No state trial judge should be able to hear evidence or set ground rules on how to fund public education in Florida, at least that’s how outgoing Senate President Mike Haridopolos sees things.
In the Senate’s view, courts should not get involved in interpreting a 1998 constitutional amendment that states public education should be adequate, safe and of high quality.
By agreeing with a parent group that this was a definable question open to judicial review, a Leon Circuit judge denied the state’s motion to dismiss. Haridopolos then sought an order from the First District Court of Appeal to prohibit the lower court from proceeding to trial. That also failed, and Haridopolos wants the Florida Supreme Court to review the case and rule that no trial court has jurisdiction.
The case of Mike Haridopolos v. Citizens for Strong Schools moved out of the First District on an 8-7 split Nov. 23. The Florida Supreme Court has not determined whether it will hear the appeal by Haridopolos, who rejects the authority of state courts to define the meaning of the amendment.
“The seven dissenters would have ruled that the trial court lacked jurisdiction because the complaint raised a ‘quintessentially political’ question,” Miami-based Raoul G. Cantero of White & Case said in a March 26 petition for review on Haridopolos’ behalf.
The advocacy groups involved in the litigation — Citizens for Strong Schools and Fund Education Now — filed one of several lawsuits brought in recent years by parents, students and teachers. In each case, citizen or teacher groups are pushing lawsuits through the courts to counteract what they see as callous indifference or political meddling by the Legislature in a state where public education perennially ranks near the bottom of national surveys.
The economic slump has been a factor in legislative cuts to education, but critics point to negative trends that preceded the recession.
No sooner had Gov. Rick Scott boasted this spring of increasing K-12 funding by $1 billion than Florida Education Association president Andy Ford retorted the new funds restored less than a third of what was cut the previous year. The teachers’ union chief said total school funding would not change in 2012-13 because school districts would have to use the additional state funds to make up for losses in federal funding, increases in enrollment and drops in property taxes. Legislative cuts to the state university system have been just as painful.
Contributions from the state’s general revenue fund peaked in 2006-07 when student per capita funding reached $7,764. By 2011-12, the per-student share was down 36 percent to $4,938, about where it was in 1993.
It was in this environment of shrinking state funding that parents and students in Duval and Pasco counties filed the Citizens for Strong Schools lawsuit in 2009. Aligned with the advocacy groups, they are represented by Southern Legal Counsel in Gainesville.
They argued that by cutting funding, shifting burdens to school boards, reducing teacher salaries and adopting an accountability policy for teacher advancement, the Legislature was not meeting the constitutional mandate passed by the electorate in 1998 to adequately provide “a uniform, efficient, safe, secure and high-quality system of free public schools.”
Speaking for Haridopolos in the appeal, Cantero said the Supreme Court should accept the case to “clarify that courts lack subject matter jurisdiction over the nonjusticiable political questions raised.”
Citing the dissenting view in the First District’s opinion, Cantero said the amendment did not provide measurable goals that a court could use to judge legislative performance.
First District Judge James Wolf offered a specially concurring opinion that summarized the dispute as a clash between two constitutional provisions — separation of powers versus the right of people to have their will fulfilled.
Ron G. Meyer of Meyer, Brooks, Demma & Blohm in Tallahassee called Haridopolos’ appeal to the Supreme Court premature and “extremely unusual.”
Meyer predicts the high court will refuse to hear the appeal. He also emphasized the state House has no problem trying the dispute on its merits.
“Like the plaintiffs, the other defendants seem to believe that the case should proceed through the normal judicial process,” Meyer said.
He is not involved in the case yet but often represents public employees and their associations. He gave the Supreme Court notice that if it takes Citizens for Strong Schools, he wants to file a friend-of-the-court brief on behalf of the FEA and other public school associations.
“All the education stakeholders view the constitutional provision at stake to be enforceable in the courts of the state,” Meyer said.
Considering the case in the most favorable outcome for students, Meyer said that if a judge defines the goals of the amendment, minimum standards would exist to restrain future legislatures.
While a parent movement jousts over school funding, a coalition of educators is invested in a state employees’ battle. The 1974 Legislature created a mandatory pension plan with cost-of-living adjustments and no employee contributions. The law said the plan was a contract, “legally enforceable … and shall not be abridged in any way.”
The 2011 Legislature tinkered with the pension by mandating 3 percent employee contributions and eliminating the COLA.
Meyer filed George Williams v. Rick Scott et al in June, and Leon Circuit Judge Jackie Fulford ruled the new law was “an unconstitutional impairment of plaintiff’s contract with the state.” She found the Legislature unlawfully took private property without full compensation and changed the collective bargaining rights of public employees.
The state argued that one Legislature could not bind the hands of future legislatures, but Fulford said legislatures can and do grant vested rights that future legislatures cannot impair.
The state also argued the detrimental effects were “insubstantial.” But Fulford did the math. She calculated the cost of changes ranged from $12,445 to $329,683 over an employee’s working and retirement years.
“Elimination of the future COLA alone will result in a 4 to 24 percent reduction in … total income,” she wrote. “These costs are substantial as a matter of law.”
When the First District was considering handing the state’s appeal directly to the Supreme Court without review as a matter of urgency, Attorney General Pam Bondi asked the lower appellate court not to certify the case.
“The legal issues presented in this appeal are not of great public importance, nor will they have a great effect on the proper administration of justice throughout the state, because the Supreme Court had already decided them” in the state’s favor, she maintained.
Fulford rejected Bondi’s conclusion as a misreading of a 1981 sheriff’s association dispute when the high court said the Legislature wasn’t prevented from altering benefits accruing for future service. But the Supreme Court did not “say it was acceptable for the Legislature to completely gut and create a new form of pension plan,” Fulford emphasized.
The First DCA certified Fulford’s order to the Supreme Court, and the high court accepted the case on a 5-2 vote in March. Chief Justice Charles Canady and Justice Ricky Polston, both stalwart supporters of the Republican-controlled Legislature, were against hearing the case.
Meyer said the First District found the case to be of great public importance and required immediate resolution.
“A law which has been found unconstitutional by the trial court continues to be followed, and substantial amounts of money are being taken from employees’ salaries,” Meyer said. “Candidly, it is in the interest of both to bring the case to a speedy final conclusion.”
The case is set for oral arguments Sept. 5.
Meyer is not as far along with a second lawsuit that touches on collective bargaining rights. Now in Leon Circuit Court, the case of Brandt Robinson, a social studies teacher in Pinellas County, and five other teachers challenges the state on the Student Success Act.
The law shifts authority for teacher hiring and pay scales to principals, who must use a performance evaluation system that depends on a student learning growth standard.
Because there are similarities between the Williams case and Robinson v. Robinson , Meyer said the Supreme Court decision on Williams would likely be instructive on Robinson .
And since Robinson raises concern about a teacher accountability system, it overlaps with Citizens for Strong Schools . But while parents and teachers often find themselves on the same side of battles lines with the Legislature, there is little coordinated action.
The Florida PTA is on record supporting teacher salaries pegged to the national average but has otherwise stayed on the sidelines on collective bargaining issues. It also supports the efforts of Citizens for Strong Schools and Fund Education Now but has not joined their litigation.
“That’s not to say that if changes aren’t made that we shouldn’t consider doing so before quite honestly our public education system is destroyed,” Florida PTA legislative chairwoman Mindy Gould said.
Florida PTA has preferred a lobbying role, relying on the clout of its 315,000 members to sway legislators. But the organization grows increasingly concerned with what it views as a disregard for traditional public schools.
“We see a push for a system that is greatly different,” Gould said. “A push for full-time virtual schools, for an increase in charter schools and a push for home schooling.”
The PTA is not opposed to school choice, but backers of alternatives do not require the same accountability, and some changes are coming at the expense of traditional schools, she said.
The PTA joined forces with Fund Education Now and other parent groups to narrowly defeat a controversial bill in March known as the “parent trigger” that would have given parents options by majority vote at low-performing schools. One option would have been to convert to a charter school. The bill was feared as a tool to enable hostile takeovers of public schools by private management companies.
At the bottom
The main motivation behind these lawsuits and lobbying efforts is Florida’s consistently poor ranking in national education.
A testament to the 1998 amendment making public education a “paramount duty of the state” is the existence of an activist organization called 50th No More. The 2010 census ranked Florida dead last in spending per capita on K-12 public education.
The state university system was likewise embarrassed when USA Today published a tuition and fee survey of the 75 flagship public universities in the nation in 2006. Florida State University and the University of Florida ranked 74th and 75th, respectively.
“This was really humiliating,” said Robin Gibson, a Lakes Wales attorney brought in by former Governor Bob Graham to sue the Legislature. Graham believed a 2002 constitutional amendment creating the university system’s board of governors also transferred to the board the Legislature’s authority to determine tuition rates and fees.
Before the rankings, the board had avoided a fight because the Legislature put the board on notice early in its existence that if any university set fees on its own, the school would lose all state funding.
The USA Today survey sufficiently incensed the board, Gibson said, and after four years of silence it joined Graham and others as co-plaintiffs in Bob Graham v. Mike Haridopolos in 2007.
The board stayed in the lawsuit for 2½ years but dropped out when the Legislature offered a compromise. The Legislature would still set tuition rates, but the board would have to approve them. In addition, tuition would incrementally rise to the national average.
Unfortunately, the Legislature has been steadily reducing its contribution from general revenue, negating any prospects for improving schools by hiking tuition and fees.
Michael Long, immediate past president of the Florida Student Association, said the state appropriations are about 54 percent of the university system budget, including general revenue, lottery and other sources. Five years ago, the state provided 70 percent. This year is the first time that revenue from tuition at $1.38 billion exceeded the legislative contribution at $1.37 billion to Florida’s public universities.
“That’s the problem. There’s this very fragile balance between tuition and state support,” he said. “Assuming the board could raise tuition as much as they want, at the end of the day it’s still going to be depending on what level the Legislature funds.”
Graham lost in the trial court and again on appeal at the First DCA, but Gibson said the objective was to get to the Supreme Court, which has accepted the case. “That’s where all the law is as far as interpreting transfer of authority,” he said.
In an interview with the Daily Business Review, Graham called the board’s compromise with the Legislature unconstitutional. Their exit also barred the remaining plaintiffs — all citizens who have been active in higher education governance — from addressing the Legislature’s involvement into the creation of new schools, which occurred this session with the accelerated establishment of Florida Polytechnic.
“The people of Florida voted to have a strong board to stand between the Legislature and the state universities. The Legislature has never accepted that. Neither have the governors to date; (former) Gov. Jeb Bush opposed the amendment and appointed people that in my judgment haven’t vigorously carried out their constitutional responsibilities,” Graham said.
The framers of the amendment that created the board consulted the university systems of California, Michigan and Minnesota, which all have boards constitutionally independent of their legislatures. Their intent was to give the board authority over management of the university system and power over contracts.
This should have left the Legislature in control of university-dedicated funds from general revenue funds. Any funds from tuition, fees, research grants, endowments and income from investments should have transferred to the board.
However, the state’s response filed May 25 said, if that was the framers’ intent, that’s not what they told voters.
“Amendment 11 nowhere indicated — or even intimated — that the Legislature’s appropriation power was to be limited in any way,” state’s counsel Daniel C. Brown of Carlton Fields in Tallahassee maintained.
He said the framers were part of Education Excellence for Florida, and its only statement in court on authority was it “only affected the executive branch.”
“The Constitution does not make the distinction petitioners urge between ‘general revenue funds’ and ‘university funds’ in relation to the Legislature’s appropriation power,” Brown’s brief said.
When all is said and the rulings are in, the state may very well win more education lawsuits than it loses. That does not mean Floridians will win. After Scott signed the $70 billion state budget April 17, this is how FEA president Ford summarized the public education system: per-pupil funding for K-12 in 2012-13 will be $435 less than last year and more than $700 less than four years ago.
“It won’t stop the loss of arts, music and athletic programs and larger class sizes. K-12 public schools will not receive money from the state for school maintenance,” he said. “We are also stumbling on our commitment to higher education, where a brain drain of our finest professors continues. Universities took a budget hit … $150 million in appropriations and $150 million from reserves. Legislators are raiding the reserves to balance the budget.”