Florida’s school funding lawsuit veers into school choice

A lawsuit filed four and a half years ago to seek more funding for Florida public schools is spreading its reach into the state’s school choice programs.

Groups of parents and students sued the state in the fall of 2009, arguing Florida schools were under-funded and under-performing, in violation of the state constitution.

The original lawsuit never mentioned charter schools or private school choice programs. And it’s not clear yet what legal arguments plaintiffs intend to make about such programs.

But as they prepare the case before a Leon County judge next year, the plaintiffs and their attorneys have indicated in court documents and public statements that they plan “attacking” school choice programs in their legal broadside against the state’s education policies.

The plaintiffs have sought depositions of state education officials about the state’s tax credit scholarship program, and have issued subpoenas to half a dozen organizations involved in Florida charter schools. (The tax credit scholarship program is administered by Step Up For Students, which co-hosts this blog.)

The central claim of inadequate funding is only part of the case, which aims to put multiple aspects of Florida’s education system on trial. As plaintiff’s attorney and former Democratic House Speaker Jon Mills put it during a recent event at the University of Florida, the case argues that “this is not a high-quality system.”

Attorneys for the plaintiffs spent years tangling with lawyers for the state over whether a court could rule on those issues. After the state Supreme Court declined in 2012 to hear the state’s arguments for dismissing the case, the plaintiffs began rebuilding it.

One of the plaintiffs’ lead attorneys, Neil Chonin of Southern Legal Counsel, said a lot has changed since the lawsuit was originally filed. In a brief phone interview, he declined to discuss details of the case or the underlying legal theories, but said the plaintiffs are “just beginning” to amass the facts they will use to reformulate their arguments.

Last fall, he offered a preview of his fact-finding approach when he appeared with Mills at UF’s law school.

“You can take depositions of the head of the charter school and choice schools and Race to the Top and all of these things,” Chonin said. “I hope that we’re going to be able to get to the bottom of what’s going on, and why it’s going on, and hopefully within my lifetime we’ll eventually have a ruling one way or the other.”

The state constitution requires 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.”

The provision has been a factor in other lawsuits over choice programs, and was the linchpin of a 2006 state Supreme Court ruling that struck down the state’s Opportunity Scholarship voucher program.

The ruling rested largely on the requirement that the public school system be “uniform.” But the justices gave themselves room to look differently at programs that aren’t paid for with funds set aside for education, or that cater to students with special needs.

During the forum at UF, Chonin was asked specifically about the state’s tax-credit scholarship program.

“We are attacking that,” he said. “And that’s on the basis of uniformity.”

In the fall, the plaintiffs sought to depose state Department of Education officials, and requested production of documents relating to the tax credit program and funding organizations like Step Up for Students.

The plaintiffs have also subpoenaed six companies associated with privately run charter schools in Florida, seeking a wide range of documents, from curriculum and teacher salaries to records of political activity.

The case is mostly on hold while the Legislature is in session. But at least one company, Charter Schools USA, is fighting to quash the subpoenas, noting “charter schools are not even obliquely alluded to” in the original lawsuit. The company’s lawyers also contend that the requests cover documents that “bear no apparent relevance to the constitutionality of charter schools.”

The plaintiffs include some persistent critics of education policy in Florida, including the group Fund Education Now. It claimed in response to questions from the state’s lawyers that a wide range of education statutes – from merit pay to charter schools – were unconstitutional.

Lawyers for the state have noted nearly nine of 10 publicly funded Florida students attend district-run schools, and that “Florida’s schools provide educational opportunities for children of all abilities.” They also note the plaintiffs did not include claims about school choice programs and private schools in their legal complaint.

While it’s unclear where the case may be headed, Chonin told the Miami Herald last year that it would be virtually impossible to “abolish” charter schools. “Our position,” he said, “is that there should be an even playing field.”