On appeal, Florida’s education adequacy lawsuit still targets school choice

The plaintiffs in a wide-ranging lawsuit challenging vast swaths of Florida’s education policy have returned to press their case in appellate court.

Earlier this year, a trial court dismissed the “adequacy” lawsuit, a seven-year-old case arguing the state underfunded public schools and challenging 20 years of education reforms. Among other things, Leon Circuit Court Judge George Reynolds held the state of education in Florida was improving, achievement gaps were closing, and problems that remain didn’t constitute a constitutional crisis that would trigger a judicial mandate.

The plaintiffs take issue with that ruling before the First District Court of Appeal. In new court filings, accepted late last week, they contend Florida courts should follow their counterparts in states like Washington and Connecticut, where judges have recently issued major rebukes on education funding and policy – and tangled with policymakers over potential remedies.

The new briefs no longer reference issues like pre-K, charter schools or teacher evaluations that surfaced when the case expanded to challenge a broader set of policies in 2014.

But the case still veers into the realm of school choice, taking direct aim at the nation’s largest school voucher program for children with special needs.

Arguments on special needs vouchers

Last school year, Florida’s McKay scholarship program helped more than 30,000 children with special needs pay private school tuition. The plaintiffs argue it’s unconstitutional “for all the same reasons” the Florida Supreme Court struck down another voucher program in 2006.

Like the Opportunity Scholarship Program ruled unconstitutional in Bush v. Holmes, the plaintiffs argue, McKay scholarships are funded directly out of the state treasury and the private schools that children attend aren’t subject to the same regulations as traditional public schools.

But the Supreme Court majority in Holmes specifically wrote that they might reach different legal conclusions on other programs — including district programs that place special needs children in private schools. “The effect of our decision on those programs would be mere speculation,” they wrote.

Dick Komer is an attorney at the Institute for Justice, which joined the adequacy suit to protect the interests of scholarships families. He said McKay scholarships are different from the earlier voucher program.

“They are aimed at different populations, and they serve different purposes,” he said. In a practice that predated McKay scholarships, districts would sometimes cover tuition for special needs students with special needs who might be better served in private schools. If that’s permissible, he asked, “Why shouldn’t the parents be able to place their kids in private schools?”

The plaintiffs, however, argue McKay “allows placement in private schools outside of any determinations of whether the private school is appropriate or provides individualized educational services.” That, they argue, means it violates the “uniformity” requirement in the state constitution.

Tax credit scholarships in the mix?

Earlier this year, the appeals court dismissed a standalone lawsuit challenging a separate school choice program — Florida tax credit scholarships — after finding that the statewide teachers union and other groups behind that case did not have legal standing.

The statewide teachers union and other groups are now asking the Florida Supreme Court to hear an appeal in that case.

The tax credit scholarship program serves more than 94,000 mostly low-income students this year. Step Up For Students, which publishes this blog and pays my salary, helps administer it.

The adequacy plaintiffs say they don’t plan to litigate the tax credit program for the time being, since the appeals court already decided that issue, but they intend to “preserve” that portion of their case for future arguments.

Interpreting the Florida constitution

The heart of the case deals with changes to the state constitution, approved by voters in 1998 after a constitutional revision process that happens in Florida every 20 years, and will soon happen again.

After an earlier education adequacy lawsuit fizzled, the Constitution Revision Commission drafted new standards that made education a “paramount duty” of the state and required it to provide a “uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.”

States typically have a clause in their constitution setting requirements for public education. But the adequacy plaintiffs argue the revisions made Florida’s unique. It’s now “the only one in the country that: mandates a high quality education; specifies characteristics of the education system; and elevates education above other government functions. This unique combination was drafted intentionally to contain specific definable ‘standards by which to measure the adequacy of the public school education provided by the state,'” they write.

The trial court looked at the state of public education in Florida, found it was improving, and concluded there was a “rational basis” for the state’s school improvement policies.

The plaintiffs, however, argue courts need to dig deeper into systemic inequities, and issue an opinion that “measures the acts of the legislative and executive branches against the yardstick of Article IX [the state’s education clause].”

“A system that tolerates complacency with persistently low-performing schools is not high quality,” they argue. “Persistently low-performing schools almost always serve children in poverty and minority students, i.e., the State is systematically failing to allow all children the opportunity to obtain a high quality education.”

In its defense during the first round of the lawsuit, the state’s legal team contended the case deals with “political” questions that should be resolved in the policy arena, and that local school boards — which share a responsibility for educating the state’s children and have some authority to raise taxes for education — should be among the defendants in the case. The trial court largely agreed; the plaintiffs do not.

But the case, originally filed in 2009, was allowed to proceed after an extraordinary 2011 decision involving all 15 judges on the First District Court of Appeal, which broke 7-7-1. As a result, Komer said, the exact role of the courts in deciding whether the state has lived up to its constitutional duty to support public education is still far from clear-cut.

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