One of the most emotionally potent arguments against educational choice – that it cripples public schools financially – is slowly unraveling in a Florida court of law. Teacher union attorneys, who seek to abolish tax credit scholarships for 78,000 low-income children, are stumbling to make the case.
This is no small matter. The claim that scholarships and vouchers and charter schools financially undercut public education has been repeated so often for so long that it tends to get treated as though it were fact. The money is commonly described as being “diverted” or “siphoned” from public schools, pitting choice schools against neighborhood schools and creating understandable anguish for parents who want only for their children to have the best education possible.
The Florida case, McCall v. Scott, is shining an unforgiving light on that assertion. The backdrop is the issue of standing – the typically arcane calculation of whether someone is connected to and harmed by a legal matter the court can resolve. Because the union is challenging a scholarship that involves no direct appropriation of tax dollars, the attorneys are being asked to prove their clients suffer “special injury.”
They are quite conspicuously failing.
In the original complaint, filed Aug. 28, 2014, the Florida Education Association (FEA) attorneys said their clients “have been and will continue to be injured by the scholarship program’s diversion of resources from the public schools.” They bolstered the case with two arguments: 1) The tax-credited contributions that are made to private nonprofits to pay for scholarships reduce state taxes that would otherwise fund public schools; and 2) School districts lose funding for each student who leaves a public school to attend a scholarship school.
During the arguments in trial court, Leon Circuit Judge George Reynolds was openly skeptical. “You could do away with this program tomorrow morning,” he said at one point, “and the budget for the school system might change not one iota.” He then dismissed the case on May 18, 2015, ruling: “Whether any diminution of public school resources resulting from the Tax Credit Program will actually take place is speculative, as is any claim that any such diminution would result in reduced per-pupil spending or in any adverse impact on the quality of education.”
The FEA faced even more probing questions recently before a three-judge panel at the First District Court of Appeal. Though the questions may not reveal how the judges will actually rule, the back and forth, edited here for length, proved challenging for the union’s attorney.
FEA attorney Lynn Hearn: “The loss of $300 million at a minimum to the Florida public school system … is absolutely a fact.”
Presiding Judge Lori S. Rowe: “In your complaint, you haven’t actually alleged that there is a $300 million loss to the Florida education budget, have you?… In fact, the $300 million you’re referring to are the funds that flow into the scholarship program, correct?”
Attorney Hearn: “Well, that’s where the number arrives from, your honor. But we absolutely do allege that that amount has left the public schools in favor of the scholarship program. That’s because of the way the Florida schools are funded. They are funded on a per-student basis. So, during that year, 2013-14, there were 60,000 students who left the Florida public school system.”
Judge Ross L. Bilbrey: “But doesn’t that mean there are 60,000 fewer students that the state has to pay to educate?”
Attorney Hearn: “It does your honor. But the funding of students in our public schools is, uh, we’re not funding widgets, the funding formula for students is not a perfect correlation to the variable cost of funding that student.”
Judge Rowe: “But exactly what is the special injury you are articulating here? You haven’t alleged that any individual student is suffering. You haven’t alleged that per-student funding has been reduced. You haven’t even alleged that the education budget has been reduced.”
Indeed. In 2013-14, the year the union argues that the scholarship reduced education spending by $300 million, the K-12 public schools operational budget actually increased by $1 billion and the amount per student went up by 6.3 percent.
The cost claim also fails to consider the inverse impact that would result from removing 78,000 of the state’s poorest schoolchildren and sending them back to public schools in one fell swoop.
Enrollment in Florida schools is on the upswing again, projected to increase by 132,086 students in the next five years alone, and many districts are already struggling to keep pace in building new schools.
Orange County is a prime example. It is expecting 21,738 new students in the next five years, and is already installing portable classrooms and constructing new buildings. It broke ground on a new “relief” middle school last month and has $562 million of construction in the pipeline to keep pace. Just imagine if it had to add back another 7,783 students who are now on scholarships. In neighboring Osceola County, facing its own construction dilemma, school officials even say they hope new charter schools will “ease the strain on traditional schools.” Just imagine if it had to add back another 2,842 scholarship students.
The impact statewide could be sizeable. The cost to build new schools for only half the returning scholarship students would exceed $1.3 billion.
The court case is not the only venue where the union claims have been rejected.
Independent analysts have uniformly rejected the claim that the scholarship program undermines public education funding. In fact, they have gone further, reporting that the scholarship actually saves tax money that can be used to enhance traditional public schools. That’s because the scholarship this year costs $5,677, which represents about 60 percent of the total state and local spending on public school students each year.
The most definitive analysis comes from the respected Florida Office of Program Policy Analysis and Government Accountability, which found that the state saves $1.49 for every $1 lost in revenue. That study is now more than seven years old, but the Consensus Revenue Estimating Conference projected that the scholarship saved $57.9 million in 2012-13.
Two years ago, PolitiFact, the award-winning fact-checking operation at the Tampa Bay Times, also weighed in. It examined a similar claim made by former state senator Nan Rich, who argued that “$3 billion over the next five years will be taken out of our public schools and be put into vouchers.”
PolitiFact described Rich’s claim in the context of any state revenue that might be lost to scholarship tax credits: “There’s no guarantee that money would otherwise have gone to public schools. And, private school vouchers tend to cost less than what it costs to educate a child in public schools, which complicates how much money taxpayers would pay if the children in private schools instead went to public schools.”
Its June 19, 2014 ruling: “Mostly false.”
In McCall, the union is asking the appellate court to let the case be heard on its full merits. But the examination of whether the scholarship actually harms public schools is providing substantive answers in itself.