August 16, 2016 2:00PM

Case Dismissed in Lawsuit Against Florida School Choice… Again

In yesterday's update regarding school choice lawsuits, I noted that a judge recently denied a request to fast-track one of the two anti-school-choice lawsuits (Citizens for Strong Schools v. Florida Board of Education). Today, a three-judge panel unanimously dismissed the other lawsuit (McCall v. Scott), in which the state teachers' union alleged that Florida's tax-credit scholarship program unconstitutionally supported a "parallel" system of public education and violated the state constitution's historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. Last year, a trial court judge dismissed the case, holding that the plaintiffs lacked standing to bring the case because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The appellate judges unanimously agreed with the trial court, as Travis Pillow of RedefinED explains:

“[D]espite arguing that public funds have been diverted from the public school system, [the plaintiffs] make no argument whatsoever that public school funding has actually declined,” they wrote. Further, the court called the diversion theory “incorrect as a matter of law.”

The appellate judges held the case centered on political questions about school choice and education funding, and wrote that the ultimate “remedy is at the polls.”

“This is precisely the type of dispute into which the courts must decline to intervene under the separation of powers doctrine,” they wrote.

Earlier this year, thousands of parents and students held a rally calling on the teachers' union to drop the suit.

Joanne McCall, the president of the Florida Education Association and lead plaintiff in the lawsuit, said she is still deciding whether or not to appeal and complained that the "merits of the case aren't being argued" because the case was decided on standing. In reality, the judges directly addressed her central allegations. Following the U.S. Supreme Court and every other state supreme court to address the question, appellate judges rejected the plaintiffs' allegation that the scholarships are publicly funded, holding instead:

No funds under the [Florida Tax Credit Scholarship Program] are appropriated from the state treasury or from the budget for Florida’s public schools. Rather, all funds received by private schools under the FTCSP come from private, voluntary contributions to SFOs, after a parent or guardian has exercised their choice to enroll their child in a private school. Further, [...] tax credits received by taxpayers who have contributed to SFOs are not the equivalent of revenues remitted to the state treasury.

The judges also dismissed the plaintiffs' argument that the forgone tax revenue would have benefited them as "founded entirely on supposition." There is no way to know, in absence of the program, how much revenue the state would have collected or how it would have allocated it. The judges concluded: "The cloudy crystal ball the trial court would be required to gaze into in order to identify a particularized harm to Appellants underscores the speculative nature of their arguments for standing."

In short: the union can identify no special harm that it has suffered from the state of Florida expanding the educational opportunities of low-income students through privately funded scholarships. If the union does decide to appeal the decision, the Florida Supreme Court should dismiss the case as well.