Citizens for Strong Schools, Inc. v. Florida State Board of Education , 262 So. 3d 127 ( 2019 )

Supreme Court of Florida
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No. SC18-67
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CITIZENS FOR STRONG SCHOOLS, INC., et al.,
Petitioners,
vs.
FLORIDA STATE BOARD OF EDUCATION, et al.,
Respondents.
January 4, 2019
PER CURIAM.
This case involves a nearly ten-year attempt by Petitioners to have the State
of Florida’s K-12 public education system declared unconstitutional due to the
State’s alleged failure to comply with article IX, section 1(a) of the Florida
Constitution, which provides in relevant part as follows:
(a) The education of children is a fundamental value of the
people of the State of Florida. It is, therefore, a paramount duty of the
state to make adequate provision for the education of all children
residing within its borders. Adequate provision shall be made by law
for a uniform, efficient, safe, secure, and high quality system of free
public schools that allows students to obtain a high quality education
....
Art. IX, § 1(a), Fla. Const. Specifically, Petitioners seek a declaration that the
State is breaching its “paramount duty to make adequate provision for a uniform,
efficient, safe, secure, and high quality system of free public schools that allows
students to obtain a high quality education.” And Petitioners request the courts to
order the State “to establish a remedial plan that . . . includes necessary studies to
determine what resources and standards are necessary to provide a high quality
education to Florida students.”
The language in article IX, section 1(a) regarding “fundamental value,”
“paramount duty of the state,” and “efficient, safe, secure, and high quality system
of free public schools that allows students to obtain a high quality education” was
added in 1998, after the changes were proposed by the Constitution Revision
Commission (CRC) and approved by the voters. Prior to 1998, article IX, section
1 provided in relevant part as follows:
Adequate provision shall be made by law for a uniform system of free
public schools . . . .
The 1998 amendments were in part in response to Coalition for Adequacy &
Fairness in School Funding, Inc. v. Chiles (Coalition), 680 So. 2d 400 (Fla. 1996),
in which this Court upheld the trial court’s dismissal with prejudice of a complaint
that “asked the trial court to declare that an adequate education is a fundamental
right . . . and that the State has failed to provide its students that fundamental right
by failing to allocate adequate resources for a uniform system of free public
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schools.” Id. at 402. The allegations in Coalition—made in the context of “a
blanket assertion that the entire system is constitutionally inadequate,” id. at 406—
focused on purported inadequacies in funding and disparities relating to certain
subgroups of students, including “[e]conomically deprived students,” disabled
students, and “[s]tudents in property-poor counties.” Id. at 402. This Court upheld
the dismissal with prejudice because the appellants made “an insufficient showing”
“to justify” “judicial intrusion” into the Legislature’s powers and responsibilities.
Id. at 407; see id. at 408 (Overton, J., concurring).
Here, Petitioners’ blanket challenge bears a striking resemblance to that in
Coalition, namely in its focus on purportedly inadequate funding and on disparities
relating to certain subgroups of students. The trial court, relying on Coalition and
dismissing the relevance of the 1998 amendments, rejected Petitioners’ challenge.
The First District Court of Appeal affirmed.
We have for review Citizens for Strong Schools, Inc. v. Florida State Board
of Education (Citizens), 232 So. 3d 1163 (Fla. 1st DCA 2017), in which the First
District concluded that the 1998 amendments—namely, the words “efficient” and
“high quality”—do not provide sufficiently manageable standards to overcome the
political question and separation of powers concerns that were determinative in
Coalition. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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We conclude that Coalition defeats Petitioners’ claim because Petitioners—
like the appellants in Coalition—fail to present any manageable standard by which
to avoid judicial intrusion into the powers of the other branches of government.
Accordingly, we approve the result reached by the First District. Before
explaining our decision, we review the lengthy procedural history of this case.
I. BACKGROUND
This case began in November 2009—in the wake of the Great Recession—
when certain public school students, parents, and citizen organizations
(collectively, Petitioners) filed suit against the State Board of Education, the
President of the Florida Senate, the Speaker of the Florida House of
Representatives, and the Florida Commissioner of Education (collectively,
Respondents) seeking a declaration that the State is breaching its paramount duty
under article IX, section 1(a). Or as the First District later described it, Petitioners’
claim is “that the State’s entire K-12 public education system—which includes 67
school districts, approximately 2.7 million students, 170,000 teachers, 150,000
staff members, and 4,000 schools—is in violation of the Florida Constitution.”
Citizens, 232 So. 3d at 1165.
In their complaint, Petitioners cited the 1998 amendments to article IX,
section 1 and asserted that “adequate provision” and “high quality” are to be
“measured by both the enumerated characteristics of and inputs into the system
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itself as well as the outcome results of that system.” Petitioners largely focused on
purported inadequacies in funding and alleged that the “2009 Appropriations Act
for K-12 education violates the Education Clause of the Florida Constitution.”
Petitioners also criticized, among other things, the State’s “current accountability
policy,” “misus[e]” of standardized test results, inadequate graduation rates, and
achievement test results. Petitioners further alleged that the State’s alleged “failure
to provide a high quality education disproportionately impacts minority, low
income and students with disabilities.” In the end, Petitioners requested that the
trial court order Respondents “to establish a remedial plan that conforms with the
Florida Constitution.” Petitioners later amended their complaint to request that the
remedial plan “include[] necessary studies to determine what resources and
standards are necessary to provide a high quality education to Florida students.”
Respondents’ Motion to Dismiss
Respondents moved to dismiss Petitioners’ complaint, principally on the
basis that Petitioners’ claim “alleges a non-justiciable political question” and was
similar to the blanket challenge rejected in Coalition. The trial court denied
Respondents’ motion, distinguishing Coalition as “no longer binding authority”
because the allegations there were less comprehensive and were “based on a prior
and weaker version of the current Article IX, Section 1.” The trial court instead
relied on this Court’s 2006 decision in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006),
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which interpreted the post-1998 article IX, section 1 in the context of a challenge
to a voucher program. The trial court pointed to language in Holmes that noted
that the 1998 amendments had been drafted “to provide standards by which to
measure the adequacy of the public school education provided by the state.”
(Quoting Holmes, 919 So. 2d at 403.) The trial court thus permitted Petitioners’
claim “seek[ing] system-wide declaratory and supplemental relief” to proceed.
Respondents’ Petition for a Writ of Prohibition
Respondents—continuing to rely on Coalition—next petitioned the First
District for a writ of prohibition, asserting that the trial court lacked jurisdiction to
adjudicate the political questions presented by the case. Haridopolos v. Citizens
for Strong Sch., Inc., 81 So. 3d 465, 470 (Fla. 1st DCA 2011). The First District
sitting en banc denied the petition but noted that Respondents’ arguments
regarding the political question doctrine would remain available on appeal. Id. at
471. The First District also certified the following as a question of great public
importance:
DOES ARTICLE IX, SECTION 1(A), FLORIDA CONSTITUTION,
SET FORTH JUDICIALLY ASCERTAINABLE STANDARDS
THAT CAN BE USED TO DETERMINE THE ADEQUACY,
EFFICIENCY, SAFETY, SECURITY, AND HIGH QUALITY OF
PUBLIC EDUCATION ON A STATEWIDE BASIS, SO AS TO
PERMIT A COURT TO DECIDE CLAIMS FOR DECLARATORY
JUDGMENT (AND SUPPLEMENTAL RELIEF) ALLEGING
NONCOMPLIANCE WITH ARTICLE IX, SECTION 1(A) OF THE
FLORIDA CONSTITUTION?
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Id. at 473. Judge Roberts and six other judges dissented, arguing that the petition
should be granted. Id. at 481 (Roberts, J., dissenting). Judge Roberts examined
Coalition and concluded that the 1998 amendments were “ultimately irrelevant”:
Whether the [Constitution Revision] Commission intended to create a
justiciable standard is ultimately irrelevant. The test is whether an
enforceable standard was actually created by the text of the
amendment itself. Because the terms “efficient . . . and high quality”
are no more susceptible to judicial enforcement than the term
“adequate,” this claim cannot be enforced by the courts.
Id. at 478 (Roberts, J., dissenting).
This Court declined to exercise jurisdiction. Haridopolos v. Citizens for
Strong Sch., Inc., 103 So. 3d 140 (Fla. 2012) (table).
Petitioners’ Second Amended Complaint
In May 2014—nearly 4.5 years after their original complaint challenging the
“2009 Appropriations Act”—Petitioners filed a Second Amended Complaint. 1
Petitioners again focused on funding, including alleged failures of the State both to
provide an adequate “overall level of funding” and to “conduct[] a cost analysis in
order to determine the amount of funding required to institute a high quality
education system.” Petitioners also alleged that the State had failed to provide “a
‘uniform’ system of free public schools,” was instead “systematically diverting
1. Among other things, the Second Amended Complaint included a new
Count challenging the State’s voluntary, pre-kindergarten program. That Count
was severed and is not before this Court.
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public funds to private schools,” and had “created a parallel system of schools.”
To support their uniformity argument, Petitioners described two choice
programs—the Florida Tax Credit Scholarship Program (FTC) and the McKay
Scholarship for Students with Disabilities Program (McKay). Petitioners also
alleged for the first time that the State had failed to provide an “efficient system of
free public schools,” claiming that the State’s various reforms and programs had
“wasted millions of dollars without producing the desired effect of a high quality
public school system.” Petitioners reiterated their allegation that the State had
failed to produce a “high quality” system, and they again requested an order
directing Respondents “to establish a remedial plan that . . . includes necessary
studies to determine what resources and standards are necessary to provide a high
quality education to Florida students.”
FTC/McKay Intervenors
In the wake of Petitioners’ factual allegations regarding the FTC and McKay
programs, the trial court permitted certain parents whose children were
beneficiaries of those programs to intervene (Intervenors). Petitioners later filed a
Motion for Partial Summary Judgment seeking a declaratory judgment that the
FTC and McKay programs violate the uniformity requirement of article IX, section
1(a). The Intervenors opposed and submitted their own Motion for Partial
Judgment on the Pleadings.
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The trial court eventually ruled that the Second Amended Complaint did not
contain any “claim that either program violates the Florida Constitution” and did
not include any request for declaratory relief with respect to either program. The
trial court also ruled that Petitioners lacked standing to challenge the FTC program.
The trial court nevertheless permitted Petitioners—consistent with the pleadings—
to present evidence “regarding the impact of each program on the uniformity and
funding of the overall public education system.”
The Trial Court’s Final Judgment
After years of substantial discovery, the case proceeded to trial in 2016.
After a nearly four-week bench trial involving dozens of witnesses and more than
5,000 exhibits, the trial court—a different trial judge than the one who originally
denied Respondents’ motion to dismiss—entered Final Judgment against
Petitioners “on all claims.” The trial court did so after making extensive and
detailed findings. Indeed, the Final Judgment includes a 175-page appendix of
findings of fact.
The trial court early on noted that “Florida’s system of education is
structurally complicated,” in part because each county has its own school board
with constitutional duties and authority. The trial court thus explained that
variability necessarily exists between school districts, even among those with
equivalent funding, given “variations in how the local districts allocate their
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resources.” And the trial court concluded that the school districts, who were not
parties to the suit, were “indispensable parties” to the extent Petitioners “seek relief
for decisions that Florida law entrusts to local school districts—including decisions
on hiring, staffing, and the allocation of resources among schools within a
particular district.”
The trial court went on to address the issue of justiciability anew, concluding
that Petitioners presented a nonjusticiable “blanket” challenge to the adequacy of
the entire education system and that, despite the 1998 amendments, the “new
adjectives . . . —‘efficient and high quality’—do not give judicially manageable
content to the adequacy standard that was held non-justiciable in the Coalition
case.” In other words, the issues remained “political questions best resolved in the
political arena.” The trial court noted for example that “many of Florida’s
education policies and programs are subject to ongoing debate without any
definitive consensus.” The trial court also held that Petitioners’ claim fails because
of “Florida’s strict separation-of-powers doctrine.”
Nevertheless, given the lack of a final appellate ruling on the justiciability
issue, the trial court—at great length—addressed the evidence. After determining
that the burden was on Petitioners to show that Respondents’ actions “are irrational
or unconstitutional beyond a reasonable doubt,” the trial court repeatedly discussed
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the “weight of the evidence” and what the evidence showed for each of Petitioners’
major subdivisions of allegations. For example, the trial court concluded:
The weight of the evidence shows that the State has made
education a top priority both in terms of implementation of research-
based education policies and reforms, as well as education funding.
The State has an accountability and assessment system that is rated
among the best in the nation, resulting in more “A” graded schools
over time. The State has also adopted rigorous teacher certification,
training and evaluation standards, resulting in over 94% of courses
being taught by teachers who are “highly qualified” under federal
standards.
Regarding funding, the trial court found, “based on the evidence presented, that
there is not a constitutional level lack of resources available in Florida schools.”
More specifically, the trial court observed:
With respect to funding, the evidence indicates that over the
past twenty years, K-12 education has been the single largest
component of the state general revenue budget. Even during the
recent, severe economic downturn, the State ensured that education
funding was less impacted than other government services and
functions. In the current school year, the State funds education at the
highest level in Florida history. Since the 1997-98 school year,
education funding has outpaced inflation. The State has made efforts
to equalize its funding and considers education costs for different
student programs and cost-of-living differences across the state. It
also is significant that the State has provided sufficient funding for
schools to meet the class size requirements set forth in Article IX. 2
2. As discussed below, article IX, section 1(a) was amended in 2002 to
impose certain class size requirements and to require the Legislature to fund the
costs associated with meeting those requirements.
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The trial court also found that the State’s “complex funding formula”—the Florida
Education Finance Program—“is generally recognized as one of the most
equalizing school funding formulas in the nation.” The trial court also determined
that “all of the school districts in Florida have excess capacity for generating
revenue through local property taxes or sales surtaxes” and that “many” of the
district witnesses cited “political” reasons for not doing so.
The trial court also addressed Petitioners’ arguments regarding graduation
rates, test results, and disparities among certain subgroups. After determining that
the “most appropriate” examination of student performance is one that views that
performance “over time and in context,” the trial court described substantial,
dramatic, and sustained improvements that have taken place in Florida since the
late 1990’s, including that “the high school graduation rate has increased by over
25 points, with more students of all racial, ethnic, and socioeconomic backgrounds
graduating than ever before.” The trial court also cited “dramatic” and sustained
improvement on test results as measured by “a variety of measures, including
national and international assessments.” Regarding achievement and performance
gaps, the trial court found that these gaps unfortunately “exist throughout the
country,” but that “Florida’s gaps are smaller than the national gaps, and Florida
has outpaced the nation in closing these gaps.” (Emphasis added.) As one
example, the trial court found that “Florida’s students eligible for free-and-
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reduced-price lunch ranked first in the nation, outperforming similar economically
disadvantaged students in all other states.” As another example, the trial court
found that during the relevant period, Florida was “the only state in the nation to
narrow the achievement gap between White and Black/African-American students
in both reading and mathematics in the fourth and eighth grades.” And as it relates
to Petitioners’ theory of the case—that is, the “need for more resources”
argument—the trial court specifically found that Petitioners “failed to establish any
causal relationship between any alleged low student performance and a lack of
resources.” (Emphasis added.) In the end, the trial court described an education
system that is not perfect but that is working very well overall and has been “a top
priority” of the State.
Finally, regarding the FTC and McKay programs, the trial court reiterated its
prior rulings and found “no negative effect on the uniformity or efficiency of the
State system of public schools due to these choice programs.”
The First District’s Decision
On appeal, the First District affirmed in all respects. Citizens, 232 So. 3d at
1174. The First District agreed with the trial court that Petitioners’ arguments
“raise political questions not subject to judicial review, because the relevant
constitutional text does not contain judicially discoverable standards by which a
court can decide whether the State has complied with organic law.” Id. at 1165.
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The First District also agreed that Florida’s “strict separation of powers . . .
requires judicial deference to the legislative and executive branches to adopt and
execute educational policies those branches deem necessary and appropriate to
enable students to obtain a ‘high quality’ education.” Id. at 1165-66. According to
the First District, article IX, section 1(a) does not “empower judges to order the
enactment of educational policies regarding teaching methods and accountability,
the appropriate funding of public schools, the proper allowance of charter schools
and school choice, the best methods of student accountability and school
accountability, and related funding priorities.” Id. at 1166.
The First District began by examining Coalition and its reference to the
Supreme Court’s analysis of the political question doctrine in Baker v. Carr, 369
U.S. 186 (1962). Citizens, 232 So. 3d at 1168. The First District explained how
the instant case fell within Baker’s “dominant considerations” of “attributing
finality to the action of the political departments and also the lack of satisfactory
criteria for a judicial determination.’ ” Id. (quoting Baker, 369 U.S. at 210).
Indeed, the First District noted that this case “consume[d] years in the court
system . . . over the meaning of subjective and undefined phrases that might
function to give guidance to political decision makers as laudable goals, but cannot
guide judges in deciding whether a state or local government has in fact complied
with the text.” Id. at 1169.
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The First District then explained how Coalition rejected a similar “blanket
challenge to the adequacy of the education system.” Id. at 1169-70. The First
District noted that the plaintiffs in Coalition “failed to demonstrate any
manageable standards that could be applied without ‘a substantial risk of judicial
intrusion into the powers and responsibilities assigned to the legislature.’ ” Id. at
1170 (quoting Coalition, 680 So. 2d at 408). The First District agreed with the
trial court that “ ‘efficient’ and ‘high quality’ are no more susceptible to judicial
interpretation than ‘adequate’ was under the prior version of the education
provision.” Id.
The First District concluded that its holding was supported “by Florida’s
strict separation of powers doctrine and by the language of the amended
constitutional article itself.” Id. On the latter point, the First District noted that the
1998 amendments retained the language that “adequate provision shall be made by
law,” id. at 1171 (quoting art. IX, § 1(a), Fla. Const.), leading the First District to
conclude “that the constitution continues to commit education policy
determinations to the legislative and executive branches,” id.
The First District “recognize[d] that courts in other states have sometimes
purported to define” similar concepts in their education articles, but the First
District concluded that those decisions were “insufficiently deferential to the
fundamental principle of separation of powers . . . and the practical reality that
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educational policies and goals must evolve to meet ever changing public
conditions.” Id. at 1172. The First District instead agreed with other courts that
have declined to impose upon the legislature the court’s view of “adequacy,
efficiency, and quality.” Id. 3
Lastly, the First District affirmed the trial court’s rejection of Petitioners’
arguments regarding uniformity and the FTC and McKay programs. Id. at 1173-
74.
II. ANALYSIS
This Court is being asked to determine whether in this case we have been
presented with a manageable standard for assessing—in the context of a blanket
challenge to the constitutionality of the K-12 education system—whether the State
has made “adequate provision” for an “efficient” and “high quality” system of
education “that allows students to obtain a high quality education” under article IX,
section 1(a) of the Florida Constitution. The trial court and the First District both
held in the negative, relying on the reasoning in Coalition. This question presents
3. The First District specifically noted its agreement with the Pennsylvania
Supreme Court’s decision in Marrero v. Commonwealth, 739 A.2d 110, 112 (Pa.
1999). However, as Petitioners point out, the Pennsylvania Supreme Court had
distanced itself from Marrero prior to the First District’s decision. See William
Penn Sch. Dist. v. Pennsylvania Dep’t of Educ., 170 A.3d 414, 457 (Pa. 2017)
(“We find irreconcilable deficiencies in the rigor, clarity, and consistency of the
line of cases that culminated in [Marrero].”).
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a pure issue of law that is subject to de novo review. W. Fla. Reg’l Med. Ctr., Inc.
v. See, 79 So. 3d 1, 8 (Fla. 2012) (“Statutory and constitutional construction are
questions of law subject to a de novo review.”). We decline to address the other
issues raised by Petitioners.4
We agree with the lower courts that Petitioners’ blanket challenge does not
survive the reasoning in Coalition, notwithstanding the 1998 amendments to article
IX, section 1(a). Although we do not necessarily agree with what appears to be the
district court’s conclusion that an article IX challenge could never be justiciable,
see Coalition, 680 So. 2d at 408 (declining to say “never”), we need not decide that
issue. Instead, this case turns in part on Petitioners’ failure to present the courts
with any roadmap by which to avoid intruding into the powers of the other
branches of government.
At the outset, we strongly reject any suggestion in the dissenting opinions
that those of us agreeing to approve the result reached by the First District are
shirking a constitutional duty or somehow care less than the dissenting justices
about the education of Florida’s children. Indeed, the refusal to recognize both the
4. Petitioners argue that the trial court incorrectly applied rational basis
scrutiny and ask this Court to determine the appropriate standard and then remand
so their claim can be reexamined under that standard. We find no need to address
this argument. Petitioners also present arguments regarding the McKay and FTC
programs. These arguments were not adequately preserved.
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blanket nature of Petitioners’ challenge and that this case amounts to a request for
the courts to determine the appropriate amount of education funding explains in
large part the asserted struggle to understand the “judicial universe” in which this
case is being decided. Dissenting op. at 42, 64 (Pariente, J.).5
This suit began nearly a decade ago in what largely resembled a funding
challenge to the “2009 Appropriations Act.” Since then, not only has that
appropriations act come and gone, but so too have many subsequent appropriations
acts. Moreover, in that same time span, the Legislature has revised—on more than
one occasion—the standards and assessments complained of by Petitioners. And
the trial court explained how the State’s process for developing, administering,
scoring, and reporting is “an inclusive process involving Florida educators all
along the way.” The point being, the education system—and education policy
itself—does not remain static and is instead continually being shaped by various
5. The dissent disputes the notion that Petitioners’ claim is a “ ‘blanket
challenge’ to the entire state education system.” Dissenting op. at 46 (Pariente, J.).
But the blanket nature of Petitioners’ claim is not reasonably in dispute. The
original trial judge recognized that Petitioners sought “system-wide declaratory
and supplemental relief.” The trial judge who later rendered Final Judgment
recognized that Petitioners “have ‘made a blanket assertion that the entire system is
constitutionally inadequate.’ ” (Quoting Coalition, 680 So. 2d at 406.) And the
First District recognized that Petitioners “assert[ed] that the State’s entire K-12
public education system . . . is in violation of the Florida Constitution.” Citizens,
232 So. 3d at 1165. The attempt by the dissenters to recharacterize this case is
totally at odds with the way this case has been presented by Petitioners.
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interested parties. Thus, Petitioners’ challenge is fundamentally different than a
challenge to a specific program or a specific funding issue. In effect, Petitioners
ask this Court to declare the current educational system unconstitutional based on
years-old evidence.
In any event, to explain why we approve the result reached by the First
District, we begin by reviewing this Court’s 1996 decision in Coalition. We then
examine certain subsequent amendments to and failed attempts to amend article
IX, section 1, including the adopted 1998 amendments at issue. We then examine
this Court’s more recent decision in Holmes. We conclude by explaining why
Petitioners fail to overcome Coalition. As this Court did in Coalition, we decline
to look to other jurisdictions. Coalition, 680 So. 2d at 404-05. Instead, we look to
the language of the Florida Constitution and this Court’s decisions.
Coalition
In Coalition, this Court addressed a similar challenge to the “adequacy” of
the entire school system, but one brought under the pre-1998 article IX, section 1.
Coalition, 680 So. 2d 400. The appellants in Coalition sought a declaration “that
an adequate education is a fundamental right under the Florida Constitution, and
that the State has failed to provide its students that fundamental right by failing to
allocate adequate resources for a uniform system of free public schools.” Id. at
402. Among other things, the allegations focused on purported inadequacies
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relating to certain subgroups of students. Id. The trial court dismissed the
complaint with prejudice, and this Court affirmed. Id.
Coalition began by exploring the history of Florida’s education article,
noting among other things that the Constitution was amended in 1868 to provide
that it was “the paramount duty of the State to make ample provision for the
education of all the children,” and that the “paramount duty” language was
subsequently deleted in 1885. Id. at 405.6 Coalition then examined the language
of the present education article, noting that “adequate provision” had not been
defined but that this Court had on numerous occasions “attempted to define” the
phrase “uniform system of free public education.” Id. at 406. In doing so, this
Court noted that those prior cases all involved “an objection to some specific
funding issue,” as opposed to “a blanket assertion” against the adequacy of “the
entire [education] system.” Id. Recognizing the nature of the case as a challenge
to the Legislature’s overall funding of education, this Court ultimately agreed with
the trial court that “the courts cannot decide whether the Legislature’s
appropriation of funds is adequate in the abstract, divorced from the required
6. In a footnote, Coalition referenced a “four-category system” developed
by certain scholars that “attempt[s] to measure the level of duty imposed on the
state legislature” depending upon the language of the state’s education clause.
Coalition, 680 So. 2d at 405 n.7. Coalition then contrasted Florida’s 1868
education clause with the “present educational clause.” Id.
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uniformity” because doing so “would necessarily” require the courts “to
subjectively evaluate the Legislature’s value judgments as to the spending
priorities to be assigned to the state’s many needs, education being one among
them.” Id. at 406-07 (quoting trial court’s order). This Court further agreed that
“if the Court were to declare present funding levels ‘inadequate,’ presumably the
Plaintiffs would expect the Court to evaluate, and either affirm or set aside, future
appropriations decisions.” Id. at 407 (quoting trial court’s order).
Coalition then more directly addressed the separation of powers doctrine,
explaining that the appellants’ funding challenge implicated constitutional
provisions other than just article IX. Indeed, after noting that the separation of
powers doctrine was “expressly set[] forth” in article II, section 3 and that article
VII, section 1(c) “expressly reserve[s] to the legislative branch” the power to
appropriate funds, this Court concluded that “an insufficient showing has been
made to justify judicial intrusion” into the Legislature’s appropriations power. Id.
at 407-08. This Court further concluded that, unlike the term “uniform,” the term
“ ‘adequacy’ simply does not have such straightforward content.” Id. at 408. This
Court thus agreed with the appellees’ reliance on Baker, in which the Supreme
Court “set forth six criteria to gauge whether a case involves a political question,”
including “(1) a textually demonstrable commitment of the issue to a coordinate
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political department; [and] (2) a lack of judicially discoverable and manageable
standards for resolving it.” Id. Coalition summed up:
While we stop short of saying “never,” appellants have failed to
demonstrate in their allegations, or in their arguments on appeal, an
appropriate standard for determining “adequacy” that would not
present a substantial risk of judicial intrusion into the powers and
responsibilities assigned to the legislature, both generally (in
determining appropriations) and specifically (in providing by law for
an adequate and uniform system of education).
Id. In doing so, this Court stated “that the legislature has been vested with
enormous discretion by the Florida Constitution to determine what provision to
make for an adequate and uniform system of free public schools.” Id. (emphasis
added).
In a concurring opinion, Justice Overton agreed with the majority that an
insufficient showing had been made to justify judicial intrusion but wrote
separately to express his view that the majority’s holding does not preclude the
judiciary from being involved in the enforcement of article IX, section 1. Id. at
408 (Overton, J., concurring). Justice Overton opined that although the education
article “does not ensure a perfect system” or “guarantee[] a perfect or ideal
education,” it also “does not preclude the treatment of education as an essential,
fundamental right.” Id. at 409 (Overton, J., concurring). And Justice Overton
suggested that the term “adequate” must have some “minimum threshold . . . below
which the funding provided by the legislature would be considered ‘inadequate.’ ”
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Id. As an example, Justice Overton suggested that an allegation of “a thirty
percent illiteracy rate” in a county would “at least state[] a cause of action.” Id. 7
In a dissenting-in-part opinion joined by two other justices, Justice Anstead
argued that, given the “comprehensive allegations of inadequacies set out in
appellants’ complaint,” the appellants should have been permitted to establish a
factual context and that this Court had “failed to carry out its duty to ensure that
the legislature has performed its constitutional mandate.” Id. at 410 (Anstead, J.,
dissenting in part). Justice Anstead also emphasized the importance of education,
positing that “[s]urely all would agree that education is a fundamental value in our
society.” Id. In Justice Anstead’s view, the education article “recognized the
fundamental value of education,” and there was no need “to add ‘puffing’ words to
suggest the quality of the system contemplated.” Id. at 410-11 (Anstead, J.,
dissenting in part).
Failed 1997 Amendment to Article IX
One year after Coalition, this Court addressed an initiative petition that
sought to amend article IX, section 1 by defining “[a]dequate provision for funding
public education” to mean a minimum percentage (40%) of total appropriations.
7. The trial court here directly addressed Justice Overton’s “excellent
example of why the judicial branch should never say never,” finding that “[t]his
case is not about a significant level of illiteracy.”
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Advisory Op. to the Att’y Gen. re Requirement for Adequate Pub. Educ. Funding,
703 So. 2d 446, 447 (Fla. 1997). This Court struck the proposed amendment as
violative of the single subject requirement of article XI, section 3. Id. at 448. This
Court found that the amendment “arbitrarily” and “substantially affects . . . other
functions” of government in Florida, including “various vital functions.” Id. at
449. This Court also noted the proposed amendment’s impact on the “functions of
executive approval and veto” set forth in article III, section 8. Id.
The 1998 Amendments to Article IX
In 1998, the CRC proposed and the voters approved the changes to article
IX, section 1 at issue here. The 1998 amendments did not adopt Justice Overton’s
view in Coalition and declare education to be a “fundamental right.” Coalition,
680 So. 2d at 409 (Overton, J., concurring). Instead, the amendments stated that
education of children is “a fundamental value of the people,” tracking some of the
language in Justice Anstead’s dissenting-in-part opinion in Coalition. See id. at
410 (Anstead, J., dissenting in part). The 1998 amendments also returned the
“paramount duty” language to the education article, although the amendments—
presumably in recognition of the Legislature’s need to fund “the various vital
functions of State government, including not only education,” Advisory Op. to the
Att’y Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So. 2d at 449—
described the State’s duty to make adequate provision as “a paramount duty,”
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whereas the 1868 Constitution described the duty as “the paramount duty.”
Finally, the 1998 amendments added words such as “efficient” and “high quality”
to describe the contemplated system of free public schools.
Members of the 1998 CRC submitted competing amicus briefs in this case.
On the one hand, some of the members assert that one of the goals of the 1998
amendments was “to provide a judicially-enforceable right to a public school
system that is ‘uniform, efficient, safe, secure, and high quality.’ ” On the other
hand, other members argue that “common sense” indicates that “the ambiguous
terms ‘high quality’ and ‘efficient’ ” were used to “set forth aspirational goals” and
“to avoid litigation of the type brought in this case.”
2002 Amendment to Article IX—Class Size Reduction
In 2002—before any judicial interpretation of the term “high quality”—
article IX, section 1(a) was amended by initiative petition. The 2002 amendment
set a maximum number of students per classroom for various grade levels. See
Advisory Op. to the Att’y Gen. re Florida’s Amend. to Reduce Class Size, 816 So.
2d 580, 581-82 (Fla. 2002). The 2002 amendment also established a phase-in
period and expressly provided that the costs associated with meeting the class size
reductions were to be borne by “the legislature”—i.e., “the state”—as opposed to
the “local school districts.” Id. at 581. The 2002 amendment also directly
referenced the term “high quality” added to article IX, section 1(a) in 1998:
- 25 -
To assure that children attending public schools obtain a high quality
education, the legislature shall make adequate provision to ensure
that . . . there are a sufficient number of classrooms . . . .
(Emphasis added.) This Court upheld the validity of the initiative petition. Id. at
585-86.
Here, there is no suggestion that the Legislature failed to “make adequate
provision” for the reduction of classroom sizes. On the contrary, the trial court
found it “significant that the State has provided sufficient funding for schools to
meet the class size requirements set forth in Article IX.” In arguing to this Court
that “high quality” is a judicially manageable standard for measuring the State’s
compliance with article IX, Petitioners make no mention of the 2002 amendment
and the fact that the citizens constitutionalized a specific statewide policy with
funding mandate “[t]o assure that children attending public schools obtain a high
quality education.” See Holmes, 919 So. 2d at 407 (“[W]hen the Constitution
prescribes the manner of doing an act, the manner prescribed is exclusive . . . .”
(quoting Weinberger v. Bd. of Pub. Instruction, 112 So. 253, 256 (Fla. 1927))).
And in effectively urging the adoption of Petitioners’ argument, the dissent
references “basic rules of statutory construction,” dissenting op. at 60 (Pariente, J.),
and yet—like Petitioners—ignores the language added to article IX in 2002. We
are unaware of any principle of statutory construction that supports Petitioners’ and
the dissent’s approach.
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Holmes
In 2006, this Court in Holmes addressed article IX, section 1(a) but not in
the context of a blanket challenge to the K-12 system. Rather, Holmes involved a
challenge to a specific voucher program known as the Opportunity Scholarship
Program (OSP), under which any student from a “fail[ing]” public school could
either move to a different, non-failing public school or “receive funds from the
public treasury, which would otherwise have gone to the student’s school district,
to pay the student’s tuition at a private school.” Holmes, 919 So. 2d at 397. The
“narrow question” in Holmes was whether that second option involving the use of
public funds was prohibited by article IX, section 1(a). Id. at 397-98. Holmes
answered in the affirmative, concluding that the OSP “diverts public dollars into
separate private systems parallel to and in competition with the free public schools
that are the sole means set out in the Constitution for the state to provide for the
education of Florida’s children” and that the OSP “funds private schools that are
not ‘uniform’ when compared with each other or the public system.” Id. at 398.
As Coalition did previously, Holmes examined the history of Florida’s
education article. In doing so, Holmes noted that the 1998 amendments were made
“in response in part to Coalition . . . to make clear that education is a ‘fundamental
value’ and ‘a paramount duty of the state,’ and to provide standards by which to
measure the adequacy of the public school education provided by the state.” Id. at
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403. Holmes also cited certain commentary from individuals involved with the
1998 CRC explaining that the 1998 amendments represented “an attempt” to
provide measurable standards. Id. at 404. Holmes later recognized the 1998
amendments as “imposing a maximum duty on the state to provide for public
education that is uniform and of high quality.” Id. And Holmes later described
article IX, section 1(a) as “provid[ing] a comprehensive statement of the state’s
responsibilities regarding the education of its children.” Id. at 408.
Although Holmes recognized the usual framework of the presumptive
constitutionality of statutes, Holmes ultimately invalidated the OSP because it was
“in direct conflict with the mandate in article IX, section 1(a).” Id. at 405. Holmes
explained that article IX, section 1(a) contained not just a mandate to make
adequate provision for the education of all children, but also a restriction that the
mandate be fulfilled solely by means of a system of free public schools. Id. at 407.
In other words, the constitutional provision “does not authorize additional
equivalent alternatives.” Id. at 408.
The Reasoning and Result in Coalition Defeat Petitioners’ Challenge
In Coalition, this Court upheld a dismissal with prejudice of a blanket
challenge to the “adequacy” of the entire K-12 system—a challenge that bears a
close resemblance to the challenge here. 680 So. 2d at 402. This Court rejected
the challenge in part because the phrase “adequate provision” did not have
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“straightforward content.” Id. at 408. In doing so, this Court explained that
previous cases attempting to interpret the education article all involved some
“specific” challenge. Id. at 406. This Court thus balked at the possibility of
intruding into the powers of the other branches, including possibly being expected
“to evaluate, and either affirm or set aside, future appropriations decisions.” Id. at
407 (quoting trial court’s order). However, this Court refused to say “never.” Id.
at 408. Rather, the case turned on the challengers’ “fail[ure] to demonstrate . . . an
appropriate standard . . . that would not present a substantial risk of judicial
intrusion.” Id.
In his concurring opinion, Justice Overton agreed with the majority “that an
insufficient showing has been made by the appellants to justify a judicial intrusion
under the circumstances of this case.” Id. at 408 (Overton, J., concurring). He
went on to add that, in his view, the holding of the Court “does not mean that the
judiciary should not be involved in the enforcement of this constitutional
provision.” Id.
In sum, although recognizing the possibility that some future case might
present a justiciable claim under article IX, section 1, a majority of the Court
determined that the Coalition appellants had not presented such a claim. There is
no basis for concluding that Petitioners here have been any more successful in
framing a claim that is justiciable.
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The 1998 amendments to article IX, section 1 undoubtedly heightened the
Legislature’s mandate to “a paramount duty.” But the fact that the Legislature’s
duty to make “adequate provision” was heightened does not in and of itself provide
the courts with “an appropriate standard for determining ‘adequacy.’ ” Coalition,
680 So. 2d at 408. Rather, the primary issue here is whether the term “high
quality” provides such a standard. Although Holmes spoke of the 1998
amendments as “provid[ing] standards by which to measure the adequacy of the
public school education provided by the state,” 919 So. 2d at 403, that language
has no relevance here. Holmes did not involve a blanket “adequacy” challenge and
did not remotely address the issue of whether the entire K-12 system was
“efficient” or of “high quality.” Instead, Holmes addressed a “narrow question,”
id. at 397, involving a specific voucher program and turned on other language in
article IX, primarily “system of free public schools.” In other words, Holmes in no
way answers the question presented.8
Looking to the language of article IX, section 1(a), we conclude that the
term “high quality” in and of itself does not have “straightforward content,”
8. We disagree with the dissent’s suggestion that the reasoning of Holmes
was intended to and should apply to the type of blanket challenge brought in this
case. Dissenting op. at 51 (Pariente, J.). Not only did Holmes expressly note the
“narrow” scope of the issue presented in that case, Holmes, 919 So. 2d at 397, but
Holmes turned on language in article IX that long predated the 1998 amendments.
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Coalition, 680 So. 2d at 408, at least in the context of a blanket challenge to the
adequacy of the entire K-12 system. Indeed, “high quality” can reasonably be
viewed as “puffing.” Id. at 411 (Anstead, J., dissenting in part). It is thus hardly
surprising that article IX, section 1(a) was subsequently amended in 2002 to
constitutionalize a specific statewide policy—a classroom-size policy—along with
a funding directive to “assure that children attending public schools obtain a high
quality education.” Art IX, § 1(a), Fla. Const.; see Reduce Class Size, 816 So. 2d
580.
Putting aside the class size amendment, Petitioners simply cannot overcome
this Court’s reasoning and the result in Coalition. As in Coalition, they have failed
to present the courts with any manageable standard by which to avoid judicial
intrusion into the powers of the Legislature. Moreover, we find that the standard
actually proposed by Petitioners for measuring the Legislature’s compliance with
article IX, section 1(a) is foundationally flawed.
Petitioners’ argument largely is that the constitutional test “for measuring
whether the State is providing an opportunity for a high quality education” should
be based solely on the assessment results that measure whether students have
learned the core content standards established by the Legislature. In other words,
Petitioners do not ask this Court to define “high quality.” Rather, they assert that
the Legislature itself has already defined “high quality” and how to measure it.
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They thus allege that the educational system is constitutionally inadequate because
the “assessment results show low achievement and wide disparities,” particularly
“for children experiencing poverty or attending school in poorer school districts.”
Petitioners essentially ask this Court to constitutionalize the Legislature’s
own standards, which in part serve as goals. We reject that argument. In effect,
Petitioners’ argument is that a “high quality” system is whatever the Legislature
says it is, so long as some acceptable—yet unknown—percentage of all subgroups
of students achieve a satisfactory level of “3” on the assessment. Nothing in the
language of article IX, section 1(a) supports Petitioners’ argument. Nor does this
Court’s case law. Moreover, as amicus Foundation for Excellence in Education
logically points out, “adopting State standards as constitutional minima would have
the perverse effect of encouraging the weakening of curriculum standards in order
to achieve higher passage rates and to satisfy court-imposed requirements.” See
Br. of Amicus Foundation for Excellence in Education in Support of Respondents,
at 13-14 (explaining how this phenomenon occurred in the wake of the federal No
Child Left Behind Act of 2001). 9
9. The dissent attempts to undercut amicus’s sound logic in part by stating
that amicus was “founded by former Governor Jeb Bush” and citing the website
“conservativetransparency.org” to support the assertion that amicus’s mission is to
privatize schools. Dissenting op. at 54 n.18 (Pariente, J.). We disagree with the
dissent’s ad hominem approach to challenging logic and reason, an approach that
not so subtly attempts to drag politics into judicial decision making.
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Not only do Petitioners conflate constitutional requirements with legislative
standards, they also ignore—as do the dissenters—that in the years since this suit
was first filed, the Legislature has revised the complained-of standards and
assessments on more than one occasion. Moreover, Petitioners’ argument flies in
the face of the trial court’s detailed findings, none of which Petitioners challenge
for lacking a basis in the record. As just a few examples, the trial court found that:
“Florida has been a national leader in education reform”; Florida intentionally
adopted rigorous standards and set cut scores at a level that places the majority of
students below the satisfactory level; scoring a “Level 1 or 2” on the assessment
“is not an indication that a student ‘can’t read’ or is illiterate”; the State’s “high
performance standards . . . have led to improvement over time”; and Florida “has
outpaced the nation in closing” achievement and performance gaps that “exist
throughout the country.”
While Petitioners’ proposed standard is problematic in and of itself,
Petitioners’ own pleadings expose the flaws in their arguments and highlight why
Coalition requires that we approve the result reached by the First District. Indeed,
what Petitioners seek is for the courts to order Respondents “to establish a remedial
plan that . . . includes necessary studies to determine what resources and standards
are necessary to provide a high quality education to Florida students.” (Emphasis
added.) In other words, Petitioners do not know what a “high quality system”
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looks like, how it can be achieved, or what resources and standards are necessary.
Instead, they—and presumably the courts—will know an “efficient” and “high
quality” system, as well as an “adequate” level of overall funding, when they see a
study that shows what it is. Petitioners invite this Court to not only intrude into the
Legislature’s appropriations power, see Coalition, 680 So. 2d at 407
(“[P]resumably the Plaintiffs would expect the Court to evaluate, and either affirm
or set aside, future appropriations decisions . . . .”), but to inject itself into
education policy making and oversight. We decline the invitation for the courts to
overstep their bounds.
Even if we were inclined to accept all of Petitioners’ arguments regarding
justiciability and separation of powers, on the record presented here Petitioners still
could not prevail. At bottom, Petitioners’ blanket challenge to the educational
system is a funding challenge, one rooted in the notion that the Legislature is not
providing an adequate overall level of funding and that the lack of funding has
resulted in disproportionate outcomes for certain students. That is clear from
Petitioners’ allegations, Petitioners’ specific request for relief, and the rest of the
record. Indeed, the trial court noted, among other things, that “[t]he primary thrust
of [Petitioners’] complaint is that there is a crisis . . . caused by the State of
Florida’s inadequate funding of education,” that Petitioners “asserted that more
resources were clearly needed to address the problems they identified in their
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complaint,” and “that the evidence was focusing on [Petitioners’] ‘need for more
resources’ argument.” But the trial court’s express findings doom Petitioners’
funding challenge and theory of the case. Not only did the trial court find that
Petitioners “failed to establish any causal relationship between any alleged low
student performance and a lack of resources,” but the trial court found that “the
weight of the evidence . . . establishes a lack of any causal relationship between
additional financial resources and improved student outcomes.” Petitioners’
failure to establish such a causal relationship provides an independent basis for
rejection of their claims. 10
III. CONCLUSION
Given the blanket nature of Petitioners’ challenge, the trial court’s extensive
and detailed findings after Petitioners were permitted to establish a factual record,
and the failure of Petitioners to provide any manageable standard to support their
challenge to the adequacy of the funding of the entire K-12 education system, we
approve the result reached by the First District in affirming the trial court’s
rejection of Petitioners’ challenge.
It is so ordered.
10. The dissent disagrees that Petitioners’ failure on this point provides an
independent basis for rejecting Petitioners’ claims. Dissenting op. at 61 (Pariente,
J.). The dissent simply fails to acknowledge what indisputably is the “primary
thrust” of this case.
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CANADY, C.J., and LAWSON, J., and EDWARD C. LaROSE, Associate Justice,
concur.
CANADY, C.J., concurs with an opinion, in which LAWSON, J., and EDWARD
C. LaROSE, Associate Justice, concur.
LABARGA, J., concurs in result only.
PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ.,
concur.
LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ.,
concur.
POLSTON, J., recused.
NO MOTION FOR REHEARING WILL BE ALLOWED.
CANADY, C.J., concurring.
The manifest goal of the Petitioners and the dissenting justices is to put
educational funding and educational policy firmly under the control of the
judiciary. That is the only possible path forward once a judicial decision is made
that “the State has failed to ensure that its allocations are the best use of funding,”
that “the State is not funding schools in an efficient manner,” and that the State has
not “allocate[d] resources in a productive manner and without waste.” Dissenting
op. at 58-59 (Pariente, J.). The response to such a judicial decision would involve
judicial control of educational funding levels and judicial control of how
educational funds are used. There is no reason to believe that the judiciary is
competent to make these complex and difficult policy choices. And there is every
reason to believe that arrogating such policy choices to the judiciary would do
great violence to the separation of powers established in our Constitution.
- 36 -
Contrary to the position of the Petitioners and the dissenters, the addition to
the Constitution of the capaciously vague terms “efficient” and “high quality”
cannot be understood to have wrought a revolution in the separation of powers. I
therefore fully concur with the plurality opinion’s view that going down the path
charted by the Petitioners and the dissenters would be inconsistent with this
Court’s precedent in Coalition for Adequacy & Fairness in School Funding, Inc. v.
Chiles, 680 So. 2d 400 (Fla. 1996), that requires judicially manageable standards in
order for the judiciary to intervene.
In striking down a delegation of legislative power to the executive, we
previously held that “[t]he legislative responsibility to set fiscal priorities through
appropriations is totally abandoned when the power to reduce, nullify, or change
those priorities is given over to the total discretion of another branch of
government.” Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 265 (Fla.
1991). We recognized the fundamental point that “[u]nder any working system of
government, one of the branches must be able to exercise the power of the purse,
and in our system it is the legislature, as representative of the people and maker of
laws, including laws pertaining to appropriations, to whom that power is
constitutionally assigned.” Id. at 267. We emphasized the importance of this
unique role played by the Legislature in controlling state spending:
The constitution specifically provides for the legislature alone
to have the power to appropriate state funds. More importantly, only
- 37 -
the legislature, as the voice of the people, may determine and weigh
the multitude of needs and fiscal priorities of the State of Florida. The
legislature must carry out its constitutional duty to establish fiscal
priorities in light of the financial resources it has provided.
Id.
Of course, this does not mean that the judiciary in adjudicating individual
constitutional claims can never make decisions that have an impact on state
spending. But it does mean that the judiciary cannot take over the appropriations
process and policymaking concerning the use of state funds for the public school
system. If the judiciary does so, it strikes a grievous blow against the
constitutional separation of powers. And that is exactly what the Petitioners and
the dissenters would have us do. This is not a case in which a constitutional attack
is made on specific identified actions of the government that have violated the
Constitution. Instead, it is a challenge based on particular conditions that allegedly
offend the Constitution and that are assumed to result from a complex series of
deficient actions of the State—involving appropriations and the use of appropriated
funds—that remains unidentified.
At its core, this is a case in search of a remedy. Or more to the point, it is a
case in search of a remediator. In brief, the Petitioners and the dissenters take the
position that educational funding and policy in Florida are not working as well as
they should, and that the judiciary should figure out how funding and policy can
work better. The judiciary is very good at making certain types of decisions—that
- 38 -
is, judicial decisions. But it lacks the institutional competence—or the
constitutional authority—to make the monumental funding and policy decisions
that the Petitioners and the dissenters seek to shift to the judicial branch. And there
is not a hint of any manageable judicial standards to apply in making those
decisions. Instead, if the Petitioners and the dissenters had their way, judges would
simply apply their own policy preferences. This collides with the basic principle
of our constitutional structure that “[t]he judicial power of the state extends” only
to “controversies justiciable in their nature.” Burnett v. Greene, 122 So. 570, 575
(Fla. 1929).
The Supreme Court has held that the doctrine of justiciability can require the
rejection of “a broad call on judicial power to assume continuing regulatory
jurisdiction over the activities” of a coordinate branch of government. Gilligan v.
Morgan, 413 U.S. 1, 5 (1973). Such “continuing regulatory jurisdiction” exercised
by the judiciary over educational spending and policymaking is exactly what is at
issue in this case. Here, this Court properly turns aside the quest of the Petitioners
and the dissenters for “the assumption of a continuing judicial review of
substantive political judgments entrusted expressly to” a coordinate branch of
government. Id. at 11. This result is required by the fundamental structure of our
constitutional system and by the very nature of judicial power.
LAWSON, J., and EDWARD C. LaROSE, Associate Justice, concur.
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PARIENTE, J., dissenting.
I dissent. With its decision today, the majority of this Court fails to provide
any judicial remedy for the students who are at the center of this lawsuit—African-
American students, Hispanic students, economically disadvantaged students, and
students who attend school in poorer school districts or attend persistently low-
performing schools. The majority of this Court eviscerates article IX, section 1, of
the Florida Constitution, contrary to the clear intent of the voters, and abdicates its
responsibility to interpret this critical provision and construe the terms “uniform,”
“efficient,” and “high quality,” enshrined in that provision. Today, even more
emphatically than before the 1998 amendment to article IX, section 1, I echo the
words of Justice Anstead, joined by Justices Kogan and Shaw: “By [the Court’s]
action today, we have reduced to empty words a constitutional promise to provide
an adequate educational system for our children.” Coalition for Adequacy &
Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 410 (Fla. 1996) (Anstead,
J., dissenting).
Article IX, section 1 became one of the strongest education provisions in the
country when, in 1998, the voters of this State approved an amendment, which
designated the education of children “a fundamental value of the people of the
State of Florida” and placed “a paramount duty [on] the state” to provide a
“uniform, efficient, safe, secure, and high quality system of free public schools”
- 40 -
for Florida’s students. Art. IX, § 1(a), Fla. Const. That amendment, a product of
the 1998 Constitution Revision Commission, was intended to remedy the Court’s
1996 opinion in Coalition, which held that article IX, section 1 did not provide
judicially manageable standards for the courts to adjudicate claims brought under
the provision. 680 So. 2d at 407-08.
In this case, Petitioners—a group of public school parents, students, and
citizen organizations—brought a declaratory action against the State, alleging that
the State is violating its constitutional obligation to provide all students with a
uniform, efficient, and high quality education system. The trial court held a four-
week long bench trial, at which evidence was presented that, in 2014, only 58% of
Florida students across all grades scored on grade level on statewide reading
assessments; that number was only 56% for statewide math assessments. Petrs.’
Initial Br. at 4.11 To properly understand these statistics, “grade level” means only
that a student’s performance is at least “satisfactory;” 12 which also signifies that
the student “may need additional support for the next grade/course.”13 These
11. 2014 provides the most recent results from the record. See Petrs.’ Initial
Br. at 4.
12. § 1008.22(3)(e)1., Fla. Stat. (2018); see id. § 1008.34(1)(a).
13. Florida Standards Assessments, Understanding Florida Standards
Assessments Reports 4 (2018),
https://fsassessments.org/core/fileparse.php/4344/urlt/Understanding_FSA_Report
s_2018_041918_Final.pdf.
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figures are on average lower for African-American students, Hispanic students,
and economically disadvantaged students.
In what judicial universe do the facts presented demonstrate that the State is
fulfilling its constitutional obligation to provide a “uniform,” “efficient,” and “high
quality” education? 14 By holding that a claim like Petitioners’—which alleged
wide disparities in performance among certain subgroups of students and
persistently low-performing schools—cannot be adjudicated by the courts, the
majority of this Court renders article IX, section 1, a “hollow phrase[] of
nothingness.” Dissenting op. at 79 (Lewis, J.). Indeed, the effect of the plurality’s
holding is to deny Petitioners the opportunity to establish in a court of law that the
State has failed to live up to its paramount constitutional obligation set forth in
article IX, section 1. 15
14. Although counsel for the Department of Education alleged during oral
argument that student performance in Florida is superior to student performance in
New Jersey, where the New Jersey Supreme Court first granted relief in Abbott v.
Burke, 575 A.2d 359 (N.J. 1990), the facts show otherwise. According to the 2017
report card issued by the Education Week Research Center, New Jersey ranked
second in the nation overall in education, while Florida ranked 29th. See Samuel
Stebbins & Thomas C. Frohlich, Geographic Disparity: States with the Best (and
Worst) Schools, USA Today (Feb. 8, 2018),
https://www.usatoday.com/story/money/economy/2018/02/08/geographic-
disparity-states-best-and-worst-schools/1079181001/.
15. The plurality refuses to look at the jurisprudence of other state supreme
courts addressing similar constitutional provisions. And, while Florida’s education
system should not necessarily be compared to other states, it is worth noting that,
as of February of this year, Florida’s education system ranks 29th in the country.
- 42 -
For these and all the reasons that follow, I dissent from the conclusion of the
majority of this Court that the claim raised by Petitioners in this case is not
justiciable. I also concur with Justice Lewis’s excellent explanation of
justiciability and why this particular controversy is justiciable. See generally
dissenting op. (Lewis, J.).
Petitioners’ Claim
The plurality opinion is premised on a basic mischaracterization of
Petitioners’ claim as one to “have the State of Florida’s K-12 public education
system declared unconstitutional.” Plurality op. at 1. This mischaracterization sets
the stage for the rest of the plurality’s opinion, including its conclusion that
Petitioners’ claim is non-justiciable.
Contrary to the plurality’s contention, Petitioners’ claim is not “a blanket
challenge to the constitutionality of the K-12 education system.” Plurality op. at
16. Rather, Petitioners allege that the State has violated its constitutional
obligation under article IX, section 1 in specific ways. Most notably, Petitioners
Stebbins & Frohlich, supra note 14. This ranking is based in part on the fact that
“Florida’s public schools receive some of the lowest funding of any state school
system in the country.” Id. In fact, Florida’s per-pupil spending falls well below
the national average. Map: Per-Pupil Spending, State-by-State, Educ. Week (June
6, 2018), https://www.edweek.org/ew/collections/quality-counts-2018-state-
finance/map-per-pupil-spending-state-by-state.html. Indeed, the national average
is $12,256 per student, while Florida spends a mere $9,737 per student.
- 43 -
allege that the State has failed to address wide disparities in performance among
certain subgroups of students—specifically, African-American students, Hispanic
students, students experiencing poverty, and students attending school in poorer
school districts—as well as persistently low-performing schools. In support of
their claim, Petitioners set forth detailed statistics, which show, for example,
“disparities in reading achievement by subgroup as only 38% of Black students
passed reading; 54% of Hispanic students; 19% of English Language Learners
(ELL); 47% of students receiving Free-Reduced Lunch (FRL) (a proxy for
poverty); and 37% of homeless students.” Petrs.’ Initial Br. at 4 (footnotes
omitted). These statistics demonstrate that disparities do not just exist among
certain subgroups of students, but also between school districts. For example:
The statewide average passing rate for reading for third graders is
56%, and 55% for tenth graders. In St. Johns, 76% of third graders
and 75% of tenth graders passed reading. Hamilton has the lowest
overall reading passing rate for third graders at 35% of students. The
lowest reading rate for tenth graders was Gadsden with 26%. Thus,
the difference in reading rates among districts in third grade is 41
percentage points, and 49 in tenth grade.
On the 8th grade math assessment, Bradford had the lowest
passing rate at 5% overall, 0% for Black students, 6% for FRL, and
0% for students with disabilities.
In 2015, Franklin had the lowest graduation rate at 49%, and
three other school districts were below 60%. In contrast, St. Johns
and three other districts had graduation rates over 90%, and Dixie had
the highest at 96.9%. The difference in graduation rates between
Franklin and Dixie was almost 48 percentage points. One of the
State’s measures of college readiness shows a statewide average of
27%, with disparities ranging from St. Johns at 55% versus Hamilton
with 1%.
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Id. at 5 (footnotes omitted). The accuracy of these statistics are not challenged.
Further, Petitioners set forth statistics showing that, among other things, “28
schools (all serving high poverty students) . . . are persistently low-performing (5
or more years as F).” Id. at 6. In fact, despite concluding that Petitioners’ claim
was non-justiciable, the trial court in this case expressed particular concern about
the issue of persistently low-performing schools:
[T]he Court must note that it was surprised at how long a school could
remain in “F” status pursuant to the enactments of the legislature. If
there is one area that this Court was most concerned about based on
the evidence heard, it is in the area of Differentiated Accountability.
There can be little doubt that allowing a school to remain in F status
for an extended period of time raises serious issue regarding the
constitutional acceptance of such an event. . . . To bring the matter to
a point, I would raise the following question. How many people
would want a judge deciding or presiding over their lawsuit in a
Circuit that had been rated by the Supreme Court with an “F” as to
judicial performance for many years? Similarly, parents do not want
their children attending a school that continues to receive an “F”
based on its performance rating. The evidence presented, while not
rising to the level of a constitutional violation, should serve as a
warning not to be complacent about a local districts [sic] failure to
address long term “F” schools. This is especially true since the
Defendants [sic] own evidence shows that an “F” school can be turned
around without additional resources being provided.
Final J. at 13-14.
The trial court also expressed concern over the State’s “handling of local
School Districts [sic] failure to address the problem of long term ‘F’ schools at the
local level,” stating that “[a]t some point in time the State Board should do more if
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the local School District will not.” Findings of Fact at 70. Thus, contrary to the
plurality’s contention, Petitioners’ claim is not a “blanket challenge” to the entire
state education system but, rather, a claim that the State is violating its
constitutional obligation in specific ways—most significantly, by failing to address
wide disparities in performance among certain subgroups of students and schools.
Petitioners’ Claim Brought Under Article IX, Section 1 Is Justiciable
I completely agree with Justice Lewis that this Court “ha[s] a responsibility
to interpret and apply the rights and principles set forth in the Constitution,
including article IX, section 1(a).” Dissenting op. at 69 (Lewis, J.). This
responsibility includes adjudicating controversies brought under article IX, section
1.
To conclude that the claim presented is not capable of judicial resolution
would “reduce to empty words a constitutional promise to provide an adequate
educational system for our children.” Coalition, 680 So. 2d at 410 (Anstead, J.,
dissenting). While deference to the Legislature and separation of powers are
clearly important constitutional principles, this Court cannot use those principles to
escape its obligation to interpret provisions of the Florida Constitution and enforce
the rights it grants to the citizens of this state. See League of Women Voters v.
Detzner, 172 So. 3d 363, 400 (Fla. 2015) (“While the Legislature is generally
entitled to deference as a result of its role in the redistricting process, that
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deference applies only ‘so long as [its redistricting] decision[s] do[ ] not violate the
constitutional requirements.” (alterations in original) (quoting In re Senate Joint
Res. of Legislative Apportionment 1176, 83 So. 3d 597, 599 (Fla. 2012)
(Apportionment I))).
In 2012, for example, this Court was tasked with defining for the first time
the new standards set forth in the Fair Districts Amendment, which had been
approved by voters two years earlier. See generally Apportionment I, 83 So. 3d
597. This Court did not shy away from the task, but rather recognized its
“extremely weighty responsibility” entrusted to it “by the citizens of this state
through the Florida Constitution to interpret the constitutional standards and to
apply those standards to the legislative apportionment plans.” Id. at 599. Just as
the Court was able to define the terms in the Fair Districts Amendment, it is
equally able to define the terms in article IX, section 1.
In concluding that Petitioners’ claim is not justiciable, the First District
Court of Appeal “respectfully disagree[d]” with other state supreme courts that
have found similar claims justiciable. Citizens for Strong Sch., Inc. v. Fla. State
Bd. of Educ., 232 So. 3d 1163, 1172 (Fla. 1st DCA 2017). Instead, the First
District relied on Marrero v. Commonwealth, 739 A.2d 110, 112-13 (Pa. 1999),
where the Pennsylvania Supreme Court held that such a claim was non-justiciable.
See Citizens for Strong Sch., 232 So. 3d at 1172. Three months before the First
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District’s decision, however, the Pennsylvania Supreme Court declined to follow
its decision in Marrero and held that Petitioner’s challenge to the education system
based on the state constitution was justiciable. William Penn Sch. Dist. v. Pa.
Dep’t of Educ., 170 A.3d 414, 457 (Pa. 2017). In declining to follow Marrero, the
Pennsylvania Supreme Court explained:
To the extent that our prior cases have suggested, if murkily,
that a court cannot devise a judicially discoverable and manageable
standard for Education Clause compliance that does not entail making
a policy determination inappropriate for judicial discretion, or that we
may only deploy a rubber stamp in a hollow mockery of judicial
review, we underscore that we are not bound to follow precedent
when it cannot bear scrutiny, either on its own terms or in light of
subsequent developments.
Id. at 456. Thus, in holding that article IX, section 1 of our state constitution does
not provide judicially manageable standards, the First District relied on outdated
and overruled precedent, to the exclusion of the majority of other state supreme
courts.
Although the plurality does not go so far as to say that a claim under article
IX, section 1 could never be justiciable, it nevertheless concludes that Petitioners’
claim in this case is not justiciable. See plurality op. at 17. In reaching this
conclusion, the plurality, without explanation—like the First District—declines to
consider other jurisdictions that have found similar claims justiciable. See id. at
19. Instead, the plurality limits itself “to the language of the Florida Constitution
and this Court’s decisions,” ignoring the reasoning of the majority of other state
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supreme courts that have held that similar claims under their respective state
constitutions are justiciable. Id.16 Indeed, those courts adjudicated similar claims
even though many of the education constitutional provisions in their state
constitutions are less detailed than ours. 17
16. See, e.g., Lobato v. State, 304 P.3d 1132, 1137 (Colo. 2013) (“Plaintiffs
presented a justiciable claim because ‘determin[ing] whether the state’s public
school financing system is rationally related to the constitutional mandate that the
General Assembly provide a “thorough and uniform” system of public education’
does not ‘unduly infring[e] on the legislature’s policymaking authority.’ ” (quoting
Lobato v. State, 218 P.3d 358, 363 (Colo. 2008))); Conn. Coalition for Justice in
Educ. Funding, Inc. v. Rell, 990 A.2d 206, 210 (Conn. 2010) (“[T]his court has a
role in ensuring that our state’s public school students receive th[e] fundamental
guarantee” provided in the state constitution.); Rose v. Council for Better Educ.
Inc., 790 S.W.2d 186, 189 (Ky. 1989); Cruz-Guzman v. State, 916 N.W.2d 1, 9
(Minn. 2018) (“Although specific determinations of educational policy are matters
for the Legislature, it does not follow that the judiciary cannot adjudicate whether
the Legislature has satisfied its constitutional duty under the Education Clause.”);
Columbia Falls Elementary Sch. Dist. No. 6 v. State, 109 P.3d 257, 261 (Mont.
2005) (“As the final guardian and protector of the right to education, it is
incumbent upon the court to assure that the system enacted by the Legislature
enforces, protects and fulfills the right. We conclude this issue is justiciable.”);
Leandro v. State, 488 S.E.2d 249, 253 (N.C. 1997) (“It has long been understood
that it is the duty of the courts to determine the meaning of the requirements of our
Constitution.”); McCleary v. State, 269 P.3d 227, 231 (Wash. 2012) (“The
judiciary has the primary responsibility for interpreting [the constitution] to give it
meaning and legal effect.”); see also, e.g., Hoke Cty. Bd. of Educ. v. State, 599
S.E.2d 365 (N.C. 2004).
17. See Ala. Const. art. XIV, § 256; Alaska Const. art. VII, § 1; Ariz. Const.
art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const. art. IX, § 1; Colo. Const. title 22,
§ 1; Conn. Const. art. VIII, §§ 1-2; Del. Const. art. X, § 1; Ga. Const. art. VIII, § 1;
Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill. Const. art. X, § 1; Ind. Const.
art. VIII, § 1; Iowa Const. art. IX, § 1; Kan. Const. art. VI, § 1; Ky. Const. § 138;
La. Const. art. VIII, § 1; Me. Const. art. VIII, § 1; Md. Const. art. VIII, § 1; Mass.
Const. art. V, § 2; Mich. Const. art. VIII, § 2; Minn. Const. art. VIII, § 1; Miss
- 49 -
In concluding that a claim similar to Petitioners’ in this case was justiciable,
the Supreme Court of Kentucky wrote: “The judiciary has the ultimate power, and
the duty, to apply, interpret, define, construe all words, phrases, sentences and
sections of the . . . Constitution as necessitated by the controversies before it. It is
solely the function of the judiciary to so do.” Rose, 790 S.W.2d at 209. Likewise,
in declining to follow its earlier precedent, the Supreme Court of Pennsylvania
explained the importance of the court’s judicial review function:
Two decades after Marbury [v. Madison, 5 U.S. 137 (1803)], in
another paean to the importance of judicial review, Chief Justice
Marshall cautioned that “[t]he judiciary cannot, as the legislature may,
avoid a measure because it approaches the confines of the
[C]onstitution. We cannot pass it by because it is doubtful. With
whatever doubts, with whatever difficulties, a case may be attended,
we must decide it, if it be brought before us.” Cohens v. Virginia, 19
U.S. 264, 404 (1821). The spirit of Chief Justice Marshall’s
cautionary refrain has informed the clear majority of state courts that
have held it their judicial duty to construe interpretation—begging
state education clauses like ours to ensure legislative compliance with
their constitutional mandates, no matter the difficulties invited or, in
many cases, confronted. We hold that our Education Clause, viewed
Const. art. VIII, § 201; Mo. Const. art. IX, § 1(a); Mont. Const. art. X, § 1; Neb.
Const. art. VII, § 1; Nev. Const. art. XI, § 1; N.H. Const. art. 83; N.J. Const. art.
XIII, § 1; N.M. Const. art. XII; N.Y. Const. art. XI, § 1; N.C. Const. art. I, § 15; id.
art. IX, §§ 1-2; N.D. Const. art. VIII, §§ 1, 4; Ohio Const. art. VI, § 2; Okla. Const.
art. XIII, § 1; Or. Const. art. VIII, §§ 3, 8; Pa. Const. art. III, § 14; R.I. Const. art.
XII, § 1; S.C. Const. art. XI, § 3; S.D. Const. art. VIII, § 1; Tenn. Const. art. XI,
§ 12; Tex. Const. art. VII, § 1; Utah Const. art. X, § 1; Vt. Const. § 68; Va. Const.
art. VIII, § 1; Wash. Const. art. IX, § 1; W. Va. Const. art. XII, § 1; Wis. Const.
art. X, § 3; Wy. Const. art. I, § 23.
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in the overarching context of our cases taking up the question of
abstention from political questions, compels the same result.
William Penn, 170 A.3d at 463.
In support of its conclusion in this case, the plurality attempts to distinguish
this Court’s precedent in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), reasoning
that Holmes addressed a narrow question involving a specific voucher program.
See plurality op. at 27. However, nothing in Holmes suggests that its reasoning
applies only to specific education program challenges. In fact, in Holmes, we
clearly stated that the entire purpose of the 1998 amendment to article IX, section 1
was to “provide standards by which to measure the adequacy of the public school
education provided by the state.” 919 So. 2d at 403. And it was because the 1998
amendment added judicially manageable standards that this Court was able to
determine whether the program at issue in Holmes violated article IX, section 1.
Id. at 409. Just as in Holmes, a court can use the judicially manageable standards
added to article IX, section 1 in 1998 to determine whether the State has violated
its obligation in the context of Petitioners’ claim in this case.
As an additional justification for concluding that Petitioners’ claim is not
justiciable, the plurality reasons that the claim “does not survive the reasoning in
Coalition.” Plurality op. at 17. But this ignores the purpose of the 1998
amendment, which was to provide judicially manageable standards so that, in the
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future, courts would be equipped to evaluate alleged constitutional violations. See
Holmes, 919 So. 2d at 403.
The plurality’s main contention with Petitioners’ claim appears to be that
they failed to present a judicially manageable standard that would allow this Court
to consider their claim in a way that avoids judicial intrusion into the functions of
the legislative and executive branches. See plurality op. at 30-31. This
misunderstands Petitioners’ claim as well as the judiciary’s role. Petitioners do not
ask the judiciary to recreate Florida’s education system. Rather, they ask the
judiciary to adjudicate whether, in light of the performance statistics they have
presented and the State’s statutory standards, the State has violated its
constitutional obligation under article IX, section 1.
Article IX, Section 1 Provides Judicially Manageable Standards
As this Court stated almost ninety years ago, “[t]he object of constitutional
construction is to ascertain and effectuate the intention and purpose of the people
in adopting it.” Amos v. Mathews, 126 So. 308, 316 (Fla. 1930). This Court has
reiterated that principle on multiple occasions. See, e.g., Apportionment I, 83 So.
3d at 599 (“When interpreting constitutional provisions, this Court endeavors to
ascertain the will of the people in passing the amendment.”); Pleus v. Crist, 14 So.
3d 941, 944-45 (Fla. 2009).
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Indeed, in asserting that the State has violated its constitutional obligation,
Petitioners explain that the State has already determined what a high quality
education is and how to measure it. They cite, for example, section 1003.41,
Florida Statutes (2017), which sets forth the “core content knowledge and skills
that K-12 public school students are expected to acquire.” § 1003.41, Fla. Stat.
(2017). In conjunction with the core content students are expected to learn, the
Legislature has tasked the Commissioner of Education with “design[ing] and
implent[ing] a statewide, standardized assessment program aligned to the core
curricular content” established in section 1003.41. Id. § 1008.22(3). The State
Board of Education then sets “a passing score for each statewide, standardized
assessment.” Id. § 1008.22(3)(e)2.
Further, Petitioners cite section 1000.03(5)(d), which prioritizes that
“[a]cademic standards for every level of the K-20 education system are aligned,
and education financial resources are aligned with student performance
expectations at each level of the K-20 education system.” Id. § 1000.03(5)(d).
However, Petitioners argue that “[n]either the Legislature nor the Department of
Education has ensured that education financial resources are aligned with student
performance expectations as required by statute.” Petrs.’ Initial Br., at 9 (citing
§1000.03(5)(d)). This claim is very different than simply asking that the State
allocate additional funding; rather, it is about the “efficient” use of the resources
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provided based on evidence-based practices that is critical to the success of all
students. Thus, Petitioners do not ask the judiciary to re-create the state education
system, but only to determine whether the State has complied with its
constitutional obligation under its own standards in light of the fact that many
students—particularly certain subgroups of students—are failing to meet the
standards set by the State.
The plurality contends that Petitioners’ reliance on the State’s own standards
is “foundationally flawed” because “adopting State standards as constitutional
minima would have the perverse effect of encouraging the weakening of
curriculum standards in order to achieve higher passage rates and to satisfy court-
imposed requirements.” Plurality op. at 31-32 (quoting Br. of Amicus Foundation
for Excellence in Educ. in Support of Resps., at 13-14). 18 The reasoning is faulty.
18. Ironically the plurality relies on a statement by the Foundation for
Excellence in Education, an entity dedicated to charter schools and the promotion
of “privatization of schools.” The website of the Foundation for Excellence in
Education, a foundation based in Tallahassee and founded by former Governor Jeb
Bush, explains that it strongly supports charter schools and school choice. See
About Us, ExcelinEd, https://www.excelined.org/about/approach/ (last visited Dec.
17, 2018). Its mission is to promote “privatization” of schools. Foundation for
Excellence in Education, Conservative Transparency,
http://conservativetransparency.org/org/foundation-for-excellence-in-education/
(last visited Dec. 17, 2018). Explaining the mission of the amici is not an “ad
hominem approach to challenging [the] logic,” nor is it an “attempt[] to drag
politics into judicial decision making.” Plurality op. at 32, note 9. It is simply a
fact that the plurality embraces the faulty reasoning of the amici.
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If the State were to intentionally adopt low standards to achieve higher pass rates,
those standards could be challenged as a violation of the State’s constitutional
obligation to provide a “high quality” education. Simply because Petitioners in
this case do not challenge the standards set by the State does not render their claim
non-justiciable.
In my view, using the State’s own standards, a court could evaluate
Petitioners’ claim by construing the judicially manageable terms set forth in article
IX, section 1, as other state supreme courts have done with their respective state
constitutions. See, e.g., Rose, 790 S.W.2d at 211; Davis v. State, 804 N.W.2d 618,
623-24 (S.D. 2011); Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1259 (Wyo.
1995). And, while the definitions set forth below could generally apply to any
claim brought under article IX, section 1 they are construed here in the context of
Petitioners’ claim, which does not include a challenge to the constitutionality of the
State’s standards.
Uniformity
When defining constitutional terms, it is appropriate to utilize dictionary
definitions. See Apportionment I, 83 So. 3d at 632; see also, e.g., Lobato, 218 P.3d
at 375; Davis, 804 N.W.2d at 624. “Uniform” is defined as “having always the
same form, manner, or degree: not varying or variable” or “consistent in conduct or
- 55 -
opinion.” Merriam-Webster, https://www.merriam-
webster.com/dictionary/uniform (last visited Dec. 17, 2018).
In 1997, construing the 1968 version of article IX, section 1, this Court
concluded that a “uniform” system is one that “operate[s] subject to a common
plan or serve[s] a common purpose.” Sch. Bd. of Escambia Cty. v. State, 353 So.
2d 834, 838 (Fla. 1977) (emphasis added). Thereafter, we explained that
“uniformity,” as used in article IX, section 1, “requires that a system be provided
that gives every student an equal chance to achieve basic educational goals
prescribed by the legislature.” St. Johns Cty. v. Ne. Fla. Builders Ass’n, 583 So. 2d
635, 641 (Fla. 1991); see also Rose, 790 S.W.2d at 211 (“Each child . . . must be
provided with an equal opportunity to have an adequate education.”).
Significantly, in defending against the plaintiffs’ claim in Coalition, the
State conceded in this Court that “the phrase ‘uniform’ has manageable standards
because by definition this word means a lack of substantial variation.” 680 So. 2d
at 408. Further construing this term in Holmes, this Court concluded that the
Opportunity Scholarship Program at issue violated article IX, section 1 because it
“reduce[d] money available to the free schools” and “fund[ed] private schools that
[we]re not ‘uniform’ when compared with each other or the public system.” 919
So. 2d at 398 (emphasis added).
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Importantly, as Justice Kogan explained, the uniformity requirement of
article IX, section 1 “is not and never was intended to require that each school
district be a mirror image of every other one.” Fla. Dep’t of Educ. v. Glasser, 622
So. 2d 944, 950 (Fla. 1993) (Kogan, J., specially concurring). Rather, “variance
from county to county is permissible so long as no district suffers a disadvantage
in the basic educational opportunities available to its students, as compared to the
basic educational opportunities available to students of other Florida districts.” Id.
(emphasis added). Other state supreme courts have expressed similar
understandings of the term “uniform,” as used in this context. E.g., Lobato, 304
P.3d at 1138 (defining “thorough and uniform” in the state’s constitution as “a free
public school system that is of a quality marked by completeness, is
comprehensive, and is consistent across the state”); Leandro, 488 S.E.2d at 348
(concluding that the right ensures that all children enjoy the right but does not
require equal funding among the school districts).
These definitions provide a workable standard by which courts can
determine whether the State has fulfilled its paramount duty under article IX,
section 1. In this case, a court could apply these definitions and determine
whether, in the context of Petitioners’ claim, the State has violated its
constitutional obligation under article IX, section 1.
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Efficient
“Efficient” is defined as “productive of desired effects.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/efficient (last visited Dec. 17, 2018).
Also looking to dictionary definitions, the Supreme Court of Wyoming defined
“efficient” in this context as “productive without waste.” Campbell, 907 P.2d at
1258-59 (quoting Webster’s Collegiate Dictionary (10th ed. 1994)); see also
Edgewood Independent Sch. Dist. v. Kirby, 777 S.W.2d 391, 395 (Tex. 1989)
(defining “efficient” as “the use of resources so as to produce results with little
waste”). The Supreme Court of Kentucky went further, defining “efficient,” as
used in its state constitution, as a system that is not only “operated with no waste,
no duplication, no mismanagement, and with no political influence,” but also,
“provide[s] funding which is sufficient to provide each child in Kentucky an
adequate education.” Rose, 790 S.W.2d at 212-13.
Currently, the State uses a complex funding formula—the Florida Education
Finance Program (FEFP)—that includes both state and local funds and considers
many factors, including but not limited to economic disparity, cost of living, and
population, to determine how much money to allocate to each school district. See
generally § 1011.62, Fla. Stat. (2018). Petitioners do not challenge the amount of
funding but, rather, assert that the State has failed to ensure that its allocations are
the best use of funding. Petitioners allege that the State is not funding schools in
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an efficient manner, as required by article IX, section 1. See Second Am.
Complaint at 19 (“Many of the State’s reforms and programs . . . have wasted
millions of dollars without producing the desired effect of a high quality public
school system, and are thus not efficient.”).
Accordingly, “efficient,” as used in article IX, section 1 should be defined to
mean that the State must allocate resources in a productive manner and without
waste. In this case, a court could apply this definition of “efficient,” and determine
whether, in the context of Petitioners’ claim, the State has violated its
constitutional obligation under article IX, section 1.
High Quality
Finally, perhaps the most critical term in article IX, section 1 must be
construed. “Quality” is defined as “degree of excellence.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/quality (last visited Dec. 17, 2018).
“High,” of course, modifies the word “quality” to demand something more than
average quality. In defining this term, we are cognizant of the fact that the term
“high quality” is used twice in article IX, section 1. “Adequate provision shall be
made by law for a uniform, efficient, safe, secure, and high quality system of free
public schools that allows students to obtain a high quality education . . . .” Art.
IX, § 1, Fla. Const. (emphasis added). The plain language of the provision requires
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the State to not only provide a high quality system, but also allow students to
obtain a high equality education.
As the Supreme Court of North Carolina has explained, courts may look to
“[e]ducational goals and standards” set forth by the Legislature for determining
whether the State has met its constitutional obligation. Leandro, 488 S.E.2d at
259. Indeed, the Florida Legislature has already defined “high quality” by
providing substantive content standards for students. As an example, the State
prioritizes students’ preparation for postsecondary education without remediation.
§ 1000.03(5)(a), Fla. Stat. (2018). The State also prioritizes students’ preparation
“to become civically engaged and knowledgeable adults who make positive
contributions to their communities.” Id. § 1000.03(5)(c).
Accordingly, for purposes of the controversy before us, “high quality”
means an education system that allows all students an equal opportunity to learn
the core content knowledge set by the State and become knowledgeable and
engaged adults. In this case, a court could apply this definition of “high quality”
and determine whether, in the context of Petitioners’ claim, the State has violated
its constitutional obligation under article IX, section 1.
Thus, contrary to the plurality’s contentions, using basic rules of statutory
construction—including looking to the dictionary to determine plain meaning—the
terms in article IX, section 1 are fully capable of being construed by the courts.
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Reading these definitions together, a court would be perfectly capable of
determining whether, under the facts presented, the State has fulfilled its
“paramount” constitutional duty to make “adequate provision” for a “uniform,
efficient . . . and high quality system of free public schools” for Florida’s children.
Art. IX, § 1, Fla. Const. In this case, because the trial court concluded that article
IX, section 1 did not provide judicially manageable standards and used the wrong
evidentiary standard for evaluating the petitioners’ claim, I would remand the case
back to the trial court to reconsider the evidence and Petitioners’ claim in light of
these definitions.
No Independent Basis Exists for Rejecting Petitioners’ Claim
As an “independent basis” for rejecting Petitioners’ claim, the plurality
concludes that “on the record presented here the Petitioners still could not prevail.”
Plurality op. at 34. In support of this conclusion, the plurality notes the trial
court’s finding that Petitioners “failed to establish any causal relationship between
any alleged low student performance and a lack of resources,” and that “the weight
of the evidence . . . establishes a lack of any causal relationship between additional
financial resources and improved student outcomes.” Id. at 35. However, even
though the trial court used the phrase “weight of the evidence,” it made clear that,
to prevail, Petitioners would have to show that the State’s actions “are irrational or
unconstitutional beyond a reasonable doubt.” Final J. at 24.
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Although the trial court ultimately concluded that Petitioners failed to
establish causation, significant evidence was presented, indicating that when
additional resources were allocated to low-performing schools, those schools
improved. In fact, the State’s own expert agreed with Petitioners that more
resources are needed to educate African-American students, Hispanic students, and
students in poverty. That very expert has written articles on the fact that state
education systems “should . . . effectively use more resources for poor kids.” The
State’s expert further agreed with Petitioners’ contention that money matters when
it is spent efficiently, testifying: “Effective use by management, the funds will be
effective.”19 This is logical given that the students who perform the lowest on
statewide assessments generally attend schools in poorer school districts.
Indeed, only 5% of 8th graders in Bradford County passed the statewide
mathematics assessment, with a pass rate of 0% among African-American
students. Petrs.’ Initial Br. at 5. That’s correct: Zero. None. And only 26% of the
10th graders in Gadsden County passed the statewide reading assessment. Id. On
the other hand, in St. Johns County, one of the State’s wealthier school districts,
19. The State’s expert has consistently testified in over twenty of these
education cases nationwide on behalf of state governments since the 1970s that
there is generally no correlation between spending more money and higher student
performance.
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76% of 3rd graders and 75% of 10th graders passed the statewide reading
assessment. Id.
Additionally, the trial court reached its conclusion on causation only after
determining that the terms in article IX, section 1, were not capable of judicial
construction. In other words, the trial court’s conclusion on causation is based on a
flawed premise—that article IX, section 1 does not provide judicially manageable
standards—and an improper evidentiary standard, beyond a reasonable doubt.
Thus, because the trial court’s findings on the merits were made in a constitutional
vacuum, they are not entitled to deference.
Based on the evidence presented, Petitioners have made a strong showing
that the State has failed to provide a “high quality” and “efficient” education to all
of Florida’s students. Thus, we cannot presume that if this case were remanded to
the trial court to reconsider the evidence and Petitioners’ claim using these
definitions and the proper evidentiary standard, the trial court would reach the
same conclusion. Accordingly, I disagree that the trial court’s finding that
Petitioners’ “failure to establish such a causal relationship provides an independent
basis for rejection of their claims.” Plurality op. at 35.
We Should Remand this Case to the Trial Court to Reconsider the Evidence
and Petitioners’ Claim in Light of These Definitions
In concluding that the State has not violated its constitutional obligation, the
trial court observed that in 2014, 58% of students across grades 3 through 10
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scored at or above grade level in reading, “a two percentage point improvement
over 2011.” Findings of Fact at 81. The trial court further found that, in 2001,
only 47% of students were reading at or above grade level. Id. at 80. The trial
court also devoted eight pages to comparing Florida’s results to other states’
results. See id. at 71-79. However, in my view, “adequate provision,” as used in
article IX, section 1, is an objective standard that does not consider improvements
that have been made or what other states are doing. Further, it is hard to
understand how objectively Florida compares to other states that might not even
have the “high quality” education mandate in their constitutions when it ranks 29th
overall in education and its per-pupil spending falls well below the national
average. See supra note 15.
Instead of focusing on improvements over the years or state-by-state
comparisons, the trial court should have considered the statewide deficits on
achievement in reading and math. 20 While it cannot be disputed that Florida has
made improvements, the evidence, as found by the trial court, still shows that only
a bare majority of Florida’s children are reading at grade level; 42% are below
grade level. Again, I must ask: In what judicial universe does the set of facts
20. See, e.g., Leandro, 488 S.E.2d at 259 (“Another factor which may
properly be considered in this determination is the level of performance of the
children of the state and its various districts on standard achievement tests.”).
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presented demonstrate that the State is fulfilling its constitutional obligation to
provide a “uniform,” “efficient,” and “high quality” education?
Using the definitions provided and the State’s own standards as a measuring
stick, the trial court could very well have concluded on remand that the State has
violated its constitutional obligation under article IX, section 1 thereby entitling
Petitioners to a declaratory judgment. The trial court could then have heard
arguments on the appropriate remedy. 21
Certainly, I recognize that the task of making adequate provision for a high
quality education is primarily for the Legislature. We are not legislators. We are
justices charged with enforcing the rights set forth in Florida’s Constitution. That
is why with article IX, section 1 the citizens of this State intended for
compliance—or noncompliance—with that provision to be adjudicated by the
judiciary when properly brought to the court. Indeed, the task of construing the
constitution and determining whether the State is fulfilling its express obligations
required by the constitution—and the citizens of this State who approved the
21. See, e.g., Idaho Schs. for Equal Educ. Opportunity v. State, 976 P.2d
913, 922 (Idaho 1998) (“We do not express any opinion at this time about the
appropriate relief that should be granted if the trial court decides that Plaintiffs are
entitled to relief.”); Leandro, 488 S.E.2d at 261 (stating that if, on remand, the trial
court finds a violation “it will then be the duty of the court to enter a judgment
granting declaratory relief and such other relief as needed to correct the wrong
while minimizing the encroachment on the other branches of government”).
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relevant constitutional language—is solely the judiciary’s task. “This duty must be
exercised even when such action serves as a check on the activities of another
branch of government or when the court’s view of the constitution is contrary to
that of other branches, or even that of the public.” Rose, 790 S.W.2d at 209.
CONCLUSION
The significance of education both to the success of our children and to a
functioning democracy cannot be overstated. The drafters of Florida’s
Constitution recognized this fact “and, accordingly, included the education
provision to guarantee that a system of free public education be established for the
citizens of Florida.” Coalition, 680 So. 2d at 409 (Overton, J., concurring). That
guarantee means nothing, however, without a judicial branch willing to perform its
constitutional duty.
With its decision today, “this Court has failed to carry out its duty to ensure
that the legislature” and the executive branch have complied with their
constitutional obligation under article IX, section 1. Id. at 410 (Anstead, J.,
dissenting). The plurality has abdicated its responsibility to interpret the
constitution and eviscerated article XI, section 1 contrary to the clear intent of the
voters. And, at the center of this dispute are the students who are at the greatest
risk of failing—African-American students, Hispanic students, economically
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disadvantaged students and school districts, and students attending persistently
low-performing schools.
Because I would conclude that Petitioners’ claim is justiciable and would
allow them the opportunity to establish that the State is violating its constitutional
obligation, I dissent.
LEWIS and QUINCE, JJ., concur.
LEWIS, J., dissenting.
My friends and colleagues in the majority make a very grave and harmful
mistake today. Although I understand their good-faith and well-intentioned
approach, only time will truly reveal the depth of the injury inflicted upon
Florida’s children. The words describing the right to a high quality education and
the constitutional concept of protecting that right ring hollow without a remedy to
protect the right.
The Florida Constitution guarantees each child the right to a high quality
education. Art. IX, § 1(a), Fla. Const.; Scavella v. School Bd. of Dade Cty., 363
So. 2d 1095, 1098 (Fla. 1978) (“[A]ll Florida residents have the right to attend this
public school system for free.”). When that right is infringed upon by the
Legislature, the Department of Education, a county school board, or some other
entity, our children must have the opportunity to seek a remedy in the courts. Art.
I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any
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injury, and justice shall be administered without sale, denial or delay.”). This
proposition seems too basic to consume much ink here:
The Government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve
this high appellation if the laws furnish no remedy for the violation of
a vested legal right.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). Here the majority now
places Florida among the very few other states which are in disagreement with
regard to whether these educational type claims are justiciable. In my view, article
IX, section 1(a) clearly presents many justiciable questions that Florida courts can
and should decide. See The Federalist No. 80, at 507-08 (Alexander Hamilton) (R.
Scigliano ed. 2000) (“The first point depends upon this obvious consideration, that
there ought always to be a constitutional method of giving efficacy to
constitutional provisions.”). This Court has already decided that article IX, section
1(a), Florida Constitution, is justiciable, and most other states which have
addressed the issue have held the same. I write separately, however, to emphasize
the propriety of Florida courts addressing these claims.
Our Florida Constitution is a principled document, constructed with
principled words, which produces principled concepts that our citizens have
asserted as the organic law of our society. It is a dereliction of our duty as the
ultimate arbiter of Florida constitutional law to conclude that the interpretation of
that text is beyond our grasp and solely within the realm of legislative whims. We
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have a responsibility to interpret and apply the rights and principles set forth in the
Constitution, including article IX, section 1(a). Dade Cty. Classroom Teachers
Ass’n v. Legislature of Fla., 269 So. 2d 684, 686 (Fla. 1972) (“When the people
have spoken through their organic law concerning their basic rights, it is primarily
the duty of the legislative body to provide the ways and means of enforcing such
rights; however, in the absence of appropriate legislative action, it is the
responsibility of the courts to do so.”); see Marbury, 5 U.S. (1 Cranch) at 177 (“It
is emphatically the province and duty of the judicial department to say what the
law is.”). If we, as common law judges, do not discharge our duty to interpret the
Constitution—even in complex and at times largely passionate cases—then
constitutional protections would never have life. Therefore, the onus falls on this
Court to ensure that the principles enshrined by Floridians in our Constitution have
meaning and a field of operation, including the right to a high quality education.
See Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012) (“In general, the Judiciary
has a responsibility to decide cases properly before it, even those it ‘would gladly
avoid.’ ” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))).
A “narrow exception” to the rule of judicial review is made for
nonjusticiable political questions. Id. To be sure, the doctrine of nonjusticiability
is proper in some cases under certain circumstances: for instance, when “there is ‘a
textually demonstrable constitutional commitment of the issue to a coordinate
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political department; or a lack of judicially discoverable and manageable standards
for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting
Baker v. Carr, 369 U.S. 186, 217 (1962)).22 Yet, in my view, neither of those
elements are present here.
Preliminarily, “courts must, in the first instance, interpret the text in question
and determine whether and to what extent the issue is textually committed.”
Nixon, 506 U.S. at 228. Both the First District Court of Appeal below and the
Respondents argue that the inclusion of the phrase “by law” in article IX, section
1(a) somehow places the entire field of education as within the exclusive,
unreviewable province of the legislative and executive branches. That logic is
flawed. “By law” is a common phrase in our Constitution—used on 155
occasions—simply to signify that some legislation in the area is either permissible
or necessary. See Ison v. Zimmerman, 372 So. 2d 431, 434 (Fla. 1979); Fla. Carry,
Inc. v. City of Tallahassee, 212 So. 3d 452, 460 (Fla. 1st DCA 2017). Perhaps
nowhere is the fallacy of this reasoning more apparent than as it pertains to
Florida’s constitutional right to bear arms—article I, section 8(a), Florida
Constitution. That provision guarantees the “right of the people to keep and bear
22. Although there are six Baker factors, the Supreme Court places most
emphasis on the first two, which are listed here. See Zivotofsky, 566 U.S. at 194-
95; see also Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion).
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arms,” “except that the manner of bearing arms may be regulated by law.” Id.
(emphasis added). Surely, neither the First District nor the Respondents could
argue with a straight face that Florida’s right to bear arms is a nonjusticiable
political question, despite it being a hot-button political issue and including the
phrase “by law.” Gun owners regularly challenge gun laws and courts
concomitantly adjudicate those challenges as justiciable. See Norman v. State, 215
So. 3d 18 (Fla. 2017). Therefore, nothing in the language of article IX, section
1(a) so much as hints at the notion that the definition of a right to education is
exclusively a legislative and executive prerogative.
Next, courts look to whether there are “judicially discoverable and
manageable standards.” Vieth, 541 U.S. at 278 (quoting Baker, 369 U.S. at 217).
Article IX, section 1(a) expressly includes the standard for determining the
“adequate provision” for education: the public system must be “uniform, efficient,
safe, secure, and high quality.” Art. IX, § 1(a). One of these requirements,
uniformity, we have already construed and adjudicated. Bush v. Holmes, 919 So.
2d 392, 412-13 (Fla. 2006). Two of the other requirements, safe and secure, are
certainly subject to judicial review—as the trial court concluded in the final order.
Final Order at 19 (“The terms in Article IX relating to “safe” and “secure” are
subject to judicially manageable standards. . . . Florida’s trial courts deal with
issues related to safety and security all day long.”). That leaves two of the five
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requirements, which are the two at issue here, efficient and high quality. Both of
those terms are capable of interpretation. 23 Therefore, there are clearly judicial
standards to guide courts—those that the people of Florida specifically chose to
include in article IX, section 1(a).
The process of interpreting and defining those terms may be somewhat
challenging, but nonjusticiability is simply not the appropriate solution. Judges
occasionally throw up justiciability barricades only to avoid the difficult or
complex cases, taking the easy way out by using excuses to defer the decision of a
case to a legislative body. But if our standard is to avoid difficult questions simply
because they may implicate some attenuated political concern, then the Legislature
has carte blanche to do as it pleases without any constitutional oversight or
protection. The Legislature is composed of politicians; so, by definition,
everything that the Legislature does is political in the abstract. Moreover, almost
every statute that the Legislature passes involves appropriations to some extent.
Therefore, it should be with severe caution that judges decide an entire
23. Other courts have defined an efficient school system. E.g., DeRolph v.
State, 728 N.E.2d 993, 997-98 (Ohio 2000); Neeley v. West Orange-Cove Consol.
Indep. Sch. Dist., 176 SW.3d 746, 752-53 (Tex. 2005); Pauley v. Kelly, 255 S.E.2d
859, 705-07 (W. Va. 1979). Although high quality may be more difficult to define,
it is not beyond a precise definition. Contra Comm. for Educ. Rights v. Edgar, 672
N.E.2d 1178, 1191-93 (Ill. 1996) (holding that “high quality” cannot be judicially
ascertained based on the Illinois Constitution).
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constitutional provision is nonjusticiable on the basis that it touches upon politics
or the spending of money. I understand and recognize that separation of powers is
certainly a foundational principle of our system of government, art. II, § 3, Fla.
Const.; however, that proposition is as much about delineating a department’s
proper exercise of power as it is about establishing a system of checks and
balances to prevent the accumulation of power in any one branch. The Federalist
No. 51, at 331 (James Madison) (R. Scigliano ed. 2000) (“In framing a government
which is to be administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the next place
oblige it to control itself.”). The history of our constitutional experiment is riddled
with examples of courts struggling with difficult and complex questions—and
providing eloquent answers—to the extent and meaning of broadly phrased
constitutional protections, even when answering arguably political questions.
There are far too many illustrations to list here, so a few examples must suffice.
First, courts have wrangled with the meaning of due process since the
inception of this country. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-35
(1976); Dent v. West Virginia, 129 U.S. 114, 122-24 (1889). Well over 100 years
ago, the United States Supreme Court concluded that “it may be difficult, if not
impossible, to give to the terms ‘due process of law’ a definition which will
embrace every permissible exertion of power affecting private rights.” Dent, 129
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U.S. at 123. Despite the impossibility of any bright-line judicial standard, here we
are today still deciding the meaning and extent of guaranteed due process rights.
E.g., Jennings v. State, 43 Fla. L. Weekly S427 (Fla. Oct. 4, 2018) (concluding that
a defendant’s due process rights were not violated). Correspondingly, courts
regularly wrestle with the rubik’s cube of due process to determine the extent of
constitutional protections despite those protections virtually always implicating
appropriations. For instance, in Goldberg v. Kelly, 397 U.S. 254 (1970), the
Supreme Court held that due process requires states to provide public-aid
recipients with a hearing before terminating their benefits. Id. at 261-66.
Although hearings necessitate funding and welfare benefits are a politically
charged issue, the Court properly decided the case on due process grounds without
mention of justiciability. Thus, for as long as courts are trying to define the
precisely undefinable, such as due process, they should be expected to apply
express constitutional principles, like those announced in article IX, section 1(a).
Second, judges determine the meaning of equal protection, which regularly
implicates political, policy, and appropriations issues without absolute or
exactingly clear judicial standards. It is fitting to use Brown v. Board of
Education, 347 U.S. 483 (1954), as an example. The Court there held that
segregated schools are “inherently unequal” and, therefore, violate equal
protection. Id. at 495. Of course, Brown had wide-ranging effects on
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appropriations by Congress and state legislatures across the country. Moreover,
the case settled an abhorrent political debate. But, in ordering desegregation, the
Court could not set out exactingly detailed judicial standards on how the process
would occur—that was left for state school officials, legislatures, and courts to sort
out. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 299-300 (1955).24 The Court
understood that there was no one-size-fits-all judicial standard on the most
effective manner of desegregation, so it ordered state courts to supervise that
process—which most certainly entailed many policy decisions—to determine
compliance. Brown II, 349 U.S. at 299-300. A similar circumstance exists here.
Petitioners ask this Court to review certain actions, performances, and conduct of
the school system to decide whether it is within constitutional parameters. They do
not ask us to make any of the myriad policy decisions that go into the operation of
a school system; rather, they seek review of the system itself to determine if it
meets constitutional muster. Thus, any suggestion that the express Florida
constitutional right to an education is nonjusticiable cannot in my view withstand
scrutiny.
24. In the aftermath of Brown, this Court displayed one of its most shameful
moments through the treatment of Virgil Hawkins and similarly situated students.
See State ex rel. Hawkins v. Bd. of Control, 83 So. 2d 20 (Fla. 1955). Although
any justiciability disagreement here cannot approach the foul factors at play there,
it is worth noting that not even the Hawkins Court suggested that desegregation of
schools was nonjusticiable. See generally id.
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Third, courts draw lines every day on unreasonable searches and seizures
regardless of the fact that constantly changing circumstances make a final
resolution of Fourth Amendment protections with mathematical precision
impossible. For example, whether interpreting privacy rights in invoices for cases
of glass, Boyd v. United States, 116 U.S. 616 (1886), or cell phone location data,
Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court has
interpreted the same words to elucidate their meaning throughout the ages in vastly
different areas. Just because those standards will most assuredly change over time
does not portend that legislative actions are free from judicial review. With regard
to justiciability, it is also of no importance that court interpretations of the Fourth
Amendment will always remain behind the cutting edge of technology. Judges
will continue to interpret that language to determine the protections guaranteed for
as long as our system exists. The same should be true of the express right to an
education in Florida.
Finally, courts have interpreted the implicit constitutional right to marriage.
In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court held that
same-sex couples have a fundamental right to marriage, which states cannot
abridge. Id. at 2604-05. Despite the fact that there is no express constitutional
right to marriage and Obergefell concerned a divisive political issue, the Court
decided the case. Tellingly for our purposes, however, not even the various
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dissenting opinions there disputed the justiciability of that question. Id. at 2611-
43. If implied constitutional rights are justiciable, then surely expressly stated
constitutional rights with parameters are—thus article IX, section 1(a) presents a
justiciable question.
The point of these examples is to simply illustrate that courts regularly
define and interpret broad, principled constitutional language on politically
sensitive issues, regardless of appropriations and policy concerns, even in the
absence of bright-line mathematically precise standards. The instant dispute is not
about whether the education system is adequate; rather, we face the threshold
question of whether that issue can even be considered and ruled upon by Florida
courts. Our school system may or may not be adequate, but we will never know if
the Court categorically relegates the question to an unreviewable status. In my
view, justiciability is an excuse here to avoid a tough case in these education
adequacy challenges, rather than sound legal reasoning based on a valid separation
of powers analysis. And, when the risk is that a nonjusticiability label could render
nugatory our children’s constitutional right to an education, dodging our duty will
not suffice. A few months ago, our sister court in Minnesota succinctly
summarized this issue:
Although specific determinations of educational policy are
matters for the Legislature, it does not follow that the judiciary cannot
adjudicate whether the Legislature has satisfied its constitutional duty
under the Education Clause. Deciding that [these] claims are not
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justiciable would effectively hold that the judiciary cannot rule on the
Legislature’s noncompliance with a constitutional mandate, which
would leave Education Clause claims without a remedy. Such a result
is incompatible with the principle that where there is a right, there is a
remedy.
Cruz-Guzman v. State, 916 N.W.2d 1, 9 (Minn. 2018).
The importance of education to the people of this State and to the State itself
cannot be overstated. Education and educational opportunities are not only
foundational for the State of Florida but are part of the essential building blocks for
a free and open society. Letter from James Madison to W.T. Barry (Aug. 4, 1822),
in 9 The Writings of James Madison 103 (Gaillard Hunt ed. 1910) (“Knowledge
will forever govern ignorance: And a people who mean to be their own Governors,
must arm themselves with the power which knowledge gives.”). The life of a
strong and vibrant republic has and always will have a direct connection to the
quality of the educational status of our people.
While the substantive concept of education generally has grown to become
both vast and complex, it does not always lend itself to fastidious description with
absolute and complete mathematical, formal precision. The politicians do not own
our government nor do they have the power to ignore specific rights placed in our
Constitution by our citizens. Art. I, § 1, Fla. Const. (“All political power is
inherent in the people.”). The protections our citizens have demanded are merely
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hollow phrases of nothingness if there is no remedy or actual access to the
protections listed.
For these reasons, I would conclude that the rights enshrined in article XI,
section 1(a) are justiciable.
PARIENTE and QUINCE, JJ., concur.
Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction
First District - Case No. 1D16-2862
(Leon County)
Jodi Siegel and Kirsten Anderson of Southern Legal Counsel, Inc., Gainesville,
Florida; Timothy McLendon, Gainesville, Florida; Deborah Cupples, Gainesville,
Florida; Eric J. Lindstrom of Egan, Lev & Siwica, P.A., Gainesville, Florida; and
Neil Chonin, Gainesville, Florida,
for Petitioners
Edward M. Wenger, Chief Deputy Solicitor General, Office of the Attorney
General, Tallahassee, Florida; Rocco E. Testani of Eversheds Sutherland (US)
LLP, Atlanta, Georgia; Matthew H. Mears, General Counsel, Department of
Education, Tallahassee, Florida; Dawn Roberts, General Counsel, Florida Senate,
Tallahassee, Florida; and Adam S. Tanenbaum, General Counsel, Florida House of
Representatives, Tallahassee, Florida,
for Respondents
Ari Bargil of Institute for Justice, Miami, Florida; Timothy D. Keller of Institute
for Justice, Tempe, Arizona; and Richard Komer of Institute for Justice, Arlington,
Virginia,
for Respondents Celeste Johnson, Kenia Palacios, Deaundrice Kitchen,
Margot Logan, Karen Tolbert, and Marian Klinger
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Courtney Brewer of The Mills Firm, P.A., Tallahassee, Florida,
for Amicus Curiae Education Law Center
Dena H. Sokolow and Renee Meenach Decker of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, Fort Lauderdale, Florida,
for Amicus Curiae National Law Center of Homelessness and Poverty
Robert M. Brochin and Clay M. Carlton of Morgan, Lewis & Bockius LLP,
Miami, Florida; Jon Lester Mills and Stephen N. Zack of Boies Schiller & Flexner,
LLP, Miami, Florida; and Stuart H. Singer and Johnathan Lott of Boies Schiller &
Flexner, LLP, Fort Lauderdale, Florida,
for Amicus Curiae Certain Commissioners of the 1998 Constitution
Revision Commission
Lazaro J. Mur of The Mur Law Firm, P.A., West Palm Beach, Florida; Matthew J.
Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, Florida; Russell C.
Menyhart of Taft Stettinius & Hollister LLP, Indianapolis, Indiana; and Leslie
Davis Hiner of EdChoice, Indianapolis, Indiana,
for Amici Curiae Florida State Hispanic Chamber of Commerce and
EdChoice
Raoul G. Cantero and Josefina Aguila of White and Case LLP, Miami, Florida,
for Amicus Curiae The Urban League of Greater Miami
Daniel P. Kearney, Jr., Daniel Hartman, and Kevin Gallagher of Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, District of Columbia; and Andy
Bardos of Gray Robinson, P.A., Tallahassee, Florida,
for Amicus Curiae The Foundation for Excellence in Education, Inc.
Joseph S. Van de Bogart of Van de Bogart Law, P.A., Fort Lauderdale, Florida,
for Amici Curiae United Cerebral Palsy Association of Miami, Inc., d/b/a
United Community Options of Miami, and United Cerebral Palsy of
Broward, Palm Beach and Mid-Coast Counties, Inc. d/b/a United
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Community Options of Broward, Palm Beach and Mid-Coast Counties,
jointly d/b/a United Community Options of South Florida
Kevin W. Shaughnessy of Baker & Hostetler LLP, Orlando, Florida,
for Amicus Curiae Several Members of the 1998 Constitution Revision
Commission
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