In the wake of this year’s legislative maneuvering to expand Florida’s voucher programs, there is a significant question floating over the future of voucher programs: since the state Supreme Court ruled a smaller program unconstitutional in 2006, why has there been no legal challenge to the other, larger voucher programs in the past 8 years? The brief answer is that lawsuits targeting education policies and practices have political ramifications, and are expensive, complicated, and subject to idiosyncrasies behind the scenes in how they develop.

Let’s start with the basics in Florida: the state constitution has two provisions that could be used to challenge the current structure of Florida’s voucher programs.1 One of the provisions is a prohibition on direct or indirect aid of religion. That has not been used in court, though it could be, at least in theory. The other is the following language in the constitution that starts Article IX:

The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. 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.

The language in bold was the basis for the state Supreme Court’s ruling in 2006 that dissolved a voucher program based on the state’s evaluation of schools (Bush v. Holmes). The record in that case persuaded the majority of the court that the voucher program at issue both diverted funds from the constitutionally-required public schools and “foster[ed] plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.”

Given that ruling, it seems that anyone could challenge the remaining voucher programs: one funded directly by the legislature for children with disabilities, and one funded indirectly through a corporate tax credit funneled until this year through a non-profit organization for scholarships for poor students. In 2011, the U.S. Supreme Court ruled that taxpayers do not generally have standing to challenge state tax credits (in that case, the Arizona state’s education voucher/tax-credit program); but my impression is that the Florida courts generally are more lenient with issues of taxpayer standing for state-based challenges. Given the 2006 decision by the state supreme court, why has there not been a challenge?

One answer is the political vulnerability that anyone would face by challenging the programs. If you challenge the voucher program for students with disabilities, you could easily be portrayed as picking on a particularly vulnerable population. Same with the voucher/tax-credit scheme focused on poor families, at least until this year’s legislative session.2

Yet that doesn’t quite answer the question. There is a legal strategy anyone in Florida with resources could follow to challenge the current construction of both programs, which have relatively minimal accountability, to request relief from the nonuniformity of the operation of the program. For example, there is no accountability for the achievement of students in the McKay program, for students with disabilities. I think it would be a feasible legal strategy to complain that taxpayers are footing the bill for these schools and the lack of accountability on par with local public schools is a direct violation of the language that the state court used to strike down another voucher program in 2006. Instead of requesting that the courts void the entire program, one possibility would be to give the state the chance to remedy the fault by imposing the same accountability provisions on private schools accepting McKay vouchers as for local public schools, the same procedural due-process rights for families of students with disabilities in local public schools, the same right to a tuition-free school, and a few other key practices that are clearly tied to the “uniform, efficient, safe, secure, and high quality system” language in the state constitution.

Such a relatively narrow challenge would not prohibit a broader challenge later and would be relatively immune to the political attacks that would face a lawsuit seeking to dismantle the entire program. I have expected such an approach for the last 8 years, and yet no one has started such a lawsuit. Why not? Here is where the rest of the explanation fits: expense, complications, and the idiosyncrasies of lawsuits.

• Expense. Filing a lawsuit is expensive, not just to start out but in budgeting for all of the steps that such a lawsuit could take from initial filing to arguing a case in front of the state supreme court (and possibly several times depending on procedural motions in the middle of other steps). The first Florida voucher case was filed in 1999 and took seven years for the state Supreme Court to rule on its merits. That’s seven years of procedural motions, a complete trial at the lowest level of the courts, and all the appeals. And that was less expensive than the “narrow” case I outlined above, because the plaintiffs’ costs ended with a clear Supreme Court ruling that abolished the program. If the state courts rule that a voucher program has to meet certain guidelines, then the plaintiffs have more costs with the monitoring and potential additional lawsuits that come with implementation of a ruling that’s anything other than “we prohibit this.”
• Complications. The expense of monitoring a court decree is only the most obvious complication of a court ruling with an aftermath… or what you might call a legal hangover. Kansas education advocates followed a relatively narrow strategy in fighting education budget cuts after financial crisis and the Lesser Depression. And they won a very clear victory: earlier this spring, the Kansas high court ruled that the legislature and governor had unconstitutionally cut school budgets. And then the bill to “remedy” that constitutional flaw turned into a legislative train with all sorts of unrelated issues. Kansas is only the most recent state with such complications. New York State was supposed to fix school funding in the past decade, and has gone backwards in several ways. And New Jersey… well, let’s just say that advocates of education funding equity in the Garden State have been in education policy purgatory for the past forty years, as the legislature has repeatedly tried to respond to legal mandates in the most narrow, crabbed fashion… except for the time it didn’t, and the incumbent governor and legislative majority were tossed out on their ear in some significant measure as a backlash against their attempt to do the right thing on school finance. The worst thing when you file a lawsuit is to lose and have to pay the costs of the winners. In many ways, the second worst thing is to win the lawsuit and face a court order you’re morally or politically responsible for monitoring.
• Idiosyncrasies behind the scenes. Imagine putting together the financing for a lawsuit (see first bullet above), together with the political coalition required for a sustainable follow-through (see second bullet above). Add egos and absolutely firm ideas about how a lawsuit should proceed, from key funders, plaintiffs, and lawyers. Stir in the political implications of a less-than-absolute goal. Add in competing needs that year, month, and hour, including other potential lawsuits. Would you want to put in the energy to manage that coalition and bundle of nerves?

Because I’ve lived in Florida for 18 years and have been a union activist for a good part of that time, I should be very clear that I have no direct evidence of any consideration and then rejection of the legal strategy I outlined above. The explanations above are general in terms of why there haven’t been either narrow or broad legal challenges to vouchers in Florida. And that calculus might change: someone might be willing to and have the skills to build the funding and coalition to challenge the larger voucher programs. Given the expansion along several dimensions in the next few years, I would not be surprised if the dynamics change, and a lawsuit is filed. But I can also imagine how the incentives are still aligned against filing a lawsuit.

Notes

1.The federal constitution is not a basis for challenging most voucher programs, because of a 2002 decision in which the U.S. Supreme Court ruled that a neutrally-constructed voucher program did not violate the First Amendment’s prohibition on establishment of religion, even if the vast majority of schools participating in a voucher program are religious. [↩]

2.The new bill would expand eligibility for the tax-credit-funded vouchers, to allow families above the poverty line to benefit. [↩]