IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA. Appellants/Cross-Appellees, Consolidated Case Nos. 1D D

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1 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA THE SCHOOL BOARD OF ALACHUA COUNTY, FLORIDA, et al., RECEIVED, 10/31/2018 2:24 PM, Kristina Samuels, First District Court of Appeal v. Appellants/Cross-Appellees, Consolidated Case Nos. 1D D FLORIDA DEPARTMENT OF EDUCATION, et al., Appellees/Cross-Appellants. L.T. Case No CA-2158 ON APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA INITIAL BRIEF OF APPELLANTS/CROSS-APPELLEES FRANKLIN R. HARRISON Florida Bar No HEATHER K. HUDSON Florida Bar No HAND ARENDALL HARRISON SALE, LLC 304 Magnolia Avenue Panama City, Florida Tel: (850) Fax: (850) STEVEN L. BRANNOCK Florida Bar No CECI C. BERMAN Florida Bar No PHILIP J. PADOVANO Florida Bar No JOSEPH T. EAGLETON Florida Bar No BRANNOCK & HUMPHRIES 1111 W. Cass Street, Suite 200 Tampa, Florida Tel: (813)

2 Fax: (813) Secondary Attorneys for Appellants/Cross- Appellees ii

3 TABLE OF CONTENTS Table of Authorities... iv Explanation of References Used in this Brief... 1 Introduction... 2 Statement of the Case and of the Facts... 3 HB 7069 restricts spending decisions... 3 HB 7069 sharply restricts operational control by School Boards... 8 The School Boards file this lawsuit Summary of the Argument Argument Standard of Review I. Standard of Review and Guiding Principles II. III. HB 7069 unconstitutionally intrudes on the elected School Boards responsibility to operate, control, and supervise local schools HB 7069 also violates the uniformity provision of Article IX section IV. HB 7069 imposes forbidden state ad valorem taxes Conclusion Certificate of Service Certificate of Compliance iii

4 Cases TABLE OF AUTHORITIES Alachua County v. Adams, 702 So. 2d 1253 (Fla. 1997) Bair v. Central and Southern Florida Flood Control District, 144 So. 2d 818 (Fla. 1962) Bd. of Educ. Of Okla. City Pub. Sch. v. Dowell, 498 U.S. 237 (1991) Board of Public Instruction of Brevard County v. State Treasurer, 231 So. 2d 1 (Fla. 1970)... passim Brinkmann v. Francois, 184 So. 3d 504 (Fla. 2016) Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)... passim Citizens for Strong Schools, Inc. v. Florida State Board of Education, 232 So. 3d 1163 (Fla. 1st DCA 2017) City of Miami v. McGrath, 824 So. 2d 143 (Fla. 2002) Detzner v. League of Women Voters of Florida, 2018 WL (Fla. Oct. 15, 2018)... passim Duval County School Board v. State Bd. of Educ., 998 So. 2d 641 (Fla. 1st DCA 2008)... passim Florida Dept. of Education v. Glasser, 622 So. 2d 944 (Fla. 1993) Florida Fish & Wildlife Conservation Comm n v. Caribbean Conservation Corp., 789 So. 2d 1053 (Fla. 1st DCA 2001) iv

5 Jones v. Braxton, 379 So. 2d 115 (Fla. 1st DCA 1979)... 14, 29, 40 Milliken v. Bradley, 418 U.S. 717 (1974) Sandegren v. State ex rel Sarasota County Public Hosp. Bd., 397 So. 2d 657 (Fla. 1981) School Bd. v. Hillsborough County v. Tampa School Devel. Corp., 113 So. 3d 319 (Fla. 2d DCA 2013) School Board of Palm Beach County v. Fla. Charter Educ. Found., Inc., 213 So. 3d 356 (Fla. 4th DCA 2017)... passim School Board of Volusia County v. Academies of Excellence, Inc., 974 So. 2d 1186 (Fla. 5th DCA 2008)... passim St. Johns River Water Management District v. Deseret Ranches of Florida, Inc., 421 So. 2d 1067 (Fla. 1982) Weinberger v. Bd. of Pub. Instruction, 112 So. 253 (1927) Zingale v. Powell, 885 So. 2d 277 (Fla. 2004) Statutes Art. IX, 1(a), Fla. Constitution... 13, 25, 41 Art. IX, 2, Fla. Constitution Art. IX, 4(a), Fla. Constitution... 14, 18, 22 Art. IX, 4(b) Fla. Constitution Art. VII, 9(a) Fla. Constitution... 4, 43, 44 v

6 , Fla. Stat , Fla. Stat , 11, , Fla. Stat.... passim , Fla. Stat , 12, , Fla. Stat , Fla. Stat.... 4, 5, , Fla. Stat , Fla. Stat.... 4, 5, 6, , Fla. Stat.... 8, U.S.C. 6313(a)... 7 Rules Fla. R. App. P (a)(2) Regulations 34 C.F.R C.F.R vi

7 EXPLANATION OF REFERENCES USED IN THIS BRIEF References to school boards are to all 67 district school boards across the state. Each of these school boards are responsible for the control, organization and administration of public schools within their school districts. Each county constitutes a school district. When capitalized, School Boards refers to the ten district school boards that are the plaintiff/appellants in this lawsuit, the School Boards of Alachua, Bay, Broward, Hamilton, Lee, Orange, Pinellas, Polk, St. Lucie, and Volusia Counties. FDOE refers to the Florida Department of Education.

8 INTRODUCTION The Florida Constitution grants locally elected school boards the power to operate, control and supervise the schools within their districts. In this appeal, ten School Boards, large and small and from every corner of Florida, challenge the constitutionality of six provisions of HB 7069, a 2017 omnibus education bill. The challenged provisions of HB 7069 impermissibly transfer control over important operational decisions from local school boards to unelected Florida state employees working for the Florida Department of Education ( FDOE ), restricting the ability of school boards to determine how to spend their constituents tax dollars and supervise their local schools. The Florida Constitution also requires the State to establish a uniform system of public schools. HB 7069 s transfer of control to the State also violates that uniformity provision by creating a parallel system of public schools, not subject to school board control. Similar attempts to transfer the control of local public schools from locally elected public officials to the State have been stricken as unconstitutional by this and other Florida appellate courts. Despite this precedent, the trial court rejected the School Boards substantively identical constitutional challenge. As we demonstrate below, the trial court erred. 2

9 STATEMENT OF THE CASE AND OF THE FACTS At the end of its 2017 session, the Florida Legislature passed a 274-page bill known as HB 7069, chapter , Laws of Florida. (R ). The bill contains hundreds of provisions affecting numerous aspects of public education, the vast majority of which the School Boards do not challenge here. Instead, this lawsuit focuses on only six provisions that impermissibly intrude on every school boards right to operate, control, and supervise local public schools. (R 24, 32-46). The challenged provisions all concern the relationship between local school boards and charter schools. We hasten to add, however, that this is not a lawsuit about the relative merits of charter schools versus traditional public schools and we do not wade into that debate in this brief. At issue here is vindication of the School Boards power to operate, control, and supervise all local public schools, including charter schools. The challenged provisions intrude on that local control because they sharply restrict the ability of School Boards to make discretionary spending decisions and to make the other operational decisions necessary to supervise all the public schools in their districts. HB 7069 restricts spending decisions. We begin by discussing three provisions of HB 7069 which remove significant spending decisions from local school boards, the Capital Millage provision, the Local Education Agency provision, and the Title I provision. 3

10 The Capital Millage Provision Article VII, Section 9(a) of the Florida Constitution authorizes school boards to levy ad valorem taxes. Thus, under the corresponding enabling statute, school boards can levy up to 1.5 mills against the taxable property value for capital expenses. See (2), Fla. Stat. (2016). These discretionary Capital Millage revenues can be used for various capital outlays, including new construction and remodeling projects; maintenance, renovation, and repair of existing school facilities or leased facilities; and acquisition of other capital needs such as school buses or technology. Id. Both district schools and charter schools are eligible for receipt of this Capital Millage. Id.; , Fla. Stat. (2016). HB 7069 amended these statutes to mandate that, beginning with the school years, school boards no longer have discretion in allocating Capital Millage revenues. Ch , 29 at 71, Laws of Fla. (Codified at (2), Fla. Stat. (2017) (R ) and Ch , 31 at 73-77, Laws of Fla. (Codified at , Fla. Stat. (2017) (R ). School boards must distribute a portion of their discretionary Capital Millage revenues to eligible charter schools, pursuant to a rigid formula and without regard to needs of the charter schools and other schools in the district (3), Fla. Stat. (2017). Historically, state administrators and local school boards have worked together in a comprehensive planning process to determine how to meet the local 4

11 school district s capital needs. See Fla. Stat. (2016). This planning process requires local school boards to prepare annual budgets as well as engage in long-range planning over the next 5-, 10-, and 20-year periods (2)(a). Subject to this detailed planning process, local boards had the ability to use their discretion to determine how to spend these Capital Millage dollars. They decided which schools had which needs and funded those needs in accordance with local decisions about spending priorities (2), Fla. Stat. (2016). HB 7069 removed much of that discretion by requiring local school boards to distribute a portion of their Capital Millage revenues to charter schools, in an amount calculated and determined by, the FDOE (1) & (3), Fla. Stat. (2017). Charter schools that meet certain statutory criteria are eligible to receive a proportionate share of these revenues, regardless of the charter schools actual need. (R , , 2633); (1)(a) (2017). FDOE itself estimated that under the formula it originally adopted for the fiscal school year, the School Boards would have been required to pay over $35 million of their Capital Millage revenues to eligible charter schools. 1 (R 480, ). School boards are bound by FDOE s final determination of the capital outlay for each charter school. (R. 2147, citing , Fla. Stat. (2017)). Local school 1 The Legislature later enacted HB 7055, which postponed the implementation of the capital millage provision to fiscal year Chapter Laws of Florida. (R ). The School Boards, however, still must plan for this diversion of revenue in their long-term budgeting plans. 5

12 boards are thus precluded from exercising any control or discretion to determine the most appropriate use of these funds, regardless of the needs identified in the district-wide planning process they are still required to do. Id. This Capital Millage provision impacts school boards in two ways. First, school boards must distribute these funds to charter schools, whether the charter schools need those funds or not, and whether there are more pressing needs elsewhere in the district. (R , , ). Thus, rather than making spending decisions based on a holistic assessment of the needs of all schools in the district, both traditional and charter, school boards are subject to a one-size-fits-all formula that automatically allocates significant funds to charter schools regardless of need (1) & (3), Fla. Stat. (2017). Second, school boards have no authority over how charter schools spend these funds, which, by statute, may be used for a wide range of purposes. See (4), Fla. Stat. (2017). (R 538). Thus, school boards are virtually removed from the operation, control, and supervision of this spending. The Local Education Agency Provision. As public board[s] of education having administrative control over public schools, local school boards are considered local educational agencies ( LEAs ), eligible to apply for and receive federal funds. 34 C.F.R HB 7069 amended section (25), Florida Statutes by allowing the charter 6

13 schools within a district to designate themselves as an LEA. Ch , 21 at 64, Laws of Fla. (R ). The local school board has no substantive role with respect to this decision. The charter schools simply file a resolution with the local school board and the State and accept the responsibility for meeting the necessary federal requirements (25)(a), Fla. Stat. (2017). Before the enactment of HB 7069, school boards made the strategic decisions as to which federal funds to apply for and how to allocate those federal dollars within the district. (R ). HB 7069 essentially places charter school LEAs in competition with their local school boards for those same federal dollars. (R ) (25). This competition prevents school boards from doing district-wide assessments of needs and priorities, taking into consideration the needs of all the schools in the district. Title One Provisions. Title I is the federal education funding program designed to support students from low-income families. Much of these Title I funds must be directed to eligible schools (i.e., schools that meet particular federal requirements concerning the percentage of low income students in each school. 20 U.S.C. 6313(a). But local school boards also have the discretion to use Title I funds for district-wide educational initiatives to improve student achievement for low-income students. Such programs include summer school, extended instructional days, migrant 7

14 education, extra math and science programs, and transportation services. See, e.g., 34 C.F.R HB 7069 once again removes spending discretion from school boards by mandating certain spending on charter schools. Ch , 45 at , Laws of Fla. (Codified at (5) (Fla. Stat. (2017) (R ). But this requirement that Title I funds be distributed to all eligible schools comes at a cost. Most district-wide Title I instructional programs allowed by federal law and previously funded by school boards are no longer allowed by state law because the State may hold back funds for district-wide purposes, only for a few narrowly defined purposes (5)(a)(1)-(3), Fla. Stat. (2017). This means that the local school boards must discontinue many of their district-wide low-income programs that previously received the benefit of Title I funding (5)(b), Fla. Stat. (2017) (requiring all remaining funds to be distributed directly to eligible schools instead of being used for district-wide purposes). HB 7069 Sharply Restricts Operational Control by School Boards. In addition to these three provisions removing much discretion over districtwide financial decisions, HB 7069 makes it more difficult, and sometimes virtually impossible, for local school boards to supervise charter schools in the same way it supervises the other schools in its jurisdiction. Thus, we turn next to the three challenged provisions of HB 7069 that remove operational discretion from local 8

15 school boards. HB 7069 takes away the ability of school boards to negotiate the charter contract governing the performance of the charter school, allows new charter schools to be established without any effective input from the school board, and limits the discretion of local school boards in improving the performance of low performing schools. The State Imposes Standard Contract Provisions. The primary way a school board operates, controls, and supervises the charter schools within its district is by setting performance standards in the charter school contract and then enforcing those standards. (R 43, ; 2663; ). Before the adoption of HB 7069, local school boards were heavily involved in setting these standards. Proposed charter schools submitted an application to the district school board, and if the board approved it, the local board and the applicant would then negotiate the terms, conditions, and performance expectations applicable to the school. (R ) (12)(i), Fla. Stat. (2016). These expectations would be memorialized in a written charter contract. (R 2637). HB 7069 amended section (7) to require district school boards to enter into a standard charter contract with charter school operators without regard to any special circumstances that may exist and without regard to the charter school s proposed educational program. Ch , 21 at 50, Laws of Fla. (Codified at (7) (R 2777). Any attempt by a school board to offer a term 9

16 or condition that differs from the standard charter shall be presumed a limitation on charter school flexibility and thus, illegal. Id. In effect, the job of setting performance standards applicable to local charter schools has been transferred from the local school boards to the State. Schools of Hope Provision Before HB 7069, with most would-be charter school operators had to apply to a local district school board (6), Fla. Stat. (2016). 2 And, as noted above, the would-be charter school had to negotiate a charter contract acceptable to the local school board (12(i), Fla. Stat. (2016). HB 7069 authorizes a new type of charter school that is not subject to these requirements, called a School of Hope. Ch , 43 at , Laws of Fla. (Creating , Fla. Stat. (2017) (R ). These Schools of Hope are virtually independent of local school boards. (R ). Specifically, HB 7069 significantly modified the application and approval process for new charters that offer to serve students from persistently lowperforming schools. (R ) (1)(c), Fla. Stat. (2017). Such Hope Operators, unlike typical charter schools, need not apply to the school board to open a school. Instead, they merely submit to the local board a notice of intent indicating their intention to open a School of Hope in proximity to the low- 2 A state university can be the sponsor of certain lab schools created under section , Fla. Stat. (2017). 10

17 performing school (4)(a), Fla. Stat. (2017). The local school board is then required to enter into a performance-based agreement within 60 days. This agreement is not negotiated by the district school board but is drafted by the FDOE (11)(b), Fla. Stat. (2017). If the local school board does not enter into such an agreement with the School of Hope, the State may enter into a charter school contract in the school board s place (33)(d), Fla. Stat. (2017). The State may also directly enter into an agreement with a School of Hope if a low-performing school has not improved sufficiently after three years. Id. In short, the decision to open these Schools of Hope has been transferred from the local boards to the State. The Turnaround Provision One of the most important tasks for a school board is to improve or turnaround low performing schools. Before the enactment of HB 7069, school boards had the option to fix such schools themselves. The law permitted the school boards to determine the best methods for accomplishing the turnaround based on particular problems facing that school and the values and resources of the local community (4)(b), Fla. Stat. (2016). As amended, this section now limits school boards to one of only three options in response to a low performing school (a school that has three consecutive school grades below a C ). The State can (1) reassign students to another school 11

18 and monitor their progress; (2) close the school and reopen it as one or more charter schools; or (3) contract with an outside entity that has demonstrated a record of effectiveness to operate the school. Ch , 41 at 94-96, Laws of Fla. (Codified at , Fla. Stat. (2017) (R ). The school board has no ability to continue its own turnaround plan, regardless of the progress it may be making, or to shift gears and develop a new plan if a new approach is needed. (R ). And these limitations are imposed uniformly, without regard to what success the school board may have had in turning around other low-performing schools in their district or whatever special circumstances may be causing the school to perform poorly. (R , ) (4)(b), Fla. Stat. (2017). In smaller districts with only one or a few schools, if these few schools are underperforming, this turnaround provision could effectively transfer control over all the schools in the district to charter operators, leaving virtually no role for the local school boards at all. (R 46, 543, , , 2667). And even in larger districts, the turnaround provision, much like the School of Hope provision, effectively results in new schools being established entirely outside of the usual application and approval process normally applicable to charter schools. The School Boards file this lawsuit. Concerned about the limitations on their powers contained in HB 7069, the School Boards filed this lawsuit in October 2017 challenging the constitutionality 12

19 of the six provisions discussed above both individually and collectively and seeking declaratory and injunctive relief. (R ). The lawsuit was based on several relevant provisions of the Florida Constitution setting forth the respective powers of the State and the local school boards over matters of education and educational funding and requiring a uniform system of public schools. (R 36-37, 40-41, 43-44, 46). The lawsuit alleges the improper transfer of operational control from local elected school boards to state employees, the establishment of a parallel (non-uniform) set of public schools without any effective input by local school boards, and the State s usurpation of the local school boards ad valorem taxation powers. (R 32-46). Improper Transfer of Operational Control The lawsuit first focuses on the State s intrusion into the power of local school boards to supervise local public schools. (R 32-38). The Florida Constitution requires the State to provide for the establishment and funding of a uniform system of public schools. Art. IX, 1(a). Thus, the State must make adequate provision for the education of all children residing within its borders by establishing a high quality system of public schools. Art. IX, 1(a), Fla. Const. But, once the State has established this system of public schools, the operation of those schools is placed in the hands of a school board composed of five or more members chosen by the vote of the electors.... This elected school 13

20 board shall operate, control and supervise all free public schools within the school district. Article IX, 4(a), Fla. Const. Put plainly, the School Board s lawsuit contends that HB 7069 s transfer of significant operational control to the State violates Article IX, section 4(a) because it transfers significant control, operation, and supervisory responsibilities from the local school districts to state employees in violation of previous rulings of this Court. (R 32-46). See Duval County School Board v. State Bd. of Educ. 998 So. 2d 641, 644 (Fla. 1st DCA 2008); Jones v. Braxton, 379 So. 2d 115, (Fla. 1st DCA 1979). Improper Creation of a Non-Uniform System of Public Schools. Because of the State s duty to provide a uniform system of public schools, Florida courts, including this Court have stricken legislative attempts to establish a separate school system using State monies that bypass the local school districts. Bush v. Holmes, 919 So. 2d 392 (Fla. 2006); Duval, 998 So. 2d at 644. Thus, the second concern of the School Board s complaint, focuses on whether HB 7069 impermissibly violates this uniformity requirement when it allows charter schools to be created with no material involvement by local school boards. (R 38-46). Improper State Levies of Ad Valorem Taxation The Florida Constitution prohibits any tax levied except in pursuance of law. Article VII, 1(a). Then, as to ad valorem taxes, the Constitution makes 14

21 clear that [n]o state ad valorem taxes shall be levied upon real estate or tangible personal property. Id. Relying on this clear reservation of the power of ad valorem taxation to local school boards, the School Board s complaint contends that the State s attempt to direct how school board capital millage dollars are spent constitutes an improper state ad valorem tax. (R 37-38). The parties presented these issues to the trial court on cross-motions for summary judgment. (R , , , ). In addition to its arguments on the merits, the State urged several other more technical issues, such as standing, exhaustion, and justiciability as a basis to dismiss the School Board s lawsuit. (R , , 3055, ). The trial court ultimately granted summary judgment to the State. (R ). It rejected the State s threshold technical defenses (R 4651), but ruled that HB 7069 did not improperly shift operational control to the State, did not violate the State s duty to provide a uniform system of public schools, and was not an improper attempt by the State to levy ad valorem taxation. (R ). The School Boards now appeal this adverse summary judgment order. (R 4668). 15

22 SUMMARY OF THE ARGUMENT The Florida Constitution delegates to local elected school boards the power to operate, control, and supervise local public schools. This delegation accords with the long tradition of local control over local schools by local elected officials. Six provisions of HB 7069 violate the Constitution and that long tradition by transferring significant control over local decisions to unelected state employees. Financial Control. Three of HB 7069 s provisions interfere with the local school boards power to make financial decisions in accordance with the local needs of the district. The Capital Millage provision mandates what funds must be paid to every charter school, regardless of its capital needs and regardless of the district s other needs. The LEA provision allows charter schools to compete with the school board for federal dollars. The Title I provision prevents local boards from funding district-wide programs that would benefit low income students. In each case, discretionary local decisions based on local knowledge and local needs have been usurped by arbitrary formulas and restrictions. This transfer of power is unconstitutional. A school board that cannot determine how to best spend its tax revenues no longer has the power to operate, control, and supervise its schools. Operational Control. Three other provisions transfer operational control from the local school boards to the State. The Charter Contract Provision effectively prevents the local school boards from exercising their primary power 16

23 over new charter schools setting the terms and conditions of the charter contract. The Schools of Hope provision allows charter schools to be opened without any meaningful local board involvement at all. The Turnaround provision prevents the local boards from deciding the best way to turn around a low-performing school. In each of these three cases, the local boards are reduced to little more than a rubber stamp role, a role that this Court has twice rejected as unconstitutional. Separate System of Public Schools. HB 7069 also violates the Constitution s command that the State establish a uniform system of free public schools. Both the Supreme Court and this Court have held that it is unconstitutional for the State to set up a separate set of public schools not subject to school board supervision. Allowing charter schools to be opened without local board approval, as is permitted by the Schools of Hope and Turnaround provisions, violates the Constitution in the same way. State Ad Valorem taxes. Finally, HB 7069 violates the Constitution s prohibition of state ad valorem taxes. The Capital Millage provision violates this prohibition by allowing the State, rather than local school boards, to make capital spending decisions. Even if such spending is considered to be for local purposes within the meaning of the authorities relied upon by the State and the trial court, this local spending is being supervised and mandated by the State, not by any local authority. No case permits the State to go so far. HB 7069 is unconstitutional. 17

24 ARGUMENT The Florida Constitution vests in local elected school boards the power and duty to operate, control and supervise the schools within their districts. Article IX, 4(a). Having been granted that constitutional power, local school boards have long exercised typical managerial authority over their schools. They determine when new schools are needed, decide when a school should be closed, supervise the construction of new schools, and determine how to best allocate the ad valorem tax and other revenues to the schools within their districts, including the spending of discretionary capital improvement dollars. They decide how to turn around underperforming schools within their district and supervise that turnaround. They control and supervise the hiring and firing of teachers, administrators, and other school personnel; and make the important day-to-day decisions necessary to ensure the efficient operation of the schools under their jurisdiction. Sometimes those operational and supervisory decisions impact charter schools, just as they impact every public school within the district. Second- guessing some of those decisions, the Florida Legislature passed HB 7069 with the intent of limiting the operational decision-making of local school boards, particularly as their decision-making may impact charter schools. But HB 7069 goes too far. As discussed in detail below, HB 7069 shackles, in significant ways, 18

25 the discretion of local elected officials. It prevents the boards from using their best judgment in allocating revenues to the schools in their district. It allows new schools to open without any meaningful input by the local boards. It limits how certain important federal tax dollars must be spent. It allows certain charter schools to compete with boards for federal money. It limits how local boards turn around low-performing schools and, in some cases, completely removes local schools from the control of their districts. In this brief, we demonstrate that these intrusions into the authority of locally elected school boards are unconstitutional. We begin in Section I with the standard of review and include a short discussion of the guiding principles governing the legal analysis. Applying these principles, we then demonstrate in Section II that all six provisions of HB 7069 challenged by the School Boards are a direct interference with the power to operate, control, and supervise granted to the local boards by the Constitution. In Section III we demonstrate that several of the provisions of HB 7069 also establish what amounts to a non-uniform, separate set of public schools not subject to school board control. Finally, in Section IV, we demonstrate that the State s exercise of control over the discretionary capital millage allotted to local schools is an improper attempt for the State to collect ad valorem taxes. Summary judgment must be reversed. 19

26 STANDARD OF REVIEW I. Standard of Review and Guiding Principles The trial court s ruling granting summary judgment to the State is reviewed de novo, giving no deference to the trial court s decision. Bush v. Homes, 919 So. 2d 392, (Fla. 2006); Florida Fish & Wildlife Conservation Comm n v. Caribbean Conservation Corp., 789 So. 2d 1053, 1054 (Fla. 1st DCA 2001) (whether a state statute is constitutional is a pure question of law subject to de novo review). Although the legislature has the discretion to resolve public policy issues, any deference given to the legislature is at all times circumscribed by the Constitution. Holmes, 919 So. 2d at 398. Thus, the Constitution must prevail over any enactment contrary to it regardless of how individual judges might resolve the competing policy choices. Id. Put another way, the Constitution always acts as a brake on legislative discretion. Id. at 406. As the Florida Supreme Court observed, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. Id. at 407 (quoting Weinberger v. Bd. of Pub. Instruction, 112 So. 253, 256 (1927)). These well-settled principles of constitutional review were last applied in a similar educational setting by the Florida Supreme Court in Holmes, which 20

27 provides an excellent framework of analysis for this case. In Holmes, as we discuss in more detail in Section III below, the issue was whether the legislature could use public monies to establish a system of private schools not supervised by local school boards. Before diving into the constitutional issue, the Supreme Court made clear that it understood the existence of a legitimate debate on the issue of school choice, a debate with reasonable policy arguments offered by strong proponents on both sides of the question. The question was not, however, the wisdom of the legislature s underlying policy choices, the narrow question was whether the particular solutions chosen by the legislature violated the clear constitutional limits on the State s powers. Id. at 398. Similarly, we acknowledge the existence of an ongoing debate about the proper role of charter schools in a system of public education. But this brief is not about whether charter schools are legal or even whether they are a good idea. Many charter schools are in operation around the state and the School Boards raise no challenge here to either their legality or wisdom. Nor is this case about whether charter schools need more support by the legislature to succeed. Instead, the narrow, but important, legal issue put to this Court is whether any of the six particular solutions chosen by the legislature to support and further the existence of charter schools run afoul of the constitutional direction that local schools be operated, controlled, and supervised by local elected officials. In other 21

28 words, the goals of the legislature in enacting HB 7069, whether noble or misguided, are irrelevant. What is relevant here is whether the means by which the legislature chose to accomplish those goals violate the Constitution. Id. at 398. As we demonstrate below, HB 7069 crosses clear constitutional lines. II. HB 7069 unconstitutionally intrudes on the elected school boards responsibility to operate, control, and supervise local schools. The heart of this dispute is interpreting two key constitutional provisions setting forth the relative powers of state administrators and local school boards in the conduct of public education. Article IX, sections 1 and 2, declare education to be a fundamental value and place upon the State the paramount duty to provide for a uniform and high quality system of free public schools. The State is then given the power to supervise that system of free public education. Art. IX, 2. In other words, the State has a duty to ensure that there is an adequately funded system of public schools and to supervise that system. The operational control of the local schools within that system, however, is placed firmly in the hands of locally-elected school boards. Article IX, section 4(a), declares that [t]he school board shall operate, control and supervise all free public schools within the school district. Significantly, nothing in Article IX suggests that this operational authority is subject to State second-guessing, except to the extent that the State has the power to provide for and supervise the overall system of free public schools. Art IX, 2 (emphasis supplied). 22

29 This decision to place local schools in the operational control of local elected officials is not surprising. Courts have recognized this long tradition of local control in public education. As the United States Supreme Court has observed, [n]o single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential to both the maintenance of community concern and support for public schools and to quality of the educational process. Milliken v. Bradley, 418 U.S. 717, (1974). Indeed, even as the past 100 years have seen more consolidation of power in the state and federal governments, local sharing of responsibility for public education has survived. Id. at 49. There is good reason for this. No government service offers a more direct connection with the citizenry than education. Citizens have strong feelings about how their local school districts should be operated and very much want to participate in important decisions impacting their school district. See Citizens for Strong Schools, Inc. v. Florida State Board of Education, 232 So. 3d 1163, 1166 (Fla. 1st DCA 2017) ( In a republican form of government founded on democratic rule, it must be the elected representatives and executives who make the difficult and profound decisions regarding how our children are to be educated ). Thus, [l]ocal control over the education of children allows citizens to participate in 23

30 decisionmaking and allows innovation so that school programs can fit local needs. Bd. of Educ. Of Okla. City Pub. Sch. v. Dowell, 498 U.S. 237, 248 (1991). This deference to local control recognizes that for education, one size truly does not fit all. What may work in Miami-Dade County may have little relevance to schools in Columbia or Hamilton County. A program that may work wonders in Orange, may simply not work in Duval. Thus, by vesting decisions in local officials immediately and directly responsible to the local electorate and held accountable in the local election process, the Florida Constitution assures that local citizens voices are heard in connection with the operation of their schools. As a practical matter, a voter in Hamilton or Bay County has little say over decisions made by state administrators in Tallahassee. But the right to participate as just one of a few hundred or few thousand electors in a local school board election puts the local voter front and center in setting local educational policy. In short, by vesting operational control in an elected school board, the Constitution places decisions over the education of local children in the hands of those most responsive to the needs of the local citizenry. These officials understand the needs of the local community, better understand how to serve its citizenry, and are immediately answerable to the electorate for their performance. This is not to say that the State has no role in the supervision of the educational system. The State must establish the statewide system of public 24

31 education and must ensure the adequacy of its funding. Art. IX, 1. But ensuring that every child in the State has access to a system of public education is a far different matter from control over the day-to-day operation of the system. Our simple point is that this operational control is constitutionally delegated to the local elected school boards. Thus, the State was wrong when it argued below that the Constitution places local school boards in a subordinate role to the State. (R ). Instead, the State and local school boards are constitutional equals playing different roles. We begin with the plain language of the relevant constitutional provisions. See, e.g., Brinkmann v. Francois, 184 So. 3d 504, 510 (Fla. 2016) (any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision s explicit language); Florida Dept. of Education v. Glasser, 622 So. 2d 944, (Fla. 1993) (applying the plain meaning of relevant State constitutional provision). Article IX, section 4 unequivocally reserves local management to the local board. There is nothing ambiguous or uncertain about the words operate, control, or supervise. See Brinkmann, 184 So. 3d at 510 ( when constitutional language is precise, its exact letter must be enforced ). The Constitution gives this power to local school boards, not the State. 25

32 Equally important, the Constitution says nothing about this operation, control, or supervision being subject to the State. The Constitution has no provision for the local boards to report to the State and has no provision suggesting that the State looks over the local board s shoulder to second-guess local decisions. There is no provision suggesting that the local board s powers are somehow delegated by the State. To suggest otherwise is to add words or phrases that simply are not there. Id. at 510 (judges must construe the Constitution as written). Had the framers intended a superior/subordinate relationship to exist between the State and local boards, the Constitution would have been drafted much differently. See Zingale v. Powell, 885 So. 2d 277, 282 (Fla. 2004) (court must construe a constitutional provision consistent with the intent of the framers). For example, the Constitution could easily have been drafted to declare that local school boards operate, control, and supervise school boards as commanded by the State. But no such provision exists. See id. Nor does the Constitution set the State up as the supervisor or overseer of school boards, except to the extent necessary to provide for, fund, and supervise the system of public education. Had the framers intended such a relationship, Article IX, section 4 would have stated that school boards supervise local schools subject to State supervision. Alternatively, Article IX, section 1 could have given the State the power to operate schools subject to any powers it chose to delegate by law to the school boards. 26

33 Instead the relevant constitutional provisions are clear and simple and must be applied as written. Sections 1 and 2 give the State a supervisory role over the system of public education, but section 4 gives local school boards operational control over the operation of the local schools within that system. See, e.g., Board of Public Instruction of Brevard County v. State Treasurer, 231 So. 2d 1, 4 (Fla. 1970) ( Subject to the power of the legislature to establish a Uniform system of free public schools the control of the free public schools in each district is vested in the local school board ); School Bd. v. Hillsborough County v. Tampa School Devel. Corp., 113 So. 3d 319, 324 (Fla. 2d DCA 2013) (local school boards must retain the right to operate, control, and supervise the provision of educational services to the students ); School Board of Palm Beach County v. Fla. Charter Educ. Found., Inc., 213 So. 3d 356, 360 (Fla. 4th DCA 2017) (the State supervises the system of free public education but cannot infringe upon the School Board s constitutional power to operate, control and supervise all free public schools ). This Court has twice addressed this issue and twice has forbidden state incursions into the power of local school boards. In Duval County School Board v. State Bd. of Educ., 998 So. 2d 641, 644 (Fla. 1st DCA 2008), this Court addressed a statute that set up an independent state-level entity with the power to authorize charter schools throughout the state without any approval by local school boards. Before the statute, only district school boards could authorize charter schools. This 27

34 Court agreed that the statute was unconstitutional because, in this important respect, the statute transferred the power to open a school from the local school board to the State. The statute improperly vested in the State, all the powers of operation, control and supervision of free public education specifically reserved in Article IX, section 4(b) of the Florida Constitution to local elected school boards. Id. at 643. Although the State had the power to supervise the system of public education, when it exercised that supervision in a way that effectively took operational control away from the local school boards, the State ran afoul of the Constitution. Id. As in Bush v. Holmes, this Court agreed that whether these new charter schools were a wise idea was beside the point. This Court declined to defer to the particular legislative solution chosen to support charter schools because it impermissibly intruded on the local school boards power to operate, control, and supervise the schools in their district. Id. at 644. This Court s holding in Duval was recently confirmed by the Florida Supreme Court in its recent decision addressing proposed Revision 8 to the Florida Constitution. Detzner v. League of Women Voters of Florida, 2018 WL at **5-6 (Fla. Oct. 15, 2018). Detzner addressed Revision 8, in which the Constitutional Revision Commission proposed a revision to Article I, Section 4 that would confine school districts to the operation, control, and supervision of 28

35 only schools established by the district, thus creating a system that could except charter schools from local school board control. Detzner, 2018 WL at **5-6. In its opinion, the Supreme Court recognized that Revision 8 was designed to overrule Duval, by restricting the right of school boards to operate, control, and supervise charter schools. Thus, in Detzner, the Supreme Court observed that, absent an amendment to the Constitution, Duval is good law under the Florida Constitution, only local school boards may control public schools. Id. at *6. Similarly, in Jones v. Braxton, 379 So. 2d 115, 118 (Fla. 1st DCA 1979), a group challenged the decision of a local school board not to build a new high school. Plaintiff argued that the board s hands were tied because the State had already approved an earlier decision of the board (prior to an election) to build the school. This Court disagreed using words that apply equally to this case: any argument that the discretion to build a new school was vested in the State and not local school boards, would do violence to the constitutional provision placing in the school boards control of all public schools. Id. Jones also highlights the parallel rather than subservient role of local school boards. The State, because of its power to supervise the system of public schools, has the power to adopt reasonable uniform regulations for the construction of public schools around the State. But the State may not force a board to build a particular local school. Id. Recognizing the value of local control, this Court 29

36 observed, the taxpayer s recourse is to the ballot box, not to the courts. Id. In other words, if the public disagrees with the decision of its school board to build or not to build, they can express that disapproval in the next election. Putting this decision in the hands of the State, in effect, removes that local decision from the local electorate entirely. Other courts around the State have agreed, emphasizing the important distinction between supervising a uniform system while leaving local day-to-day operations to the local boards. School Board of Volusia County v. Academies of Excellence, Inc., 974 So. 2d 1186 (Fla. 5th DCA 2008); Palm Beach, 213 So. 2d at 360. In these cases, the Fourth and Fifth Districts observed that the State could establish uniform standards governing the approval of a charter because such standards fit within the State s obligation to establish and supervise a uniform system. But this system level of supervision was found to be constitutional in these cases only because the State did not interfere with the local board s control over the terms and conditions under which a particular school would open. See also Hillsborough County, 113 So. 3d at 924 (observing the importance of reserving in the local school boards the right to operate, control, and supervise local schools). As we demonstrate below, HB 7069 is unconstitutional precisely because it limits the day-to-day control over local schools by local boards that the Constitution requires. 30

37 HB 7069 improperly transfers operational control to the State. HB 7069 intrudes on the school boards powers in the exact same way as the state commission stricken by the Court in Duval. To begin with, HB 7069 allows the State to open charter schools without any effective local school board input, exactly what this Court forbade in Duval, 998 So. 2d at 644. For example, the School of Hope provision allows a proposed charter school to open near a failing school without having to go through any application process with the local school board. The charter school simply files a notice, and the State basically takes over from there. Similarly, the turnaround provisions virtually require local school boards to hand over a low-performing school to a charter school or other third party without giving the school board the opportunity to fully pursue other remedies within the traditional school structure. In effect, as to both the Schools of Hope and turnaround provisions of HB 7069, the State is opening charter schools without any decision by the local school board at all. This is unconstitutional because it presents a total and fatal conflict with article IX, section 4 of the Florida Constitution. Id. See Detzner, at *5 (approving Duval s holding that only district school boards [can] authorize charter schools ). The State will likely respond that that this transfer of power is not unconstitutional because the local school board still has the right to negotiate the charter and set the operating terms and conditions of the new school. But the 31