Raoul Cantero on the legal landscape for school choice scholarships

The Florida Supreme Court overturned the state’s first K-12 voucher program in 2006, but that decision “does not and should not apply” to the state’s tax credit scholarship program, which is now under legal attack by the Florida teachers union and Florida School Boards Association, former Florida Supreme Court Justice Raoul Cantero said last week.

In a keynote address to the Hispanic Coalition for Reform and Educational Options, Cantero noted important distinctions between vouchers and tax credit scholarships, and offered wide-ranging views on the legal landscape for such programs. Cantero was a dissenter to the majority decision in Bush v. Holmes, but we think his views are worth considering no matter where you stand on school choice.

The former justice is helping to represent 15 scholarship parents who have intervened to defend the scholarship program, with the costs paid for by the Alliance for School Choice. As always, we note the scholarship program is administered by Step Up For Students, which co-hosts this blog. Here are Cantero’s prepared remarks in full:

Good afternoon. I am so honored to be here at the HCREO National Summit. Thank you so much for giving me the opportunity to speak with you today. Making sure all of our children have the opportunity to succeed, particularly those children of modest means, has always been important to me. Providing educational opportunities for all children in our community, not just those in living in the right zip code, is the proven way to make sure that everyone has an equal opportunity to succeed in life. I appreciate all that HCREO does on this front, for I believe access to meaningful educational opportunities is one of the civil rights struggles of our generation.

Here in Florida, as part of the legal team defending the Florida Tax Credit Scholarship Program from constitutional challenge, I have the privilege to play a small part in furthering the opportunities for educational choice for the neediest members of our Hispanic community. I know many of you are familiar with this scholarship program, but for those of you who are not, let me give a short description.

The Florida Legislature created the tax credit scholarship program for low income children in 2001. Under this program, private companies may donate funds to a non-profit scholarship funding organization. The company receives up to a 100 percent tax credit for their donation. The non-profit organization awards scholarships to low-income children, and they use the scholarships to pay for tuition at the private school of their parents’ choice. About 1,500 private schools in Florida accept scholarship students under this program, and there are now roughly 70,000 children using this program statewide, with over 400,000 total scholarships awarded since 2001.

The average household income of the scholarship families is about $24,000. And roughly 75 percent of the students are minorities. 40 percent are Hispanic. Studies of test scores show that the students entering the program are the worst performers in their public schools, but improve their overall educational performance in their new environments. And the program even improves the academic performance of the regular public schools.

Now, note this crucial aspect of the program: the scholarship money goes from the participating private company, to the non-profit, and then to the school at the parent’s direction. The money donated for scholarships never makes it into the state Treasury and is never appropriated by the Legislature, any more than any other charitable contribution by a private corporation or an individual that results in a tax credit or deduction.

We must not forget that the students that the Florida Tax Credit Scholarship Program helps are more than just numbers. Students participating in the program have powerful stories – many of you are already familiar with the lives changed through the program, but I would like to mention just a few stories, such as that of Mario Tobar of Orlando.

Mario was a freshman in high school when his mother, Kenia, confronted him about the choices he was making and the path he was headed down. Mario was hanging out with the wrong crowd, and refusing to do his homework. He was arguing with his teachers. Perhaps some of this resulted from the difficult times at home—Mario’s mother had recently been divorced and was working two jobs.

In desperation, Kenia turned to the tax credit scholarship program. She applied for and was awarded a scholarship for Mario. She enrolled him at Bishop Moore Catholic High School. Things started out rough for Mario, as he was placed on academic probation. But given time, he turned things around. He now has a 4.0 grade point average and is a star defensive end on the football team.

Mario says the environment at the school has made all the difference for him. He says he has benefitted from a new set of classmates. Mario tells us that one of his friends at his old school recently died. Mario’s mother says that the scholarship saved her son’s life.

Many of the schools that serve these scholarship students have also become a part of the Hispanic heritage of our state. La Progresiva Presbyterian School, here in Miami, serves one of the largest

populations of Hispanic scholarship students in the State. La Progresiva was founded in the city of Cardenas, Cuba on November 11, 1900, by a generous North American missionary, Dr. Robert I. Wharton. The school grew and developed over the years and became one of the most prestigious schools in Cuba. But it was shut down by the Castro regime in 1961.

Ten years later, La Progresiva emerged again in Miami, affiliated with a local church and the alumni of the old school. Today it is a thriving school where 442 of 470 children are on the scholarship program.

In August of this year, a lawsuit was filed asking the courts to shut down the scholarship program, claiming that the program violates both the Blaine Amendment and the Uniformity Clause of the Florida Constitution, and that prior Florida Supreme Court rulings in the Bush v. Holmes case, the case that struck the Opportunity Scholarship program, required that this program be shut down as well. Needless to say, should the lawsuit succeed, La Progresiva would once again be shut down, as would many other such schools.

As many of you know, I have a certain familiarity with a previous legal challenge to the Opportunity Scholarship program, Bush v. Holmes. I dissented from the Florida Supreme Court’s opinion in that case. But that Court ruling does not and should not apply to the Florida Tax Credit Scholarship program. And here’s why.

First, one must understand how the Opportunity Scholarship Program worked, and the gist of the Court’s ruling in Bush v. Holmes. Under the that program, if a public school received an “F” grade two times in a four-year period, the Florida Legislature appropriated public monies for scholarships that children in those failing schools could use to pay for tuition at a private school.

This law was immediately challenged in court. It was first challenged under the federal constitution—the plaintiffs claimed that it violated to prohibition of government support of religion. This claim was thrown out after the United States Supreme Court decided a case involving a voucher program in Cleveland. The court declared the program constitutional because the money was not being given to support the religious institution, but to support the student. As long as the parent decides where the money will go, and as long as the parent can choose from religious and non-religious providers, there was no government support of religion. Proponents of the program reminded the court that for decades the GI Bill had sent veterans to religious colleges and universities—soldiers even used it to attend seminaries and become priests!

So this ruling dispensed with the federal constitutional challenge against the Opportunity Scholarship Program. But Florida, like 36 other states, has in its state constitution what is called a “Blaine Amendment.” It provides, in relevant part, that “[n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

The Florida Court of Appeal held that the Opportunity Scholarship program violated this provision. The logic of the Appellate Court’s ruling was troubling because many other longstanding legislatively funded programs would seem to also fail this test. For example, the largest voucher in the state is actually our voluntary pre-k program. The citizens of Florida passed a constitutional amendment in 2002 stating that every 4-year-old child will be given taxpayer-funded pre-k education. Today over 140,000 children receive a voucher every year in this program, and roughly 40 percent attend faith-based schools. Many of them attend the same faith-based schools that serve children in the K through 12 years in the Opportunity Scholarship Program. How could it be okay for a 4-year-old child to use a voucher at a faith-based school, but not to use a voucher three months later when they enter kindergarten at the same school?

Another program jeopardized by such logic was the Bright Futures Scholarship Program. Just as with the GI Bill, students take funds from the Florida treasury and attend faith-based schools like Southeastern University in Lakeland and Palm Beach Atlantic University. Three of the four historically black colleges in Florida are faith based.

When the Bush v. Holmes case reached the Florida Supreme Court, it did not base its decision on the Blaine Amendment. The plaintiffs had also claimed that the voucher program violated something called the “Uniformity Clause” in the state constitution. This clause reads as follows:

“Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.”

A majority of the Florida Supreme Court held that the voucher program violated the Uniformity Clause. The majority opinion declared that the program was unconstitutional essentially because the private schools that children attended did not look like the regular public schools. What did it mean to be different? The opinion cited examples such as not having the same curriculum, or not being required by law to have certified teachers.

While I disagreed with the result of Bush v. Holmes, fortunately that decision does not dictate that the Florida Tax Credit Scholarship Program is unconstitutional. A key reason is that a tax credit scholarship is legally distinct from a directly appropriated scholarship. First, the Blaine Amendment—on which the Court of Appeal relied, does not apply because the funds never make it into the State Treasury in the first place. The Blaine amendment says only that “no funds shall be taken from the Treasury.” In the Florida Tax Credit Scholarship Program, they aren’t.

How about the uniformity claim? If the plaintiffs were to claim that the Tax credit program violates the uniformity clause because private money that never became public funds, but might have, is going to educate children at a private school, it would result in some fairly ridiculous ramifications. For example, if this tax credit violates the uniformity clause, what about a tax-deductible donation to a private school? What about the state property-tax exemption currently enjoyed by all non- profit private schools? In both those examples, the same tortured argument would appear to apply.

We do not have to re-invent the wheel in this Florida case. In Arizona, the State Supreme Court that had found a directly appropriated scholarship program unconstitutional, on similar grounds, also upheld a tax credit scholarship program as constitutional, making similar legal distinctions.

But, enough of this legal talk. I applaud all that each of you do to help bring meaningful educational options to serve the neediest in our Hispanic community, and encourage you to persist. We must look at this as a long term struggle, and pace ourselves to win the war, not just a battle.

I would be remiss not to mention something else very important to me, and that is the provision of affordable legal services to the neediest among us. Just as we must not let the educational options for our children be dictated by zip code, we must not let real legal needs be unmet, either, and I appreciate any support in such endeavors.

Thank you very much for such undivided attention today, it has been a privilege to speak to you today.