Big Win for Florida Students Kicks Off National School Choice Week 2017

It’s National School Choice Week again, my friends. This year’s celebration of educational opportunity is the biggest yet with more than 21,000 events attended by more than six million people across all 50 states. You can help us celebrate the occasion by stopping by the Colorado Capitol on Thursday, January 26, at 11:30 AM. If you live further south, there will also be a rally at the Colorado Springs City Hall at 9 AM on January 24. If neither of those options works for you, you can take a look at this interactive map to find another event in your area.

No matter where you live, you should plan to get to a NCSW rally. There will be lots and lots of fuzzy yellow scarves as usual, and you’ll get to go home feeling pretty fuzzy yourself for having helped promote opportunity for all students.

There’s plenty to celebrate during National School Choice Week 2017, like the fact that educational choice just keeps on expanding all across the United States. There are more than 2.5 million students enrolled in more than 6,500 public charter schools in more than 40 states. Additionally, there are 61 private school choice programs of various types spread across more than half the states in the country. A combined 450,000 students utilize these programs. But yeah, school choice is totally some radical idea only crazy people believe in in.

That’s all great, but folks in Florida have an even more specific reason to party: The state’s enormous,97,000-student scholarship tax credit program has survived an all-out assault by the teachers union. The Florida Education Association launched a suit against the program in 2014. Among other things, the union argued that the program diverted money from the public school system and that it violated Florida’s constitutional prohibition on providing aid to “sectarian” institutions. As we’ve discussed before in the context of Colorado’s misapplication of this type of constitutional language, that seemingly benign word masks the ugly, discriminatory history behind these constitutional provisions. Something tells me we’ll get to revisit that conversation in the near future, so I won’t spend time on it today.

The Florida judicial system disagreed with the FEA. In fact, a trial court ruled that the union and its allies, who sued under the dubious guise of “citizens and taxpayers,” lacked the legal standing to even bring a suit against the program to begin with. The appellate court agreed, ruling last August that the those bringing the suit “failed to allege any concrete harm whatsoever.” To top it all off, the Florida Supreme Court last week declined to grant the union’s request that the state’s high court review the appellate decision. That means the appellate decision in favor of the scholarship tax credit people stands, and Florida’s 97,000 scholarship tax credit families can rest easy knowing that they will not have their educational options ripped out from underneath them by those more interested in protecting systems than empowering people.

Judging from the massive response the lawsuit incited among these parents and other educational  and civil rights leaders (see the picture below), that’s probably for the best.

Meanwhile, union leaders are positively apoplectic about the decision. They have taken to the papers to voice their frustration at being told that they do not, in fact, have the authority to impose their will on families via the courts. Check out this fuming statement from FEA President Joanne McCall in the Orlando Sentinel:

Who is allowed to challenge the constitutionality of the tax credit vouchers? 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. We’re baffled that the courts would deny taxpayers the right to question state expenditures. This decision has ramifications beyond this challenge to a voucher program.

There’s a lot wrong with that statement. First of all, the Florida decisions on standing are not at all unprecedented. In fact, they’re the most common rulings issued in cases against scholarship tax credit programs, and we’ve seen them in states like Arizona and New Hampshire. If the union is “baffled” by this ruling, one might suggest that they should have paid closer attention to jurisprudence in other states before launching a massively expensive frivolous lawsuit.

Second, scholarship  tax credit programs are not voucher programs. That’s precisely why the union can’t apply its legal bag of tricks effectively to them. Here’s a quick lesson: Scholarship tax credit programs rely on tax incentives (in the form of credits) to stimulate more private giving to private organizations providing private school scholarships to families. That’s a markedly different approach than what we see in voucher programs, in which state governments actually appropriate and expend money to send students to private schools (though we should note that these programs have also been found to be constitutional in most cases). It’s very hard for unions, hiding behind the guise of “citizens and taxpayers,” to argue that a tax incentive program for education causes them the kind of direct and obvious harm necessary to successfully bring a lawsuit. So when FEA says it can’t wrap its head around the idea of “taxpayers” not being allowed to challenge state expenditures, it’s because the union is having trouble swallowing the fact that a tax credit is not a state expenditure. Someone hand them a glass of water to help wash that down.

In the end, this case is just one more example of how union leaders have increasingly turned to the courts to do the dirty work that state legislatures will not—a direct contradiction of their lofty admonitions about restoring education policy discussions to elected bodies where they belong. Unfortunately for them, even that approach seems to be sputtering in many places. That must be frustrating  for union leaders and attorneys, but its fantastic news for students and families. With that in mind, I’d like to issue my hearty congratulations to the families served by Florida’s scholarship tax credit program. Their victory is great reminder that educational choice is about more than concepts or ideologies. It’s about real people who need real educational opportunities. And that’s a cause worth celebrating.