FL school boards set to sue nation’s largest school choice program

Editor’s note: Step Up For Students, which co-hosts this blog, helps to administer the tax credit scholarship program in Florida. Tampa businessman John Kirtley is chairman of the Step Up board of directors and is also chairman of Florida Federation for Children and Florida Voices for Choices.

by Ron Matus and Travis Pillow

With the Florida School Boards Association on the cusp of filing suit against the state’s popular scholarship for low-income students, its president and president-elect were upset Tuesday in local elections that bore the imprint of school choice organizations.

Karen Disney-Brombach, a two-term Indian River School Board member who is the new FSBA president, was defeated by a former science teacher and political newcomer, Shawn Frost. Diane Smith, a two-term Volusia County School Board member who is the FSBA president-elect, was beaten by a physician’s assistant and political newcomer, Melody Johnson.

At least two choice organizations were involved in the races. Florida Voices for Choices, a new 501(c)(4) that organizes parents and supporters of all school options, spread word about the incumbents’ expressed opposition to many choice programs. The Florida Federation For Children, an electioneering organization tied to the American Federation For Children, issued a statement saying that it invested money in state school board races for the first time in its history. Its chairman, John Kirtley, said bluntly: “If the FSBA proceeds with the suit, FFC will be heavily invested in these races around the state for years to come.”

“Parents talked a lot about how they felt bullied by a school board association that, through the lawsuit, wants to take away their scholarships,” said Voices for Choices executive director Catherine Durkin Robinson, a former Step Up employee. “So we talked about what to do with bullies.”

Scripps Media reported today that Indian River County Tax Collector Carole Jean Jordan, a former chairman of the Republican Party of Florida, sent out emails on Friday retracting her support of Disney-Brombach after learning that she voted to sue the scholarship program. “Disney-Brombach said her ties with the Florida School Board Association may have led to her loss,” wrote Colleen Wixon.

Gary Chartrand, chairman of the state Board of Education, also issued a statement today opposing a lawsuit. It said, in part, that FSBA “is acting without consideration for this population by filing a lawsuit against this program. This is surprising and disheartening, and I call on them to rethink their position and withdraw the lawsuit.”

At issue is a vote by the FSBA board of directors on June 11 to move forward with a lawsuit challenging the constitutionality of the tax credit scholarship program, which is now in its 13^th year and is expected to serve 69,000 economically disadvantaged students. The action followed a presentation by FSBA attorney Ron Meyer, who also represents the Florida Education Association teacher union and filed a lawsuit last month challenging the process by which the Legislature enacted a bill this year expanding the scholarship and creating a new program for students with significant special needs.

Sources say the FSBA is planning to file the suit on Thursday. FSBA Executive Director Wayne Blanton could not be immediately reached for comment.

The reaction among parents and private school leaders has been swift.

Faith Manuel of Ormond Beach has a son who attended a private school on a tax credit scholarship and is now at Florida State College at Jacksonville, studying to be a teacher. Her daughter, Faith McKenney, is on a scholarship at Calvary Christian Academy in Volusia County.

“My daughter couldn’t find her place at her public middle school. She’s now in place where she thrives academically, socially and emotionally,” Manuel said via email, noting she has another son in public school. “Why would anyone want to take that away from her?”

“If this (scholarship) ended, it would be horrific,” said Mark Coats, pastor of Grace of God Baptist Church in Miami and headmaster of a school that serves scholarship students. “You will see the dropout rate go up, the truancy levels go up, the frustration of children go up. Because of the program, those children found a new love for academics.”

Additionally, some school board members have spoken out against the suit.

Tim Weisheyer, chairman of the Osceola County School Board, issued a statement: “I do not support this lawsuit. I am in favor of parents having options, and our district is a great example of how they work – we have magnets, charters, virtual schools and more. This scholarship program needs to be on the table for low-income children to have equal access to educational options. I have had the pleasure of speaking with many families benefiting from this scholarship and call upon the FSBA leadership to stop this lawsuit.”

Added Indian River School Board member Dale Simchick: “I am absolutely opposed to this lawsuit. I call upon the FSBA to stop it. I am in favor of choice for low income children, and this program must be preserved.”

Nancy Stacy, a Marion County School Board member, said she worried that the district could not afford to educate the 1,187 students on scholarship who would be forced back into traditional public schools. “It will put our schools in a financial bind. Somehow when school board members get elected, there seems to be some Kool Aid they drink which totally distorts their common sense. The scholarship program is doing them a favor by educating these students for half the price.”

The Florida program is funded by corporations that contribute to scholarship funding organizations such as Step Up For Students. This year, the contributions were capped at $357.8 million, but state law allows the cap to essentially rise by 25 percent each year if contributions continue to grow.

The program is widely considered a national model, with studies showing both academic gains for scholarship students and cost savings to taxpayers.

State law requires that scholarship recipients take state-approved standardized tests, with the results subject to annual evaluation by David Figlio, a highly regarded education researcher at Northwestern University. (The new law switches the evaluation responsibilities next year to researchers at Florida State University.) Figlio has found that scholarship students are by and large the ones who struggled the most at the public schools they left behind, but that they are now, on average, making the same academic gains as students of all income levels nationally.

Despite repeated claims by critics, the program is not a drain on public school funding, according to studies over the years by five, independent agencies. A big reason why: The scholarships are worth $5,272 each this year, roughly half what taxpayers spend to educate a student in public school. Two years ago, the state’s Consensus Revenue Estimating Conference projected the scholarships saved the state $57.9 million in 2012-13. The estimate did not include additional savings from capital expenses, or to local school districts.

One unanswered question is why FSBA chose to single out the tax credit scholarship program. Florida has five different privately operated education options, serving a projected half-million students this year.

All four of the other options – charter schools, pre-kindergarten for 4-year-olds, and McKay Scholarships and Personal Learning Scholarship Accounts for students with special needs – are financed directly out of the state treasury. Two of them – charters and McKay – take their money directly from school district allocations through what is known as the Florida Education Finance Program (FEFP).

Tax credit scholarships, on the other hand, are financed by corporate contributions that receive 100 percent tax credits; the money is contributed to private nonprofits and never reaches the state treasury or the FEFP fund.

Those distinctions are relevant to state and federal case law.

For example, in the only Florida Supreme Court case on school vouchers, Bush v. Holmes in 2006, the court invalidated Opportunity Scholarships because it said the money was coming directly from the FEFP. “Accordingly,” it wrote, “the payment of the scholarships results in a reduction in the amount of funds available to the affected school district. … Specifically, the OSP transfers tax money earmarked for public education to private schools.”

At the federal level, the U.S. Supreme Court issued a landmark decision in 2011, Arizona Christian School Tuition Organization v. Winn, dealing directly with tax credit scholarships. In that case, the court upheld the Arizona scholarship program by denying standing to the taxpayers who brought challenge. The court ruled that tax-credited contributions, even those receiving a 100 percent credit, are not to be construed legally as government expenditures. In that way, it distinguished tax credit scholarships from direct vouchers.

Another landmark federal case, Zelman v. Simmons-Harris in 2002, determined that the U.S. Constitution’s establishment clause does not forbid school vouchers from being used in religious schools. The U.S. Supreme Court found that parents could use public funds to pay for religious schools, provided the parents are making a genuine and independent choice and that the primary purpose is education. It also went further, declaring that voucher programs could not exclude any private provider merely because of religion.

This year’s changes to the scholarship program included partial scholarship for working-class families. Until the change, the program had been exclusive to families whose incomes qualified for free- or reduced-price lunch. Those families will continue to get first dibs on scholarships.

More than 120,000 applications were started for scholarships this year before Step Up For Students closed the application process on July 15.