Robertson: Alabama’s school choice law halted by another politically-driven attack

The Circuit Court for Montgomery County ruled on Wednesday that the state’s year-old school choice law, the Alabama Accountability Act, is unconstitutional and that the state is enjoined from taking any measures to further implement the law. This is the third lawsuit filed in an effort to halt the Act—the previous two were unsuccessful. While the court order is a hurdle to the immense progress toward educational choice in the state, proponents of the law and the families who have experienced the hope that it offers will fight this ruling through every available channel until it is overturned.

This politically-driven lawsuit, the second by the Alabama Education Association, alleged that the Act violates the Alabama Constitution by way of the procedure through which it was enacted and the means through which it is funded. The legal reasoning of the decision is shaky on a number of fronts, rendering the case fertile ground for an appeal.

This is the second suit to put forth several procedural violations as a foundation for having the law struck down. Similar arguments in a previous suit against the Act failed at the Alabama Supreme Court, where the Court held that it was not the function of the judiciary to require the Legislature to follow its own rules. Rather than alleging a violation of the legislative rules, the plaintiffs here claim that the passage of the Act violated the Alabama Constitution as to the single subject rule, the original purpose doctrine, and the three readings requirements. Alabama Supreme Court precedent shows a pattern of deference to the Legislature on issues of this nature, presuming compliance in instances where it is questioned.

The aim of the plaintiffs in this case was to permanently do away with the Alabama Accountability Act, by way of an assortment of questionable legal arguments, to ensure that Alabama preserves the status quo and remains stuck in a cycle of poor educational results.

The decision cites a constitutional prohibition of appropriating funds to a non-state entity “without a vote of two-thirds of all members elected to each house.” The drafters of the Accountability Act were well aware of lawsuits in several states filed by teachers unions offering a similar argument and thus, carefully crafted the legislation to negate the claim that government money was going straight to non-public schools by sending the refundable tax credit directly to the parents instead. Nevertheless, the Court found that the “intent” of the appropriation is for tax refunds to pay the tuition for students in failing schools to attend private schools; therefore, it should be considered the same as a direct appropriation to a private charitable and educational institution.

The Court further opined that donations to scholarship granting organizations (SGOs), which are entirely the prerogative of the individual taxpayer, are really just appropriations to these entities. In reality, every taxpayer in Alabama has the ability to choose whether or not to direct a portion of his or her tax dollars to an SGO. It is hard to understand how an individual who does so can seriously be viewed by a court as a mere pass-through entity of the state.

The decision also relies on Amendment 61 to the Alabama Constitution which requires that income tax revenue deposited into the ETF “be used for the payment of public school teacher salaries only.” The Court held that because Section 9 of the Act uses funds that otherwise would have been deposited into the ETF ($25 million per year), the Act is in conflict with this Amendment.  Strangely, it seems that this same argument could apply to any one of Alabama’s tax credits. Surely the Court does not mean to suggest that the Historic Structure tax credit is similarly unconstitutional?

The aim of the plaintiffs in this case was to permanently do away with the Alabama Accountability Act, by way of an assortment of questionable legal arguments, to ensure that Alabama preserves the status quo and remains stuck in a cycle of poor educational results.  The numerous technical arguments and the far reaching claims that taxpayer dollars were used impermissibly reflect an irrational desire to destroy a law that has given children stuck in failing schools first-time access to a higher quality education.

Shortly after the ruling, it was reported that a spokesperson for the AEA said that the organization was “pleased with the ruling” while House Minority Leader Craig Ford (D-Gadsden) called the ruling a “victory for children and educators.”  It is unclear exactly which children will perceive this order as a victory – certainly not the thousands whose parents have filled out scholarship applications for the upcoming school year hoping to give their children an immediate chance at a better education and ultimately, a brighter future.

 Katherine Green Robertson is senior policy counsel for the Alabama Policy Institute (API), an independent non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at [email protected].