The Florida Education Association (FEA) vented its “frustration” Wednesday after the Florida Supreme Court declined to take up a suit challenging the constitutionality of what’s been called “the nation’s largest private school choice program.”
The court decided not to hear a challenge to the Tax Credit Scholarship Program, created in 2001, though – as one former judge noted – its order “doesn’t say (it) lacks jurisdiction.” (Main story here.)
That had Joanne McCall, the statewide teachers’ union’s president and the lead plaintiff in the case, asking, Who can pursue a case? A trial court and the 1st District Court of Appeal had previously ruled the matter could not go forward.
“This ruling, and the decisions by the lower court, doesn’t answer that question,” she said in a statement. “We still believe that the tax credit vouchers are unconstitutional, but we haven’t had the opportunity to argue our case in court.”
Though the Supreme Court put an end to this case, first filed in 2014, the challenge now for voucher opponents is to find one or more plaintiffs who do have the legal standing to successfully press a complaint.
At issue was money going toward religious schools, and whether “taxpayers,” like McCall, could challenge “indirect state subsidies” paying for parochial school tuitions.
The program works by companies ponying up money for private-school scholarships for disadvantaged students, then they get tax credits equal to their donations.
“We’re baffled that the courts would deny taxpayers the right to question state expenditures,” McCall added. “This decision has ramifications beyond this challenge to a voucher program.”
It “relies on private, voluntary donations—not public dollars,” the state’s brief on the jurisdictional question said. “And the program provides tax credits to donors—not schools or students.”
But the FEA and others have argued it’s led to a “parallel system of education that is separate and unequal.”
Its defenders, including prominent Republicans such as Gov. Rick Scott and free market advocates, say the program gives a leg up to kids who otherwise would have to attend failing public schools.
“At bottom, petitioners’ assertion of taxpayer standing is predicated on the assumption that this case involves the unlawful ‘use of public funds,’ ” the state’s brief said. “As the trial court and the (appellate court) correctly concluded, that position is flatly at odds with the how the Scholarship Program actually operates, and misconstrues the plain language of Florida’s Constitution.”
In other words, “the Legislature’s carefully crafted policy choice does not suffice to establish a concrete, particularized injury” to those that sued, including the FEA, the League of Women Voters and the NAACP’s Florida State Conference.
On the other hand, the FEA’s brief said the vouchers scheme “diverts funds from the public (treasury) to subsidize the costs for certain Florida children to attend private schools, the overwhelming majority of which are sectarian.”
“(N)othing in the law prohibits these schools from engaging in religious discrimination or mandating that their students participate in religious instruction and religious exercise,” according to the brief.
It said the high court should “accept jurisdiction … because the decision not only undermines the law of taxpayer standing, but it effectively holds the Scholarship Program – and any other government program similarly funded by a targeted tax credit rather than direct appropriations – to be immune from challenge.”
Simone Marstiller, a retired judge of the 1st District and now a lawyer in private practice, said appellate Judge Lori S. Rowe‘s decision “beautifully lays out exactly why” the high court turned the case down.
“Bottom line: The union and others simply cannot show any ‘injury’ from the Legislature’s use of tax credits to fund the scholarship program,” said Marstiller, who also held many positions under Gov. Jeb Bush, including secretary of the Department of Business and Professional Regulation.
“This is not a situation in which tax revenues are being diverted away from the public school system in favor of private schools, including religious schools,” she said. “So, not only is there no exercise of the Legislature’s spending power at issue, no constitutional provisions are implicated.”
The FEA did not immediately say what further legal plans it had regarding the vouchers program.