Voucher Foes Bank Heavily On 2006 Ruling

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TALLAHASSEE (CBSMiami/NSF) – Slightly more than a decade after the Florida Supreme Court rejected a controversial school-vouchers program, voucher opponents hope for a repeat.

Groups led by the Florida Education Association teachers union filed an initial brief Monday asking the Supreme Court to take up a challenge to the Florida Tax Credit Scholarship Program, which pays for tens of thousands of children to attend private schools.

The brief focuses heavily on a 2006 Supreme Court ruling that found unconstitutional a voucher program championed by then-Gov. Jeb Bush. While the Bush-era program, known as the Opportunity Scholarship Program, and the Florida Tax Credit Scholarship Program have different financial structures, the brief argues that they both led to improperly diverting money to private — often religious — schools.

“Under the (Opportunity Scholarship Program), as with the (Florida Tax Credit) Scholarship Program now, most of the private schools receiving scholarship money were religious institutions,” the brief said. “Then, as now, the Legislature paid for the vouchers by diverting public funds. Then, as now, the (Opportunity Scholarship Program) did not subject private schools that received vouchers to the same educational standards that were generally applicable to public schools.”

The opponents have gone to the Supreme Court after a Leon County circuit judge and the 1st District Court of Appeal rejected their arguments challenging the Florida Tax Credit Scholarship Program. Both of those courts ruled that the plaintiffs did not have legal standing to challenge the program, at least in part because they could not show they have been harmed.

The Bush-era vouchers program, which was the focus of years of political and legal wrangling, provided direct payments for children to attend private schools. The Florida Tax Credit Scholarship Program, however, involves businesses making contributions to organizations that, in turn, use the money to send children to private schools. The businesses can receive tax credits for their contributions.

Supporters of the program argue it helps children from low-income families who otherwise would not have educational choices. In a ruling last month, a three-judge panel agreed with the state and other program supporters in finding that the plaintiffs did not have standing.

“Here, the trial court correctly determined that appellants (the plaintiffs) lacked special injury standing because they failed to allege that they suffered a harm distinct from that suffered by the general public,” the appeals court ruled. “Indeed, appellants failed to allege any concrete harm whatsoever.”

The 2006 Supreme Court ruling was rooted in part of the Florida Constitution that requires the state to make “adequate provision … for a uniform, efficient, safe, secure, and high quality system of free public schools.” Justices, in a 5-2 decision, found that the Opportunity Scholarship Program improperly diverted public money into a private system.

In asking the Supreme Court to take up the new case, the opponents argue the Florida Tax Credit Scholarship Program also diverts money to private schools, though the program uses tax credits instead of appropriations from the state budget.

“This case also presents a fundamental issue of constitutional interpretation: Can constitutional prohibitions on the use of public funds be evaded by the kind of ‘money laundering’ scheme used in the (Florida Tax Credit) Scholarship Program — which permits the Legislature to direct funding to a program created by it, while evading constitutional review because no funds have been ‘appropriated?’ ” the brief said. “And there should be no mistake: The targeted tax credit that funds the (Florida Tax Credit) Scholarship Program is functionally and materially identical to the grants that funded the (Opportunity Scholarship Program).”

But the 1st District Court of Appeal sharply disagreed with that argument.

“Appellants’ entire argument for special injury standing is that they have been harmed by the (Florida Tax Credit Scholarship Program’s) alleged diversion of public revenues from public schools to private schools,” the Aug. 16 ruling said. “Appellants’ diversion theory is incorrect as a matter of law. A close examination of the statutory provisions authorizing the (Florida Tax Credit Scholarship Program) exposes the flaws in appellants’ argument. No funds under the (Florida Tax Credit Scholarship Program) are appropriated from the state treasury or from the budget for Florida’s public schools.”

Attorneys for the state have not filed an initial brief, and it is unknown when the Supreme Court will decide whether to take up the case. Three justices who were in the majority in the 2006 ruling — Barbara Pariente, R. Fred Lewis and Peggy Quince — remain on the court, while the other current justices joined the court later.

The News Service of Florida’s Jim Saunders contributed to this report.


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