The lawsuit could attack several provisions intended to boost charter schools, but the wide-ranging law has what’s known as a “severability clause.” That means if one part of the law is found unconstitutional, other parts will survive.
But one aspect of the lawsuit could try to invalidate the 274-page law in its entirety. A legal memo reviewed by the Broward County School Board before it voted to approve the lawsuit contends the law might violate a rule in the state constitution that says laws can only address one subject.
The case still hasn’t been filed, so the exact legal arguments against the law could change. Still, a single-subject challenge could create uncertainty for every provision of the new law, from the $30 million appropriation that funds Gardiner Scholarships for children with special needs* to new statewide recess requirements.
This wouldn’t be the first time a major school choice law faced such a lawsuit. In 2014, the statewide teachers union tried to challenge a wide-ranging law that, among other things, created the Gardiner Scholarship program. The lawsuit ultimately failed after a judge ruled the union didn’t have legal standing to bring the case.
The Broward memo also outlines other legal arguments taking aim at provisions supporting charter schools:
- The law creates a “parallel system” of public schools because Schools of Hope would bypass the normal application process for public charter schools. The memo contends that runs afoul of the Florida Supreme Court’s ruling in Bush v. Holmes, which struck down a voucher program created under Gov. Jeb Bush.
- The new law standardizes charter school contracts, reducing districts’ ability to “operate, control and supervise” all the public schools within their boundaries as they see fit. That language comes from the state constitution — specifically, the part the that was decisive in Holmes.
- Allowing charter schools to function as their own local education agencies could elevate them to district-like status. Again, the memo asserts, that could violate the constitutional provision at the heart of Holmes.
- The new law requires districts to share revenue with charter schools. The memo argues this might violate a different part of the state constitution, which bars local governments using their taxing power to “aid any corporation, association, partnership or person.”
In short, the case could center on three big constitutional issues:
- The Holmes case, which limits publicly funded education options outside the control of local school districts. House Speaker Richard Corcoran and other school choice advocates have criticized that ruling.
- Districts’ authority to regulate charter schools. This long-simmering issue has come up in other legal disputes, including some that never materialized.
- The Legislature’s authority to make laws at it sees fit. Does the “single subject” rule allow them to pass a number of education-related issues in a single bill dealing with a broad subject like “education?”
Other school districts say they’re weighing whether to join the Broward suit. The details of this case will matter a lot, so we’ll be watching as they take shape.
*Step Up For Students, which publishes this blog, helps administer the Gardiner Scholarship program.