Teachers union takes on Florida school choice law

July 20, 2014

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TALLAHASSEE, Fla. – A lawsuit from Florida teachers would eliminate school choice for many low-income students and effectively kill a program to help students with autism and other special needs.

gavelfrontThe lawsuit would wipe out the state’s new education savings account program and an expansion to the tax-credit scholarship program.

The Florida Education Association and other plaintiffs argue lawmakers did not follow proper procedure in passing the school choice law this year, but their legal argument makes no claim that the programs themselves are unconstitutional. Even if the FEA is successful, lawmakers could pass the same programs next session, following a different procedure.

“This litigation will do absolutely nothing to improve the challenges facing children with disabilities in our state,” state Sen. Andy Gardiner, R-Orlando, said in a statement.

“It will do nothing to offer new educational pathways for students from low-income families. It will do nothing to empower parents to seek solutions and opportunities that best fit the unique needs of their child.

“Instead, in the name of Florida teachers, this litigation will rob children with disabilities and children from low-income families of a chance to participate in educational and developmental experiences that maximize their own unique abilities and opportunities for success.”

Through a savings program, parents of students with certain disabilities — Down Syndrome, autism, and cerebral palsy, for example — can receive in a limited-use account, comprising 90 percent of the money the state would spend on their education in the public school system. Parents can spend the money on a variety of educational expenses, including various therapies, private school tuition, tutoring and college.

With the money the state has set aside for the program, about 1,800 students could participate, according to estimates from Step Up for Students, the nonprofit administering the scholarships. Parents may begin applying July 18

Parents testified in favor of the program while lawmakers were considering it. Some said the public school system wasn’t meeting their children’s needs; others said necessary therapies were prohibitively expensive and the ESAs would help. 

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Ron Meyer, attorney for the FEA, called the personalized learning accounts “a collateral casualty” in the lawsuit. Plaintiffs are more concerned with the expansion of the tax-credit scholarship program — which has proven popular among Florida families since it launched in 2001 — as well as the lawmaking procedure.

Florida’s constitution includes a prohibition on rolling too wide a variety of issues into a single bill. If legislators want to make laws regarding, say, minimum wage and health care, they must file separate bills. Because the tax-credit scholarship expansion and savings program were passed in the same bill, the teachers union argues, the bill should not have been allowed.

“FEA felt that somebody needed to say, ‘Wait a minute. You can’t do it this way. There’s a constitutional requirement that legislation be of a single subject and matters related to this subject,’” Meyer said. “This is so far over the line, somebody needs to say, ‘You can’t do that.’ Otherwise this is going to become the norm.”

School choice programs are usually sued under different constitutional provisions, said Clint Bolick, attorney for the Goldwater Institute, which was involved in designing the original savings program in Arizona three years ago.

Goldwater is seriously considering legal involvement in the case, Bolick said.

It’s more common for plaintiffs in school choice suits to complain of public money funding private, often faith-based, schools, or that, because of school choice, the public school system isn’t being adequately or appropriately funded. School choice opponents have failed to persuade state supreme courts of these issues in almost every case.

A voucher program was overturned in Florida in 2006, when the state’s Supreme Court decided the state’s constitutional duty to fund adequate public education precluded public education dollars from funding anything other than public schools. Special needs students were excepted, and they continue to be eligible for the McKay Scholarship program — a publicly funded scholarship program through which students with special needs attend private schools.

The tax-credit scholarship program, one of the current lawsuit’s concerns, is not publicly funded and, as such, is not a voucher program. Corporations receive tax credits for donating to a scholarship-granting nonprofit, and the nonprofit then distributes the donor-funded scholarships to students from low-income families. This allows students to attend the private school of their choice.

If a corporation donates $10 to the scholarship organization, the state receives $10 less in tax revenue, leaving it with less money to distribute to various state-funded activities. Some have claimed, falsely, that the revenue decrease directly affects the education budget. Politifact rated this claim “mostly false.”

Public schools lose the state per-pupil funding when students leave the school for any reason, because public schools do not receive per-pupil funding for pupils they are not educating. Because private school tuition is often less than what the state would have spent to educate children in public schools, the program has saved the state money, according to some reports.

The tax-credit scholarship program grows automatically every year if 90 percent of permitted tax-credited donations are received and all available scholarships are given. It’s proven popular enough for this growth every year, with scholarship demand far exceeding supply, especially in recent years.

This year, in the same legislation that created the savings program, lawmakers expanded the tax-credit scholarship program, permitting students whose families make a little more than the income eligibility cutoff to receive partial scholarships, among other changes.

This growth concerned the union.

“The tax-credit scholarship program has, in our view, lost its focus. It was not intended to become a major enterprise,” Meyer said.

Lawmakers intend to continue increasing educational choices for Florida’s children, Gardiner said in the statement.

“The legislation we passed earlier this year is only the beginning. We will empower parents and children with unique abilities as long as I am in the process,” he said. “The teacher’s union may have given up on these children, but I have not.”

Authored by Mary C. Tillotson

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