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 Orlando Sentinel recently published a blog entry about a new website that opposes students using publicly-funded vouchers to attend private schools that teach creationism. The site asserts, “Teaching creationism with public money is unconstitutional. It violates the First Amendment of the U.S. Constitution which lays out a clear separation of church and state.”
I’m fine with citizens opposing the teaching of creationism. I would not send my child to a school that taught creationism in lieu of evolution, but the assertion that it’s unconstitutional is false.
In the 1925 Pierce v. Society of Sisters decision, the U.S. Supreme Court ruled parents are responsible for determining how and what their children are taught. And in the 2002 Zelman v. Simmons-Harris decision, the court ruled parents may use public money to pay for tuition at faith-based schools provided their choice is genuinely independent, and the funds go first to the parents and then to the school.
Florida’s school voucher programs all adhere to the Zelman requirement that funds go first to the parent and then the school, which is why using publicly-funded vouchers to attend faith-based schools is an exercise of the First Amendment’s freedom of religion clause, and not a violation of the Establishment Clause. (By the way, the term “separation of church and state” does not appear in the U.S. Constitution. That phrase was used by President Thomas Jefferson in a January 1, 1802 letter he wrote to the Danbury Baptist Association of Connecticut, reassuring them that he opposed the government interfering with their religious practices.)
The Sentinel wrote that some state officials think tax credit scholarships are more constitutional than vouchers because tax credit funds never touch the state treasury, but, again, the key to the Zelman decision is the path the funds travel to arrive at a faith-based school. Once public funds are given to the parents, they become less public and more private, which is why their expenditure is an exercise of religious freedom and not government-supported religion. (more…)
