Despite being on the books for over a decade, two school choice programs in Florida came under attack during a broad legal challenge to the state’s educational system. An outside advocacy group who sued Florida seeking more money for public education amended their lawsuit to challenge the constitutionality of Florida’s popular Tax Credit Scholarship and McKay Scholarship for Students with Disabilities programs. They claimed that 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 130,000 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 Florida’s First District Court of Appeals and in December 2017, the court affirmed the lower court’s ruling. The plaintiffs again appealed to the Florida Supreme Court and oral argument was held in November 2018. In January 2019, the Supreme Court finally ended the years-long suit, holding that both programs were safe from constitutional attack because the challengers had not adequately preserved the arguments throughout the litigation.

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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?

As of 2017, Florida’s Tax Credit Scholarship Program had nearly 107,000 students. See Friedman Foundation for Educational Choice,

As of 2017, the John M. McKay Scholarships for Pupils with Disabilities Program had nearly 30,000 kids. See Friedman Foundation for Educational Choice,–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 at the trial court?

After trial, the court dismissed any direct challenge to the tax credit program on the basis that taxpayers could not challenge a program that doesn’t use tax dollars. The court also ruled that neither the tax credit nor McKay programs detrimentally affected the adequacy of Florida’s provision for the public schools.

What happened at the Court of appeals?

The Court of Appeals affirmed the trial courts’ decision in favor of the state and our parents. It affirmed that taxpayers lacked standing to challenge the tax credit program and held that the McKay program did not undercut the uniformity of the public school system.

What is the next step?

The plaintiffs have asked the Florida Supreme Court to exercise its discretion to review the court of appeals decision. The state defendants and the parents we represent will oppose review, and if review is granted, argue for affirmance of the court of appeals decision.

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