Ala. Supreme Court hears state's Accountability Act case

The Alabama Supreme Court on Wednesday was presented with three questions on the Alabama Accountability Act: How much can lawmakers constitutionally alter a bill during the legislative process; how binding are the state's restrictions on education spending, and how much deference should the court give to lawmakers?

The law, passed in 2013, allows families of students in schools designated as failing to apply for tax credits that can be used to pay for private school tuition. The law also allows the creation of scholarship granting organizations (SGOs) to assist students with tuition; donations to the SGOs are tax deductible, but the total amount that can be deducted out of the Education Trust Fund is currently capped at $25 million.

Supporters of the bill, including Senate President Pro Tem Del Marsh, R-Anniston, the driving force behind the legislation, argued that it would give children trapped in failing public schools another educational choice and encourage competition in public schools. Opponents said it put the state in the business of subsidizing private schools at the expense of public ones.

Just as controversial as the content of the bill was the way in which the legislation passed. Initially an act that would allow school districts to apply for waivers from certain education laws, Republicans added the tax credit and SGO provisions in conference committee, expanding a what had been a nine page bill to 27 pages. The changes set off chaotic scenes in the Alabama Senate the evening the bill was passed, as senators screamed at one another.

In an hour of argument before the nine justices, the state argued that lawmakers who framed the bill were careful to craft it so it met all the elements of the Alabama Constitution, and said justices had an obligation to give the Legislature broad discretion in crafting their laws. Assistant Attorney General Will Parker, representing Revenue Commissioner Julie Magee and other state officials named in the lawsuit, noted that lawmakers included a provision that required refunds to come from the state's sales taxes and not the income tax, which can only be used to pay public school teacher salaries.

"It's not threading a needle," Parker said in response to questions from Associate Justice Jim Main, a former state finance director. "It's broader than that. They knew what they were doing."

Bert Gall, a senior attorney with the Institute for Justice, a libertarian-leaning organization based in Arlington, Va., argued that the financial support from the act did not constitute support for private schools because parents, not the educational institutions, benefited from the credit.

"We are dealing with a program that allows other organizations to pay for education for their children, of their (own) choice," Gall said.

John West, a Washington D.C. attorney speaking for the plaintiffs suing to overturn the act, told justices that the changes made in the conference committee put two subjects in the same bill, a practice forbidden by the state Constitution.

"This is a case where the legislative process was so outside the procedures required by the Constitution . . . that the act has to be held invalid," he said.

Chief Justice Roy Moore and Associate Justice Mike Bolin, however, suggested that if the initial bill broadly aimed at education reform, then the subject matter could be broad enough to include tax credits.

"Contract flexibility was the purpose of the bill," Moore said to West. "It is changing the way the state works with education, isn't it?"

West said that was a notably broad category.

"If we describe the purpose of the bill as education reform, were going to a level of generality that is meaningless" in terms of the Constitution, he said.

The state argued that the court had a high standard to meet in determining the constitutionality of legislation. Parker also suggested that the constitutional questions were effectively settled after the Legislature earlier this year passed a pro forma bill codifying legislation passed in 2013. That drew questions from Main and Associate Justice Tommy Bryan.

"If I want to mess up as a legislator, and I can pull the wool over their eyes, and if I came back with a codification bill, I'm OK?" Bryan asked.

Associate Justice Glenn Murdock also cited a number of cases where the court had to "get into the weeds" of the details of passage.

Moore promised to "reach finality" on the case soon. In a filing earlier this week, Marsh and House Speaker Mike Hubbard, R-Auburn, urged the court to move quickly toward a decision.