Florida School Choice

Despite being on the books for over a decade, two school choice programs in Florida have suddenly come under attack. A group of parents who sued Florida several years ago seeking more money for public education have recently amended their lawsuit to challenge the constitutionality of Florida’s popular Tax Credit Scholarship and McKay Scholarship for Pupils with Disabilities programs, claiming these two school choice programs unconstitutionally “divert” money from Florida’s public schools.

IJ moved quickly to intervene on behalf of six families with children relying on the programs to attend private schools in order to defend these two longstanding school choice programs. Together, the Florida Corporate Tax Credit Scholarship and the McKay Scholarship programs help more than 87,000 children across Florida obtain a quality education.

After a multi-week trial in March 2016, a Florida trial court judge declared the two school choice scholarship programs constitutional. The plaintiffs quickly appealed the case to the Florida Court of Appeals and oral argument was heard on Tuesday, July 18, 2017. We are now waiting for a decision from the Court of Appeals.

Florida School Choice

Date Filed

September 23, 2014

Original Court

2nd Circuit of Leon County

Current Court

First District Court of Appeal

Case Status

Open

Attorneys

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Timeline and Case Documents

Which school choice programs have been challenged in this litigation?

Which school choice programs have been challenged in this litigation? Florida is home to three of the nation’s leading—and two of the largest—educational choice programs. It is the two largest programs, Florida’s Tax Credit Scholarship Program and the John M. McKay Scholarships for Pupils with Disabilities Program, that are being challenged in court. Florida’s newest educational choice program, the Personal Learning Scholarship Account Program, has not been challenged as a part of this litigation.

Enacted in 2001, Florida’s Tax Credit Scholarship Program provides a tax credit on corporate income taxes and insurance premium taxes for donations to Scholarship Funding Organizations (SFOs), nonprofit organizations that provide privately funded scholarships to low-income students and children in foster care. Businesses receive a dollar-for-dollar tax credit for SFO contributions, with total credits capped at $286.25 million in 2014.

Originally adopted as a pilot program in 1999, and expanded in 2000, the John M. McKay Scholarships for Pupils with Disabilities Program provides publicly funded scholarships worth nearly the same amount of money the student’s public school would have received to educate the participating student, though funding may not exceed the private school’s tuition and fees.

Florida’s Personal Learning Scholarship Account Program was enacted in 2014 and allows students with severe special needs an opportunity to receive a publicly funded account that is administered by an SFO. Parents may use the funds to pay for a variety of educational services, including private school tuition, tutoring, online education, curriculum, therapy, post-secondary educational institutions in Florida and other defined educational services.

How many kids benefit from the challenged programs?

Florida’s Tax Credit Scholarship Program serves nearly 60,000 students. See Friedman Foundation for Educational Choice,http://www.edchoice.org/School-Choice/Programs/Florida-Tax-Credit-Scholarship-Program.aspx.

There are over 27,000 students receiving scholarships from the John M. McKay Scholarships for Pupils with Disabilities Program. See Friedman Foundation for Educational Choice, http://www.edchoice.org/School-Choice/Programs/John-M–McKay-Scholarships-for-Students-with-Disabilities-Program.aspx.

Do these educational choice programs really improve education in Florida?

Yes. Both programs have been the subject of in-depth, and positive, research. See, e.g., Greg Forster, Ph.D. and Christian D´Andrea, M.P.P., An Empirical Evaluation of the Florida Tax Credit Scholarship Program, Friedman Foundation (Aug. 2009) (finding that participating parents were dissatisfied with their public school experiences on most measurements, and are overwhelmingly satisfied with their current private schools); Jay P. Greene, Ph.D. and Marcus A. Winters, Ph.D., The Effect of Special Education Vouchers on Public School Achievement: Evidence From Florida’s McKay Scholarship Program, Manhattan Institute (Apr. 2008) (demonstrating that students in both private schools and public schools made statistically significant increases in math and reading scores).

What is the legal background to this case?

Citizens for Strong Schools v. Florida State Board of Education was originally filed in 2009 and sought a declaration that the state legislature had breached its “paramount duty” to make “adequate provision” for a “uniform, efficient, safe, secure, and high quality system of free public schools” and asked the courts to impose a “remedial plan” that “conforms with the Florida Constitution.” Basically, the Plaintiffs were asking the courts to order the legislature to appropriate more money for public education. The state moved to dismiss the lawsuit, citing a 1996 Supreme Court decision that denied a similar request for relief, Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (1996). However, the trial court denied the state’s motion.

The State Defendants then sought a “writ of prohibition,” which is quite extraordinary relief, to halt the proceedings in the trial court. A divided panel of the Florida First District Court of Appeals denied the writ but certified a question to the Florida Supreme Court that basically asked whether the case should proceed. Haridopolos v. Citizens for Strong Schools, Inc., 81 So.3d 465, 473 (Fla. Ct. App. 2011). The Supreme Court declined to accept jurisdiction over the question in Sept. 2013 and the case was remanded back to the trial court for further proceedings.

What happened when the case was remanded to the trial court?

On remand, the Plaintiffs filed a motion to amend their Complaint to add allegations that the John M. McKay Scholarships for Pupils with Disabilities Program and the Tax Credit Scholarship Program divert money from public education and result in a non-uniform, inefficient and low-quality education system. Until this case, the tax credit and McKay programs had never come under legal attack, presumably because (1) tax credit programs have been recognized by the U.S. Supreme Court—and other state appellate courts—as being funded by private, rather than public funds, see, e.g., Ariz. Christian School Tuition Org. v. Winn, 131 S. Ct. 1436 (2011); and (2) in striking down a completely different school choice program, the Florida Supreme Court distinguished programs that help students with disabilities attend private schools when their assigned public schools could not meet their needs. See Bush v. Holmes, 919 So. 2d 392, 411-12 (2006). What are the legal issues in the case, as they relate to the two school choice programs? School choice opponents claim that Florida’s Constitution requires that public funds be used exclusively to fund public schools and that the two school choice programs unconstitutionally divert public funds to private schools. They could not be more wrong. First, Florida’s Constitution says that the state’s “paramount duty” is the education of all children in the state. The Florida Constitution says nothing about appropriating public funds “exclusively” to educate students in public schools. Both programs are designed to meet the paramount duty of educating students by allowing parents to choose the best available educational placement for their children.

Moreover, the Tax Credit Scholarship Program is funded entirely by private donations to private charitable organizations that award the scholarships to families based on income-eligibility criteria. The Tax Credit Scholarship Program does not rely on any public funding. And while the McKay scholarship program does use public funds, the Florida Supreme Court has already ruled that public dollars may be used to educate special needs children in private schools.

What is the next step?

The case is currently in discovery and will go to trial in Mar. 2016.  Throughout the course of this case, IJ will demonstrate, both in and out of courtroom, the power of school choice to transform individual lives and improve the overall public education system.

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