Florida appeals court dismisses lawsuit challenging tax credit scholarships

A unanimous three-judge panel this morning dismissed a lawsuit challenging the nation's largest private school choice program.

The First District Court of Appeal ruled the statewide teachers union and other groups did not have legal standing to challenge Florida tax credit scholarships because they "failed to allege any concrete harm whatsoever" caused by the program, which is expected to provide scholarships to more than 90,000 low-income children in the coming school year.

The plaintiffs filed the lawsuit, McCall v. Scott, in 2014, arguing the scholarships violated the state constitution because they supported a "parallel" public education system by offering children scholarships to attend private schools. They also argued it violated the state's prohibition on public aid to religious institutions.

A trial court judge dismissed the case last year after finding the plaintiffs could not show the scholarship program harmed public school funding, and did not qualify for a legal exception that would have allowed them to challenge the program as taxpayers. The appellate judges agreed.

"[D]espite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined," they wrote. Further, the court called the the diversion theory "incorrect as a matter of law."

The appellate judges held the case centered on political questions about school choice and education funding, and wrote that the ultimate "remedy is at the polls."

"This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine," they wrote.

Joanne McCall, the president of the Florida Education Association and lead plaintiff in the case, has repeatedly attempted to liken the tax credit scholarship program to a school voucher program the state Supreme Court found unconstitutional in 2006.

In a new statement, she said the union was still deciding whether to appeal today's decision.

"Once again, the merits of this case aren't being argued. The court says that teachers and parents and other groups aren't allowed to challenge the constitutionality of the tax credit vouchers," she said. "The courts ruled a previous voucher scheme unconstitutional. Why won't they let teachers and parents challenge this one?"

Bishop Victory Curry of New Birth Baptist Church in Miami, who serves as Chairman of the Save Our Scholarships Coalition, said he hoped the groups challenging the program could drop the lawsuit and focus on meeting the needs of low-income students.

"We call upon the plaintiffs to give priority to the 90,000 poor minority children in the program and drop the suit. It's long past time for all of us who care so passionately about public education to put aside our differences and work together," he said in a statement. "This sweeping ruling should compel us to focus on the real enemies – despair, hopelessness and the ravages of generational poverty."

See coverage elsewhere: Associated Press. Politico Florida. Orlando Sentinel's School Zone. Tampa Bay Times' Gradebook. Palm Beach Post on Politics.

Step Up For Students, which publishes this blog, helps administer the scholarship program. This is a quick post about a developing story. Please check back for updates.

About Travis Pillow Travis Pillow is editor of redefinED. He spent his early professional career reporting on the inner workings of state government for a variety of news organizations, and became immersed in Florida's education policy debates while covering schools and the Legislature for the Tallahassee Democrat. A product of Seminole County Public Schools, he received a bachelor's degree in journalism from the University of Florida in 2010. Reach him at tpillow@sufs.org or (407) 376-3105. Also, follow him on Twitter @travispillow.
Source: Florida appeals court dismisses lawsuit challenging tax credit scholarships