A pair of Florida court decisions this week dealt severe blows to traditional public education, in one case upholding corporate tax vouchers for private schools, in another, diminishing the role of local school boards in deciding what charter schools may operate.
The Florida Supreme Court on Wednesday rejected a last-ditch appeal challenging the state’s de facto school-voucher program, essentially ending the battle over a program that pays for the private educations of nearly 100,000 children.
In a brief order signed by four justices — Charles Canady, Barbara Pariente, Ricky Polston and Peggy Quince — the court said it would decline to hear the case. Justice R. Fred Lewis dissented, as he supported holding oral arguments. Chief Justice Jorge Labarga and Justice Alan Lawson did not take part in the order.
As is common with such orders, the court did not explain its reasons for declining to hear the appeal.
The decision lets stand a lower-court ruling that found the Florida Education Association, the state’s largest teachers union, and others who challenged the program didn’t have legal standing to bring suit against the tax-credit scholarships. The union and its allies argued that the program drains money that otherwise would go to public schools and is unconstitutional for the same reasons that the Florida Supreme Court struck down a previous voucher program.
The current system allows corporations to claim tax credits for donations to organizations that then cover private-school tuition for mostly low-income students.
A trial court found in 2015 that the plaintiffs could not bring the case under a principle known as “taxpayer standing,” which allows any taxpayer to challenge legislative appropriations, and couldn’t show that the program specifically harmed them. The 1st District Court of Appeal backed up that ruling.
Supporters of the tax-credit scholarship program Wednesday called on critics of the system to stop fighting.
“The Florida Supreme Court’s decision on the case is also a powerful reminder to entrenched special interests that when policymakers work hand-in-hand with Florida’s families, students win,” said former Gov. Jeb Bush, who signed a bill creating the program in 2001. “It is my hope that opponents of Florida’s efforts to help our most vulnerable students will stop impeding successful reforms and join us in ensuring all students have access to excellent educational options.”
But in a statement issued after the ruling, Florida Education Association President Joanne McCall said the union hasn’t changed its mind on the underlying question and would look for other ways to take on the program legally.
“Who is allowed to challenge the constitutionality of the tax credit vouchers?” McCall asked. “This ruling, and the decisions by the lower court, don’t answer that question. We still believe that the tax credit vouchers are unconstitutional, but we haven’t had the opportunity to argue our case in court.”
The lawsuit took place against a backdrop of rapidly increasing enrollment in the program and rising conservative anger against the Supreme Court. Canady and Polston have been considered a conservative wing of the court but have been outnumbered by the more-liberal Labarga, Pariente, Lewis and Quince. Gov. Rick Scott last month appointed Lawson, a conservative, to replace liberal Justice James E.C. Perry, who stepped down because of a mandatory retirement age.
The number of students benefiting from the tax-credit scholarships has nearly quadrupled in the last eight years, growing from 24,871 in the 2008-09 school year to 97,826 this year, according to Step Up for Students, an organization that covers the vast majority of the students. The growth follows repeated moves by the Legislature to expand eligibility and enrollment in the program.
The teachers union said the popularity of the scholarships is an argument for focusing additional resources on public schools.
“We do understand why people send their children to voucher schools,” said Mark Pudlow, a spokesman for the FEA. “They do it because they want smaller class size. They want to have a sane testing regimen. They want their children to be safe, and that is what we want in public schools. So, why aren’t we getting that for all students, and not just for a few that access this program that is not accountable to taxpayers?”
The decision also comes after months of attacks by GOP leaders on the Supreme Court, blasting the more-liberal majority as judicial activists who overreach their constitutional role. House Speaker Richard Corcoran, R-Land O’ Lakes, has vowed to rein in the court and also called the lawsuit “evil.”
In a brief statement Wednesday, Corcoran pointedly did not praise the court.
“A great victory for school children, parents, and classroom teachers who want the best for their students,” he said. “I thank the many organizations, pastors, parents, and children who advocated for fairness and justice in our education system and wish them all a great school year.”
But House Minority Leader Janet Cruz, D-Tampa, issued a statement criticizing moves by Republican leaders over the past two decades to divert money away from public schools “in a misguided attempt at outsourcing our children’s education to for-profit corporations and fly-by-night profiteers.”
“Unfortunately, some continue to view our children as a commodity from which every ounce of profit should be squeezed,” Cruz said. “Even with today’s setback, House Democrats will continue to fight on behalf of the thousands of parents and students who have been failed by legislative leaders more intent on serving an ideology of boundless privatization rather than a commitment to the educational well-being of our children.”
The other seminal decision relates to charter schools and the power of local school boards.
In a dispute stemming from a proposal to add a charter school in Palm Beach County, an appeals court Wednesday upheld the constitutionality of a law that allows the State Board of Education to overturn local denials of charter-school applications.
The 5th District Court of Appeal turned down arguments by the Palm Beach County School Board that the law infringes on the power of local school boards to decide on the creation of charter schools, which are public schools typically run by private entities.
“The Florida Constitution … creates a hierarchy under which a school board has local control, but the State Board supervises the system as a whole,” said the eight-page ruling, written by appeals-court Judge Alan Forst and joined by judges Carole Taylor and Mark Klingensmith. “This broader supervisory authority may at times infringe on a school board’s local powers, but such infringement is expressly contemplated — and in fact encouraged by the very nature of supervision — by the Florida Constitution.”
The ruling came in a dispute about an application by Florida Charter Educational Foundation, Inc., and South Palm Beach Charter School to open a charter school. The Palm Beach County School Board denied the application on grounds including that the proposal lacked “innovative learning methods,” Wednesday’s ruling said.
The applicants appealed the Palm Beach board’s decision, and the state’s Charter School Appeal Commission — which makes recommendations to the State Board of Education — said the charter school should be approved. The State Board of Education subsequently issued an order reversing the county’s denial of the charter-school application.
While the appeals court Wednesday upheld the constitutionality of the law, it ruled in favor of the Palm Beach County School Board on part of the case. It said the Charter School Appeal Commission failed to provide a legally required “fact-based justification” for recommending approval of the proposed charter school.
As a result, the appeals court ordered that the case go back to Charter School Appeal Commission to provide a justification for its recommendation. The State Board of Education would then be able to act on the recommendation.
“CSAC (the Charter School Appeal Commission) was required to make factual findings, either about the application itself or the process used by the School Board in making its decision. … Moreover, at the required CSAC meeting, CSAC members failed to discuss the issue, ask any questions to the parties, or engage in any fact-finding before their vote,” Wednesday’s ruling said. “CSAC’s sole, conclusory statement in its recommendation failed to assist the State Board in making a fair and impartial review of the denial, and frustrates our review of the record. Due to the omission, we cannot meaningfully determine if the State Board’s decision was supported by competent, substantial evidence.”
–News Service of Florida and FlaglerLive