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Julie Delegal: Charity donations, not taxes, should pay for private-school vouchers

John Kirtley is at it again.

The Tampa businessman who created Florida’s voucher school program is out spinning again for school “choice.”

According to the Tampa Tribune, he told a group gathered at the Florida State University Alumni Center that the lawsuit challenging the voucher program’s constitutionality could undo all the good that he says the program has accomplished.

What progress is that again?

Who knows? Tax Credit Scholarship (aka voucher) students can’t be directly compared to Florida’s public school children because the former group takes a different test — a test that doesn’t measure academic growth. But I digress.

The simplest way to nullify lawsuits challenging the voucher program would be if Step Up For Students, the nonprofit that turns tax payments into vouchers, would simply revert to being a charity — in the conventional, non-government-program sense of the word. That was Kirtley’s original vision. Corporate owners who pay their taxes to Step Up, however, could miss some mighty big tax breaks without the Tax Credit Scholarship scheme.

Since 2001, the Tampa Tribune reports, $2.2 billion in Florida tax payments have been diverted to fund private school tuition, including religious school tuition, for 480,000 students participating in the tax-credit voucher program.

To understand my suggestion, it helps to understand two things: the nature of the plaintiffs’ complaint and a little background on Florida’s private school voucher program.

The legal claims by the state’s teachers’ union are rooted in two Florida constitutional provisions: The first calls for lawmakers to make “adequate provision” for a “high quality” and “uniform” public education, among other things; the second is Florida’s state constitutional prohibition against funding religion.

Most of Florida’s voucher-receiving schools are religious.

Florida’s enhanced version of the U.S. Constitution’s First Amendment protections, its Blaine Amendment, is much stronger than the prohibitions found in states where vouchers have been declared legal. In Florida, both “direct” and “indirect” state aid to religious organizations is prohibited.

But why depend on state aid at all?

Kirtley originally fulfilled his philanthropic vision for low-income students in 1998 by building a charitable organization that used donations to fund private school tuition for those students. But the charity became a government program in 2001, when the Legislature passed a law (constitutional or not) granting corporations the ability to pay into the scholarship fund to offset their state corporate income taxes – dollar for dollar.

Voila! Business owners who paid their Florida income taxes to Step Up became “donors,” instead of taxpayers. And gatherings of privatization proponents to celebrate “school choice” opened up new avenues for “donors” to hobnob with their elected officials.

Whether the vouchers are constitutional will ultimately depend on a court’s view of the dollars that go to Step Up: Are they private “donations,” as Step Up bills them, or are they taxpayer dollars, which are being diverted to indirectly fund religious organizations?

Sometimes it’s helpful to look at the Legislature’s intent.

In 2006, the Florida Supreme Court ruled in Bush v. Holmes that Gov. Jeb Bush’s public-to-private school voucher program violated the principle of “uniformity,” which the state constitution requires for publicly funded schools. Bush’s original plan was to use public, “post-treasury” dollars to fund private school vouchers.

In the wake of the Holmes decision, Tampa Bay Times reporter Joni Jones reported that lawmakers had anticipated the ruling and had been busy for months crafting a plan to circumvent it:

“As early as October, Bush was planning for defeat. Internal memorandums outline a legislative proposal for what amounts to a funding shell game,” she wrote. “Rather than directly use state tax dollars, Bush’s staff looked at using a corporate tax-credit system in which companies could contribute to a voucher program instead of paying corporate income taxes.”

In short, when the court said no to Bush’s idea, lawmakers decided to expand Kirtley’s Tax Credit Scholarship program and run the tax payments through a non-profit corporation instead. As a result, private schools that could not receive taxpayer funds through Bush’s public-to-private voucher program switched to receiving the same money through a private, non-profit corporation.

In other words, the taxpayer dollars — blocked from a direct route — now found an indirect route.

If the court agrees with my analysis, some taxpayers are going to lose a big loophole. I’m no accountant, nor am I an attorney. But I do know that when corporations pay their federal income taxes, they get to deduct both charitable contributions and state income taxes.

How many Florida corporate taxpayers are reporting their “donations” to Step Up as both? And if corporate taxpayers are listing their payments to Step Up not only as “charity,” but as “taxes paid,” aren’t they conceding the issue?

If the court strikes the Tax Credit Scholarship program, corporate payers won’t lose anything at the state level. They’ll just have to pay their taxes to the treasury again. And if they would like to contribute, separately, to Step Up, they still could. They just wouldn’t be eligible for the double deduction.

Kirtley told the Tampa Tribune that shutting down the tax credit scholarship would force voucher students to return to public schools. What he’s saying, implicitly, is that “donors” won’t pay for the “scholarships” if the juicy tax breaks disappear.

***

Julie Delegal, a University of Florida alumna, is a contributor for Folio Weekly, Jacksonville’s alternative weekly, and writes for the family business, Delegal Law Offices. She lives in Jacksonville, Florida. Column courtesy of Context Florida.

Disclosure: Delegal’s oldest child attended the Jericho School before the private school began receiving vouchers. Jericho uses state-of-the-art, science-based methods to track student progress. Delegal’s husband served as a member of the Jericho Board of Directors after it began receiving McKay vouchers. The family and the family business remain proud supporters of the school.

 

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