Court hears ed­u­ca­tion law­suit ar­gu­ments

Florida Supreme Court hears 9-year-old school ad­e­quacy case

Orlando Sentinel - - FRONT PAGE - By Les­lie Postal

The Florida Supreme Court on Thurs­day heard ar­gu­ments in a 9-year-old case that main­tains the state is fail­ing to pro­vide a “high qual­ity” pub­lic ed­u­ca­tion to all stu­dents, as de­manded in the state con­sti­tu­tion.

The case also chal­lenges the ad­e­quacy of Florida school fund­ing and ques­tions the con­sti­tu­tion­al­ity of two of Florida’s pop­u­lar school voucher pro­grams. Those pro­grams to­gether pay for more than 100,000 stu­dents to at­tend pri­vate schools.

Those who filed the law­suit against the state in 2009, in­clud­ing sev­eral Or­lando par­ents, have lost ear­lier le­gal bat­tles, with judges in lower courts rul­ing their chal­lenge dealt with “po­lit­i­cal ques­tions”

that could not be an­swered by a court.

The state’s top court agreed in May to hear the case, Cit­i­zens for Strong Schools v. Florida State Board of Ed­u­ca­tion.

Dur­ing oral ar­gu­ments Thurs­day, Jodi Siegel, who rep­re­sents the par­ents and ad­vo­cacy groups that sued, told jus­tices the lower courts erred in their rul­ings. The state has the “ul­ti­mate re­spon­si­bil­ity” for pub­lic ed­u­ca­tion in Florida and has failed its con­sti­tu­tional du­ties when “there are sub­stan­tial amounts of chil­dren in our state who are fail­ing.”

Rocco Tes­tani, the at­tor­ney for the state, said the lower court rul­ings should be up­held. “The weight of the ev­i­dence sup­ported the state’ s po­si­tion,” he said.

An at­tor­ney for the In­sti­tute of Jus­tice, which has lit­i­gated school choice cases na­tion­wide, ar­gued along­side the state on be­half of schol­ar­ship stu­dents, telling the jus­tices there is noth­ing un­con­sti­tu­tional about the state’s voucher pro­grams.

The case cen­ters on an amend­ment to the state con­sti­tu­tion added by Florida vot­ers in 1998. That sec­tion calls ed­u­ca­tion a “para­mount duty” of the state and re­quires a “high qual­ity sys­tem of uni­form free pub­lic schools.” At is­sue is whether that clause pro­vides a mea­sur­able stan­dard by which courts could judge ed­u­ca­tional suc­cess.

The law­suit — which took aim at many of the ed­u­ca­tion re­forms ush­ered in by for­mer Gov. Jeb Bush — charged the state has failed to meet that stan­dard, as ev­i­denced by the many stu­dents who fail state tests and strug­gle to read on grade level. Siegel noted that some Florida stu­dents do well, but aca­demic suc­cess varies by dis­trict, school and stu­dent pop­u­la­tion.

“This is a re­ally im­por­tant case,” said Kath­leen Oropeza, an Or­lando mother who helped found Fund Ed­u­ca­tion Now, one of the groups that brought the law­suit.

Since it was filed, Oropeza said, the state has ex­panded some of the ef­forts the law­suit sought to stop. “It’s just been a full­bore as­sault with ev­ery­thing that has to do with pub­lic ed­u­ca­tion,” she added.

The le­gal case also called state fund­ing in­ad­e­quate, cit­ing tes­ti­mony from pub­lic school lead­ers, and ar­gued the McKay and Tax Credit Schol­ar­ship pro­grams vi­o­lated the con­sti­tu­tion be­cause the voucher pro­grams send stu­dents to pri­vate schools that aren’t part of a “uni­form” pub­lic school sys­tem.

That last ar­gu­ment wor­ries school-choice ad­vo­cates, in­clud­ing Mar­got Lo­gan, a Semi­nole County mother who uses a McKay schol­ar­ship to send her daugh­ter — who has sig­nif­i­cant phys­i­cal dis­abil­i­ties — to a pri­vate school

Her daugh­ter, now 18, did well in pub­lic school un­til she started mid­dle school, Lo­gan said, when there seemed to be no ap­pro­pri­ate class for a child with mul­ti­ple phys­i­cal prob­lems but nor­mal in­tel­li­gence.

A pri­vate school in Or­ange County gives her daugh­ter the phys­i­cal ther­apy and in­tel­lec­tual stim­u­la­tion she needs, Lo­gan said, and the McKay schol­ar­ship makes it fi­nan­cially doable.

“It’s just been such a bless­ing to have the McKay,” Lo­gan said. “I’m just hop­ing for a just out­come in this sit­u­a­tion.”

Siegel told the jus­tices the case should be sent back to the trial court and de­cided based on the stan­dards of the 1998 amend­ment, though she said they were not ar­gu­ing for any spe­cific amount of school fund­ing.

Tes­tani said the trial court al­ready looked at the ev­i­dence and found Florida schools had made sig­nif­i­cant progress, to the ben­e­fit of their stu­dents, even as it ruled school de­ci­sions didn’t rest with judges.

The lower courts that heard the case said it was up to the Florida Leg­is­la­ture and the gov­er­nor, not judges, to set ed­u­ca­tion pol­icy and bud­gets. A cir­cuit judge, who ruled af­ter a four-week trial in 2016, wrote that the law­suit raised “po­lit­i­cal ques­tions best re­solved in the po­lit­i­cal arena.” That judge also said the state had made ed­u­ca­tion a “top pri­or­ity,” im­ple­ment­ing solid poli­cies and pro­vid­ing ad­e­quate fund­ing.

The First Dis­trict Court of Ap­peal, which ruled in fa­vor of the state in De­cem­ber, agreed there was noth­ing “that would em­power judges” to make de­ci­sions about ed­u­ca­tional poli­cies, fund­ing or pro­grams be­cause those are rightly the do­main of elected lead­ers.

Jus­tice Alan Law­son seemed of that mind when he asked Siegel, “You want us to de­cide ...to do some­thing dif­fer­ent than the Leg­is­la­ture de­cided?”

But Jus­tice Fred Lewis asked the state if it was ar­gu­ing the stan­dard was “un­en­force­able” be­cause it was hard to de­fine — and then noted courts have wres­tled with other “prin­ci­pled con­cepts” in the state and fed­eral con­sti­tu­tions, from due process to civil rights.

“The con­sti­tu­tion here is the will of the peo­ple,” he said. “It may be dif­fi­cult. It may be sticky and mucky.”

Jus­tice Ricky Pol­ston, viewed as part of the court’s con­ser­va­tive mi­nor­ity, re­moved him­self from the case on Mon­day, but the or­der filed with the court pro­vides no rea­son why he will not hear the case.

SEN­TINEL FILE

The Florida Supreme Court will hear ar­gu­ments in a nearly decade-old school case.

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