Accountability’s rocky legal road, Part 2

Gov. Bush’s “A+ Plan” for accountability faced a long road of legal battles as soon as it began 20 years ago.

Editor’s note: March 2 marked the 20th anniversary of the legislative session in which Florida Gov. Jeb Bush launched a number of K-12 reforms that transformed education throughout the state. With the start of the 2019 legislative session earlier this month, redefinED embarked upon a series of articles that examine aspects of Bush’s K-12 education revolution and how it continues to reverberate. Today’s piece is the second of two retrospectives that chronicle the plan’s legislative roller coaster ride. You can read Part I here.

 The critics strike back

With vouchers deemed constitutional by the First District Court of Appeal and with an appeal rejected by a 4-1 vote by the Florida Supreme Court, state leaders not only began to improve the A+ Plan; they birthed an entirely new scholarship program.

In the summer of 2001, Florida created the Florida Corporate Income Tax Scholarship, later renamed the Florida Tax Credit Scholarship, for low-income students. The prior year, the state had created the McKay Scholarship for students with special needs. Both programs swelled in size immediately, dwarfing the embattled school voucher, the Opportunity Scholarship Program (OSP). McKay served 8,000 students with special needs in 2002, while more than 55,000 low-income students applied for 15,000 corporate tax scholarships in its first year.[1]

The Florida Tax Credit Scholarship would eventually grow to become the largest private school scholarship program in the nation, serving 100,512 students in the 2018-19 school year. (The program is administered by non-profits such as Step Up For Students, which hosts this blog.)

The state also revised the A+ Plan’s accountability system in December 2001. Previously, schools were evaluated only on fourth-grade reading, fifth-grade math, and both tests in eighth and 10th grades. New rules based school grades on both math and reading tests in all grades between third and 10th. The new grading scale also gave a substantial weight to learning gains, with bonus points for significant gains for low-income students.

With the new rules in place, more schools received “F” grades, and enrollment in the OSP soared to 557 students in the next school year. Enrollment peaked at 788 students in 2004-05.

After a year away from the courtroom, the lawsuit resumed in the Leon County Circuit Court under a new judge, Kevin Davey, in the summer of 2002. Voucher opponents now argued the programs violated Florida’s “Blaine Amendment,” a constitutional ban on direct or indirect aid to religious institutions.

Voucher supporters were eager to argue the case as the U.S. Supreme Court just two weeks prior to the hearing had ruled an Ohio voucher program did not violate the U.S. Constitution’s “Establishment Clause.”

On Aug. 5, Judge Davey issued his ruling. “The language utilized in this provision is clear and unambiguous,” he wrote regarding Article I, Section 3 of the state constitution. Known as the “No Aid” clause, it bans “direct and indirect” aid to any church, or sect, or sectarian institution.[2]

School choice supporters appealed, claiming the ruling also threatened other religiously affiliated organizations such as several non-profit hospitals operating in the state.

The First District Court of Appeal would uphold the ruling 8-5 on Nov. 12, 2004. Scholarship supporters appealed to the Florida Supreme Court, knowing a loss could still be appealed to the U.S. Supreme Court.

Lawyers for both sides argued on the “No Aid” clause before the Supreme Court on June 7 2005. Lawyers representing parents argued the aid was to the student, not the school, as U.S. Supreme Court had reasoned in its 2002 Zelman decision.

On Jan. 5, 2006 the Florida Supreme Court in a 5-2 vote ruled the voucher program was unconstitutional, but for entirely different reasons than anyone expected.

The OSP “diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children,” wrote the majority in a decision that completely contradicted its own ruling five years earlier.

Back in 2001, Justices Charles Wells, Harry Lee Anstead, Barbara Pariente and Fred Lewis voted 4-1 (against Peggy Quince) to decline jurisdiction on the case, which allowed the Circuit Court of Appeal decision to stand. That ruling found nothing within Article IX Section 1 of the state constitution prohibited vouchers or any other educational alternative created by the Legislature.

But with all other avenues of ruling the program unconstitutional now defeated or in jeopardy of being appealed to the U.S. Supreme Court, the Florida court suddenly reversed course. Not comfortable with its own ruling, the court invented its own definition of “uniformity” and declared vouchers “inevitably harmed” public schools without examining a single piece of evidence.

Clark Neily, a lawyer representing scholarship parents, condemned the decision as “among the most incoherent, self-contradictory and ends-oriented court decisions in recent memory.”

Chief Financial Officer Tom Gallagher agreed, called the ruling “a results-oriented decision.”

But Steve Gey, a law professor at Florida State University, believed the ruling “adhered closely to the text of the Constitution.”[3] Gey had co-authored  a friend of the court brief in March 2005 entirely on the “No Aid” clause in support of the teachers union’s lawsuit.

Many legal critics, including the Harvard Law Review, would criticize the ruling.

While legal experts debated its merits, the impact of the ruling hit families the hardest.

Barbara Cruz used the scholarship to send her daughter to La Progresiva Presbyterian School in Miami. Her daughter would graduate using the scholarship, but Cruz still described the court ruling as, “so, so bad.”[4]

Many others were in limbo.

“I think [the ruling is] going to hurt a lot of students and their parents who can’t afford it, and they are forced to go to these public schools,” said Bobby Evans, whose daughter, Kiara, attended St Paul’s Catholic School in Jacksonville on the scholarship for the sixth and seventh grades. Kiara would finish out the year on the scholarship, but whether she could remain at St Paul’s remained unknown.[5]

School choice supporters worried the ruling might be used to target other programs.

“One of the attorneys for the plaintiff made it very plain,” said Sen. John McKay, sponsor of the state’s McKay Scholarship. “If they succeeded with this case, they will be going after children with disabilities next.”

Opponents celebrated.

“I think this spells the end of this diversion of public monies to private education programs in Florida,” said Ronald Meyer, the lawyer representing the teachers union in the case.

When asked about challenging the tax credit scholarship or McKay Scholarship, Meyer told Education Week, “The significance of this travels well beyond the state of Florida.” He hinted that the ruling could help overturn vouchers in other states as well.[6] A few months later, Meyer would deny that the teachers union had any interest in challenging either scholarship program.[7]

Bush promised to save the program.

In mid-February, Gov. Bush stood before a rally of thousands of parents and students, most of them black, wearing t-shirts stating “Save Our Students,” and promised to get a constitutional amendment passed to rescue the voucher program.

“This is a fundamental right, this is a civil right, this is American as apple pie,” Bush said to a cheering crowd.[8]

Bush and Senate President Tom Lee moved to pass a constitutional amendment that would save the OSP and protect other private scholarship programs. The amendment would need to pass the Senate and the House by three-fifths votes before being approved by voters in November 2006.

Those efforts collapsed when Sen. Majority Leader Alex Villalobos, Sen. Nancy Argenziano, Sen. Dennis Jones, and Sen. Evelyn Lynn joined Democrats to oppose the amendment. Bush came up one vote shy of the three-fifths threshold. Villalobos would be stripped of his power as a result.[9] Today, Villalobos works for the legal firm headed by Ronald Meyer, the teachers union’s lead counsel.

Bush and Sen. Lee brushed off the defeat and moved to a new plan, passing a bill to allow the remaining OSP students to transfer to the tax credit scholarship program.[10] Tensions were high with just a few days left in the session. Democrats’ best hope for defeating the bill was to stall. Senate Democratic Leader Les Miller demanded the full text of bills be read aloud, a parliamentary trick that brought the legislative process to a grinding halt.[11] The House eventually ran out of time to vote on the bill.[12]

The OSP’s private scholarship was finally dead.

The end

Although the legal case that ended the OSP, known as Bush v. Holmes, faced considerable criticism from legal experts at the time, scholarship supporters worried that copycat lawsuits would upend voucher programs around the country.

But the case was never successfully duplicated. And despite threats from the teachers’ union, the case even failed to overturn significantly larger scholarship programs in Florida. At the time of the Holmes ruling, the tax credit scholarship enrolled more than 14,000 low-income students in private school, while the McKay Scholarship enrolled more than 15,000 children with special needs. Combined, both programs cost $136 million that year.[13]

The Opportunity Scholarship’s private option ended in 2005-06 with 734 students. During the program’s seven-year lifespan, the state spent a mere $11.2 million for 2,848 scholarships. Ninety-five percent of the students on the program were black or Hispanic, and 70 percent participated in the free or reduced-price federal lunch program.

None of the worries conjured by critics, including Sen. Betty Hozendorf’s claim the scholarship was a “lynching of the civil rights movement,” ever proved true.

The Opportunity Scholarship Program continues today, though students may only choose to attend another public school. Enrollment and the students who are eligible fluctuate annually. OSP enrollment peaked with 4,424 students attending new public schools in 2011-12 and had a low of 1,280 in 2008-09. In 2017-18, the latest data available, the program served 3,074 students.

Despite its small size, the OSP started a massive fight over how to educate Florida’s students. Today, its history is half-forgotten and half-confused, but its legacy reshaped Florida’s educational landscape forever.

[1] Balona, Denise-Marie. “Tax Vouchers Trigger Rush; More than 15,000 Kids Received Private-School Scholarship From Corporate Taxes; Many Children Are On Waiting List,” Orlando Sentinel, March 21, 2003.

[2] Flannery, Mary Ellen and Kimberly Miller. “Judge Rejects School Vouchers,” Palm Beach Post, August 6, 2002.

[3] Matus, Ron and Steve Bousquet. “Court throws out vouchers,” St Petersburg Times, January 6, 2006.

[4] Matus, Ron and Steve Bousquet. “Court throws out vouchers,” St Petersburg Times, January 6, 2006.

[5] Mitchell, Tia. “Student’s life in limbo with end of vouchers; the Florida Supreme Court ruled Opportunity Scholarships violated the state Constitution,” Florida Times-Union, January 9, 2006.

[6] Richard, Alan. “Florida Supreme Court Finds State Voucher Program Unconstitutional,” Education Week, January 6, 2006. (accessed 3.25.19)

[7] Klas, Mary Elen, “Senate moves to keep vouchers; The state Senate advanced a proposal to fix the constitutional weakness of Florida’s first voucher program. It comes up for a vote today,” Miami Herald, May 3, 2006.

[8] Follick, Joe. “Thousands rally to push lawmakers on vouchers,” Sarasota Herald-Tribune, February 16, 2006.

[9] Cotterell, Bill. “Party-switching votes doom tuition vouchers,” Tallahassee Democrat, May 2, 2006.

[10] Klas, Mary Elen, “Senate moves to keep vouchers; The state Senate advanced a proposal to fix the constitutional weakness of Florida’s first voucher program. It comes up for a vote today,” Miami Herald, May 3, 2006.

[11] Kennedy, John. “Democrats try to stall revival of vouchers,” Orlando Sentinel, May 4, 2006.

[12] Kaczor, Bill. “Bush’s Prized School Voucher Plan Looks to Be Out of Time; House Has No Plans to Vote On Program,” Sun Sentinel, May 6, 2006.

[13] Stockfish, Jerome and Marilyn Brown. “Court Rejects School Vouchers,” Tampa Tribune, January 6, 2006.