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Guest Opinion: Preserving constitutional authority

August 23, 2017
North Fort Myers Neighbor

The Florida Constitution is adopted and amended by a vote of the electorate. While the legislature can vote to place a proposal to amend the Constitution on the ballot, the amendment does not become law unless passed by the voters. The voters elect their representatives to the legislature, which is charged with adopting bills to address the needs and interests of the State of Florida, including the operation of local government entities, such as School Districts. In adopting such bills, the legislature is required to act within the constraints of the Constitution the people have approved. When the legislature fails to act within such constitutional constraints, the authority in place to provide a check on the legislative action is the judiciary. The tool used by the entity that believes its interests have been adversely affected by an unconstitutional exercise of legislative authority is a lawsuit challenging the constitutionality of such an action. A local government entity, such as a school board, that knows the legislature has passed a bill which usurps the authority bestowed upon that board by the people of the state of Florida has a responsibility to use the legal means in place to challenge the legislative act that is inconsistent with the will of the people.

Article IX of the Florida Constitution states: "The school board shall operate, control, and supervise all free public schools within the school district" This is the control and authority the people of the state of Florida have determined should be held by the local school board. House Bill 7069 infringes upon this constitutional authority in multiple respects. To protect its interests, a party to a lawsuit does not fully reveal its theory of recovery or legal strategy. Therefore, all examples of such infringement cannot be addressed in this column. Yet, an obvious example is the portion of House Bill 7069 concerning "schools of hope." Under the legislation, an entity designated as a "hope operator" by the State Board of Education can simply provide notice to a school board of its intention to establish a school in proximity to a low performing District operated school. Upon receiving such a notice, the school board is required to approve establishment of the school and enter into a form contact created by the Florida Department of Education whereby the school is provided public funding for operation. If it fails to comply, the school board is penalized by loss of a portion of the fees used to provide support services to all of its charter schools.

Legislation that removes all school board authority to decide whether and where a public school will be established in its district is a clear violation of the school board's constitutional authority to "operate, control and supervise all public schools within the school district." It is the local school board which most directly answers to its voters, and is constitutionally endowed with the authority to decide where schools will be established in its district.

Other provisions of the bill require school districts to share capital dollars with charter schools. Few charter schools construct their own facilities, but rather lease the space from for-profit management companies. Upon closure of the charter school, the building is owned by the management company, so there is no building to be turned over to the school district. The taxpayer dollars have rather gone to the for-profit company, which now has a capital asset which will provide an income source for years to come.

There is a cost involved in the filing of this lawsuit. While it is difficult to calculate, it may reach a few hundred thousand dollars. The Lee County School Board carefully considers the expenditure of every dollar entrusted to it by local taxpayers. Though the cost is substantial, the damage done by this bill is much greater. The projected loss of just capital funds for the Lee County School District is between six and eight million dollars annually. This is the funding needed to build new schools to meet the growth in student population, and to maintain existing schools in a safe manner. The Board is attempting to control the cost of litigation by joining with other School Boards in one lawsuit. The Lee County School Board's initial contribution to support the lawsuit is $25,000. Other Boards which have voted to enter the lawsuit include Miami-Dade, Palm Beach, Broward, Volusia, St. Lucie, Hamilton and Bay. Others are expected to join in the near future. Through the lawsuit, the school boards will seek a ruling that all or portions of the bill are unconstitutional and an order that it not be enforced.

The bottom line is that the Florida Legislature passed a bill that takes away local control which the people of Florida decided should be entrusted to the local school board. It is unfortunate that the legislature and the Governor did not listen to the significant opposition to HB 7069 prior to it becoming law. To defend the wishes of Florida voters, and the interests of its students, the Lee County School Board along with other School Boards around the state must take this action.

- Keith Martin, Board Attorney; Mary Fischer, Board Chair; and Dr. Greg Adkins, Superintendent

 
 

 

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