Citizens for Strong Schools, Inc. v. Florida State Board of Education

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CITIZENS FOR STRONG NOT FINAL UNTIL TIME EXPIRES TO
SCHOOLS, INC., FUND FILE MOTION FOR REHEARING AND
EDUCATION NOW, INC., DISPOSITION THEREOF IF FILED
EUNICE BARNUM, JANIYAH
WILLIAMS, JACQUE CASE NO. 1D16-2862
WILLIAMS, SHEILA
ANDREWS, ROSE NOGUERAS,
and ALFREDO NOGUERAS,
Appellants,
v.
FLORIDA STATE BOARD OF
EDUCATION; ANDY
GARDINER, in his official
capacity as the Florida Senate
President; STEVE CRISAFULLI,
in his official capacity as the
Florida Speaker of the House of
Representatives; and PAM
STEWART, in her official
capacity as Florida Commissioner
of Education,
Appellees,
and
CELESTE JOHNSON;
DEAUNDRICE KITCHEN;
KENIA PALACIOS; MARGOT
LOGAN; KAREN TOLBERT; and
MARIAN KLINGER,
Intervenors/Appellees.
_____________________________/
Opinion filed December 13, 2017.
An appeal from the Circuit Court for Leon County.
George S. Reynolds, Judge.
Jodi Siegel and Kirsten Anderson of Southern Legal Counsel, Inc., Gainesville;
Timothy McLendon, Gainesville; Deborah Cupples, Gainesville; Eric J. Lindstrom
of Egan, Lev & Siwica, P.A., Gainesville; Neil Chonin, Gainesville, for
Appellants.
Robert M. Brochin and Clay M. Carlton of Morgan, Lewis & Bockius LLP,
Miami, for Amicus Curiae Certain Commissioners of 1998 Constitution Revision
Commission.
Dena H. Sokolow, Renee Meenach Decker and Angelica M. Fiorentino of Baker,
Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, for Amicus Curiae
National Law Center on Homelessness & Poverty, and Amicus Curiae Bassuk
Center on Homeless and Vulnerable Children and Youth.
Sarah R. Sullivan, Jacksonville, for Amicus Curiae Disability and Public Benefits
Clinic, Florida Coastal School of Law.
Kele Stewart, Coral Gables, for Amicus Curiae University of Miami School of
Law Children Youth Law Clinic.
Pamela Jo Bondi, Attorney General, Jonathan A. Glogau, Chief, Complex
Litigation, Tallahassee; Dawn Roberts, General Counsel, and Christie M. Letarte,
Deputy General Counsel, The Florida Senate, Tallahassee; Adam S. Tanenbaum,
General Counsel, Florida House of Representatives, Tallahassee, for the Florida
House of Representatives and Steve Crisafulli in his official capacity as the
Speaker of the Florida House of Representatives; Judy Bone, General Counsel,
Matthew H. Mears and Mari M. Presley, Assistant General Counsels, Department
of Education, Tallahassee; Rocco E. Testani, Stacey M. Mohr and Lee A. Peifer of
Sutherland Asbill & Brennan LLP, Atlanta, pro hac vice, for Appellees.
George N. Meros, Jr., of GrayRobinson, P.A., Tallahassee; Carl Nichols, Daniel P.
Kearney, Jr. and Kevin Gallagher of Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C., for Amicus Curiae Foundation for Excellence in Education.
2
Ari S. Bargil, Institute for Justice, Miami; Richard Komer, Institute for Justice,
Arlington, VA, pro hac vice; and Timothy D. Keller, Institute for Justice, Tempe,
AZ, pro hac vice, for Intervenors/Appellees Institute for Justice.
B.L. THOMAS, C.J.
Eight years ago, Appellants initiated a legal challenge to Florida’s public
school system, asserting that the State’s entire K-12 public education system –
which includes 67 school districts, approximately 2.7 million students, 170,000
teachers, 150,000 staff members, and 4,000 schools – is in violation of the Florida
Constitution. Appellants sued the Florida State Board of Education, the President
of the Florida Senate, the Speaker of the Florida House of Representatives and the
Florida Commissioner of Education seeking a declaration that the State violated its
“paramount duty” to provide a “uniform, efficient . . . and high quality system of
free public schools that allows students to obtain a high quality education,” as
required by Article IX, section 1(a) of the Florida Constitution. Appellants sought
declaratory and supplemental relief below, including: a demand that the State
submit a remedial plan for the alleged constitutional deficiencies; a demand that
relevant studies be conducted for necessary actions; and that the trial court retain
jurisdiction to provide any further appropriate legal relief.
3
We affirm the trial court’s ruling denying relief on the basis that Appellants’
arguments regarding the State’s duty to make adequate provision for an efficient
and high quality education raise political questions not subject to judicial review,
because the relevant constitutional text does not contain judicially discoverable
standards by which a court can decide whether the State has complied with organic
law. Furthermore, the strict separation of powers embedded in Florida’s organic
law requires judicial deference to the legislative and executive branches to adopt
and execute educational policies those branches deem necessary and appropriate to
enable students to obtain a “high quality” education, as directed by the Florida
Constitution. There is no language or authority in Article IX, section 1(a) that
would empower judges to order the enactment of educational policies regarding
teaching methods and accountability, the appropriate funding of public schools, the
proper allowance of charter schools and school choice, the best methods of student
accountability and school accountability, and related funding priorities.
The most effective manner in which to teach students science, mathematics,
history, language, culture, classics, economics, trade skills, poetry, literature and
civic virtue have been debated since at least the time of ancient Greece. Brilliant
philosophers, thinkers, writers, poets and teachers over the past twenty-five
centuries have dedicated their talents to identifying the best means of providing a
proper education to help each child reach his or her highest potential in a just
4
society. 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. Absent specific and clear
direction to the contrary in the supreme organic law, which does not exist in
Article IX, section 1(a) of the Florida Constitution, we uphold the trial court’s
correct ruling that such decisions are not subject to judicial oversight or
interference.
We also affirm the trial court’s ruling rejecting Appellant’s arguments
challenging the State’s constitutional compliance with its duty to provide a
“uniform” education. We agree that the John M. McKay Scholarship Program for
Students with Disabilities – which affects only 30,000 students and does not
materially impact the K-12 public school system – provides a benefit to help
disabled students obtain a high quality education. Thus, the McKay Scholarship
Program does not violate Article IX, section 1(a) of the Florida Constitution.
Background and Procedural History
In 2009, Appellants filed suit challenging the State’s education policies as
invalid under Article IX, section 1(a) of the Florida Constitution. Appellees
moved to dismiss, asserting in part that the allegations raised political questions not
subject to judicial review, and the motion was denied. Appellees then sought a
writ of prohibition in this court, asserting that the claims were not justiciable, as
5
they raised political questions. Sitting en banc, this court voted 7-1-7 to deny the
petition for writ of prohibition and allowed the litigation to continue in the trial
court. Haridopolos v. Citizens for Strong Schools Inc., 81 So. 3d 465, 467 (Fla. 1st
DCA 2011) (en banc). The en banc court certified as an issue of great public
importance the following question:
Does Article IX, section 1(a), Florida Constitution, set forth judicially
ascertainable standards that can be used to determine the adequacy,
efficiency, safety, security, and high quality of public education on a
statewide basis, so as to permit a court to decide claims for
declaratory judgment (and supplemental relief) alleging
noncompliance with Article IX, section 1(a) of the Florida
Constitution?
Id. at 473. The dissenting judges would have granted the writ, based on the
separation of powers requirement of Article II, section 3 of the Florida Constitution
and the political question doctrine. Id. at 480-81 (Roberts, J., dissenting). The
Florida Supreme Court declined to accept jurisdiction to consider the certified
question. Haridopolos v. Citizens for Strong Schools Inc., 103 So. 3d 140 (Fla.
2012) (unpublished table decision).
Appellants then filed a second amended complaint, alleging that the State’s
legislative and executive branches had violated their “paramount duty” to provide a
“uniform, efficient . . . and high quality system of free public schools that allows
students to obtain a high quality education” under Article IX, section 1(a), in
several respects: (1) the State failed to make “adequate provision” for a system of
6
free public schools, because the overall level of funding for education is deficient;
(2) the State failed to administer a “uniform” system of education, because two
school choice programs, the Florida Tax Credit Scholarship Program and the John
M. McKay Scholarship Program for Students with Disabilities (the McKay
Scholarship Program), divert public funds to private schools not subject to the
same requirements as public schools; 1 (3) the State failed to provide an “efficient”
education system, because the accountability methods utilized by the State are
ineffective and because charter schools are mismanaged; (4) the State failed to
provide a “high quality” education system because schools provide insufficient
services and coursework and have an insufficient number of highly qualified
teachers and support staff; and (5) the public school system did not allow students
to obtain a high quality education, based on various assessments. 2
After extensive pre-trial discovery, a four-week bench trial was conducted
by the successor circuit judge, in which more than forty witnesses testified and
over 5,300 exhibits were submitted. The court made comprehensive findings on a
1
The trial court allowed six parents interested in the Florida Tax Credit
Scholarship Program and the McKay Scholarship Program to intervene in the
proceedings. The trial court later granted their motion for judgment on the
pleadings as to the Florida Tax Credit Scholarship Program, finding that
Appellants lacked standing to challenge that program.
2
The second amended complaint also added a claim relating to the State’s pre-
kindergarten program. The trial court severed that claim, and it is not at issue in
this appeal.
7
broad range of subjects, including: the structure of Florida’s education system; the
various policies and programs implemented by the State to achieve its educational
goals; the funding allocated for these programs; and student performance – overall
and by various demographics – under state and national assessments and other
measures. Ultimately, however, the trial court found all of the issues raised by
Appellants regarding educational adequacy, efficiency, and quality were properly
considered “political questions best resolved in the political arena,” as the organic
law did not provide judicially manageable standards by which to measure the
State’s actions in enacting and implementing educational policies, as the dissenting
judges on this court concluded in 2011. 3
The trial court nevertheless addressed Appellants’ arguments on the merits,
concluding that the State had made significant efforts and advances in education,
leading to sustained improvement on outcomes for Florida students:
[T]he State has made education a top priority both in terms of
implementation of research-based education policies and reforms, as
well as education funding. The State has an accountability and
assessment system that is rated among the best in the nation . . . . The
State has also adopted rigorous teacher certification, training and
3
As to “safe” and “secure,” the trial court ruled that these terms are subject to
judicially manageable standards, but that Appellants had withdrawn any challenge
to the safety or security of the public school system before trial. The court found
that these issues were nonetheless tried with regard to the adequacy of funding to
meet repair and maintenance needs, but that the evidence submitted did not
demonstrate insufficient funding for these needs. As we hold that the overarching
question of adequacy is not justiciable, we do not opine on the trial court’s
conclusion in this regard.
8
evaluation standards, resulting in over 94% of courses being taught by
teachers who are ‘highly qualified’ under federal standards.
In addition, the court found that in the last two decades, “K-12 education has been
the single largest component of the state general revenue budget. . . . [E]ducation
funding has outpaced inflation.” The court further found that Florida’s high school
graduation rate has dramatically improved, “with more students of all racial, ethnic
and socioeconomic backgrounds graduating than ever before,” and that “Florida
students have substantially improved their performance on the National
Assessment of Education Progress . . . a testing program required by federal and
state law [and] . . . Florida is now among the highest scoring states in the nation.”
The trial court thus ruled that Appellants had failed to demonstrate beyond a
reasonable doubt that the State’s education policies and funding were not rationally
related to fulfilling its constitutional duty under Article IX, section 1(a) of the
Florida Constitution. As to Appellants’ challenge to the McKay Scholarship
Program, the court concluded the evidence did not support their allegations that the
program violated the uniformity requirements of Article IX, section 1(a).
Analysis
Appellants argue that the issues raised do not present a political question,
and additionally, that the trial court applied the wrong standard to determine
whether the State had complied with Article IX, section 1(a) of the Florida
Constitution. Thus, Appellants would have the judicial branch determine:
9
1) Whether the other two branches of state government have made adequate
provision for the public school system; (2) whether the system is uniform,
efficient, and of high quality; and (3) whether the system allows students to obtain
a high quality education. We agree with the trial court that the terms “adequate,”
“efficient,” and “high quality” as used in Article IX, section 1(a) lack judicially
discoverable or manageable standards that would allow for meaningful judicial
interpretation, and that an attempt to evaluate the political branches’ compliance
with the organic law would constitute a violation of Florida’s strict requirement of
the separation of powers. We therefore affirm the trial court’s determination that
these issues are non-justiciable, as discussed below.
The concept of a political question as nonjusticiable was comprehensively
defined by the United States Supreme Court in Baker v. Carr, 369 U.S. 186
(1962), and adopted in Coalition for Adequacy and Fairness in School Funding,
Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996). In Baker, the United States
Supreme Court discussed the political-question doctrine at length, including its
jurisprudential foundation, logic, and analysis: “We have said that ‘In determining
whether a question falls within (the political question) category, the
appropriateness under our system of government of attributing finality to the action
of the political departments and also the lack of satisfactory criteria for a judicial
determination are dominant considerations.’” 369 U.S. at 211 (emphasis added)
10
(quoting Coleman v. Miller, 307 U.S. 433, 454-455 (1939)). There could be no
more relevant standard applicable here than the importance of finality, in a case
consuming almost a decade of litigation and demonstrating the lack of finality
inherent in an attempt to litigate such a complex political dispute. The demand for
finality in complex public-policy questions is obvious, as legislative and executive
decisions involving billions of dollars and multiple demographic, fiscal and
logistical factors must be promptly implemented and then consistently reevaluated.
Such a process is clearly not compatible with extensive civil litigation that
consumes years in the court system, unlike political decisions, which in Florida are
made in an annual 60-day legislative session, during and after which the governor
can veto or acquiesce in those decisions and then execute them in the next fiscal
year. Finality is inextricably intertwined with the perspective that such profound
questions – such as those involved in adopting and executing education policies for
millions of K-12 students – must necessarily be performed exclusively within the
political branches, which by their nature are far more responsive and prompt to
address the needs of parents and students than the courts could ever be.
The second “dominant consideration” cited by the United States Supreme
Court in deciding whether a case involves an inherently political question is the
“lack of satisfactory criteria.” Id. This is linked to finality, because the lack of
specificity in an operative legal text lends itself to endless litigation over the
11
meaning of subjective and undefined phrases that might function to give guidance
to political decision makers as laudable goals, but cannot guide judges in deciding
whether a state or local government has in fact complied with the text. Without
“satisfactory criteria” to channel discretion in judicial rulings, litigation involving a
subjective advisory guideline invites arbitrary and capricious judicial actions which
improperly invade the spheres of action of the political branches.
In Baker, the Supreme Court provided various “formulations” to be used in
deciding whether a case raised a political question not subject to judicial review,
stating that “each has one or more elements which identify it as essentially a
function of the separation of powers.” Id. at 217 (emphasis added). As analyzed
below, Florida requires a strict separation of powers under Article II, section 3 of
its organic law. The Court then repeated its view that the lack of objectively
ascertainable standards was “prominent” in finding a legal claim to be
nonjusticiable, but the court also ruled that “a textually demonstrable constitutional
commitment of the issue to a coordinate political department” would constitute
strong evidence that the issue was not to be decided by the courts, but instead by
another branch of government. Id.
In Coalition, a case involving the previous iteration of Article IX, section 1,
the Florida Supreme Court addressed arguments similar to those raised here, that
“the State has failed to provide its students [the] fundamental right” of an adequate
12
education.” 680 So. 2d at 402. In support of their argument, the plaintiffs alleged
that students were not receiving adequate programs “to permit them to gain
proficiency in the English language,” that poor students were “not receiving
adequate education for their greater educational needs,” that special-needs students
and gifted students were “not receiving adequate special programs,” that students
in “property-poor counties” were not receiving “an adequate education,” that the
legislature had not provided adequate capital outlay funds for schools, and that
local school districts were “unable to perform their constitutional duties because of
the legislative imposition of noneducational and quasi-educational burdens.” Id.
In essence, the supreme court faced a blanket challenge to the adequacy of the
education system under a prior version of Article IX, section 1.4 Id. at 406.
Applying the criteria in Baker, the supreme court determined that
“adequacy” was a non-justiciable political question, because the phrase “by law”
suggested the issue was committed to the legislature and because – unlike
“uniform” – “‘adequacy’ simply does not have such straightforward content.” Id.
at 408. While the supreme court declined to hold that an adequacy challenge to the
education system could never succeed, it concluded that the Coalition plaintiffs
4
At the time of the Coalition decision, Article IX, section 1, stated: “Adequate
provision shall be made by law for a uniform system of free public schools and for
the establishment, maintenance and operation of institutions of higher learning and
other public education programs that the needs of the people may require.”
Art. IX, § 1, Fla. Const. (1996).
13
failed to demonstrate any manageable standards that could be applied without “a
substantial risk of judicial intrusion into the powers and responsibilities assigned to
the legislature.” Id.
Following that decision, the 1997-1998 Constitution Revision Commission
proposed, and the voters adopted, an amendment to the education provision, which
now states:
The education of children is a fundamental value of the people of the
State of Florida. It is, therefore, a paramount duty of the state to make
adequate provision for the education of all children residing within its
borders. Adequate provision shall be made by law for a uniform,
efficient, safe, secure, and high quality system of free public schools
that allows students to obtain a high quality education . . . .
Art. IX, §1(a), Fla. Const.
We agree with the trial court that the terms “efficient” and “high quality” are
no more susceptible to judicial interpretation than “adequate” was under the prior
version of the education provision, and to define these terms would require “an
initial policy determination of a kind clearly for nonjudicial discretion.” Baker,
369 U.S. at 217; see also Coalition, 670 So. 2d at 408. Our conclusion is further
supported by Florida’s strict separation of powers doctrine and by the language of
the amended constitutional article itself, which continues to commit the duty to
achieve these aspirational goals to the legislative and executive branches of
government.
Turning first to the separation of powers, the Florida Constitution imposes a
14
“strict” separation of powers requirement that applies just as vigorously to the
judicial branch as it does to the other two branches of government. State v. Cotton,
769 So. 2d 345 (Fla. 2000). In Cotton, the supreme court rejected the argument
that the Prison Releasee Reoffender Punishment Act violated the separation of
powers provision of Article II, section 3 of the Florida Constitution, holding that
because substantive sentencing laws and prosecutorial discretion were vested in the
legislative and executive branches respectively, the law imposing mandatory
sentences based solely on prosecutorial discretion did not interfere with judicial
power. Id. at 349-54. In explaining its rationale, the supreme court disagreed with
the single dissenting opinion, which relied on New Jersey law that permitted
judicial oversight of the executive function of prosecutorial discretion. Id. at 352-
54. In rejecting the dissenting opinion’s view, the majority in Cotton noted that
Florida’s organic law imposes a “strict” separation of powers between the branches
of government:
This Court, on the other hand, in construing the Florida
Constitution, has traditionally applied a strict separation
of powers doctrine. Cf. Avatar Dev. Corp. v. State, 723
So. 2d 199, 201 (Fla. 1998) (recognizing, in the context
of a nondelegation analysis, that “[a]rticle II, section 3
declares a strict separation of the three branches of
government and that: “No person belonging to one
branch shall exercise any powers appertaining to either of
the other two branches”(emphasis supplied)). In applying
a strict separation of powers doctrine (as the Florida
Constitution requires), rather than a doctrine effecting the
“dispersal of decisional responsibility in the exercise of
15
each power” (as the New Jersey constitution apparently
requires), this Court is compelled to reach a different
result. If we were to apply the New Jersey “dispersal of
decisional responsibility” concept here, we would be
deviating from well-established principles of Florida law,
which would have impact far beyond matters relating to
prosecutorial decisions.
Id. at 353-54 (second emphasis added) (quoting State v. Lagares, 601 A.2d 698
(1992)).
A strict separation of powers supports the foundation and logic of the
political-question doctrine, in that Florida’s organic law does not permit a
“dispersal of decisional responsibility” which would allow the courts to dictate
educational policy choices and their implementation to the other two branches of
government, absent specific authorization by law. Id. Absent explicit
constitutional authority to the contrary, the legislative and executive branches
possess exclusive jurisdiction in such matters, as the legislative branch has sole
power to appropriate and enact substantive policy, and the executive branch has the
sole power to faithfully execute the substantive policies and budgetary
appropriations enacted by the legislative branch. The judiciary cannot dictate the
manner of executing legislative policies or appropriations in any particular way.
See Art. II, § 3, Fla. Const. (“No person belonging to one branch shall exercise any
powers appertaining to either of the other branches unless expressly provided
herein.”); Art. V, § 14(d), Fla. Const. (“The judiciary shall have no power to fix
16
appropriations.”).
To agree with Appellants would entangle courts in the details and execution
of educational policies and related appropriations, involving millions of students
and billions of dollars, in an arena in which the courts possess no special
competence or specific constitutional authority. Further, the drafters of Article IX,
section 1(a) declined to allocate such a role to the judiciary. Quite the opposite, the
language of Article IX, section 1(a) assigns such matters to the legislative branch,
stating that “adequate provision shall be made by law.” Art. IX, § 1(a), Fla. Const.
(emphasis added). The fact that this language remains in the education amendment
after Coalition demonstrates that the constitution continues to commit education
policy determinations to the legislative and executive branches. See Coalition, 670
So. 2d at 408.
Further, as the trial court recognized here, the lack of any definitive
consensus regarding education policies and programs demonstrates the political
nature of Appellants’ assertions. While “adequate,” “efficient,” and “high quality”
represent worthy political aspirations, they fail to provide the courts with
sufficiently objective criteria by which to measure the performance of our co-equal
governmental branches. Rather, it is the political branches that must give meaning
to these terms in accordance with the policy views of their constituents. For these
reasons, Appellants failed to demonstrate any meaningful standards under which
17
the courts could find that the State has violated its constitutional duties regarding
the adequacy, efficiency and quality of the public school system. 5
Looking to a similar case in another state, we agree with the conclusion of
the Pennsylvania Supreme Court that it would be contrary to the very essence of
our constitution’s educational aspirations for the courts to “‘bind future
Legislatures . . . to a present judicial view’” of adequacy, efficiency, and quality.
Marrero ex rel. Tabalas v. Commonwealth of Penn., 739 A.2d 110, 112 (1999)
(quoting Danson v. Casey, 399 A.2d 360, 366-67 (1979)); see also Bonner ex rel.
Bonner v. Daniels, 907 N.E.2d 516, 522 (Ind. 2009) (denying declaratory relief
because the determination of quality “is delegated to . . . sound legislative
discretion”). And although we recognize that courts in other states have sometimes
purported to define “adequate,” “efficient,” “high quality,” and similar terms in
response to challenges to their own public school systems, see, e.g., Connecticut
Coalition for Justice in Education Funding, Inc. v. Rell, 990 A.2d 206 (2010)
5
As to the trial court’s additional finding that, even if the issue is not a political
question assigned solely to the political branches, Appellants failed to meet their
burden to prove “beyond a reasonable doubt that the State’s education policies and
funding system were not rationally related to the provision ‘by law’ for a ‘uniform,
efficient, safe, secure, and high quality system of free public schools that allows
students to obtain a high quality education,” Appellants contend the trial court
applied an overly stringent standard. Appellants urge this court to hold that a
lower burden of proof and standard for evaluating the constitutionality of the
State’s actions should apply in this case and in all cases challenging the State’s
compliance with its obligations under Article IX of the Florida Constitution. We
decline to do so, based on our holding that these claims are not justiciable.
18
(concluding the state did not provide “suitable” educational opportunities);
Columbia Falls Elementary School District No. 6 v. State, 109 P.3d 257 (Mont.
2005) (holding that funding for education was inadequate and that determination of
“quality” education was justiciable, but deferring to state legislature to provide
threshold definition of “quality”); Rose v. Council for Better Education, Inc., 790
S.W.2d 186 (Ky. 1989) (concluding that the legislative branch failed to comply
with the constitutional requirement of providing an “efficient system of common
schools”), we respectfully disagree with those decisions as insufficiently
deferential to the fundamental principle of separation of powers imposed on
Florida’s judiciary and the practical reality that educational policies and goals must
evolve to meet ever changing public conditions, which is precisely why only the
legislative and executive branches are assigned such power. The New Jersey
Supreme Court, for example, while concluding that the legislature failed to comply
with its constitutional requirement of a “thorough and efficient” system of free
public schools, observed that “what a thorough and efficient education consists of
is a continually changing concept.” Abbot v. Burke, 575 A.2d 359, 367 (N.J. 1990)
(emphasis added). That court further acknowledged the “radical interference with
the legislative power” involved in determining that the educational system
provided in New Jersey was constitutionally deficient. Id. at 376. As noted by our
supreme court in Cotton, Florida law is much more protective of the separation of
19
powers principle than is New Jersey law. Like the Florida Supreme Court noted in
Coalition, although “the views of other courts are always helpful, we conclude that
the dispute here must be resolved on the basis of Florida constitutional law[.]” 680
So. 2d at 404-05.
With respect to a “uniform” system of public schools, Appellants alleged in
their second amended complaint that two of Florida’s school choice programs, the
Florida Tax Credit Scholarship Program and the McKay Scholarship Program,
violate this requirement. Unlike the terms adequate, efficient and high quality, the
Florida Supreme Court has interpreted the term “uniform” under Article IX in the
context of school choice programs. See Bush v. Holmes, 919 So. 2d 392 (Fla.
2006). As Appellants properly concede, however, the trial court’s ruling that they
lack standing to challenge the Florida Tax Credit Scholarship Program is
controlled by this court’s opinion in McCall v. Scott, 199 So. 3d 359 (Fla. 1st DCA
2016) (holding that appellant parents and teachers lacked taxpayer standing to
challenge the Florida Tax Credit Scholarship Program, because it did not violate a
specific limitation on the legislature’s taxing and spending power, nor did it
involve a disbursement from the public treasury). Therefore, the sole uniformity
claim on appeal relates to the McKay Scholarship Program.
Appellants argue that the McKay Scholarship Program violates Article IX,
because it diverts public funds to private schools, which are not subject to the same
20
standards and oversight as public schools. They rely on Holmes, in which the
Florida Supreme Court held that another school choice program, the Opportunity
Scholarship Program, violated the constitutional requirement that education be
provided through a uniform system of public schools. Holmes, 919 So. 2d at 413.
However, in disapproving the Opportunity Scholarship Program, which allowed
any student attending a failing school to use a scholarship provided by the State to
attend a private school, the Holmes court expressly disavowed that its decision
would necessarily impact other more specialized educational programs, even if
those programs used public funds to pay for a private school education:
We reject the suggestion by the State and amici that other publicly
funded educational and welfare programs would necessarily be
affected by our decision. Other educational programs, such as the
program for exceptional students at issue in Scavella [v. School Board
of Dade County, 363 So. 2d 1095 (Fla. 1978)], are structurally
different from the [Opportunity Scholarship Program], which provides
a systematic private school alternative to the public school system
mandated by our constitution.
919 So. 2d at 412.
Here, like the program at issue in Scavella, the McKay Scholarship Program
is a specialized scholarship limited to students with disabilities. See § 1002.39(2),
Fla. Stat. (outlining eligibility requirements for the McKay Scholarship Program);
Scavella, 363 So. 2d 1098 (describing a program through which exceptional
students used public funds to attend private schools). The trial court correctly
recognized that this opportunity for students with disabilities involved only
21
approximately 30,000 of the total 2.7 million students in the public schools, and
only a fraction of the statewide K-12 public school budget, such that it could not be
reasonably argued that the McKay Scholarship Program had a “material affect” on
the public K-12 education system. Rather, as the trial court observed, “evidence
was presented that [this] school-choice program[] [is] reasonably likely to improve
the quality and efficiency of the entire system.”
The McKay Scholarship Program offers a beneficial option for disabled
students to help ensure they can have a “high quality” education. As the trial court
recognized, “research has shown that the McKay program has a positive effect on
the public schools, both in terms of lessening the incentive to over-identify
students and by increasing the quality of services of the students with disabilities in
the public schools.” It is difficult to perceive how a modestly sized program
designed to provide parents of disabled children with more educational
opportunities to ensure access to a high quality education could possibly violate the
text or spirit of a constitutional requirement of a uniform system of free public
schools.
Conclusion
Thus, we affirm the trial court’s ruling that Appellants’ claims must be
rejected, as those claims either raise political questions not subject to judicial
review or were correctly rejected on the merits.
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AFFIRMED.
WINOKUR, J., CONCURS; WOLF, J., SPECIALLY CONCURRING WITH
OPINION.
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WOLF, J., specially concurring.
In Haridopolos v. Citizens for Strong Schools, Inc., 81 So. 3d 465 (Fla. 1st
DCA 2011) (en banc), eight judges (a majority of the court) determined that article
IX, section 1 of the Florida Constitution did not contain adequate standards by
which the judiciary could measure whether the Legislature complied with the terms
of the constitutional provision. In my concurring opinion, I agreed with the
majority that the case needed to be remanded to the trial court. However, I agreed
with the seven dissenting judges that the amendment lacked measureable standards
and stated:
Clearly, it was the intent of the Constitutional Revision Commission
that drafted the 1998 amendment to article IX, section 1 of the Florida
Constitution to address the decision in Coalition, 680 So. 2d 400, by
adding language to further elucidate the public’s desires concerning
the public education system. Unfortunately, this language still did not
provide measurable goals by which the court could judge legislative
performance and enforce the provision in any particular manner. This
case is similar to Advisory Opinion to the Governor - 1996
Amendment 5 (Everglades), 706 So. 2d 278, 279 - 82 (Fla. 1997),
where the public expressed its strong desire that polluters be
“primarily responsible” for cleaning up the Everglades, yet the court
held the amendment was not self-executing. Similarly, the public’s
desires here are not sufficiently definite to allow for enforcement
without some measurable standards.
Haridopolos, 81 So. 3d at 474 (Wolf, J., concurring) (emphasis added).
The trial in this case demonstrated that without measureable standards, there
is no way that a trial court can assess whether the Legislature has complied with
article IX, section 1 of the Florida Constitution. Both sides presented numerous
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statistics to support their position, with each side taking different views about
which statistical categories best measured compliance with the amendment. The
trial court did an admirable job of sorting through the mountain of evidence
presented to it. The bottom line is that without measureable standards, the plaintiffs
cannot demonstrate that the Legislature has violated constitutional standards.
As I expressed in my original concurring opinion in this case, a litigant may
have a cause of action to require the Legislature to implement article IX, section 1
through the adoption of reasonable measurable standards to gauge compliance. The
plaintiffs in this case chose not to pursue that remedy. I, therefore, concur.
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