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Voucher opponents ask to have suit reinstated


THE CAPITAL, TALLAHASSEE, May 10, 2016.......... Lawyers for opponents of the state's de facto school-voucher program asked an appeals court Tuesday to reinstate a lawsuit against the system, saying they had the right to bring the case under the Florida Constitution.

But a three-judge panel of the 1st District Court of Appeal, which is reviewing a lower court decision that threw out the nearly two-year-old lawsuit, seemed skeptical of arguments that challengers like the state's largest teachers union had the "standing" needed for the lawsuit to go forward.

Under Florida law, any taxpayer can challenge an unconstitutional use of state money under a doctrine known as "taxpayer standing." The Florida Education Association union and the state NAACP argue that the Tax Credit Scholarship Program, which gives tax credits to businesses that donate to organizations that help pay for children to attend private schools, falls into that category.

The suit argues that the voucher program violates the Constitution by funding religious schools and shirking the Legislature's responsibility to provide every student with a quality education.

Last year, Leon County Circuit Judge George Reynolds dismissed the case, saying the tax credits were different than a decision by the Legislature to direct public money into vouchers.

During Tuesday's hearing, some of the appeals-court judges seemed inclined to go along with that reasoning.

"A tax credit is a far cry from an expenditure, an appropriation from the Legislature," Judge Lori Rowe said at one point, while posing a question of a lawyer for the program's opponents.

But Lynn Hearn, the attorney, said her clients needed the opportunity to pursue the evidence that could be gathered for a trial. That could provide the courts with a chance to more closely scrutinize whether the money that heads to the tax credits might otherwise go to public schools.

"There is a tax imposed and there is a liability on the part of these corporations, but then that tax is forgiven," Hearn said.

But judges also at times pressed attorneys who represented the program. Judge Scott Makar told Jay Lefkowitz, an attorney for parents defending the voucher system, to assume for a minute that those challenging the program had correctly claimed a constitutional cause for their lawsuit.

"Who would have standing to bring those claims? Nobody?" Makar asked.

Lefkowitz responded that a constitutional violation could be grounds for a suit, but only if the Legislature spent the money. That wasn't the case with the credits, he said, where businesses choose to send money to the scholarship organizations.

"In this situation, you're the one making the expenditure, not the government," Lefkowitz said.

Meanwhile, supporters of the system continued to push for the organizations challenging the program to abandon the suit. A group of African-American ministers said they had gathered more than 5,000 signatures on a petition asking the NAACP to drop out of the effort.

The Rev. R.B. Holmes, pastor of Bethel Missionary Baptist Church in Tallahassee --- which operates Bethel Christian Academy --- emphasized that he was a member of the NAACP.

"But my great organization is on the wrong side of history on this," Holmes said.

Supporters of the scholarships point to the fact that the program helps low-income Floridians afford private educations that might be best for individual children, though lawmakers approved legislation in 2014 that would allow for a family of four earning up to $63,050 to be eligible for at least a partial scholarship in the 2016-17 school year

"In this day and time, one size does not fit all. ... They should be able to have a choice, even though they may not have the money as others might have," said Rev. Mark Coats of the Grace of God Baptist Church in Miami-Dade County, which operates Grace Christian Preparatory.

After the hearing at the appeals court, Florida Education Association President Joanne McCall said the increasing pressure on the union and its allies was a sign of concern from scholarship supporters about what would happen if opponents got their day in court.

"I believe that's what all the hoopla is about trying to have me drop the suit, #DropTheSuit and all of the ads that are going out there --- it's because they don't believe that they can win on the merits of this case," she said.