Raoul Cantero on the legal landscape for school choice scholarships

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Former Supreme Court Justice Raoul Cantero: "While I disagreed with the result of Bush v. Holmes, fortunately that decision does not dictate that the Florida Tax Credit Scholarship Program is unconstitutional. A key reason is that a tax credit scholarship is legally distinct from a directly appropriated scholarship."

Former Supreme Court Justice Raoul Cantero: “While I disagreed with the result of Bush v. Holmes, fortunately that decision does not dictate that the Florida Tax Credit Scholarship Program is unconstitutional. A key reason is that a tax credit scholarship is legally distinct from a directly appropriated scholarship.” (Photo credit: Johana Sanchez)

The Florida Supreme Court overturned the state’s first K-12 voucher program in 2006, but that decision “does not and should not apply” to the state’s tax credit scholarship program, which is now under legal attack by the Florida teachers union and Florida School Boards Association, former Florida Supreme Court Justice Raoul Cantero said last week.

In a keynote address to the Hispanic Coalition for Reform and Educational Options, Cantero noted important distinctions between vouchers and tax credit scholarships, and offered wide-ranging views on the legal landscape for such programs. Cantero was a dissenter to the majority decision in Bush v. Holmes, but we think his views are worth considering no matter where you stand on school choice.

The former justice is helping to represent 15 scholarship parents who have intervened to defend the scholarship program, with the costs paid for by the Alliance for School Choice. As always, we note the scholarship program is administered by Step Up For Students, which co-hosts this blog. Here are Cantero’s prepared remarks in full:

Good afternoon. I am so honored to be here at the HCREO National Summit. Thank you so much for giving me the opportunity to speak with you today. Making sure all of our children have the opportunity to succeed, particularly those children of modest means, has always been important to me. Providing educational opportunities for all children in our community, not just those in living in the right zip code, is the proven way to make sure that everyone has an equal opportunity to succeed in life. I appreciate all that HCREO does on this front, for I believe access to meaningful educational opportunities is one of the civil rights struggles of our generation.

Here in Florida, as part of the legal team defending the Florida Tax Credit Scholarship Program from constitutional challenge, I have the privilege to play a small part in furthering the opportunities for educational choice for the neediest members of our Hispanic community. I know many of you are familiar with this scholarship program, but for those of you who are not, let me give a short description.

The Florida Legislature created the tax credit scholarship program for low income children in 2001. Under this program, private companies may donate funds to a non-profit scholarship funding organization. The company receives up to a 100 percent tax credit for their donation. The non-profit organization awards scholarships to low-income children, and they use the scholarships to pay for tuition at the private school of their parents’ choice. About 1,500 private schools in Florida accept scholarship students under this program, and there are now roughly 70,000 children using this program statewide, with over 400,000 total scholarships awarded since 2001.

The average household income of the scholarship families is about $24,000. And roughly 75 percent of the students are minorities. 40 percent are Hispanic. Studies of test scores show that the students entering the program are the worst performers in their public schools, but improve their overall educational performance in their new environments. And the program even improves the academic performance of the regular public schools.

Now, note this crucial aspect of the program: the scholarship money goes from the participating private company, to the non-profit, and then to the school at the parent’s direction. The money donated for scholarships never makes it into the state Treasury and is never appropriated by the Legislature, any more than any other charitable contribution by a private corporation or an individual that results in a tax credit or deduction.

We must not forget that the students that the Florida Tax Credit Scholarship Program helps are more than just numbers. Students participating in the program have powerful stories – many of you are already familiar with the lives changed through the program, but I would like to mention just a few stories, such as that of Mario Tobar of Orlando.

Mario was a freshman in high school when his mother, Kenia, confronted him about the choices he was making and the path he was headed down. Mario was hanging out with the wrong crowd, and refusing to do his homework. He was arguing with his teachers. Perhaps some of this resulted from the difficult times at home—Mario’s mother had recently been divorced and was working two jobs.

In desperation, Kenia turned to the tax credit scholarship program. She applied for and was awarded a scholarship for Mario. She enrolled him at Bishop Moore Catholic High School. Things started out rough for Mario, as he was placed on academic probation. But given time, he turned things around. He now has a 4.0 grade point average and is a star defensive end on the football team.

Mario says the environment at the school has made all the difference for him. He says he has benefitted from a new set of classmates. Mario tells us that one of his friends at his old school recently died. Mario’s mother says that the scholarship saved her son’s life.

Many of the schools that serve these scholarship students have also become a part of the Hispanic heritage of our state. La Progresiva Presbyterian School, here in Miami, serves one of the largest

populations of Hispanic scholarship students in the State. La Progresiva was founded in the city of Cardenas, Cuba on November 11, 1900, by a generous North American missionary, Dr. Robert I. Wharton. The school grew and developed over the years and became one of the most prestigious schools in Cuba. But it was shut down by the Castro regime in 1961.

Ten years later, La Progresiva emerged again in Miami, affiliated with a local church and the alumni of the old school. Today it is a thriving school where 442 of 470 children are on the scholarship program.

In August of this year, a lawsuit was filed asking the courts to shut down the scholarship program, claiming that the program violates both the Blaine Amendment and the Uniformity Clause of the Florida Constitution, and that prior Florida Supreme Court rulings in the Bush v. Holmes case, the case that struck the Opportunity Scholarship program, required that this program be shut down as well. Needless to say, should the lawsuit succeed, La Progresiva would once again be shut down, as would many other such schools.

As many of you know, I have a certain familiarity with a previous legal challenge to the Opportunity Scholarship program, Bush v. Holmes. I dissented from the Florida Supreme Court’s opinion in that case. But that Court ruling does not and should not apply to the Florida Tax Credit Scholarship program. And here’s why.

First, one must understand how the Opportunity Scholarship Program worked, and the gist of the Court’s ruling in Bush v. Holmes. Under the that program, if a public school received an “F” grade two times in a four-year period, the Florida Legislature appropriated public monies for scholarships that children in those failing schools could use to pay for tuition at a private school.

This law was immediately challenged in court. It was first challenged under the federal constitution—the plaintiffs claimed that it violated to prohibition of government support of religion. This claim was thrown out after the United States Supreme Court decided a case involving a voucher program in Cleveland. The court declared the program constitutional because the money was not being given to support the religious institution, but to support the student. As long as the parent decides where the money will go, and as long as the parent can choose from religious and non-religious providers, there was no government support of religion. Proponents of the program reminded the court that for decades the GI Bill had sent veterans to religious colleges and universities—soldiers even used it to attend seminaries and become priests!

So this ruling dispensed with the federal constitutional challenge against the Opportunity Scholarship Program. But Florida, like 36 other states, has in its state constitution what is called a “Blaine Amendment.” It provides, in relevant part, that “[n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

The Florida Court of Appeal held that the Opportunity Scholarship program violated this provision. The logic of the Appellate Court’s ruling was troubling because many other longstanding legislatively funded programs would seem to also fail this test. For example, the largest voucher in the state is actually our voluntary pre-k program. The citizens of Florida passed a constitutional amendment in 2002 stating that every 4-year-old child will be given taxpayer-funded pre-k education. Today over 140,000 children receive a voucher every year in this program, and roughly 40 percent attend faith-based schools. Many of them attend the same faith-based schools that serve children in the K through 12 years in the Opportunity Scholarship Program. How could it be okay for a 4-year-old child to use a voucher at a faith-based school, but not to use a voucher three months later when they enter kindergarten at the same school?

Another program jeopardized by such logic was the Bright Futures Scholarship Program. Just as with the GI Bill, students take funds from the Florida treasury and attend faith-based schools like Southeastern University in Lakeland and Palm Beach Atlantic University. Three of the four historically black colleges in Florida are faith based.

When the Bush v. Holmes case reached the Florida Supreme Court, it did not base its decision on the Blaine Amendment. The plaintiffs had also claimed that the voucher program violated something called the “Uniformity Clause” in the state constitution. This clause reads as follows:

“Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.”

A majority of the Florida Supreme Court held that the voucher program violated the Uniformity Clause. The majority opinion declared that the program was unconstitutional essentially because the private schools that children attended did not look like the regular public schools. What did it mean to be different? The opinion cited examples such as not having the same curriculum, or not being required by law to have certified teachers.

While I disagreed with the result of Bush v. Holmes, fortunately that decision does not dictate that the Florida Tax Credit Scholarship Program is unconstitutional. A key reason is that a tax credit scholarship is legally distinct from a directly appropriated scholarship. First, the Blaine Amendment—on which the Court of Appeal relied, does not apply because the funds never make it into the State Treasury in the first place. The Blaine amendment says only that “no funds shall be taken from the Treasury.” In the Florida Tax Credit Scholarship Program, they aren’t.

How about the uniformity claim? If the plaintiffs were to claim that the Tax credit program violates the uniformity clause because private money that never became public funds, but might have, is going to educate children at a private school, it would result in some fairly ridiculous ramifications. For example, if this tax credit violates the uniformity clause, what about a tax-deductible donation to a private school? What about the state property-tax exemption currently enjoyed by all non- profit private schools? In both those examples, the same tortured argument would appear to apply.

We do not have to re-invent the wheel in this Florida case. In Arizona, the State Supreme Court that had found a directly appropriated scholarship program unconstitutional, on similar grounds, also upheld a tax credit scholarship program as constitutional, making similar legal distinctions.

But, enough of this legal talk. I applaud all that each of you do to help bring meaningful educational options to serve the neediest in our Hispanic community, and encourage you to persist. We must look at this as a long term struggle, and pace ourselves to win the war, not just a battle.

I would be remiss not to mention something else very important to me, and that is the provision of affordable legal services to the neediest among us. Just as we must not let the educational options for our children be dictated by zip code, we must not let real legal needs be unmet, either, and I appreciate any support in such endeavors.

Thank you very much for such undivided attention today, it has been a privilege to speak to you today.

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7 comments

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Parent and Teacher December 17, 2014 - 10:43 am

It is disingenuous to say the public schools do not lose money. They do! If a public school has 30 3rd grade pupils this year it receives funds for those students. If a student leaves that school for a private school, but 29 remain, the public school STILL has fixed costs that it must cover. It must still cover the cost of operations (salaries, utilities, bussing, etc) but with less money because a student left for a private school.

That private school, if parochial, doesn’t necessarily have the same curriculum. Many parochial schools teach creation science in their science classes. That is educational malpractice.

Furthermore, it is also disingenuous to say that students are doing better at the private school. The fact is we, the public, do not know. Test scores of students at private schools are not the same as test scores of students in public schools who took the old FCAT and will now take the Common Core exams. Until the private voucher students are on the Common Core exam, we will not have a true comparison. Period. End of story. You can throw out whatever data you want but you’re comparing apples to oranges.

The propaganda on this site is stunning.

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Ken Wackes December 17, 2014 - 1:16 pm

In response to Parent and Teacher:

Your comments about the impact of lost funding due to an empty seat created by the Tax Scholarship Program are myopic. Since the students involved are among the most disadvantaged in Florida, they have at least a 50% chance of being counted among the 50%+/- of Florida public school students who after entering grade 9 never graduate from high school. That 50% are the major contributors to the expenses incurred by the community for crime, drug rehabilitation, unemployment benefits, and subsidized health care. If those students enrolled in the TSP participate in non public schools with a 95%+ graduation rate and 85%+ college entrance rate, they return potentially to their community, not as wards of the community but as contributors to the community. Hence, if every low income student was given the same opportunity there would be a great boon to the community by releasing funds normally spent to prop up a growing proportion of the community to activities that benefit and enhance the whole community.

Second, since you label the site on which your comments were posted as “propaganda” of a “stunning” nature, you nevertheless reveal the impact upon perhaps your own thinking of a misguided “propaganda” driven education. I am referring to your branding of creation science as “educational malpractice!” Is it “malpractice” to point out to students, for instance, that when considering the 122 anthropic constants necessary to sustain life on this planet or any planet, and what the chances are of them all occurring at one time (all 122 are necessary at the same time to sustain life) as a result of luck or random chance, the chance is zero? I cite renowned astrophysicist Hugh Ross’ response of 10 to the 138th power (one chance with 138 zeros after it — in other words, zero!). Oh, you mean they do not cover that in the common core’s earth science, biology, chemistry, or physics classes? Which version, then, of education is “propaganda”?

With regard to testing, all TPS students are required to sit annually for nationally recognized and FLDOE approved norm-referenced tests. The August 14, 2014 analysis released by a Northwestern University research team shows that 1) the TSP students are among the state’s most disadvantaged, and yet they 2) show one year’s worth of growth after a year’s worth of instruction, and 3) keep pace with their national peers, both disadvantaged and higher-income students.

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Parent and Teacher December 17, 2014 - 4:53 pm

As for point #1 I made, you changed the subject. There are still fixed costs. Nice dodge.

As for point #2, evolution is accepted by far many more renowned scientists than you can ever cite supporting the myth of creation science.

As for point 3, I wouldn’t trust the DOE as far as I could throw it. There is NO comparison of private and public students in FL when they don’t take the same test. Why not make these kids take the same tests as everyone else? I think the schools are hiding something.

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Chris Tauchnitz December 18, 2014 - 6:52 am

The premise of the argument against vouchers is that all money belongs to the government first and they will decide how much you are allowed to keep.

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Charlotte Greenbarg December 18, 2014 - 4:36 pm

When the Constitutional amendment that was the basis for the decision on Bush v. Holmes was proposed, Independent Voices for Better Education and other groups tried to warn everyone that it was a wolf in sheep’s clothing. It turned out to be exactly that. We have that in our archives.

Choice is not about taking money from the regular public schools; it’s about giving families the power to make the decisions about their children’s education so they can have a chance at the American dream. Before choice, it was for poor and minority children, the American nightmare. The retention and graduation rates reflected this.

The schools don’t lose everything that the kids who leave bring in. They keep a percentage for administration of the charter schools. But basing the argument against choice on money is admitting that the opponents are using the kids as cash calves.

Is the achievement of the students in charters higher than regular public schools? In many cases it is, in many it’s about even and in some it’s lower. But the point is that the families get to make the call if they don’t like outcomes. And that’s something the educrats can’t abide.

We do know for a fact that history reveals achievement among poor and minority kids to be much higher in parochial schools, especially Catholic schools. And it’s tragic that the sins of the Fathers and the resulting huge financial losses caused so many Catholic schools to close. St. Francis in Liberty City was one casualty.

Arguing about evolution v. creationism is beside the point. Both should be taught, neither as established fact. It still is to my knowledge, the theory of evolution, not the proven fact of evolution. The same for creationism; it’s about faith, not fact, and that’s up to each individual to determine. It’s really a red herring.

Using Common Core tests as a rationale for opposing choice is laughable. Those tests, the curricula and the standards are experiments that will fail. We have the video of Bill Gates admitting it might take ten years to find out if his “stuff” works. Look at our site
http://www.ivbe.org It’s on the homepage.

Why the teachers aren’t taking to the streets because they’re going to be evaluated using experimental Common Core test scores, I do not know. I hope it’s not too late by the time they figure it out.

The state, for its part, needs to get serious about monitoring the financial health of charters as well as the achievement of the students in them. Right now there are no consequences for bad practices and outcomes.

And we need to stop insulting one another and proceed on data and accountability before the next generation is lost as well.

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Parent and Teacher December 18, 2014 - 7:07 pm

Gravity is a “theory” too. Your discussion of the theory of evolution proves you really don’t know about science. Sorry to be blunt.

William Mattox: Protect progress in any language | Florida Politics January 3, 2015 - 11:56 am

[…] union claims Step Up scholarships divert resources from the public school system. But Raoul Cantero, a former Florida Supreme Court justice, says these scholarships are actually funded by tax-favored […]

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