Alabama’s GOP-Backed School Choice Plan Hits Snag in Court

By Andrew Ujifusa — March 04, 2013 4 min read
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Alabama legislators approved a dramatic new school choice program for students at low-performing schools on Feb. 28, to the delight of GOP Gov. Robert Bentley—and the outraged dismay of Democrats, the Alabama Education Association, and state Superintendent of Education Tommy Bice.

UPDATE: However, the victory for Republicans in the legislature has been short-circuited, at least temporarily, because on March 6, Circuit Court Judge Charles Price agreed to grant an injunction, sought by the state teachers’ union in a March 4 lawsuit, that has blocked Bentley from signing the bill. Next up is a hearing on the matter scheduled for March 15.

An attorney for the AEA argued in court that the Open Meetings Act was violated by legislators, a charge that Sen. Del Marsh, a Republican and backer of the tax-credit plan, denied to Price.

Price was the same judge who, on March 5, had agreed to initially delay the bill from reaching Bentley’s desk, on the same day that Bentley had said he intended to sign it.

As you can read at, the new program established under the Alabama Accountability Act of 2013 establishes a tax-credit scholarship program that students assigned to “failing” schools can use to attend any “non-failing” public or private school in the state. A “failing” school in this case has a broad definition: It includes any school getting a D or F grade on the state’s accountability system; any school in the lowest 10 percent of scores on the state’s standardized assessment in reading and math; any school labeled as “consistently low-performing” by the state education department in a state application for a federal School Improvement Grant; or any school otherwise deemed as “failing” by the state superintendent.

The tax credit is equal to 80 percent of the state’s per-pupil cost of attending a public school, or the actual cost of attending a non-failing public school. For parents applying for tax credits, the legislation creates a new Failing Schools Income Tax Credit Account to distribute the funds. The law also allows for scholarship-granting organizations to receive donations from both private individuals and corporations, and in turn provide the funds for parents to use in the school choice program. The donation cap for individuals is $7,500 annually, and corporations may receive a tax credit of 50 percent of their total donations. The law also institutes a statewide cap on the tax credits of $25 million annually.

The Republican-controlled legislature passed the legislation, House Bill 84, on Feb. 28. The legislation originally only dealt with new flexibility that school districts could seek from the state education department in terms of their budgets or other operations. It grew from 10 pages when it was originally introduced to 27 pages during conference committee, when the school-choice provision was introduced.

“Families will have new options if their children are stuck in failing schools,” Bentley said in a Feb. 28 statement announcing that he would sign the legislation. “All children, regardless of their family’s income or where they live, will have the opportunity to receive a quality education.”

In a statement, Michelle Rhee, the CEO of StudentsFirst, which is active in Alabama said, “We commend state lawmakers for taking an historic first step toward providing families with children trapped in failing schools options for the first time.”

But Democrats and others are outraged by the situation, saying that the conference committee’s decision to add what they call vouchers was an exercise in “sleaziness.” A shouting match erupted among senators, for example, when the bill was revealed in its final altered form, with Sen. Quinton Ross, a Democrat, making his views very clear: “You went behind closed doors. ... This is not democracy. This is hypocrisy.”

The Alabama Education Association’s executive director, Henry Mabry, was also frustrated, saying that the move took him completely by surprise. One news article decreed that the passage of the bill was arguably the biggest political defeat for the state teachers’ union in nearly half a century (the AEA is an affiliate of the National Education Association).

In its lawsuit, filed March 4, the AEA alleged that the GOP lawmakers who shepherded the final bill through the legislature violated the Open Meetings Act by not publicizing or opening to the public their Feb. 28 meeting in which the school-choice program was added to the existing bill. They also allege that the conference committee violated the legislature’s rule by introducing a new “appropriation item” into existing legislation.

Ultimately, the AEA is seeking to either have the adoption of House Bill 84 invalidated altogether, or to have the Republican legislators withdraw the final bill. The defendants in the bill include GOP Reps. Chad Fincher, Jay Love, and Speaker of the House Mike Hubbard, and GOP Sens. Gerald Dial, Del Marsh, and Senate President Kay Ivey, and Gov. Bentley.

Bice also weighed in, saying that the bill that came out of conference committee was not the same bill he originally supported regarding school district flexibility from state requirements.

A version of this news article first appeared in the State EdWatch blog.