No Lawsuit Against the State Yet, But Flagler School Board Warms Up to Actionable Anger
FlaglerLive | June 7, 2011
There is room and reason for a lawsuit against the state over education funding, particularly if it can be narrowed to challenge the state’s imposition of unfunded mandates—legal requirements on local school districts such as smaller class sizes that the state is not adequately paying for, for example. But there’s not yet much clarity about how to craft that lawsuit, who should crafting it, and what legal strategy it would entail. That’s the message from Ronald Meyer to the Flagler County School Board.
Meyer is Florida’s leading attorney challenging shortcomings in Florida’s education funding. School Board member Colleen Conklin invited him to address the local board Tuesday after she proposed last April, and again in mid-May, that the board explore suing the state over the Legislature’s failure to adequately fund the school system.
The board did not agree to sue. Not yet. It agreed to keep talking about possibly suing, particularly if there may be ways to recoup money that the board thinks it’s spending to make up for the state shortchanging it. As a start, the board will direct its finance department to tally up what gap there is between costs imposed by the state that the local district has had to pick up. Conklin, who chairs the six-county Northeast Florida School Boards Coalition, will brief that panel at a meeting in Tampa on Thursday (during the Florida School Board Association’s summer conference), in hopes of building momentum for more conversations and public awareness about potential action.
“It’s courageous to have the conversation, and I know that it makes Janet a little uncomfortable to think that Flagler County would be the one to have this conversation and kind of step out there,” Conklin said, referring to Janet Valentine, the school superintendent. After proposing to sue the state in April, Conklin was fired from her job at the Flagler Beach-based Florida Endowment Foundation for Florida’s Graduates, which gets much of its funding from state grants. “I know all about being afraid to have that conversation. But I do think it’s a conversation that needs to continue to happen because as you can see from the presentation, there’s more questions than there are answers.”
Public awareness may be key. When Conklin first talked about inviting Meyer to Flagler, the board thought there may be other politicians, including school board members from neighboring counties, who’d be interested in being part of the discussion–or at least to hear it. The board chambers were empty, however: aside from the board and the superintendent, there were just four school district employees, four spectators and three reporters in the room.
The board’s lack of clarity on an immediate strategy, beyond its conviction that the state education system is in crisis, reflects the difficulties of bringing legal action against the state when so much is stacked against school districts—including the separation of powers doctrine that makes courts very reluctant to tell the Legislature what to spend and how to spend it, even when the state Constitution makes education a priority. Meyer gave the board a brief overview of the challenge: one lawsuit brought by parents in Palm Beach County over the state’s inadequate funding was thrown out when court ruled that absent a systemic failure across the state, the adequate funding clause of the constitution can’t be the legal basis for a suit over failures in one school district, even if those failures exist.
A year ago, another group of parents filed a lawsuit against the state Board of Education alleging a statewide failure to meet the adequacy standard. “The case hasn’t moved very much,” Meyer said, though in October, a judge denied a motion to dismiss the case. It’s filed in Leon County Circuit Court, and may provide some indication about the viability of such suits.
When board member John Fischer asked Meyer point blank if he had any conviction that some legal action might be warranted, Meyer replied: “I have the conviction that it’s worth looking further into,” though he doesn’t have a draft lawsuit, or any probabilities of the “winnability” of such a lawsuit. “I’m not there yet,” he said. “I have the conviction of putting some more time into it.” And he commended the Flagler County School Board for debating legal or other actions to hold the state accountable. “The public does need to appreciate that the public schools are under attack,” Meyer said, responding to School Board Chairwoman Sue Dickinson’s other kind of conviction: that the Legislature is intending to demolish the public school system as it is now known, and that court action may not do much to stop it. (Dickinson was explicitly restating what her predecessor, the now-retired Evie Shellenberger, had often said in her latter years on the board.)
School Board member Andy Dance wants more analysis: how much money the state is shortchanging districts, what, in fact, amounts to “adequate” funding, and whether legislators can be compelled to arrive at just such definitions. He distributed a draft bill by a legislator who wants the definition attached to hard numbers, though a similar bill failed previously. Dance, who was somewhat skeptical of Conklin’s idea when she first spoke of it—he’s worried about costs—was more willing Tuesday to keep the conversation going. School Board member Trevor Tucker, on the other hand, had only one concern: the cost of any such action, legal or otherwise.
Meyer said a broad, general lawsuit on the adequacy clause of the constitution would run into the hundreds of thousands of dollars, which is one reason he was not recommending it. But there are strategic reasons he’s not recommending it, too: a more targeted lawsuit—if it came to that—based on specific amounts that the state was compelled to send local school districts would be a more realistic approach, and a much less costly one if a lawyer assumed it on contingency. Even that discussion, however, was many steps too far for Meyer or the board.
Tuesday’s meeting ended up redrawing Conklin’s parameters—from a discussion about a possible lawsuit to future discussions about building a case for local school boards, starting with Flagler’s district, to stop the state’s chronic short-changing of specific statutory and constitutional mandates.
“I’m of the view that when the Constitution requires something of anyone,” Meyer said, “whether it be the state, you, a school board member, whatever, and you don’t do what’s constitutionally required, that requirement is meaningless if there’s not some sort of enforcement mechanism. Goodness knows they enforce it on you, they threaten you with fines, and kinds of [consequences], and yet they got off the hook,” meaning the state.