Florida’s school voucher program for special needs students is constitutional. If the state Supreme Court entertains arguments to the contrary, it will create an unnecessary “legal cloud” for thousands of families.
That’s the argument lawyers defending the McKay Scholarship program made in court papers filed this week.
Late last year, a state court of appeal rejected a lawsuit that took aim at 20 years of Florida education policy and argued the state had systematically underfunded public schools. The plaintiffs in that case want the high court to hear their appeal.
The lawsuit also contended McKay Scholarships, vouchers that help the families roughly 30,000 special-needs children pay private school tuition, are unconstitutional. It’s the last surviving legal attack on a Florida private school choice program after courts declined to hear lawsuits targeting tax credit scholarships
When the First District Court of Appeal upheld McKay Scholarships, it cited, of all things, a lawsuit that struck down a voucher program in 2006.
In that case, known as Bush v. Holmes, the Florida Supreme Court ruled the Opportunity Scholarship Program created an unconstitutional, “parallel” public education system. That’s because the program allowed a theoretically unlimited number of students in low-performing public schools to take taxpayer money and attend private schools instead.But justices in that case were careful to note that they might view other scholarship programs differently. Here’s what they wrote, as cited by the court of appeal:
We reject the suggestion … that other publicly funded educational and welfare programs would necessarily be affected by our decision. Other educational programs, such as the program for exceptional students at issue in Scavella [v. School Board of Dade County, 363 So. 2d 1095 (Fla. 1978)], are structurally different from the [Opportunity Scholarship Program], which provides a systematic private school alternative to the public school system mandated by our constitution.
The “program for exceptional students at issue in Scavella” allowed certain children with special needs to attend private schools at public expense.
Judges with the First District Court of Appeal held the McKay Scholarship program is like the program for exceptional students in Scavella. It’s a “specialized scholarship limited to students with disabilities,” the court wrote — unlike the Opportunity Scholarship Program, which was small when justices decided Holmes, but could be open to a wide range of potential students.
On the McKay program, the appellate court ruled:
[T]his opportunity for students with disabilities involved only approximately 30,000 of the total 2.7 million students in the public schools, and only a fraction of the statewide K-12 public school budget, such that it could not be reasonably argued that the McKay Scholarship Program had a “material affect” on the public K-12 education system. Rather, as the trial court observed, “evidence was presented that [this] school-choice program [is] reasonably likely to improve the quality and efficiency of the entire system.”
The plaintiffs in the so-called adequacy lawsuit want the Florida Supreme Court to re-examine that reasoning. In their petition for an appeal, they asked the high court to “correct the First DCA’s misapplication” of the Holmes precedent. They argue that publicly funded private-school placements at issue in the 1978 Scavella ruling are part of the public education system, while McKay Scholarships are not.
The exceptional student education program and the McKay program both apply to children with disabilities, but they are vastly different in that the exceptional student education program is a public school program whereas the McKay program is a publicly funded private school voucher program. The McKay program is structurally the same as the Opportunity Scholarship program which the Holmes Court found provided an unconstitutional alternative to the public school system. The McKay program also is identical to the Opportunity Scholarship program in that neither are subject to the uniformity requirements of the public school system. It is therefore a misapplication of Florida Supreme Court precedent to not apply Article IX’s uniformity requirements to the McKay program as Holmes did to the Opportunity Scholarship program.
However, in briefs filed Monday, lawyers for the state of Florida argued the appeals court was correct and there was no need for high-court review.
Lawyers with the Institute For Justice, representing parents who use McKay Scholarships, elaborated. They told the high court:
Granting review would throw an unnecessary legal cloud over this nearly two decades old program—a program that supplements and expands each disabled student’s right to an individualized education. There is no reason to sow such distress for the parents and students who are, as the evidence below showed, well-served by the McKay Program. Indeed, based on the evidence presented at trial, the First District Court correctly applied Holmes to the facts of the case and properly affirmed the trial court’s finding that the McKay Program does not undermine the state’s obligation to operate a uniform public-school system.
Justices have not yet scheduled oral arguments in the case, which began in 2009.