Montgomery County Circuit Judge Charles Price, hearing a lawsuit against the bill filed by the Alabama Education Association, scheduled a hearing in that suit for mid-March and blocked the Legislature from sending the bill to Gov. Robert Bentley before then.
In a press release issued shortly after the ruling, Senate President Pro Tem Del Marsh, R-Anniston, said the ruling would immediately be appealed to the state’s highest court.
“Today’s ruling was judicial activism at its worst,” Marsh said in the release.
Click here to read the text of House Bill 84
The Senate and House passed HB84, also known as the Alabama Accountability Act, last Thursday. The bill allows schools to apply for waivers from some state regulations, and offers parents of children in “failing” public schools a tax credit to take their children to private schools or other public schools.
The bill was originally known as the School Flexibility Act, and didn’t include tax credits when it was introduced in the Legislature. The name was changed, and the tax credits added, in the final hours before the bill’s passage.
The Alabama Education Association and Democrats in the Legislature allege that the four Republicans on the Legislature’s six-member conference committee — including Marsh and Sen. Gerald Dial of Lineville — met in violation of the state’s Open Meetings Act to insert the tax-credit wording.
The AEA filed suit Tuesday to block Bentley from signing the bill. Bentley has said he will sign the bill if it comes to his desk.
Lawyers from the attorney general’s office, representing Lt. Gov. Kay Ivey, filed motions Wednesday morning to dismiss the AEA’s suit.
Margaret Fleming, who filed the motion on behalf of Ivey, declined to speak to reporters about the filing. Her motion argued that the principle of separation of powers prevents the court from interfering in the legislative process and that legislative immunity protects lawmakers from the suit. The motion also argues that because HB84 was ultimately passed by the full Legislature, the bill’s passage doesn’t violate the Open Meetings Act.
AEA attorney James Anderson said the Legislature, in passing the Open Meetings Act, expressly stated that the act applies to the Legislature itself. He said that if four of the six conference committee members discussed the bill’s changes anywhere in a closed meeting, they violated the act.
“If you went to a baseball game last night, and if the four of them discussed it there, they’re breaking the law,” he said.
In his comments in court on Wednesday, however, Price focused on another area of state law — Section 61 of the Alabama Constitution, which governs the legislative process and how amendments can be made.
“The court finds that this bill was changed from its original purpose,” he said.
Price ruled that the AEA’s case could move forward, with a hearing at 10:15 a.m. on March 15. The House of Representatives is prohibited from sending the bill to Bentley until then, according to Price’s order.
It’s typical for a bill creating vouchers or tax credits for public schools to wind up in litigation, said Adam Emerson, a school choice analyst for the Fordham Institute, a nonprofit that advocates for charter schools, vouchers and tax credit plans.
“Anytime a voucher bill is passed, it’s guaranteed to meet with a lawsuit from the teachers’ union,” Emerson said.
Marsh has denied that the tax credit is a voucher plan, but Emerson said the effect is more or less the same.
“It’s tantamount to a voucher system, let’s not kid ourselves,” he said.
Emerson said that if the bill is signed, Alabama will join roughly a dozen states with tax-credit programs for private-school students. The largest program, he said, is in Florida, with around 50,000 students, while most are much smaller.
Critics of Alabama’s bill have pointed out that state officials still don’t know how much the program would cost the state in lost tax revenue. The bill would offer tax credits to families of students zoned for “failing” schools, but it’s still not clear which schools would fit that definition.
Marsh and Bentley have said they don’t yet have an estimate of the bill’s cost. School policy groups have offered estimates as low as $35 million and as high as $367 million.
Emerson said tax-credit bills are typically sold as cost-saving measures. And usually they are cost-savers, he said, because they offer a tax credit that is less than the amount the state would spend on a child’s public education — and because they’re open only to children not already in private school.
If Alabama’s bill offered tax credits to children already in private schools, Emerson said, the dynamic would change.
“If you do that, it really weakens the argument that you’re providing savings,” he said.
Eric Mackey, executive director of School Superintendents of Alabama, said the bill would cover students already in private schools. He said his organization’s estimate of the bill’s cost — as much as $125 million — is based on the cost of covering those students.
Mackey said the bill could also affect another group of students its authors never intended. The bill gives a tax credit to students attending schools outside their zoned school districts, if those districts are listed as “failing.” As it turns out, Mackey said, many school systems are already accepting large numbers of students from other districts — students who may now qualify for the tax credit.
“You’ve got some schools where 50 percent of the students are from rural areas outside the district,” he said.
Emerson, the Fordham analyst, said he thought HB84 was a good bill, but could have been stronger with more public discussion.
“Theoretically, debate would have made it better,” he said.
Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.