The lawsuit against the Florida Tax Credit Scholarship has been dismissed.

A record of legal documents and media coverage:

fea-protest-photo   Power-of-Choice-sign

On Aug. 28, 2014, the Florida Education Association (FEA), Florida School Boards Association (FSBA), Florida Congress of Parents and Teachers (PTA), Florida Association of School Administrators (FASA), League of Women Voters of Florida (LWVFL), Florida State Conference of Branches of NAACP (FLNAACP) and Florida members of the Americans United for Separation of Church and State (AU) sued the State of Florida seeking to end a scholarship program for economically disadvantaged students. Now in its 15th year, the Florida Tax Credit Scholarship is serving more than 90,000 low-income children in more than 1,600 private schools.

The lawsuit argues the tax-credit scholarship program violates two sections of the Florida constitution: Article I, Section 3, which says that “no 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”; and Article IX, Section 1, which says that “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 lawsuit was heard in trial court on February 9, 2015 and dismissed by Leon County Circuit Court Judge George Reynolds on May 18th. Judge Reynolds ruled the plaintiffs had no standing to sue. The FEA appealed to the First District Court of Appeals on August 21, 2015. Prior to the appeal, the Florida Association of School Administrators and the Florida School Boards Association withdrew from the lawsuit on April 8th and June 10th, respectively. Joanne McCall, president of the FEA, vowed to take the lawsuit all the way to the Florida Supreme Court. The lawsuit is expected to take several years to resolve.

On January 19th, 2016, about 10,000 parents, students, teachers, and school administrators and supporters marched on Tallahassee in support of the Tax Credit Scholarship and to ask the teacher’s union to drop the lawsuit against the program. The rally was put together by the Save Our Scholarships coalition, Florida Voices for Choices and paid for by the American Federation for Children. Speakers included Bishop Victor Curry, Rev. H.K. Matthews, Rev. R.B. Holmes, Julio Fuentes, and Martin Luther King III.

Oral arguments were heard before the First District Court of Appeal on May 10, 2016 and dismissed by the three justices on August 16, 2016.

Further Updates

On September 14, 2016, the FEA asked the Supreme Court court to hear an appeal of a ruling by the First District Court of Appeal, which held that the FEA, and other groups behind the suit, did not have standing to challenge the constitutionality of the Florida tax credit scholarship program.

The Florida PTA dropped out of the lawsuit on November 21st, while the State and Parent Intervenors filed briefs requesting the Florida Supreme Court dismiss the lawsuit on November 22nd.

On January 18, 2017, a five member panel of Supreme Court Justices voted 4-1 to decline jurisdiction over the lawsuit. The First District Court of Appeal decision stands and the Florida Tax Credit Scholarship may continue.

Program Facts:

  • As of December 1, 2017: 107,095 students enrolled in a private school using a scholarship. Step Up awarded 106,638 of the scholarships.
  • The average participating household earns $25,362, or just 10 percent above poverty
  • 38 percent of students are Hispanic
  • 30 percent of students are black
  • 26 percent of students are White
  • 55 percent of students in single-parent households
  • 1,801 participating private schools
  • All scholarship students take a state-approved national norm-referenced test
  • All test scores are reported to the Learning Systems Institute at Florida State University
  • School gain scores are made public if the school has at least 30 scholarship students
  • All schools receiving $250,000, or more, in scholarships are required to submit a financial report by an independent CPA to the state

Important Links:

Independent Studies
Government Reports
Financial Reports
Contact Public and Policy Affairs

Program Background

The scholarship was enacted in 2001 and began serving scholarships to low-income children in 2002. For the 2018-19 school year, the program provided $539 million in scholarships to 107,095 low-income and working-class children in more than 1,600 private schools. Step Up provided 106,638 of those scholarships worth up to up to $6,519 for Kindergarten–5th grade, $6,815 for 6th-8th grade and $7,111 for 9th-12th grade. AAA Scholarships has not yet released enrollment statistics.

Scholarships are all funded by private tax-credited corporate contributions. No direct tax dollars are used to fund the scholarship program. Companies receive a 100 percent tax credit (as opposed to a tax deduction) for their contributions to a Scholarship Funding Organization (SFO). The SFO is then required to review applications, award scholarships to eligible students, and issue checks, to be endorsed by the parent, to a state-approved private school of the parent’s choosing.

Children are eligible for full scholarships if their total household income is no more than 200 percent of poverty, or $48,600 for a household of four. Students are eligible for partial scholarships so long as the household income does not exceed 260 percent of poverty, or about $63,180 for a family of four. The average student lives in a household earning $25,362 per year, or just 10 percent above poverty.

*2017-18 is Step Up For Students enrollment only.

Relevant Case Law

Bush v. Holmes, Florida Supreme Court, 2006: The court threw out the Opportunity Scholarship by ruling that it “diverts public dollars into separate private systems parallel to and in competition with the free public schools” and those schools were not “uniform” with public schools. More importantly, as it relates to Tax Credit Scholarships, the court explicitly applied this standard: “The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service.” It went further, noting the law required the Department of Education to “transfer from each school district’s appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical accounts to a separate account for the Opportunity Scholarship Program.” None of those standards apply to the Tax Credit Scholarship.

Arizona Christian School Tuition Organization v. Winn, U.S. Supreme Court, 2011: This case is considered a landmark ruling on the issue of tax credit scholarships. The court upheld the Arizona scholarship program by denying standing to the taxpayers who brought challenge. The court ruled that tax-credited contributions, even those receiving a 100 percent credit, are not to be construed legally as government expenditures. In that way, it distinguished tax credit scholarships from direct government vouchers. The court majority wrote: “When Arizona taxpayers choose to contribute to (School Tuition Organizations), they spend their own money, not money the state has collected from respondents or from other taxpayers. While the State, at the outset, affords the opportunity to create and contribute to (a School Tuition Organization), the tax credit system is implemented by private action and with no state intervention. … Like contributions that lead to charitable tax deductions, contributions yielding (School Tuition Organization) tax credits are not owed to the state and, in fact, pass directly from taxpayers to private organizations.”

Zelman v. Simmons-Harris, U.S. Supreme Court, 2002: In a landmark ruling on the Establishment Clause, the court determined that students in a Cleveland voucher program could use the vouchers to attend religious schools. The court found that parents could use public funds to pay for religious schools, provided the parents are making a genuine and independent choice and that the primary purpose is education. It also went further, declaring that voucher programs could not exclude any private provider merely because of religion. Wrote the court: “The Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district.”

Duncan v. New Hampshire, New Hampshire Supreme Court, 2014: The court dismissed a case against a Tax Credit Scholarship program stating that the plaintiffs did not have standing. The court found that taxpayers did not suffer injury or prejudice because another parent’s child attended a private school, religious or otherwise, with a tax-credit scholarship. Read more about that case here.

Rogers v. Boyd, Alabama Supreme Court, 2015: The court dismissed a case against a Tax Credit Scholarship program finding plaintiffs did not have standing. The court ruled that tax-credits were not appropriations and therefor the teacher union could not sue to stop the program. Read more about that case here.

Legal and Supporting Documents

Legal Documents

FEA/FSBA Documents

Other School Choice Documents

Step Up Documents

  • Lawsuit Fact Sheet
    (January 12, 2016, factsheet on students, academics, cost savings, and legal issues)
  • Step Up Fact Sheet
    (September 2, 2014, Response to FSBA Issue Brief)
  • Quotes from the rally in Tallahassee
    (January 19, 2016, 10,000 parents, students, educators and community leaders marched on the state capital to protest the lawsuit)
  • Florida’s changing landscape – Education is no longer one size fits all. Florida allows many different educational opportunities for children. Public, charter, magnet, vocational, virtual, homeschool and private school are among the educational choices available to Florida’s children.
Changing_Landscape_2016_17 FINAL3

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