

"Suppose the Legislature said, 'We'll do indirectly what we can't do directly?' " Judge Scott Makar asked Rachel Nordby, who spoke on behalf of the state.

Nordby responded by talking about timing. The tax credit program predates Bush v. Holmes, she noted, suggesting the Legislature couldn't have been trying to undermine the Supreme Court's ruling.

Besides, the court didn't address standing, and it held that public money can't be transferred to a separate account for vouchers, she said. Here the money is all "donor funds that never entered the public treasury."

Rowe, who led the discussion and wrote the Aug. 16 opinion, chided FEA lawyer Lynn Hearn for asserting the money going to private schools via vouchers would otherwise be appropriated for public education.

"There's lots of speculation that you're asking this court to make at this time," she said.

Panel members sounded protective about the public policy of employing tax credits for beneficial purposes as if they wouldn't want to open the door to a host of similar challenges.

Makar asked Hearn whether tax credits for sports or remedial math programs could be targeted.

She answered that would depend on the program "and who's getting hurt by it."

"This is a state program that was created to draw students and funding away from public schools," Hearn said in closing. "That's different from a family deciding on its own to pay for private school."

Voucher litigation isn't proceeding in isolation. Voucher and charter school cases often travel hand in hand. Kirkland & Ellis partner Jay Lefkowitz, a former domestic policy adviser to both Bush administrations, represented intervenors in the FEA case and has been involved in charter school and voucher litigation in California, Wisconsin and Florida.