A weekend interview with plaintiffs and attorneys in the Florida high quality schools lawsuit
On Wednesday, a group of parents and parents advocacy groups filed suit against the state, charging that it had not lived up to a constitutional mandate to provide high quality schools. On Tuesday, several members of the group and several of their attorneys met with the St. Petersburg Times editorial board. The following are excerpts from the interview.
The plaintiffs group included Kathleen Oropeza and Linda Kobert from the Orlando-based group Fund Education Now; Mark McGriff, executive director of the Gainesville-based Citizens for Strong Schools; co-counsel Jon Mills, a former Florida House speaker; and co-counsel Jodi Siegel and Neil Chonin, both with Southern Legal Counsel, a Gainesville public interest law firm. (Orlando Sentinel photo shows, from left, FEN co-founders Christine Bramuchi, Kobert and Oropeza.)
Jon Mills: The capsule is 10 years ago, the people of Florida passed a constitutional amendment with 71 percent that says we are entitled to a free, public school system that’s high quality and that’s a paramount duty of the state and a fundamental value of the state. There were two of us involved in introducing that amendment. Bobby Brochin, some of you may remember … is fired up about this too. He’s in Miami. We worked for years trying to figure out the best way to do this. And sort of the best way to do this came to us.
The citizens groups – Mark’s group in Gainesville had done some work already on local financial support for the school system. We talked to them. … And we talked to Fund Education Now. And they were enthusiastic about becoming part of this. And there really is a statewide reach to both of those organizations. And it is a citizen driven lawsuit.
The lawsuit is to enforce, through a declaratory judgment, Article IX of the Constitution. And it simply asks the question: Is the state meeting its obligation to provide a high-quality system of free public schools that are safe, secure and high quality – and whether they’re meeting the paramount duty. And one issue is we want to point out with paramount duty is, there’s been a trend in the last decade since this amendment was passed of what is the state level of support for public schools. Which has gone from ballpark 60 percent to ballpark 45 percent. Which essentially means that local government is footing the bill. And property tax payers and school boards are paying far more than they used to. And if it is in fact the paramount duty of the state, given our understanding of the word, the state is primarily responsible for funding the public school system.
There are also a lot of other measures that are in the complaint and the background documents that we’ve given you. There are problems with school safety that just objectively bother me as a parent. The graduation rate. The overall performance. Those are all numbers that are in there. But the interesting thing is what we’ve gotten with working with individual citizens. Everyday, real-life stories. They’re asking parents to fund pencils, pens, erasers [“Toilet paper!” one of the plaintiffs calls out]. Funding the basics is not what people had in mind when they voted for that constitutional amendment.
A threshold question is: Should the courts be handling it? And the answer has to be, if the constitution means anything, it doesn’t confer unlimited authority upon the Legislature and the state to ignore it.
Very specifically, there was a case in 1996 that you’re probably familiar with, the Coalition for Adequacy. And the Supreme Court rejected taking that case by a 3-1-3 thing … But the basic analysis is, the majority of the court really didn’t reject that case. Three of them rejected the case. Ben Overton said if you show me 30 percent illiteracy, we should take the case. Three of them said we should take the case now. So I would argue that even though that case rejected this litigation over a decade ago, it did not reject it for all time and did not reject it for all circumstances.
What happened after that was, the Florida Constitutional Revision Commission met, and it specifically addressed that case in its debate. … We said very specifically we meant for this amendment to overrule that case. And for courts to be able to make a judgment.
Kathleen Oropeza: Basically, what happened with us is, last year we were met with, in January, when we had cut up to $110 million out of little Orange County. Orange County’s a big county. We’re a donor county. But then by later on that month, we found out that we’d be cutting $240 million. And so that was basically 25 percent of the gross budget for Orange County was going to go away. That got down past the muscle and into the bone of what we provide as educators to our kids. No art. No music. No paras (paraprofessionals). The ticking off of the diminishing of the education experience was frightening. And that’s what got us going. And the first question we asked, amongst ourselves, was, ‘What is it we can do fix this?’ And it always came back to legal action.
And we were three moms. And we didn’t have the wherewithal to do much more than start a Web site, get talking and get going. But we always knew in the back of our mind that, in researching every other state that’s made significant strides in reforming their education and making it a more high quality standard – for instance, like Maryland – they had to be compelled. Even people who may have thought they should do it had to be compelled by the sharp stick of the court. So this is, in our view, a gift to the kids of the state and to the people of the state of Florida.
Jon Mills: The lawsuit is part of a larger mission. These guys are not going away. And neither is the mission. It’s part of it, not all of it. We know it’s going to take a long time and it’s part of it. It’s also non partisan. This is one of the first times in my life I haven’t asked what party they are, and I don’t know. I’m led to believe we have all parties.
Some of you from Tallahassee know Thom Rumberger. You saw in the complaint is one of the co-counsels. I’ve worked on a number of cases with Thom, and as you well know, Thom is a Republican.
St. Pete Times: Can I ask a strategic question of the attorneys? I’m familiar with cases regarding quality education around the country and they’re often around the distribution of resources – not necessarily that there needs to be resources, but the way resources are allocated is fundamentally unfair somewhat. I’m not that familiar with lawsuits that say the pie is not big enough. Can you talk a little about those cases out there?
Jodi Siegel: It isn’t just about funding. It’s about policies. It’s about how we go about education. But funding is important. It is part of it. And you’re right. Most of those cases out there are funded differently than Florida. And they are very disparate in many ways. And Florida, while it’s not perfect in how it’s distributed, but how the FEFP, the Florida Education Finance Program is distributed, is fairly uniform. … There are some cases out there, most of the cases are not like that. We’re taking a different approach. A declaratory action focusing more on getting the court for the first step to see that it’s not high quality, it doesn’t meet the constitution, and the funding question itself is not being asked. So it is different in that way. And then part of the relief is going to be one, is there sufficient amount of funding, and how do we figure that out. What are some of the policies. What are some of the other things in order to correct that.
Jon Mills: There are two different types of lawsuits nationally. One is uniformity. It’s if you have such disparate treatment of different school boards within you state, that’s a violation. This isn’t that lawsuit.
SPT: I just want to know what courts have done with performance lawsuits.
Neil Chonin: Well, it’s a mixed bag. I would say all of them have taken 10 years or more to come to any conclusions. I would say most of them, it’s about a 50-50. But none of them, if you were to rank constitutions and education and language, we would be what’s considered a 4 – which is the highest constitutional (something). There’s only one other state in the country that has the language we have in it. So we’re not bringing an equity suit. We’re bringing basically a deck action and how can we be ranked in all these different areas so low and so bad and that be high quality.
Jon Mills: I don’t think another state has that specific a language. The most recent case by the way is Colorado. There’s a Colorado case in the past two months that decided that their constitution was justiciable.
And you wonder about this ranking of 1 through 4. I mean some academic did at one point make it up. But the Florida courts have referred to it twice. …
And four is the highest, toughest mandate. And in Bush v. Holmes (the voucher case decided in 2006), the majority opinion of the Supreme Court of Florida said Florida is a 4, and it said Florida moved from a 1 to a 4.
If you look at the voucher case, there’s also some of the better language interpreting what this means. And that in fact that court thought it meant something.
SPT: So let’s say you have a declaratory judgment. And the Legislature is found not to be upholding the Florida Constitution. What’s the remedy? Do you have court supervision of funding, district by district? What happens?
Neil Chonin: A lot of things could happen. No. 1, the court can order the Legislature, as they did in New Jersey, to come back with a high quality plan as to how you’re going to do it. It might not be a bad idea to maybe take our standards and cost out what it costs to properly fund. You know, we’ve got these great standards and everything that some past politicians have spoken about, but the question is, how do you implement them? What type of education system do you need to comply with it? So, we’re not necessarily asking the court to devise an education system. We’re asking the court to declare the present education system unconstitutional and order the Legislature to come back with a constitutional educational system.
Linda Kobert: This is very similar to what happened in Maryland. We had a very similar situation in Maryland. And the courts compelled the Legislature to follow the constitution. They brought in two different groups – one from the Legislature, and an independent organization that they took the standards of Maryland, costed it out, then you find the revenue under your constitution and you deliver it. And your accountability becomes a measure of whether or not you deliver on the standards, as opposed to the way we do it in Florida. That may be one of the remedies. But that is part of the Legislature’s job, to come up with a remedy once we decide that our constitution is enforceable.
Jon Mills: There’s a book that just came out (Kids and Courts, by Michael Rebele) that talked about the usefulness of this type of legislation. And one of the elements that I particularly wanted to mention to you is, this is when you finally really find out what the statistics are. Right now, it’s just who gets the best press release. But if you’re going to put evidence in court, you’re going to find out. So, if a year from now, if we find out this is a high quality system, we’re done. But ultimately, what I think you’re talking about is, a negotiation. If you determine that this is not a high quality system, we have to figure out what is.
SPT: Some of this hinges on what is a paramount duty, right? And have the courts decided what that is?
Neil Chonin: No. They have not. That’s part of our job here. Part of our job is defining this. What does all this mean? One thing I know is, I sure don’t want to leave it up to the Legislature to tell me what it means.
Jon Mills: Let me make it clear: I love legislators, having been one. But the courts have a role.
SPT: What was your intent by saying paramount duty? I mean does it supersede every other duty?
Jon Mills: This is more information that you want to know. In 1868, the words were in the Constitution. It was, at one time, the paramount duty of the state. It was taken out. There had been some hypothesis that it was racially motivated. That you wanted to have unequal schools because you didn’t want to have education be the paramount duty of the state. So it was out for 120 years. And now it says a paramount duty of the state. … There’s only one article in the constitution that actually has a substantive heading: Education. There’s not a heading on social services, welfare, criminal justice, anything else. Just education. And it says education is a paramount duty of the state and it’s a fundamental value. I think we as a society accepted that it’s the state’s duty and probably it’s most important. That’s what paramount means. So has it been defined before? No.
St. Pete Times: Will the state argue though that they set the RLE, and therefore they’re deciding where those property tax dollars are going, so they are fulfilling that duty.
Jon Mills: Do I want to give you a good legal argument in response to that, I’m not sure.
Jodi Siegel: I don’t know that we really need to go into legal argument on that, anticipating motions and whatever. But yes, we do know they will argue that. We’ve heard that argument by legislators in news articles and whatever.
SPT: Even if things work out in your favor, an actual solution is probably years away. What sort of pressure do you hope to put on legislators in the hear and now, with the general session coming up early next year to start to fix this. You’ve got the class size amendment, back again. You’ve got stimulus money about to disappear. We all live in school districts where it’s just getting worse.
Neil Chonin: It’s hard to tell. The political process is very hard to predict and whether this is going to be an impetus or not. The important thing is, we’re going to develop a record. We’re going to once and for all – you know, it’s like going into a legislative subcommittee and talking to committee members. We’re going to have statistics. We’re going to have experts. We’re going to have a record so that there can e some objective evaluation of what that Article IX means to the citizens of Florida. So, it’s probably going to take a while.
Jodi Siegel: But it does need to be part of every session, and discussion at every session.
SPT: That’s sort of what I’m driving at. If an ultimate resolution is a decade away, that doesn’t help first graders.
Jodi Siegel: The ultimate resolution is political. So we go to court and we certainly have our legal objectives, we want the court to declare and so forth. But ultimately the court’s not going to be legislating.
Kathleen Oropeza: In the other lawsuits that have been successful, the courts stripped the politics out of it by having independent costing-out firms come in who are not in any way tied to the legislators. They took the politics, the political discussion away from it, and put it in black and white terms: Is this quality? Is this this budget? Are these kids achieving? These are fundamental, basic questions. Very much to the point, this legal action is just a leg in a stool. It’s up to all of us, everyone around this table, who know a child or loves a child, or who doesn’t want to be a victim of crime, to be engaged in this.
It’s my fault, certainly, for not being part of this before a year ago. But now I am. They’ve got my attention now. And we’re not going away. And even if we, in the best case scenario, get everything we wanted from the court, we’re still going to have to watchdog. We have term limits. We have short memories going on over there. So it’s clear that there’s a lot of work to be done. But the payoff is long term for our state. It’s economic growth. It’s a citizen that isn’t trying to leave. We’ve got a brain drain going on. So there are so many benefits to sinking our teeth into this. It is a marathon. It’s not a spring. But shying away from that fact doesn’t make us any closer to achieving what we want.
Mark McGriff: One of the things we have to solve immediately is the cuts. Mid year cuts. Mid year cuts are devastating. School systems across the state are canceling athletic teams left and right. In our county, we were able to pass a one-mil initiative locally. Our citizens voted for it overwhelmingly because they understand the danger that we’re in. We were able to save bands, music, art … magnet programs in all the high schools. We’ll have that for four years. But then we’ll have to go back and vote on it again. What we need to stop the cutting, now. And we actually think the lawsuit may provide a little bit of political cover.
SPT: Is there any experience with these lawsuits come about and you actually have a political leader with some power who steps forward to embrace it?
Neil Chonin: Dan Gelber. (laughter)
Jon Mills: I think there is an example – and I can’t remember which state – where somebody who was a defendant became a plaintiff. And that’s what you’re asking? So, there’s opportunity. And I also think there are a number of members of the Legislature will be fine with it.
SPT: Most of those are sitting in the back of the room. ... I don’t believe that you as speaker would have taken kindly to a lawsuit aimed at you …
Jon Mills: I never would have wanted to be sued. But as I recall, we were sued on corrections. And I think that some of us thought that we had a bad corrections system and we needed to do something. As a matter of fact, I remember being chair of the subcommittee that dealt with it, and somebody telling me, well, you better listen. It’s a federal judge. So there are people of both parties who would like to figure out how to do the right thing.
SPT: Money’s not the only thing, but it’s a big part of this.
Jon Mills: Part of why we’re trying to be as specific on this as we can is we want everybody to agree on what the facts are. Let’s agree that this system is failing.
SPT: What I was driving on was the tax structure of the state. The tax structure would ultimately have to change to provide the kind of money that …
Jodi Siegel: That may be a resolution. But that’s certainly not what we’re seeking.
Linda Kobert: They keep saying it’s not about money, it’s not about money. Some of it is about money. Because I don’t know how you teach the latest math and science without good equipment. And you can’t replace 10-year-old computers without money. We keep saying that you can’t bake the cake without the flour and the eggs. … But that’s not the main issue in this suit. That will be part of the solution. And that will be up to everyone to find the solution. And this is about compelling a solution to the problem.
Jon Mills: Unless we get an answer to the first question, we can’t proceed.
SPT: Let’s say you get an answer, and the state courts say it’s non-justiciable. Do you then try a new constitutional amendment – one that says specifically …
Jon Mills: (Loud sigh). Oh, make me really, really tired. Well, yeah. I mean, I guess. (He laughs).
Kathleen Oropeza: There are many elements at play here. There’s the court of public opinion. There’s the fact that the fair districting thing is going to come up. So, hopefully we’ll start to have more yin and yang in our districts, and more hearty democratic discussion. There is the fact that this is not sustainable. We as an organization have spent a lot of time building a case about the economic impact of the state not making high quality, globally competitive education a priority here. We’ll never attract any of those STEM, science technology engineering math type businesses here, if we cannot prove that our K-12 portion of education is going to be able to compete with a kid in Bombay …
SPT: We totally agree with you. And the Florida Chamber of Commerce sits in this room every single year and they say the exact same thing. And they go up to the state Legislature and they lobby against increased taxes. So is there any way, if you want to go the public opinion route or the lobby route, have you tried to enlist some of the most powerful elements of the state in your efforts. Have they joined you?
Linda Kobert: The suit does not stop the other efforts that we’re making in the areas of advocacy. And we’re going around the state in talking to business leaders, political leaders, parents, teaches, administrators, everyone – everyone has to be part of the solution.
SPT: You mention this was one leg of the stool.
Linda Kobert: We travel around the state. County by county. Talking to mostly parent organizations. There is no more dangerous animal than a mother bear. And our children are being shortchanged. So we go county by county and people are relieved to find someone standing up for the children. You know, there are lobbies for every special interest imaginable up in Tallahassee. There is no paid lobbyist who works just on behalf of children. So that’s what we’re doing. We’re going around the state. County by county. Getting the parent organizations organized. And they say, tell us what to do. And we say you know what? Start by getting your people together. Start by making appointments with your legislators. Tell them what you want. Oftentimes we’ll hear from legislators, ‘Oh well, I didn’t know. I didn’t know about all these unfunded mandates. I didn’t know what your specific school was going to have a $5 million cut. To Boone High School? Oh my gosh, what are you going to do? These are the specific stories they need to hear. So we teach the parents, county by county, how to be advocates. Because it’s something a lot of them have never done. We’ve also traveled to Tallahassee to visit with our representatives up there. We go to their offices in our district. We travel around the state to talk to anyone who will listen.
SPT: You’ve got language in here, “the current accountability policy in Florida is an obstacle to a high quality education,” high stakes testing is a problem. You’re going to have Jeb Bush reared up. Whether it’s a non partisan issue or not, it’s going to look like a partisan issue.
Linda Kobert: As far as Mr. Bush, there are many things we can agree on. And he’s also working for quality in education. However, we may or may not agree on the route to get there. But we can all agree that high quality education in the state of Florida is a priority. It is what everybody wants.