Florida Leg­is­la­ture must pro­tect schools, pay vic­tims and end sov­er­eign im­mu­nity

South Florida Sun-Sentinel (Sunday) - - Opinion - Ed­i­to­ri­als are the opin­ion of the Sun Sen­tinel Ed­i­to­rial Board and writ­ten by one of its mem­bers or a de­signee. The Ed­i­to­rial Board con­sists of Ed­i­to­rial Page Ed­i­tor Rosemary O’Hara, David Lyons and Ed­i­tor-in-Chief Julie An­der­son.

When it con­venes in March, the Florida Leg­is­la­ture faces no greater duty than to pay what it takes to make schools safer than they were on Valen­tine’s Day, when a 19-year-old for­mer stu­dent with a mil­i­tarystyle as­sault ri­fle killed 17 peo­ple and wounded 17 more at Mar­jory Stone­man Dou­glas High School in Park­land. It also faces a moral obli­ga­tion to com­pen­sate the sur­vivors and fam­i­lies of those whom Florida failed to pro­tect.

The ex­penses will far sur­pass the $400 mil­lion state law­mak­ers cob­bled to­gether last spring, when they rashly raided trust funds and reg­u­lar school ac­counts for im­me­di­ate se­cu­rity needs, such as more armed of­fi­cers on cam­pus.

No one knows how much more is needed, but the cer­tain an­swer is: a lot.

The draft re­port of the Mar­jory Stone­man Dou­glas Pub­lic Safety Com­mis­sion ac­knowl­edges that some of its rec­om­men­da­tions, such as retrofitting all schools with bul­let-re­sis­tant glass, ex­ceeds the means of county school boards.

The rec­om­men­da­tions in­clude let­ting school boards raise prop­erty taxes for se­cu­rity ex­penses — up to a half mil — with­out a ref­er­en­dum. We don’t op­pose that, but it should be re­mem­bered that vot­ers in 19 of Florida’s 67 coun­ties re­cently passed ref­er­en­dums to raise sales and/or prop­erty taxes for school safety and teacher pay raises.

The pro­posed in­crease also must be viewed in light of the Leg­is­la­ture’s his­tory of pitch­ing re­spon­si­bil­i­ties to lo­cal school boards so that it can boast of keep­ing state taxes low. That temp­ta­tion will be es­pe­cially ram­pant in Tal­la­has­see this spring, given the just-ap­proved con­sti­tu­tional amend­ment that re­quires a su­per­ma­jor­ity vote in each house to raise any tax.

The Stone­man Dou­glas com­mis­sion also calls for ex­ten­sive state over­sight of school safety. It’s ironic that if ap­proved, the of­fi­cial who’d be in charge of do­ing that — and, pre­sum­ably, for ex­tract­ing more money from the Leg­is­la­ture — would be the same politi­cian who mus­cled the su­per­ma­jor­ity amend­ment onto the bal­lot. That is for­mer House Speaker Richard Cor­co­ran, who has been ap­pointed the next com­mis­sioner of ed­u­ca­tion de­spite his lack of rel­e­vant qual­i­fi­ca­tions. His job will be more dif­fi­cult be­cause of what he did to hob­ble state govern­ment.

If any­thing de­serves a su­per­ma­jor­ity vote, it’s the over­due bill for mak­ing Florida schools safer and for com­pen­sat­ing the vic­tims of Park­land.

A ma­jor com­po­nent of the state’s fail­ure to pro­tect was the Leg­is­la­ture’s servi­tude to the gun lobby. As­sault weapons, such as the one that Niko­las Cruz took to Stone­man Dou­glas with deadly ef­fect, be­long in no hands but those of law en­force­ment and the mil­i­tary.

In the af­ter­math of Park­land, the Leg­is­la­ture fi­nally bucked the Na­tional Ri­fle As­so­ci­a­tion by mak­ing 21 the min­i­mum pur­chase age for all ri­fles, not just hand­guns. But mil­i­tary-style as­sault weapons are still avail­able to ev­ery­one else. That’s one rea­son why the Stone­man Dou­glas com­mis­sion says school re­source of­fi­cers should now have ri­fles close at hand. A hand­gun is no match for an AR-15.

The com­mis­sion’s re­port, to be sent to the Leg­is­la­ture next month, makes dozens of rec­om­men­da­tions, many of them in­ex­pen­sive and some so ob­vi­ous that it’s shock­ing they haven’t al­ready been im­ple­mented.

It has been known for years that ev­ery class­room in Amer­ica should have a well­marked and un­ob­structed se­cure cor­ner, out of sight from the hall­ways, but a num­ber of Stone­man Dou­glas class­rooms didn’t have them. Chil­dren died on that ac­count.

“The re­al­ity,” the com­mis­sion warns, “is that an­other ac­tive shooter in­ci­dent will oc­cur.” It would be folly to as­sume oth­er­wise. But our schools can be made safer than they are.

Vic­tim com­pen­sa­tion is an is­sue the Leg­is­la­ture didn’t task to the Stone­man Dou­glas Com­mis­sion, but it is as un­avoid­able as safety. The pub­lic owes an enor­mous debt to the fam­i­lies of the 14 slain stu­dents and three staff mem­bers, to those who sur­vived their in­juries and to those strug­gling with trauma from the or­deal.

Law­suits are be­ing filed. Heavy dam­ages are likely to be awarded, far above Florida’s miserly sov­er­eign im­mu­nity lim­its —

$200,000 for a sin­gle claimant and

$300,000 for all claims from a sin­gle in­ci­dent. In the con­text of Park­land, that’s lu­di­crous.

A start­ing point is HB 123, filed Wed­nes­day by Rep. Kristin Ja­cobs, D-Co­conut Creek, es­tab­lish­ing a Park­land com­pen­sa­tion trust fund with an ini­tial ap­pro­pri­a­tion of $110 mil­lion. The Depart­ment of Ed­u­ca­tion would ad­min­is­ter the fund, but the bill of­fers no guid­ance on how to do it or whether the state would waive its im­mu­nity lim­its. If not waived, spe­cial leg­is­la­tion would still be needed to pay each judg­ment.

Even if the leg­is­la­tion is suc­cess­ful, the state should not try to pres­sure Park­land fam­i­lies into ac­cept­ing set­tle­ments for the sake of avoid­ing tri­als. Many de­tails of what went wrong re­main hid­den by laws in­tended to pro­tect the pri­vacy of stu­dent ed­u­ca­tion and health records. They’re item­ized in parts of the com­mis­sion re­port that only au­tho­rized peo­ple may see. Lit­i­ga­tion can pierce that se­crecy and help hold govern­ment ac­count­able.

It is time for the Leg­is­la­ture to re­con­sider the en­tirety of sov­er­eign im­mu­nity, an ar­chaic con­cept rooted in the the­ory that the king can do no wrong.

The Leg­is­la­ture re­pealed it in 1969, but let it re­turn un­der pres­sure from school boards and their in­sur­ance com­pa­nies. Some had threat­ened to close their play­grounds. A lim­ited waiver with those ridicu­lously low ceil­ings was the com­pro­mise.

Courts fre­quently award larger judg­ments, but they can only be col­lected by lob­by­ing the Leg­is­la­ture to pass “claims bills.” The Stone­man Dou­glas vic­tims were scarcely in their graves be­fore the griev­ing fam­i­lies were warned by the school district’s in­sur­ance com­pany that any law­suits would face that fu­ture. The no­tices failed to re­veal that the Broward school district re­port­edly has ex­cess in­sur­ance cov­er­age worth $2.1 mil­lion per year. Even that is grossly in­ad­e­quate in the con­text of Park­land.

The Leg­is­la­ture rarely passes claims bills and when it does, it takes years, if not decades. As a re­sult, govern­ment agen­cies rarely face fi­nan­cial con­se­quences for bad be­hav­ior. To­day’s set-up en­cour­ages them — and their in­sur­ance com­pa­nies — to deny, deny, deny, and stall, stall, stall.

It also makes it hard for vic­tims to find an at­tor­ney, who of­ten in­vest more time and ex­pense than they are likely to re­coup. The Leg­is­la­ture seeks to limit such at­tor­ney fees. The agen­cies’ lawyers, mean­while, are fi­nanced with­out limit by the tax­pay­ers.

Sov­er­eign im­mu­nity doesn’t pro­tect the state in fed­eral courts, but the bar­ri­ers to suc­cess there are ex­tremely high. U.S. District Judge Beth Bloom dis­missed a Park­land law­suit against the Broward County Sher­iff ’s Of­fice last week, say­ing it had no con­sti­tu­tional duty to pro­tect the stu­dents be­cause they weren’t in cus­tody.

We think her rul­ing over­looks an im­por­tant point: school at­ten­dance is com­pul­sory in Florida from age 6 to 16. Her ba­sic premise was in line, how­ever, with Supreme Court rul­ings since 1989.

Such cases il­lus­trate why some­one once de­fined “law” as the il­le­git­i­mate off­spring of jus­tice.

Still, bad laws can be made more just. Florida should re­peal sov­er­eign im­mu­nity. It should con­sider es­tab­lish­ing a court of claims like the fed­eral govern­ment’s. At a min­i­mum, it ought to re­quire school boards and other agen­cies, in­clud­ing law en­force­ment, to pur­chase am­ple in­sur­ance that would be ex­empt from sov­er­eign im­mu­nity lim­its. Leg­is­la­tion along that line was in­tro­duced in the Florida Leg­is­la­ture last Jan­uary by Rep. Evan Jenne and Sen. Kevin Rader, Broward Democrats. De­spite Park­land, it didn’t get a sin­gle com­mit­tee hear­ing in ei­ther house.

There must be no more such in­dif­fer­ence. There can be no more ex­cuses — at any level of govern­ment.

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