Stage is set for a big court battle over Florida's funding of charter schools

Kindergarten students, shown here in May 2016, make their way back to class after lunch at Kid's Community College, a charter school in Riverview. The state's funding of charters will be the focus of a lawsuit filed this week by the Palm Beach County School Board. Another lawsuit involving more than a dozen other Florida counties, which includes Pinellas, is expected to be filed soon. [CHRIS URSO   |   Times]
Kindergarten students, shown here in May 2016, make their way back to class after lunch at Kid's Community College, a charter school in Riverview. The state's funding of charters will be the focus of a lawsuit filed this week by the Palm Beach County School Board. Another lawsuit involving more than a dozen other Florida counties, which includes Pinellas, is expected to be filed soon. [CHRIS URSO | Times]
Published Oct. 3, 2017

TALLAHASSEE — The legal war has officially begun over a highly controversial, charter school-friendly education law Republican state lawmakers pushed through last spring.

Palm Beach County School Board members filed a lawsuit this week challenging the constitutionality of one part of House Bill 7069. Another, potentially more far-reaching lawsuit with the backing of at least 14 other school districts — including Pinellas County — is still expected in the weeks ahead.

PREVIOUS COVERAGE: Pinellas votes 7-0 to help sue Legislature over new law favoring charter schools

Meanwhile, charter school advocates are rallying their forces, too — vowing to fight in defense of HB 7069 in the courtroom and also on the political battlefield.

Among the weapons they're preparing: A coordinated public relations campaign highlighting school districts' spending, and fielding — and funding — challengers to school board members statewide who face re-election in 2018 and who have been critical of HB 7069.

"We're developing a plan and we're going to be very aggressive," said Ralph Arza, a former Miami-Dade Republican lawmaker who is now the government affairs director for the Florida Charter School Alliance. "We're going to aggressively defend a child's right to have a desk and to be in a school. … This is going to be a huge dividing point going forward."

Several school districts and traditional public school supporters oppose HB 7069 because of how, they argue, the law strips authority from locally elected school boards to the benefit of charter schools, which are publicly funded but privately managed and outside the districts' control.

There's been talk for several months of the districts suing, but Palm Beach County's filing Thursday in Leon County Circuit Court marked the first official court action by any district.

The complaint targets state Education Commissioner Pam Stewart, the state Board of Education and the Florida Department of Education — which must implement the law that took effect July 1. A department spokeswoman declined to comment, citing the DOE's policy not to comment on litigation.

The $419 million, 274-page law includes dozens of consequential reforms to K-12 public education policy, but the most polarizing changes are the ones that benefit charter schools. Palm Beach County Schools' lawsuit hones in on only one of those provisions — a section of HB 7069 that requires school districts to share a cut of their local tax dollars, which are earmarked for public school construction and maintenance, with charter schools.

Attorneys for the county school board argue this new mandate violates aspects of the Florida Constitution that say school boards "shall operate, control and supervise all free public schools … and determine the rate of school district taxes" and that school districts — like counties and municipalities — have the right to levy taxes.

Jon Mills, a Miami attorney hired by the Palm Beach County School District, wrote in the lawsuit that these provisions in HB 7069 "have resulted and will continue to result in an unlawful infringement on the Board's constitutionally granted authority."

Under the law, "districts are bound by FDOE's final determination of the capital outlay allocation for each charter school and school boards are precluded from exercising any control or discretion to determine the most appropriate uses of these funds," Mills wrote.

He also argued that Palm Beach County Schools might have to share as much as $300 million over the next 10 years — money that was planned to help traditional public schools, which are often older and have more maintenance needs.

"The board has been and will continue to be forced to eliminate and delay projects," Mills wrote.

The school district wants a Leon County judge to declare that aspect of HB 7069 unconstitutional and to stop the state DOE from implementing it. (The law requires school districts to start paying out the allotted money to their local charters in February.)

In diverging from the other districts' unified effort, Palm Beach County Schools will have to shoulder the cost of its lawsuit entirely on its own, rather than share the financial burden. But board members determined it was worth that because of the enhanced control they'll have over the lawsuit and because of the district's specific circumstances of having had voters approve a penny sales tax just last year, The Palm Beach Post reported.

Board members approved up to $150,000 in spending toward their suit — with the money coming from "funds received from the BP oil spill settlement and not taxpayer dollars," the district notes on a special webpage it built to promote its legal challenge to the law on the district's taxpayer-funded website.

Arza, of the charter school alliance, argued the source of the money doesn't matter; the dollars are still under the district's control — making it taxpayer money. He said the alliance is crafting a campaign to let residents know "how much money (Palm Beach County Schools is) diverting from the classroom to the courtroom."

"I think that's going to come to light. The districts, by challenging the law, are almost challenging their own kids, harming their own kids," Arza said, echoing an argument Republican lawmakers started using on social media over the summer.

As if already familiar with that line of attack, Palm Beach County school superintendent Robert Avossa tweeted late Wednesday to no one in particular: "We wouldn't need to spend money in a courtroom if Florida invested in the classroom."

Arza said the alliance plans to request to become a formal party to Palm Beach County's lawsuit so it can argue in court in defense of HB 7069.

"I respect their right to go to the courts," Arza said of the Palm Beach County School Board. "But I believe there's an equity issue. Whether it's a charter school or a traditional school, taxpayer dollars should be distributed equally among children."

"The Legislature has the authority to decide what to do with a pot of money," Arza added. Should the districts be successful and parts of the law be overturned, "it could be very detrimental to charter school students in this state."

More than 270,000 children in Florida attend charter schools, out of the more than 2.8 million children in the K-12 public school system.

The 14 other school districts that have voted to sue — including some of the state's largest, like Miami-Dade, Broward, Orange and Duval counties — have raised additional areas of concern about HB 7069.

John Borkowski, a Chicago-based attorney tapped by the districts to represent them in that proposed lawsuit, told the Times/Herald on Friday the districts are still moving forward, but there's "no set time or place" for when their lawsuit might be filed or what its scope might be.

Meanwhile, though, at least a couple dozen of the state's 67 county school districts are intentionally staying out of the fray. Many, like Pasco County, are simply remaining silent on the issue, while at least 12 school boards have officially voted or declared they will not sue — the largest, and most recent, of which is Hillsborough County.

Among the reasons cited by that district: How much the endeavor might cost and a fear of retribution by influential lawmakers.

Contact Kristen M. Clark at, @ByKristenMClark