Final Showdown? Constitutional Challenge To Tax Scholarship Program Begins

Feb 13, 2015

FEA Attorney Ron Myer (right) stands outside a Leon County courtroom
Credit LHatter / WFSU News

A Tallahassee Judge is weighing whether to allow a constitutional challenge to the state’s tax credit scholarship program to proceed. Since its inception, the program has been a target for legislative challenges, but the current pending litigation has generated larger, more expansive efforts by supporters to get the lawsuit tossed.

The Florida Education Association, a state teachers union, has historically been the main opponent to the tax credit scholarship program. It (the program) allows businesses to steer a portion of the money they owe to the state, to private groups. Those dollars fund scholarships that help low income families afford private schools, and  it replaced the original school voucher law backed by former Governor Jeb Bush.

“You’ve got to respect the fact they’re there to protect the economic interest of adults," Bush said during a recent stop in Tallahassee.  That shouldn’t come as a surprise to people. A monopoly that doesn’t have choice is an easier path for them to achieve their objectives. While I’m respectful of that, it’s wrong," he said, taking a swipe at the teachers union.

There’s little doubt the current lawsuit has tax credit program’s supporters nervous. It’s clear in the TV ads running like this one—which aired during the Super Bowl.

The program’s supporters worry this lawsuit could be the one that upends the scholarship program. And they’re taking their fight to the court of public opinion, as well as defending it in the court of law.

Destination: Courthouse

It’s packed in the Leon County Courtroom Judge George Reynolds presides over. He’s already decided the fate of two previous challenges. This case could answer a big question: Is tax money donated for tax credit still considered public money?  The state is defending the tax scholarship program, and its attorney, Blaine Winship argues the answer is no. He says there’s no correlation between the program and state education spending.

“This is up to the legislature, which is free to increase education spending regardless of whether tax credits are offered," Winship argued before the judge.

Meanwhile, opponents say the program takes money that would otherwise have gone to public schools and steers them to private ones. Attorney Ron Myer represents the plaintiffs.

"Dollar-for-dollar, the same amount is being drained from public schools. Money previously appropriated for the operation of the public school. It’s a sophisticated form of money laundering we allege is unconstitutional under the constitution.”

Myer represents a coalition of groups suing the state over the program.

This time around, it’s not just the union, but the state school boards association, the NAACP and the League of Women Voters. That’s causing another rift. Some county school board members are striking out on their own to form a new coalition in an effort to distance themselves from the lawsuit.  Members of the NAACP have also split with their organization to support the scholarship program—which serves mostly minority students. The program also has powerful backers--like former Supreme Court Justice Raul Cantero, who argues the coalition bringing the lawsuit doesn’t have a case.

“No tax credit program has ever been struck down as unconstitutional. 15 other states have such programs," he said.

Opponents say they do have a case. And they note when a student leaves public school, the schools lose money. Supporters say it’s not the same: there’s no guarantee the child would have stayed in public school if the program didn’t exist. It’s a question waged for years, and one that could finally be settled for good.

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*Clarification: The FEA has challenged the tax scholarship program in the legislature and recently lost a court challenge earlier in the year.

*Correction: Judge George Reynolds, not Saunders-- is overseeing the case.