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Judge grills both sides in Florida tax credit scholarship lawsuit

The lawsuit challenging Florida’s tax credit scholarship program hinges on a “complex” set of legal issues, a Leon County circuit court judge said Monday after hearing arguments in the case.

Judge George Reynolds grilled lawyers on both sides over whether the groups behind the lawsuit have standing to challenge the program — an issue that has snared challenges to similar programs in other states.

Reynolds repeatedly questioned how the statewide teachers union and other groups could show the tax credits harmed public schools, since the program isn’t funded using money earmarked for public education. He had questions for both sides, and noted late in the hearing that he’s grappling with a range of legal “complications.”

Lawyers for the state and for scholarship parents argued that the tax credits available to companies that contribute to scholarship organizations (including Step Up For Students, which co-hosts this blog and employs the author of this post) are similar to the tax deductions offered for other charitable donations. The government can’t lay claim to money that never winds up in the state treasury.

Claiming the money that funds scholarships would otherwise have gone to fund public schools requires “speculation heaped on top of speculation,” Blaine Winship argued for the state attorney general’s office. The union’s logic, he added, could be used against other efforts to encourage charitable giving.

Ron Meyer, a lawyer for the teachers union, countered that the scholarship program is not supported through “garden variety” tax exemptions. Rather, the tax credits support donations for specific purpose: subsidizing private school tuition for low-income students, which the union argues violates the state constitution.

That led to a key exchange, in which Reynolds challenged Meyer.

Lawyers for the state and the scholarship parents “tell me if I open this door on (tax) exemptions, I’m opening a big door,” Reynolds said.

“If you open the door (to a legal challenge of) this exemption, all you are doing is saying that the state of Florida cannot do indirectly what it is prohibited from doing directly,” Meyer responded. In other words, he argued the program ultimately has the same effect as private school vouchers, which the state Supreme Court held unconstitutional.

One “weakness” of the union’s argument, Reynolds said, is that it’s not at all clear “where these dollars would have gone” if there were no tax credit scholarships (vouchers, by contrast, drew funding directly out of the school system).

As Reynolds noted later in the hearing, “You could do away with this program tomorrow morning, and the budget for the school system might change not one iota.”

He raised questions for supporters of the program, too. “There’s this little document that bumps into everybody called the constitution, and it says you can’t have a competing school system funded by public dollars,” he said.

The key, Winship said, is a lawsuit challenging tax credits “isn’t about money that’s come into the public treasury.”

Complicating matters are two other school choice cases that also landed in Leon County circuit court. Chief Judge Charles Francis in December dismissed a lawsuit challenging school choice legislation after plaintiffs tried to show that expanding eligibility for the tax credit scholarship program would hurt public schools.

But the union’s lawyers pointed out that Reynolds himself just last month rebuffed the state’s attempt to get him to dismiss a separate lawsuit that makes wide-ranging claims against various aspects of the state’s education system, including tax credit scholarships. The so-called adequacy lawsuit has been winding its way through the courts since 2009, and Reynolds noted he “might have to readdress” his recent order.

Reynolds intimated near the close of the two-hour hearing that he wasn’t yet sure how to reconcile those two rulings with the tax credit scholarship case. He asked lawyers for all three parties  the union, the state and the scholarship parents  to draft proposed orders resolving the legal dispute over standing.

“This is a complex issue,” he said, without indicating when he intended to rule.

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BY Travis Pillow

Travis Pillow is Director of Thought Leadership at Step Up For Students and editor of NextSteps. He lives in Sanford, Fla. with his wife and two children. A former Tallahassee statehouse reporter, he most recently worked at the Center on Reinventing Public Education, a research organization at Arizona State University, where he studied community-led learning innovation and school systems' responses to the Covid-19 pandemic. He can be reached at tpillow (at)