Former justice, union leader debate Florida school choice lawsuit

The logic that led the Florida’s Supreme Court to strike down a school voucher program should not apply to tax credit scholarships, which face a new legal challenge, according to a former justice who heard the state’s seminal court case on private school choice.

Former Justice Raoul Cantero, who was on the high court when it decided Bush v. Holmes, squares off with Joanne McCall, the lead plaintiff in the lawsuit challenging the tax credit scholarship program, in dueling opinion pieces in the state’s largest newspaper.

The two columns in Friday’s Tampa Bay Times may serve as a preview of coming attractions, since a key hearing in the tax credit scholarship lawsuit is scheduled for a Tallahassee courtroom on Feb. 9.

In her guest column, McCall, a vice president of the Florida Education Association, echoes a central claim her side is making in court  that the tax credit scholarships are legally similar to the voucher program the court found unconstitutional.

In the 2006 Bush vs. Holmes case, Florida courts used two different reasons for declaring the Opportunity Scholarship vouchers unconstitutional. The 1st District Court of Appeal said the vouchers violated the “no aid” clause in Article I, Section 3, of the state Constitution, which prohibits taking revenue “from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” The Florida Supreme Court ruled that the program was “in direct conflict with the mandate in Article IX, Section 1(a) that it is the state’s ‘paramount duty’ to make adequate provision for education and that the manner in which this mandate must be carried out is ‘by law for a uniform, efficient, safe, secure, and high quality system of free public schools.’ “

Like the Opportunity Scholarship vouchers, the state provides tax-credit vouchers for students to attend private schools at public expense. Proponents say that because tax-credit vouchers are funded by revenue that bypasses the state treasury, the program is different than the voucher program already declared unconstitutional by the courts.

That’s wishful thinking.

Former Justice Raoul Cantero joined the dissenting opinion in the Holmes case, which argued the voucher program should have been upheld. In Friday’s Times, however, he notes that even the justices who struck down the Opportunity Scholarship Program identified key features that distinguish the vouchers from tax credit scholarships.

This distinction is made clear throughout the majority opinion, declaring that the Constitution “does not allow the use of state monies to fund a private school education” and that the voucher program “transfers tax money earmarked for public education to private schools” and that the money came improperly out of “each school district’s appropriated funds.”

Even the 1st District Court of Appeal, which decided the case on separate, religious grounds in 2004, distinguished between tax funds and tax exemptions. Of the latter, it wrote: “These forms of assistance constitute substantially different forms of aid than the transfer of public funds expressly prohibited by the no-aid provision.”

These court declarations bear directly on the new challenge, filed by the Florida Education Association in August, because the scholarships are not government-funded vouchers. They are financed by private corporate contributions that receive dollar-for-dollar state tax credits. The contributions are made to private, nonprofit scholarship organizations that then use them to pay for scholarships for students whose average household income this year is only 5 percent above the poverty level.

This is a distinction with a difference.

Who’s right? Read the columns here and here to decide for yourself.

The tax credit scholarship program is administered by organizations like Step Up For Students, which co-hosts this blog and employs the author of this post.


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BY Travis Pillow

Travis Pillow is Director of Thought Leadership at Step Up For Students and editor of NextSteps. He lives in Sanford, Fla. with his wife and two children. A former Tallahassee statehouse reporter, he most recently worked at the Center on Reinventing Public Education, a research organization at Arizona State University, where he studied community-led learning innovation and school systems' responses to the Covid-19 pandemic. He can be reached at tpillow (at) sufs.org.