Appeals court hears arguments on Florida tax credit scholarships

Travis Pillow

The statewide teachers union and other groups told a Florida appellate court this afternoon that a lawsuit attacking the constitutionality of the nation’s largest private school choice program should be allowed to proceed.

The Florida Education Association, the state NAACP chapter, the League of Women Voters and other groups are challenging the constitutionality of tax credit scholarships, which allow 78,000 low-income students to attend private schools.

A Tallahassee judge dismissed their case last year, after finding the groups could not show the program harmed public schools and did not have standing as taxpayers to challenge its constitutionality.

The groups behind the lawsuit took their case to the First District Court of Appeal. During a 40-minute hearing Tuesday, they contended the scholarships draw students — and therefore state funding — away from public schools.

Supporters of the program counter that it results in a net savings for taxpayers, and that funding for public schools has increased, both per-student and overall, as the scholarship program has grown.

Florida funds schools on a per-student basis. If its enrollment dropped for any reason (including, for example, if parents decided to home-school their child), a public school would receive less money, but it would also have fewer expenses.

Lynn Hearn, arguing for the groups challenging the program, said students receiving scholarships are spread unevenly across the state. The program affects public schools “by drawing students out of the system and sending the funding away,” she said, and schools don’t always reap savings from having fewer children to educate.

“You’ll have a few from this school and a few from that school, and so the school is left with exactly the same expenses,” she said.

Judge Lori Rowe, part of a three-judge panel that heard the case, was skeptical.

“You haven’t alleged that any individual student is suffering,” she said to Hearn. “You haven’t alleged that per-student funding has been reduced. You haven’t even alleged that the [state] education budget has been reduced.”

Jay Lefkowitz, an attorney representing scholarship parents, said even if there were allegations that test scores were plummeting or public schools were being shuttered, the plaintiffs would have to try to show the tax credit program caused those problems.

But the union and other supporters of the lawsuit have made no such claim, and Lefkowitz reminded the court that lawyers for the plaintiffs had a chance to make those claims when the case was first heard in circuit court, but declined to do so.

“All they have now is rank speculation” about the program’s impact on public schools, he said.

The key issue right now is focused on whether the plaintiffs have standing to bring the case. To challenge the program’s constitutionality, the plaintiffs either have to show it causes an “injury,” or that the Legislature made impermissible use of its taxing and spending power.

Last May, Leon County Judge George Reynolds ruled the plaintiffs had not met either standard. Lawsuits challenging tax credit scholarships in other states have faltered for similar reasons. In 2011, the U.S. Supreme Court held in Winn v. Arizona that tax credit scholarships are funded by voluntary private donations, and claims about their impact on the state’s finances were inherently “speculative.”

Hearn, arguing for the teachers union, contended Florida courts have been more willing than their federal counterparts to grant taxpayer standing.

But Rachel Nordby, a lawyer helping to defend the program, said allowing the case to proceed would be a “radically expansive” move that could expose a wide range of charitable causes backed by tax credits to new legal challenges.

It’s not clear when appellate judges intend to rule, but Joanne McCall, the president of the Florida Education Association and lead plaintiff in the case, has said she intends to take the case to the Florida Supreme Court, if necessary.

Correction: An earlier version of this post misidentified the attorney who argued for the state. We regret the error.

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