The distorted history of Florida tax credit scholarships

Editor’s note: This post first appeared on Aug. 31 on redefinED, a blog sponsored by Step Up For Students. It is written by Jon East, Step Up For Students vice president of Public Affairs and Policy.

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Jon East

In a new appellate brief asking the courts to throw out a 14-year-old scholarship serving 78,000 of the state’s most economically disadvantaged students, lawyers for Florida’s teachers union have doubled down on a conspiracy theory. These attempts to sow seeds of doubt about the political origins of the Tax Credit Scholarship strike the unusual combination of being both irrelevant and wrong.The brief, filed 10 days ago in the First District Court of Appeal following a circuit judge’s decision in May to dismiss the case on standing, opens with a bold assertion: “The challenged program is the successor program to the Opportunity Scholarship Program previously invalidated by both this Court and the Florida Supreme Court.”

The claim is similar to those made publicly over the past year by Florida Education Association attorney Ron Meyer, and unfortunately has seeped its way into the broader media narrative around the program. Even in recent presidential campaign stories about former Gov. Jeb Bush’s education record, outlets from The 74 to the New York Post have reported versions of the claim as fact. The Post wrote, without attribution, that: “When a state court nixed the program in 2006, Bush created a new voucher system, funded by private businesses, that withstood a court challenge from teachers.” A column in the Florida Times-Union last week also chimed in: “It became a government program, diverting tax dollars in the form of ‘tax credits’ into a tuition-granting organization only after the voucher portion of Gov. Jeb Bush’s A+ program was stricken by the courts.”

The teachers union is trying to sell its lawsuit as a type of police action for Bush v. Holmes, the 2006 Supreme Court decision that overturned publicly funded school vouchers for students who were assigned to district schools judged to be failing. Meyer wants judges to believe lawmakers made a fast end-around on the Holmes decision.

A broad expanse of case law suggests this distinction is, constitutionally speaking, a red herring. After all, the U.S. Supreme Court and three state supreme courts have all found in favor of tax credit scholarships, and no state courts have ultimately ruled against them. The U.S. Supreme Court, in its 2011 precedent, went so far as to deny standing to those challenging tax credit scholarships in Arizona, ruling that tax-credited contributions are not the same as government expenditures.

Arizona draws an even clearer legal line. In cases that are strikingly similar to Florida, the Arizona Supreme Court approved of scholarships funded by tax-credited contributions on the one hand and outlawed publicly funded vouchers on the other. “This tax credit is not an appropriation of public money,” it wrote in the first instance. “Unlike the funds (for tax credit scholarships), the funds at issue here are withdrawn from the public treasury and earmarked for an identified purpose,” it wrote later in rejecting direct vouchers.

But let’s return to the conspiracy theory for what it’s worth. Merriam-Webster defines “successor” as someone or something that “follows in sequence” or “after someone else.” That is simply not the history here. The Tax Credit Scholarship was passed into law in 2001, five years before the Bush v. Holmes decision that invalidated tax-funded vouchers under the Opportunity Scholarship Program (OSP). Five years.

On the next page of its brief, the FEA contradicts the “successor” claim when it acknowledges that the Legislature created the program “while the Holmes litigation against the OSP was still pending” – not after the court had ruled.

Later in the brief, the FEA takes the conspiracy down a different path, linking growth in the Tax Credit Scholarship to the court decision: “Since the 2005-2006 school year — when the Supreme Court invalidated the OSP — the amount of tax revenue that has been diverted to pay for these private-school vouchers has increased from $88 million to more than $286 million.”

In this instance, at least, the brief captures the correct time frame for the Bush v. Holmes decision. But the implication that the Legislature began growing the Tax Credit Scholarship program as a means of replacing the OSP is nonsensical. The tax credit program has never provided eligibility for students who are assigned to public schools deemed to be failing, and the growth in the scholarship reflects primarily the demand from low-income families who are eligible.

In 2010, the Legislature went further and decided to allow growth to be triggered administratively when certain financial and enrollment thresholds are met. Like previous expansions of the program, the Legislature’s intent was clear: To extend learning options to more disadvantaged students.

Readers should be aware that I’m vice president for policy and public affairs at Step Up For Students, the state’s largest scholarship organization, so I can reasonably be accused of bias. But what strikes me about the conspiracy claim is how easy it is to refute and yet how prominent a role it continues to play in the FEA’s lawsuit narrative. It’s no surprise, perhaps, that the brief also implores appellate judges to adhere to a procedural requirement, at this stage, to “accept all well-pled allegations in the complaint as true.” This one is not so much.

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