League of Women Voters chair: Legislature 'circumvented' the law with scholarship program

By Tara Mapes | Sep 15, 2016

TALLAHASSEE – A three-judge panel of the 1st District Court of Appeal upheld an earlier decision by the circuit court that found the Florida Education Association (FEA) and other plaintiffs lacked standing in its attempt to have a state-funded scholarship program declared unconstitutional.

The panel said in its ruling: “Appellants failed to allege that they suffered any special injury as a result of the operation of the Florida Tax Credit Scholarship Program and failed to establish that the legislature exceeded any constitutional limitation on its taxing and spending authority when it authorized the program. At most, appellants quarrel with the legislature’s policy judgments regarding school choice and funding of Florida’s public schools. This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine.”

The FEA, Florida National Association for the Advancement of Colored People (NAACP), the League of Women Voters of Florida (LWVF) and Sen. Geraldine Thompson are among the complainants listed.

Gov. Rick Scott, Attorney General Pam Bondi, the Florida Department of Education (DOE), and the Commissioner of Education Pam Stewart are among the named respondents.

The initial lawsuit argued the Florida Tax Credit Scholarship Program (FTCSP) is an attempt by the Florida Legislature to use state-funded programs to pay for private education of Florida children. The plaintiffs contended Article IX requires the funds to be used to support children’s education in free public schools.

The Florida Supreme Court held a similar program, the Opportunity Scholarship Program (OSP), was unconstitutional in 2006 under Article IX of the Florida State Constitution because it "devot[ed] the state's resources to the education of children within [Florida] through means other than a system of free public schools."

The complaint contended that state funds being used to support private schooling for children that would otherwise be used on public education. The Florida DOE reported on its fact sheet, “During the 2014-15 school year, scholarships in the amount of $344.9 million were awarded to a total of 69,950 students enrolled in 1,533 participating Florida private schools,” of which 70 percent are religious-based schools.

The complaint argued the OSP was declared unconstitutional by the court for violating the "no aid" clause of Article I, § 3 which prohibited it from taking “revenue from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” The plaintiffs contended the ruling should be the same against FTCSP for also using tax revenues to fund private religious-based educations.

The plaintiffs also argued the schools receiving the funds aren’t held to the same educational standards as public schools nor is there a stipulation they be superior in education. The lack of uniform assessments or standards, they argued, also violates title IX in part, “that it is the state's 'paramount duty' to make adequate provision for education and that the manner in which this mandate must be carried out is 'by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”

The dismissal was surprising to the one of the plaintiffs. Pamela Goodman, president of LWVF, told the Florida Record.

“We were shocked and mystified by the ruling," she said. "We were disappointed.

"Parents should know what assessments are being used, they should know if these schools are good alternatives, and if they are we need to do some research.”

Goodman said there are plenty of struggling Florida public schools that could benefit from the money being given to families to spend on private education.

“The money for these charter schools comes from taxpayer dollars. While there are many great charter schools, some are for-profit. The money trail needs to be reviewed here,” Goodman said.

A recent article written by a Florida resident accused LWVF of harming her children by participating in the case. She claimed the FTCSP helps low-income families have educational opportunities they would not have had before. Goodman responded she read the article but the author never contacted her personally to discuss her concerns. She denied the accusations that their efforts harm children and said they are seeking to protect and improve the public education available to all Florida children.

Goodman said she could not release more information surrounding the plaintiffs’ endeavors as a whole but said they are evaluating their next steps in the case.

A particular argument the appellate court focused on was the claim by the plaintiffs the FTCSP not only violates the state constitution but also harms public schools. The complaint read: “As students withdraw from public schools and enroll in private schools with vouchers provided by the Scholarship Program, their public school district's funding under the FEFP is proportionally reduced.”

The court found the plaintiffs failed to prove injury.

“Proving injury to the court in this case was extremely difficult,” Pat Drago, advocacy chair for the Florida LWV Board, told the Florida Record.

She said every student has a base allocation for taxes. When students leave a public school to go to a private school, the money follows them. In turn, that district loses revenues and has to respond by cutting positions and services.

“That is not the premier issue here, though,” Drago said. “The standing issue is that the legislature circumvented the constitution by creating a 501(c)(3) to take pre-tax revenues and funnel it to private schools.”

Drago explained the only difference between OSP and FTCSP is that the legislature created the separate 501(c)(3) in order to intentionally circumvent the previous ruling and the constitution.

“As a citizen of Florida, every citizen should be concerned when the legislature can circumvent the law by establishing a 501(c)(3) to use pre-tax dollars. What else can be done with that 501(c)(3)?” Drago said.

In reference to the court’s decision that the plaintiffs did not qualify for a legal exception allowing them to challenge the program as taxpayers, she said while she isn’t an attorney, she questioned why every taxpayer in Florida would not have standing in this case given taxpayer dollars are being used to fund private schools. Drago said the plaintiffs are considering an appeal and if they choose to file it, hopes the Supreme Court will be interested in hearing the case about the legislature sidestepping Florida law.

The DOE states on its website, “The [FTCSP] tax credit cap for the current year is $559,082,031. The tax credit cap amount will increase to $698,852,539 for the 2017-2018 state fiscal year.”

Florida is one of 16 states with a tax credit scholarship. Florida students are eligible for the program if their family household income is no more than 260 percent of the federal poverty level, or $62,010, for a family of four.

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