Wednesday, November 21, 2018

Florida Supreme Court considers education funding challenge

Florida's Supreme Court justices gave just a few hints Thursday of how they're thinking about a 9-year-old case that contends, essentially, that the Legislature has shortchanged some students in the state's public education system.

The case, Citizens for Strong Schools vs. Florida Board of Education, focuses on the Florida constitution's mandate that the state has a "paramount duty" to provide for a "uniform, efficient, safe, secure, and high quality system of free public schools."

Plaintiffs in the case argued that the Legislature has not done so. Two lower courts ruled that the constitutional terms of "uniform" and "high quality" are too subjective to rule upon.

Related coverage: Appeals court upholds ruling against Florida education funding challenge 

Jodi Siegel, the lawyer pursuing the claim, asked the Supreme Court to rule the constitutional language can be objectively judged and send the case back to the trial court for reconsideration.

"From this proceeding we want the Court to find that Article IX is justiciable and enforceable, and to remand it with instructions on the proper standard," Siegel said, stressing that would be to use the criterion of uniformity to weigh the evidence.

"From the trial court, we're seeking a declaration that the state of the education system … the state has not complied with its constitutional duty in order to provide for a uniform, efficient, high quality system of education," she added.

A requirement for a remedial plan would be the next step.

Related coverage: Parents ask Florida Supreme Court to send school funding suit back to trial court 

Rocco Testani, representing the state, argued the case should go no further as there's no basis to overturn the original judgment.

"Plaintiffs do not challenge the trial court's factual findings as to their central theory of liability," Testani told the justices. "That is, a lack of state funding for education has caused allegedly low student performance across the state."

He noted that the trial court concluded after listening to testimony and looking at evidence that "the level of resources available in school districts in Florida was not related to performance differences on standardized tests, graduation rates or any other outcome."

Testani suggested the constitutional language is not measurable, and contended the Legislature has done its job of identifying where it wants to improve education and then fully funded those efforts.

Ari Bargil, a lawyer representing McKay Scholarship and Florida tax credit scholarship families, further argued that those programs should not fall subject to the case. The plaintiffs have included them as part of their uniformity and funding arguments, but Bargil contended they are separate and distinct.

Through questioning, Justices Fred Lewis and Barbara Pariente signaled a willingness to indulge the plaintiffs' concerns.

Pariente pointedly referred to the state's 42 percent of students who do not read at or above grade level, according to state test results, and wondered how that could be considered a "high quality" system.

She also observed that "12 to 20 states have faced similar challenges, courts have been able to adjudicate these disputes in a responsible way. So we're not talking about something that has never been done before."

Lewis took the view that terms in the constitution carry weight.

"What is it about these principled terms and concepts that make these non-justiciable, yet we can talk about what due process is, what does it mean to have civil rights, and all those things that courts were designed to interpret constitutions to apply to carry out the will of the people?" he said. "And that's what we're talking about. The constitution here is the will of the people. It may be difficult. It may be sticky and mucky. But what makes the difference with this as opposed to those other principled concepts?"

Justices Alan Lawson and Charles Canady asked questions, meanwhile, that signaled a potential reluctance to step into the politics of legislation.

"I would think if a court would define language as broad and nonspecific as 'adequate,' 'efficient' and 'high quality,' to be justiciable, in order to have any separation of powers whatsoever you would have to have a very high deferential, a very deferential standard of review," Lawson said.

"Otherwise, we're just going in and saying, spend the money here, do this, this is the right program, based on evidence that is presented. And that just to me cannot be right, given that we're supposed to have three separate branches of government."

The others on the panel did not speak during the hearing. The court has not set a time frame to issue its finding.

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