From the Orlando Sentinel
by Leslie Postal
TALLAHASSEE — Can Florida's courts judge whether the state's public schools are high quality and adequately funded?
Lawyers for the state of Florida argued before an appellate court Thursday that they cannot. But plaintiffs in a sweeping lawsuit filed in 2009 asked a court to do just that, accusing the state of failing to meet its constitutional obligations for "high-quality" public schools.
The lawsuit, whose plaintiffs include three Orlando mothers, asked a court to rule the state in violation of the Florida Constitution and to order a "remedial" plan to deal with school-budget cuts, a faulty school-accountability system and low test scores and graduation rates, among other areas cited as problems.
But at Thursday's court hearing, the state argued the lawsuit amounts to a political argument about education policy that courts cannot decide without infringing on the rights of the Florida Legislature, which makes school law and sets school funding.
Solicitor General Scott Makar asked the First District Court of Appeal to toss out the lawsuit.
Though the state constitution demands "high-quality" schools, it does not set standards by which a court could judge that benchmark, he told a three-judge appellate-court panel.
"How is the court to resolve the matter?" he said. The lawsuit is "all about money and policy judgments," he said.
The state previously lost a bid to get a circuit court to dismiss the lawsuit and is now trying to prevent the lower court from hearing the case by asking for a "writ of prohibition" from the appeal court.
Jon Mills, the lead attorney for the plaintiffs, argued the state's request was an "extraordinary" attempt to circumvent usual judicial proceedings and avoid a hearing on a "comprehensive challenge" to deficiencies in Florida's school system.
By the state's argument, Mills said, the amendment voters added to the state constitution in 1998 demanding "high-quality" schools becomes meaningless because "the court can do nothing about it."
The judges asked pointed questions of both sides.
"So if the Legislature chose not to fund education at all, there would be no remedy — other than voting them out of office?" asked Judge William Van Nortwick Jr. while Makar was presenting his case.
Chief Judge Robert Benton II asked Mills if the phrase "by law" in the 1998 amendment meant the question of quality schools "belongs to the Legislature." He also asked a few times, "What kind of remedy do you envision?"
The amendment added by voters to Florida's constitution was pushed by school advocates after a similar school-adequacy lawsuit was dismissed by the courts in 1996. Mills, a former Democratic speaker of the Florida House, helped craft the amendment.
The amendment states that "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."
Makar told the judges that the amendment isn't meaningless but that it lays out a "value" for state lawmakers to act on, not a list of specific standards on which a court could rule.
He said it was written that way because a majority of those who put it on the ballot wanted to avoid "litigation unlimited," as seen in other states.
New Jersey's school-adequacy case, for example, dates back decades. That state's supreme court ruled in May that budget cuts were not permissible in the districts that were part of the legal case.
Florida's case was brought by two advocacy groups, including Orlando-based Fund Education Now, and parents and students in Duval and Pasco counties.
It will be costly and time-consuming, the state argued, and its "political nature" is obvious in the "staggering" number of documents the plaintiffs have already requested, which represent an "unprecedented intrusion into the legislative process," state attorneys wrote in their brief to the court.
The plaintiffs, for example, have requested a correspondence, dating back to 2007, between the state education commissioner and the Legislature on budgets, curriculum and education policy.
"The lawsuit will serve as a continual source of distraction to lawmakers and administrative officials charged with setting educational policy in the state," the state's brief says. "The years of needless litigation will never be undone, and the massive costs expended will be lost irretrievably."
But in their brief, Mills and his colleagues argued the lawsuit makes a good case for "broad deficiencies in the public education system that were created in violation of the state's explicit constitutional duty."
And state courts, they wrote, "have both the power and the duty to interpret and enforce Florida's Constitution."
However the judges rule, an appeal of their decision is expected.
lpostal@tribune.com or 407-420-5273
http://www.orlandosentinel.com/features/education/0s-florida-schools-lawsuit-20110630,0,7976005.story
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