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Education news and notes from Tampa Bay and Florida

A weekend interview with Ron Meyer, lawyer for the Florida Education Association

10

April

MeyerWhen it comes to fighting for Florida's education system, Tallahassee lawyer Ron Meyer often is front and center. Many of the Republican lawmakers whom he often challenges say there's no more knowledgeable adversary. They find themselves on opposite sides again as SB 6 /HB 7189 wind through the Legislature this spring. Meyer spoke with reporter Jeff Solochek on Wednesday about where the battle might head if the legislation to change the face of Florida teaching makes it into law.

You obviously have always been the person to fight back these things, especially in court. So I wanted to ask you first off, is there anything in this bill that is going to land them in court if the governor signs it?

The short answer is yes. There are very serious constitutional issues that we see in what is contained within SB 6. Now just because we see constitutional issues doesn't necessarily mean that we -- and when I say we, the FEA, who I am representing -- are necessarily going to go to court over it. And certainly it's premature to make decisions about suing when the bill hasn't yet become a law. ... Ideally Gov. Crist will be the leader in all of this and step up and say enough is enough and perhaps not find reason to sign this bill.

Have you talked to the governor at all?

I have met with the governor. Other parents and school board people and representatives of the union have certainly let it be known that they feel the way this bill has been crafted, the way it has been ramrodded through the Legislature, the deleterious effect it will have on public education in the state certainly bears his consideration for a veto. But if you're asking me whether the governor has told me he's going to veto it or anything like that, no, he hasn't said anything like that.

What are the biggest constitutional issues?

Well, I think there are two main issues of constitutional magnitude. There are probably more than this. There are more than this. But these are the two that seem to be most glaring. One would be under Article I, Section 6 of the constitution, which deals with the right of employees by and through a labor organization to bargain collectively. The constitution says that right shall not be denied or abridged. And when you start dealing with matters relating to wages, hours and terms and conditions of employment, that is what the courts have regularly and for decades held are the basic issues of collective bargaining.

When you start passing laws that prescribe fixed rigid requirements, you are certainly abridging or denying the right of the employees to have a voice in establishing the wages, hours and terms and conditions of employment.

But doesn't that already happen now?

Well, you know, there are a lot of things that are unconstitutional that happen now. And we have seen a steady trend by the Florida Legislature to entrench upon the collective bargaining rights of employees. I don't want anybody to believe that just because someone hasn't challenged that, that makes it right. There are many things that are probably susceptible to challenge that just haven't been challenged. But when you start prescribing things with infinite detail -- what a pay schedule will look like -- and you can't alter it, that statute necessarily and inescapably collides with the rights given to the employees under the constitution to have a voice in that. So we think there is a very fundamental problem in that regard.

And the other?

There is also another section of the constitution, Article IX, Section 4, which gives the school boards the right to operate, supervise and control all public schools within a jurisdiction. And what's intended by the people by putting that in the constitution is that locally elected school boards will actually engage in the operation, supervision and control of the public schools.

Which, you know, ironically, I've always understood to be a fundamental Republican position, that government closest to the people is best. And yet here we have Tallahassee assuming an all-knowing role that bureaucrats in the Department of Education are going to know better about operating, supervising and controlling public schools than the people who are actually in the local communities doing it.

Couldn't that same argument be made about the class size amendment?

The difference here is that the class size amendment is the voice of the people speaking in their constitution. The Legislature is not empowered to say, 'We're going to simply disregard what the people have put in the constitution.' And yet we feel that's what they're doing in SB 6. You know, what they're doing vis a vis the class size amendment is going back to the people and saying, 'We think you were wrong, people. We want you to change your mind.' Now, whether the people will bite on that remains to be seen. But at least they're giving to the people the right to amend their constitution. In the instance of SB 6, they're telling the people, 'This is how you're going to do it. We don't care what the constitution says.'

There are other issues that may permeate. The whole impairment of contract issue, Article I, Section 10 of the constitution also provides that you can't pass a law that impairs the obligation of contracts. There are many provisions in this law which conceivably impair the right of people who either have a contract or an expectation of contractual rights that this law very well might trench upon. That would be another area of potential litigation.

I talked to a superintendent who questioned the ability of the lawmakers to earmark a district's local and federal funds, and said they just don't have the authority to touch that money at all. And yet that's in the bill, isn't it?

It is in the bill. And yet when you go back to the constitution ... you run squarely into that. So I think the superintendent you are talking about is speaking correctly. Because the constitution says that the local school board within a school district shall determine the rate of school taxes and operate and finance education programs. The constitution gives to the school boards the authority ... to spend the money that it has. So when you say to a school board that we're going to take 5 percent of your funds and we're going to restrict use of them to create this so-called performance fund to pay for tests ... we think that runs, again, contrary to the constitutional right of the school board to run the schools.

Now, I know you've talked to all the lawmakers a lot. And you probably have told them this many times. Do they just stare at you blankly?

You need to come up to Tallahassee. They hold hearings but they don't listen. And that's because this is not about good educational policy. This is about Jeb Bush, through his operative Sen. John Thrasher, who is the chair of the Republican Party, cramming this stuff through the Florida Legislature. And for whatever reason, people who otherwise have demonstrated a willingness to listen and try to perfect and make legislation better seemingly are turning a deaf ear.

Well, they say things like, we'll amend this next year if we feel like it. Or, we'll give it to the State Board of Education and let them write rules about it.

Well, there's another legal challenge potential there. It's well established in Florida law that when the Legislature decides it's going to abdicate its responsibility or delegate its responsibility to an administrative agency, it has to provide specific guidelines for enacting that legislative power. In other words, it's not enough to say the State Board of Education is empowered to adopt rules.

What the courts have said is, if you are going to delegate to an administrative agency rule making authority, you need to tell them what those rules are going to look like. You don't have to dot every i and cross every t. But you have to at least provide sufficient standards that you're not abdicating your responsibility as a Legislature to some non-elected administrative body. Yet throughout this bill, all they do is say the department is going to come up with rules. Hopefully, the department will come up with rules to make this thing reasonable and workable. But there's no requirement for that.

I saw one of the amendments that was filed by Rep. Robaina would require that anything that is passed as a rule by the department would have to come back to the Legislature.

Bring it back. Yeah. I think Republican Rep. Robaina, though I have not talked to him about this, no doubt has a concern that the Legislature is basically ceding its exclusive authority to an administrative agency to make what they are doing right. The answer to the question that you really asked me and I didn't answer, that is, what's wrong with giving them three or four years to make it workable? My answer to that is, why not do it right the first time? What value is there to start by taking all of this money and all of this process and disrupting the educational opportunities afforded to children by changing the status teachers and things? Why do all of that before you know how to do it? Why not lay out the plan first? Why not get it right first before you effect such sweeping changes?

Sounds like they may need these years to get through these challenges.

(Laughs) Possibly.

Is it possible to stop it before it gets started using these ideas? Because otherwise the money starts flowing out in a year.

I think ideally if the Legislature doesn't get it right and the governor doesn't step up and exert his leadership hand and it does become law, I'm hopeful that the courts will intercede. One of the good things about our form of government is when one branch departs from what the constitution requires, the judicial branch is there to corral them back in. Ideally, before damage is done -- irreparable damage is done -- the courts can step up and deal with some of these issues.

But as you well know, with the starvation budget the Legislature has put the courts on, the court system is clogged and court cases move slowly. .... Wayne Blanton f rom the School Boards Association described what is coming as a train wreck economically And I think he is right. When you start peeling $900 million out of school budgets which are already strapped to the bone, to dabble with these processes that are not yet defined, I think you are just hurting school districts and thereby hurting children. ...

If the governor signs the bill, it doesn't become law until July 1. Is there anything anybody can do before it becomes law? Or does everybody have to wait until it actually becomes effective?

You know, I haven't considered that. Certainly if there are some glaring facial constitutional problems with it, it may be that in anticipation of the train wreck there might be some legal action taken. But that may also add just additional legal burdens to someone bringing a lawsuit, in the sense of having to defend whether you yelled Ouch before you were hurt. And so that is something we would definitely look at.

[Last modified: Tuesday, May 25, 2010 10:57am]

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