State Asks Judge to Throw Out Tax Credit Scholarship Lawsuit

Feb 9, 2015

Lawyers for the state and parents whose children use Florida's de facto school-voucher program argued Monday that groups including the state's largest teachers union don't have the right to challenge the program in court.

Credit Wikimedia Commons

Appearing before Leon County Circuit Judge George Reynolds III, attorneys defending the program said the Florida Education Association and an array of other education groups can't prove that they are directly harmed by the Florida Tax Credit Scholarship Program. That program provides tax credits to companies that donate money to nonprofit entities that pay for children to go to private schools.

Those arguing against the scholarships say they siphon tax revenues away from the state and that the money could instead be used to increase funding for public schools. But lawyers for the state say legislators have ultimate control over the budget and could spend the revenues on something other than schools even if the scholarship program didn't exist.

"This is speculation heaped on top of speculation, your honor," said Blaine Winship, a lawyer for the state. "There's no logical connection between allowing tax credits and diminishing education spending, especially on a per-pupil basis. This is entirely up to the Legislature, which is free to increase education spending, regardless of whether tax credits or exemptions are offered, and that is in fact what happened."

Reynolds, who gave few signs of which way he was leaning on the state's motion to dismiss the lawsuit, said he also had a problem with the theory of the FEA and others challenging the program.

"I agree that the nexus here is troublesome," Reynolds said near the end of the hearing. "And that's their problem, and that's going to be their burden on this speculation that schools would do better if this program didn't exist. You could do away with this program tomorrow morning and the budget for the school system might change not one iota."

The groups opposed to the program have also relied on an exception to the rule on legal "standing" that allows taxpayers to challenge measures that violate limits on the Legislature's spending and taxing powers. But Jay Lefkowitz, representing parents whose children use the scholarship program, said that provision is meant to allow taxpayers to challenge the state's decision to spend their money on something.

"It's very different when I as a taxpayer say, 'My objection is that the government has not levied a tax on somebody else,' " Lefkowitz said. "I'm not directly harmed at all."

But lawyers for those challenging the program said the state was oversimplifying their view of the case and why the scholarships harm their clients, noting that education funding is handed out to school districts based on the number of students that attend their schools.

"It's because the state has set up a program that results in students leaving the public schools with these vouchers to go to private schools, and as a direct result of the students leaving the public schools, automatically, necessarily, under the Florida Education Finance Program funding formula, the funding for these public schools necessarily goes down," said attorney John West.

Ron Meyer, a lawyer for the FEA, said the scholarship program isn't much different from the Opportunity Scholarship Program, which was held unconstitutional by the Florida Supreme Court in 2006. That program was a purer version of a voucher system, using public money directly to fund private education for some students

"This (tax-credit scholarship) program is something that was simply put into place to do indirectly what the court said they can't do directly," Meyer said.

Reynolds did not indicate when he planned to rule on the motion, though he asked attorneys for both sides to give him their proposed orders within 10 days.