In the latest filing in a lawsuit challenging Florida’s tax credit scholarship program, lawyers for the statewide teachers union double down on their assertion that the scholarship is no different than a voucher program the Florida Supreme Court declared unconstitutional in 2006.
The document, filed just before the Thanksgiving holiday, comes in response to the state’s argument that the case should be dismissed because the plaintiffs have not demonstrated harm and therefore lack standing to sue. The first four paragraphs of the response draw connections between the new lawsuit and the 2006 Bush v. Holmes case. Similar plaintiffs are making arguments similar to the earlier case, they write, and tax credit scholarships are “the state’s replacement for the OSP” – referring to the Opportunity Scholarship Program, which the high court struck down.
“As in Holmes,” they wrote, “there is no question that Plaintiffs have standing to bring this lawsuit.”
Florida’s tax credit scholarship program for low-income students is the biggest private school choice program in the nation, serving about 69,000 students this fall. It’s administered by nonprofits such as Step Up For Students, which co-hosts this blog.
There are important differences between the tax credit scholarship programs and the former voucher program. First, the Opportunity voucher was aimed solely at students in F-rated public schools. The tax credit scholarship program, established nearly six years before the Holmes case ended, is aimed at low-income students, and does not take their prior schools’ performance into account. Second, the vouchers were funded directly out of the state’s education budget, but tax credit scholarships come from corporate contributions that receive dollar-for-dollar tax credits.
As the Arizona Supreme Court wrote in a 1997 ruling upholding that state’s tax credit scholarship program: “Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with ‘public money.'”
The different legal structure of tax credit scholarships helped them survive other challenges, including a separate lawsuit in Arizona and a recent case in New Hampshire. In those cases, which the state sites in its defense of Florida’s program, judges dismissed the challenges after finding the plaintiffs could not show they were harmed. That’s the issue the state and the groups behind the suit are currently arguing: Whether they have standing to bring the case.
The union’s lawyers write that if students leave public schools to participate in the scholarship program, the public schools they leave lose the funding that would have been associated with them under the state’s formula. That, they argue, is “the natural and intended result of the program’s operation, which necessarily entails such reductions in public school funding.”
They go on to argue the state’s contention that the use of tax credits helps the program pass constitutional muster should be addressed once the case moves to fact-finding and the underlying constitutional issues. Right now they’re simply arguing their case shouldn’t be dismissed because they lack standing.
The issue of standing also came up in a separate lawsuit this year that challenges a new law that modestly expands the scholarship program. The case involves a similar argument – that the growth of a school choice program would harm the plaintiffs by diverting money away from public schools. The judge has given the union until later this month to show why the case should not be dismissed.
