Nation’s largest private school choice program now under legal attack

The Florida teachers union and state school boards association made good on their threats Thursday, asking the courts to shut down a 13-year-old school choice scholarship program that is serving 67,000 of Florida’s most economically disadvantaged schoolchildren. As if to punctuate their fervor, union vice president Joanne McCall tweeted to her followers as school choice supporters gathered: “A hit dog will holler … we are hitting a nerve!”

The complaint – filed by the Florida Education Association, Florida School Boards Association, Florida PTA, Florida NAACP and League of Women Voters of Florida, and others – argues the program is unconstitutional because it funds education options outside the state’s traditional public school system, and because the funds in many cases help children attend religious schools. The groups announced their lawsuit at a morning press conference in FEA’s capital headquarters in Tallahassee.

Many of the legal arguments hinge on a 2006 Florida Supreme Court ruling which sidestepped the religious question. In Bush v. Holmes, the court shut down the state’s first voucher program, deciding it was unconstitutional for a program funded in the state budget to support children in a private K-12 education system outside the public schools.

The groups filing suit Thursday were greeted outside the teachers union headquarters by about 50 students from nearby private schools, as well as educators and religious leaders who support the scholarship program. (The rally was organized by a new group, Florida Voices for Choices.) Most were minorities, reflective of the fact that nearly 70 percent of the scholarship students are either black or Hispanic.

One of those in attendance was Robert Ward, pastor of Mount Moriah Missionary Baptist Church in St. Petersburg, which supports a middle school that caters to many of those students. Independent studies of the program have repeatedly found that tax credit scholarship students are among the most academically and economically disadvantaged of the students in the public schools they leave behind.

Ward said the vast majority of Florida’s students will continue to attend public schools, but the scholarships have provided a “saving grace” to children who need a different environment to learn.

“We can’t leave them behind just because it’s the smaller percentage, or the under-privileged. We can’t say they’re not worthy of being given a chance, or an alternative,” he said, adding that when he heard about the lawsuit, “I was shocked. It makes me then think this thing must ether be politically driven, or just all about money.”

Rev. Manuel Sykes, president of the St. Petersburg branch of the NAACP and a member of the state NAACP’s executive board, was also on hand. He heads a private school that serves tax credit scholarship students.

“When a child needs help, every means should be brought about to help the child, and that’s what this is about for me,” said Sykes, who stressed he was speaking as an individual and not as an NAACP leader. “We’re not in competition with public education. Our mission is to augment it for those for whom it has not been successful.”

Dale Landry, one of the NAACP’s regional directors in Florida, said its statewide organization joined the lawsuit because it wants to bolster support for traditional public schools.

“The public school system has been set up to fail,” he said, saying children would benefit from more time in the classroom. “We need to go back and reinvest in our public school system.”

News of the lawsuit swirled statewide Wednesday, after redefinED broke news about its pending filing and noted that two FSBA leaders – the president and president-elect – were defeated at the polls Tuesday night in races where school choice organizations left their imprint. After the story, a chorus of state lawmakers, local school board members and school choice advocates condemned the suit and urged the FSBA to with draw it.

On Thursday, the suit drew another sharp rebuke – this time from Gov. Rick Scott, who called it “unconscionable.”

“Quite simply, this careless action could have terrible consequences on the lives of Florida’s poorest children, who with the help of this program have a chance to escape poverty,” he said in a written statement.

In a show of confidence in the face of protests and denunciations by elected officials, McCall, the FEA leader, responded with a saying she said she picked up when she taught in rural Sumter County.

“We say, ‘a hit dog will holler,’ ” she said. “I have to say, the amount of media that has been generated by the former (House) speaker, the former (Senate) president, the incoming speaker, the incoming president, and we have a litany of folks outside that want to show their demonstration. If we’re sure we’re standing on good ground, I’m not sure what all the hoopla is about.”

Tax credit scholarships are funded by donations to private organizations, including Step Up for Students, which co-hosts this blog. Companies that support the program receive a reduction in their state tax liability.

This arrangement is thought to be on more solid legal ground than directly funded vouchers. News of the Florida lawsuit came as the New Hampshire Supreme Court upheld a similar program that faced a similar legal challenge.

But Ron Meyer, who represented the plaintiffs in Bush v. Holmes, has argued it may still violate the state constitution, which calls for a “uniform” system of free public schools. A longtime legal adviser to the Florida Education Association, he is also lead attorney in the new case.

“Although the Scholarship Program relies on a different mechanism for channeling taxpayer funds to private schools, the use of ‘tax expenditures’ rather than direct appropriations to accomplish the same goal of funding private education cannot save the Scholarship Program from the constitutional flaws that doomed” the earlier voucher program, Meyer writes in the new complaint.

During the press conference announcing the suit, Meyer said the “education stakeholder community” may have been “willing to tolerate this program as an experiment.” But he said that calculus has changed with the growth of the program, which is expected to reach 69,000 students this year.

“The fact is this has become an industry,” he said. “It’s a money-maker for scholarship funding organizations and it’s a program that we think is in dereliction of the constitutional requirement. So it reached a tipping point.”

Ward, however, pointed out that private school choice programs cost less per student than public schools, meaning they can also benefit the public school system. And he worried the lawsuit sought to uproot thousands of students, including those he has seen thrive.

“When we take away that choice, when you know something is right for you, right for your child, it’s sad,” he said.