State asks judge to dismiss Florida tax credit scholarship lawsuit

Lawyers for the state are asking a judge to dismiss a lawsuit challenging Florida’s tax credit scholarship program.

In court papers filed Friday, they argue the statewide teachers union and other groups behind the suit can’t show they are harmed by the program.

The argument draws on court rulings from around the country, which have rejected lawsuits challenging tax credit scholarship programs. It hinges on the fact that the program is funded through tax credits that companies receive in exchange for private donations.

“The program relies on private voluntary donations—not public dollars,” the state’s lawyers write. “And the program provides tax credits to donors—not schools or students.”

The teachers union and other groups argue tax credit scholarships violate a 2006 state Supreme Court ruling that struck down a Florida voucher program. They also argue the program is unconstitutional because it subsidizes tuition for low-income students who attend religious schools.

Unlike school vouchers, tax credit scholarships are administered by scholarship funding organizations like Step Up For Students, which co-hosts this blog. Companies can donate money to the scholarship organizations, which this year are subsidizing private school tuition for about 69,000 students. In exchange, the companies can receive a reduction in their state taxes.

The teachers union’s lawyers argue the difference between tax exemptions and direct state funding is “constitutionally immaterial,” but the state’s lawyers argue it’s essential to the case. They point to a 2011 U.S. Supreme Court ruling, which rejected a challenge of an Arizona tax credit scholarship program.

In Arizona Christian School Tuition Organization v. Winn, the court held it could not engage in “unjustifiable economic and political speculation” about the tax credits’ impact on state revenue, and how that affected the state Legislature’s taxing and spending decisions.

Since the plaintiffs couldn’t show the program hurt them directly, or that it dealt with specific state expenditures that might have violated the constitution, the court found they didn’t have standing to bring the case. That’s also the case in Florida, the state’s lawyers argue, because the union’s lawyers can’t show the money that funds scholarships would otherwise go to public schools.

The plaintiffs’ argument, they write, presumes “that absent the tax credits, revenues would increase. With this increased revenue, the Legislature would provide more money to public education. And with more money in education, Plaintiffs’ children and others would be better off. This is speculation stacked on top of speculation.”

The underlying constitutional issues in the case would be addressed later, if the groups behind the case clear the standing hurdle.

A Tallahassee judge has scheduled a hearing in December on whether a group of parents with children who received scholarships can intervene in the case.

A separate lawsuit challenging recent Florida school choice legislation is also in the thick of a battle over legal standing.