A Montgomery judge has ruled that the Alabama Accountability Act, the state law that created tax credits and scholarships for families leaving so-called failing public schools, was unconstitutionally enacted, throwing a program used by hundreds of Mobile County families into legal uncertainty.
Montgomery Circuit Judge Gene Reese issued the ruling, siding with the Alabama Education Association and a coalition of school districts that sued over how the law was passed. The judge found that lawmakers violated multiple procedural requirements in the Alabama Constitution when they overhauled the bill on the day of the final vote.
The law began as the Local Control School Flexibility Act of 2013, a measure meant to give local school boards more leeway on education regulations. On the day of the vote, Senate Republicans rewrote the bill to add a $3,500 tax credit for families who move a child out of a failing public school, along with a mechanism steering up to $25 million a year from the Education Trust Fund toward tax credits for corporations that donate money to scholarship funds helping students transfer out of those schools.
In his ruling, Judge Reese pointed to the Alabama Constitution’s requirement that ‘each law contain but one subject, which shall be clearly expressed in its title.’ He wrote that the tax credit provisions had no real connection to the flexibility measures originally in the bill, and found the law also ran afoul of other sections of the constitution governing how legislation must be amended and passed.
The one-subject rule and title requirements are among the oldest checks in Alabama’s 1901 Constitution, written to keep legislators from passing laws under misleading names. They have been the basis for striking down statutes across decades of Alabama jurisprudence, and court records in this case documented the rewrite in unusual detail: a bill about local flexibility that emerged from a conference committee carrying a school choice program no committee had ever heard testimony on.
Because those procedural violations were enough to strike down the law, Reese did not rule on a separate claim in the lawsuit that the act violated Alabama’s separation of church and state by funneling public money to private, often religious, schools.
The ruling does not undo tax credits already claimed for the 2013 and 2014 tax years, and Reese specified that his decision would apply only going forward.
That prospective-only approach softened the immediate impact but stretched out the uncertainty. Families whose transfers and scholarships were already in place could finish the year without disruption; families counting on the program in coming years could not know whether it would exist by the time they needed it. Scholarship organizations, which had signed up corporate donors against the promise of tax credits, were left marketing a program with a court-voided foundation.
That leaves open questions about the future of programs like the Alabama Opportunity Scholarship Fund, the scholarship arm of the law chaired by former Gov. Bob Riley, which was modeled on a similar Florida program that was itself struck down by that state’s Supreme Court in 2006.
The Florida parallel was a central theme for the law’s critics. The Sunshine State’s opportunity scholarship program died in its supreme court largely on the argument that it diverted public money to religious schools; Alabama’s defenders had hoped the state’s constitution, which lacks Florida’s explicit Blaine-era language, would permit the Alabama version to survive. That question never got its answer in Montgomery Circuit Court, because the procedural ruling ended the case first — leaving the church-state issue available for the appeal.
Attorneys representing Alabama Revenue Commissioner Julie Magee and State Comptroller Thomas White, both named as defendants in the lawsuit, filed a motion asking the court for a stay of the ruling while the state appeals. The motion argued that without a stay, families who have already made plans for the coming school year could be forced to send their children back to the schools they left.
Naming the revenue commissioner and comptroller was itself a strategic choice by the challengers: those are the officials who administer the tax credits and sign the checks, so a court order against them halts the program’s machinery even though the Legislature that passed the law is not subject to suit. The state’s stay motion, in effect, asked the judge to let that machinery keep running until a higher court said otherwise.
What the law did, in practice
State officials say 789 students statewide have used the law to transfer out of failing schools since it took effect last year. Of those, 719 moved to another school within the same district, 18 transferred to a different public school district, and 52 enrolled in private schools using the tax-credit scholarships.
Under the law, a failing school is defined as one that scored in the bottom 6 percent on state reading and math exams at least three times over the previous six years. That formula identified 72 failing schools statewide, six of them in Mobile County.
The transfer numbers revealed something about how the program actually worked. Of nearly eight hundred transfers, the overwhelming majority moved within their own districts — meaning the law functioned mostly as an escape hatch between campuses rather than as a pipeline to private schools, whose tuition support depended on corporate donations the scholarship organizations were still raising. The tax-credit scholarships reached a few dozen students in the program’s first year; the public-school transfer option served many times that number, and it was the district-run option that carried the most immediate consequences for school budgets.
Mobile County Public School System figures show 155 students transferred to other schools within the district and nine left for private schools under the law, the second-highest number of transfers of any district in the state behind Montgomery County.
MCPSS officials have said the law’s overall impact on the district’s schools has been limited, and that schools identified for transfers have remained focused on improving academic performance for the students who stayed.
MCPSS Superintendent Martha Peek said the district followed the law exactly as written and that its practical effect on local campuses has been small.
“We implemented and followed the accountability act exactly as it was written, and it had a very small impact on our schools,” Peek said, adding that parents involved in the affected schools know those campuses have remained focused on learning even after being designated for transfers.
Peek said she does not yet know what the court’s final decision will mean for MCPSS, but that administrators would be watching the case closely as it moves through the appeals process. District administrators say they are watching the appeal closely, since the outcome could determine whether the tax credits and transfer options remain available to Mobile County families in future school years.
For the six Mobile County schools on the failing list, the designation itself was a double burden. The label carried a stigma that officials said lingered in the community long after test scores moved, and the transfer provisions meant each spring’s accountability release could pull students — and the per-pupil dollars that follow them — out of the very campuses the state was demanding improvement from. Peek’s point, repeated by district staff, was that the schools’ work for the students who remained had not stopped: tutoring, reading interventions and leadership changes continued regardless of the litigation.
The bigger fight over school choice
The Accountability Act was the flagship education legislation of the Republican legislative majority’s first term, passed after 135 years of Democratic control of the Alabama Legislature ended in 2010. Its Republican sponsors cast it as a civil-rights measure giving poor families an exit from failing schools; the AEA, the state’s dominant teachers’ lobby, called it a voucher scheme dressed in transfer-clothing, designed to drain the Education Trust Fund through corporate tax credits.
Those positions had collided in the courtroom in Montgomery, but the procedural route the case took meant the underlying policy fight — whether Alabama should fund private school choice through tax credits — remained undecided. An appeal to the Alabama Supreme Court would be heard by a court whose elected members had run with Republican Party backing, and whose docket already carried other education-funding disputes. Both sides knew that whichever way the appeal went, the Legislature could rewrite the law the following session, curing the procedural defects or expanding the program.
In the meantime, the practical question for Mobile County families was timing. Students already transferred were settled; students considering a move for the coming year faced application deadlines with no certainty the law would survive. District administrators answered enrollment questions as best they could while the case moved, and the scholarship organizations continued raising corporate donations on the theory that an appellate court — or a corrected bill — would eventually restore the credits.
What neither side disputed was the constitutional principle at stake in the ruling itself. A legislature that rewrites a bill on the floor, renames it and passes it the same day has, in Judge Reese’s reading, failed the oldest procedural tests in Alabama’s constitution — whatever the merits of the policy it enacted. For a program that had begun as an ordinary local-flexibility bill and ended as the most contested education law in a generation, the ruling returned the fight to where Alabama’s school debates usually end up: the Supreme Court, the Statehouse, and the classrooms waiting for both to finish.