Florida education on trial; Lawsuit seeks to redefine public education to benefit poor

By Eric Barton, FloridaBulldog.org 

A case that could fundamentally change how Florida funds and administers education is center stage in a trial that begins next Monday in a Tallahassee courtroom.

The lawsuit, brought by a public advocacy group, wants a judge to declare the state’s public education system unconstitutional. Such a ruling could require lawmakers to envision a new way to fund schools that would seek better parity between the rich and the poor.

The trial is expected to be a rebuke of Florida’s public education system. Parents, teachers, school administrators and a slew of experts will seek to prove the state has failed to provide a quality education to public school students.

In its defense, the state will attempt to demonstrate that Florida’s public schools are among the best in the nation. In a written response to inquiries from the FloridaBulldog.org, Meghan Collins, spokeswoman for the Department of Education, claimed the lawsuit “ignores the success we have had in Florida schools.

“Working with local education officials, the state remains focused on providing every student in Florida with the opportunity to receive a great education,” Collins wrote.

Critics, however, say Florida schools fail minority and poor students, a fact that’s reflected in graduation rates.

“There are some serious inequities, especially for African-American students and students where English is a second language, in Florida public schools,” said H. Richard Milner, director of the Center for Urban Education at the University of Pittsburgh and an expert for the plaintiffs. “Structures and mechanisms are not in place to make sure poor and minority students are not underserved in the state.”

Leon County Circuit Judge Gene Reynolds III

The non-jury trial that begins March 14, and is likely to last five weeks, will be presided over by Leon County Circuit Court Judge George Reynolds III. The trial stems from a lawsuit filed in 2009 by Citizens for Strong Schools. The little-known nonprofit was formed in 2008 in hopes of improving education in Alachua County where it supported a local property tax increase passed by voters to help pay for public schools. It has since raised about $12 million annually.

A constitutional amendment

The suit backers pin their case on a constitutional amendment voters passed in 1998 that declares education of children “to be a fundamental value” and requires the state to make education a “paramount duty.” The amendment says the state must “make adequate provision for a uniform system of free public schools” within “an efficient, safe, secure, and high quality system.”

The amendment, however, doesn’t define what the state must do to live up to that requirement. Using a set of statistics and experts, the plaintiffs contend the state has failed its public school students. Perhaps most damaging to the state’s cause: Florida ranks among the lowest states in the nation in per-pupil funding, according to the U.S. Census Bureau.

Attorney Neil Chonin
Photo: University of Florida, Bob Graham Center

The lead attorney representing the group is Neil Chonin, a lawyer for 54 years who retired from his Miami firm to work for Southern Legal Counsel, a nonprofit public interest law firm based in Gainesville. The three-attorney office faces a team of lawyers from the Florida Attorney General’s Office. “This is certainly a David versus Goliath case,” Chonin said from his Tallahassee office.

Florida’s lead is Jonathan A. Glogau, special counsel chief of the Attorney General’s Complex Litigation Office. He declined comment, as did the Attorney General’s spokesperson.

Department of Education spokeswoman Collins, in a written response, noted that Florida “has had historic K-12 funding for the last two years.” That repeats a claim Gov. Rick Scott made in October, apparently in reference to the over-all education budget, which supporters say has reached its highest level in recent years.

However, it’s a claim PolitiFact Florida ranked false, because per-student spending is lower than it was in the 2007-2008 school year and is dramatically down when accounting for inflation.

In court documents, the state has indicated it plans to call 16 witnesses, mostly state-level administrators, including Pamela Stewart, the Florida Department of Education commissioner. The state will also use several experts, including from the conservative, but nonpartisan Hoover Institution and the University of Arkansas. Also expected to take the stand in support of the state will be Frank Brogan, chancellor of the Pennsylvania state system of higher education and former Florida lieutenant governor. Brogan didn’t return an email and phone message left at his office, and the state’s other experts declined to comment, citing the ongoing lawsuit.

A key to the state’s defense will be to insist that it’s reasonable to assume some schools and some students will underperform. “To the extent that deficiencies exist in certain schools, those deficiencies are not caused by nor can they be remedied” by the state, Glogau wrote in Florida’s response to the lawsuit.

The state will also employ statistics to show successes of Florida’s education system. Collins noted in her statement that Florida’s high school graduation rate has increased 18 percentage points since the 2003-04 school year. Over that period, the graduation rate for black and Hispanic students has increased 22 percentage points.

The plaintiffs, however, plan to show that there’s another side to those statistics and that Florida nevertheless remains nine percentage points below the national graduation rate of 80 percent. Only six states and the District of Columbia have lower graduation rates than Florida.

Worse for minorities and poor

Chonin says it’s worse for minorities and the poor. Only 59 percent of black students graduate in Florida, compared to the national average of 67 percent. It’s similar for economically disadvantaged students, with only 60 percent graduating, compared to a national average of 70 percent.

“It blew me away when I first started realizing how many kids in the state can’t read and don’t graduate,” Chonin said. “It’s time we hold the state accountable for failing these kids.”

Milner, the University of Pittsburgh professor, said the case could become a landmark rebuke of public education and could set the standard for similar lawsuits elsewhere in the country.

Rarely has the quality of public education been subject to such a public tribunal, and Milner said the closest comparison may be the landmark 1954 U.S. Supreme Court decision in Brown v. Board of Education, which led to school desegregation. While the Florida case likely won’t lead to any national changes, it could expose flaws in the practice of desegregation, Milner said.

“Schools in Florida are largely still not integrated, with rich white communities providing far better education than poor black schools,” Milner said. “There are still major inequities in public education in Florida, and this lawsuit threatens to expose that.”

Chonin said he can prove at trial that the state has violated the constitutional amendment because it has failed to provide a “uniform and efficient” public school system. The state, Chonin said, funds education using local taxpayers, meaning poorer counties have fewer resources.

“You have counties like Sarasota or Palm Beach that have high property taxes, and then you compare them to Gadsden or Savannah or Jefferson counties,” Chonin said. “Their taxes are far less, and because of that, the performance of their schools can’t compare.”

Jonthan A. Glogau, special counsel at the Florida Attorney General’s Office.

The plaintiffs will claim the state’s testing methodology is unfair to minorities and serves only to hurt the education process. They have listed 70 potential witnesses, with 40 who could appear in person at the trial. The list includes several instructors. Among them is Alachua County kindergarten teacher Susan Bowles, who refused in 2014 to administer the state’s standardized tests and garnered headlines and public support for her decision. Also expected to testify is Chris Guerrieri, the Jacksonville teacher who writes a blog critical of the state’s education bureaucracy.

School administrators also are expected to take the stand in support of the plaintiffs, including superintendents from Franklin, Hernando, Duval and Alachua counties.

If Citizens for Strong Schools succeeds at the non-jury trial, Judge Reynolds has wide leeway in what he could order. The lawsuit asks the judge to declare that the state has failed to fulfill its constitutional duty to provide a quality education, especially to disadvantaged and minority students. If the judge agrees, he could order the Legislature to rewrite the way education is funded in the state, scrap standardized testing and require new safeguards to assure all students get the same level of education.

Taking sides

Multiple education groups have joined the suit on both sides. Among the groups that oppose portions of the lawsuit is Florida Voices for Choices, which supports voucher programs that allow public school students to attend private schools. Its executive director, former Tampa schoolteacher Catherine Durkin Robinson, says the voucher program lets parents choose the best education model for their children. If lawmakers are forced to create a new funding model for education, voucher programs could be at stake.

“Funding is important, but empowered parents choosing from a robust array of options is more important,” Robinson wrote in an emailed response to questions.

But Broward County Public Schools Superintendent Robert Runcie says the voucher programs have contributed to poor funding for education that has crippled schools in the state. That has meant inadequate salaries for teachers, which leads to more turnover and fewer chances to lure teachers from other professions, he said in a recent interview.

“These are dollars that could positively impact teachers’ salaries and provide a better education for our kids,” Runcie said. “This is not how we should treat the people who are teaching the next generation. Teaching should be a profession like any other where we are providing competitive wages.”

Miami-Dade teacher Liane Harris is expected to testify in support of the lawsuit. She teaches at a Secondary Student Success Center (S3C) in Hialeah, a program for students who have been held behind two or more grades.

In 2014, Harris joined several hundred educators and others in a march in downtown Miami to protest Gov. Scott’s education policies. Harris says the state’s standardized tests have failed low-income kids and cuts from voucher programs have left schools struggling to provide even the basics.

“There are kids being left back, year after year,” Harris said. “These tests and these cuts have failed these children.”