Florida appeals court rejects challenge to school voucher program


An appeals court rejected a challenge to Florida's de facto school-voucher system Tuesday, setting up a potential Supreme Court battle about whether teachers and parents have the right to sue over a program that provides private-school tuition for tens of thousands of students.

In a 30-page ruling, a three-judge panel of the 1st District Court of Appeal upheld a trial judge's decision throwing out the case because the individual plaintiffs and groups challenging the program do not have "standing," or the legal right to bring a lawsuit. The case has been spearheaded by the Florida Education Association, the state's largest teachers' union.

The appeals court rejected arguments that public schools were harmed by the scholarship program, or that the program could be challenged under a doctrine that allows taxpayers to sue if the Legislature's spending decision violates the Florida Constitution.

"At most, (the opponents) quarrel with the Legislature's policy judgments regarding school choice and funding of Florida's public schools," wrote Judge Lori Rowe for a unanimous court. "This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine. ... Appellants' (the opponents') remedy is at the polls."

Judges Ross Bilbrey and Scott Makar joined in the opinion.

The Florida Education Association said it would decide later whether to appeal, but President Joanne McCall slammed the ruling and alluded to a Supreme Court decision that tossed out a voucher program championed by former Gov. Jeb Bush.

"The courts ruled a previous voucher scheme unconstitutional," McCall said. "Why won't they let teachers and parents challenge this one?"

But the appeals court said the current program, involving what are known as corporate tax-credit scholarships, is different from the earlier system that funneled state money directly to private schools, including religiously affiliated schools. Under the current framework, established in 2001, corporations contribute to organizations that provide scholarships to students, and the state provides tax credits in return.

The court said that a provision of the Florida Constitution that bars the state from providing financial aid to religious activities applies only to decisions to send taxpayer money to those organizations, not to giving credits to people or businesses that choose to do so.

Judges also rejected the idea that funding for the tax credits inherently leads to lower spending on public education, saying that required too many conclusions about whether state revenues would actually increase and whether lawmakers would use the extra money on public schools.

"The cloudy crystal ball the trial court would be required to gaze into in order to identify a particularized harm to appellants underscores the speculative nature of their arguments for standing," Rowe wrote.

The lawsuit was filed in 2014, amid rising tension between the teachers' union and the Legislature over efforts to expand the program. In addition to the union, the state NAACP, the League of Women Voters of Florida and the Florida Congress of Parents and Teachers have joined the legal action. Meanwhile, parents of students who receive scholarships asked to join the suit on the side of the state to help defend the system.

The Save Our Scholarships Coalition, a group formed to push back against the challenges to the program, issued a statement reiterating its demand that the opponents drop their lawsuit.

"It's long past time for all of us who care so passionately about public education to put aside our differences and work together," said Bishop Victor Curry of New Birth Baptist Church in Miami, chairman of the coalition. "This sweeping ruling should compel us to focus on the real enemies —- despair, hopelessness, and the ravages of generational poverty."

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