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Will FL charter school ruling deter wayward school districts?

Robin Gibson
Robin Gibson

If Florida public school administrators decide to convert their school to a charter school, they have the law on their side.

An administrative law judge’s ruling against the Miami-Dade school district last week was the first-ever ruling under Florida statutes that bar school districts from taking “unlawful reprisals” against employees who support charter conversions. But the question remains: Will those protections prevent school districts from derailing those efforts before parents and teachers can have their say, as happened in Miami-Dade?

According to the ruling by Edward Bauer of the state’s Division of Administrative Hearings, the district tried to deter efforts to convert the Neva King Cooper Educational Center to a charter school. When administrators kept at it, the principal and assistant principal were transferred out of their jobs into what their attorney, Robin Gibson, called a “purgatory kind of existence,” replacing their administrative duties with menial tasks like sorting crayons and organizing car keys.

Bauer ruled that was against the law, and that Alberto Fernandez, the center’s former principal, is entitled to $10,000 worth of bonuses he would have received if he had remained in his old job.

However, the district still managed to thwart the charter conversion. Bauer declined to reinstate the two administrators to their old positions, noting the law requires them to be returned to “equivalent” jobs and that there are new top administrators in place at the school.

Gibson said he will likely contest that part of the decision. For the time being, he said, “the district can privately congratulate itself on still being unscathed.”

Gibson said the ruling helps establish that if districts retaliate against employees who support charter school conversions, they’ll be breaking the law. Now, “the question becomes, what are they going to do in light of this decision?”

Miami-Dade district officials dispute some of Bauer’s findings, according to the Miami Heraldwhich first reported on the ruling. The Florida Department of Education still needs to issue a final order resolving the case, and it could be appealed to a state district court.

Gibson, a prominent Democrat with close ties to former Gov. Bob Graham, helped lead the successful effort to convert six district schools into charters in Lake Wales in Central Florida. But conversion charters are still rare. All but about two dozen of Florida’s more than 600 charters were started from scratch. There are no conversion charters in Miami-Dade, and that’s unlikely to change right away, despite the ruling.

Because it was encouraged by administrators at the school, the Neva King Cooper case is different from the conversion of schools in Lake Wales, which sprang from a civic effort to improve schools in the city. Still, with parents and educators considering charter conversions elsewhere (including a special needs center in Broward), we spoke with Gibson about what the ruling means and where the process might go from here. The transcript has been edited for length and clarity.

Is the protection that is afforded to school employees who support charter conversions greater than the unlawful retaliation protection that exists more generally?

I don’t know if it’s any greater, but I would say it’s more assured. The reason it’s more assured is because it’s already in the charter school statute. So it’s perfectly clear to everybody involved that the legislative intent is to afford protection to those people who would follow the Florida policy that favors the formation of charter schools as a part of strengthening public education in the state.

All the Legislature is interested in is trying to obtain the best public education that can be provided with the limited funds that are available. As long as it’s public education, I don’t think the Legislature particularly cares whether it comes from the district or from a charter school. They just want the limited funds that are utilized for public education to be handled in the best possible manner and in the most cost-efficient manner, and if some charter school operators can do it then that’s even more incentive for the district to do it, and that’s the way this works.

One of the judge’s specific findings in this case was that the employees who were involved in the conversion effort were moved away into other provisions where they likely would not have been able to effect a charter conversion. But the judge, as I understand the opinion, stated that they don’t need to be restored to their positions, because they were in positions with equivalent salary and benefits. Does that mean that the employees could still be stymied in their effort to lead a charter conversion?

I think they could, and there is a procedure in the administrative law that says that you can file exceptions to the findings of the court, and I think in this instance the court was very clear that an unlawful reprisal had occurred. And even that it was a grievous unlawful reprisal. And (the administrative law judge) spent quite a lot of time detailing his conclusions on that. As far as the remedies are concerned, they are limited in the statute. This is not a tort statute — that is where you have damages for stress, medical problems, the emotional impact that being banished like this and relegated to purgatory — that that brings on a person, a career and their home. Those kinds of damages are not here. They are available, but they’re available only in a civil action.

Nonetheless, in this administrative action, I think that the terms of the statute demonstrate the legislative intent, which is to make these people who have borne the brunt of the wrongful action whole economically. The judge went part way in doing that. What we will ask the Department of Education is to go the rest of the way. That will be in the exceptions.

What about, as a matter of policy, ensuring that the employees of public schools, if they deem that a charter school would be a more efficient way to deliver public education, that they’re able to, in fact, do that? As I understand it, the district was effective in stymieing this effort.

They were very effective, and that was what was wrong, according to the statute.

When you come down on the folks who are exploring charter status and you banish them from the school, and assign them to these menial tasks, or to a position where there’s nothing to do, and they’ve just been put off some place … that kind of tactic looks like it’s designed to psychologically break somebody, and these folks were strong enough to withstand that, and they were there for a long time. The whole purpose of this unlawful reprisal is to demonstrate that the principal of the school, should the principal take the initiative, is entitled to conduct him or herself, the process whereby the faculty and the parents make an objective consideration as to whether they choose the charter option. Here, the district just invaded the school, posted a sentry every day to keep an eye on everything and report back to headquarters, and then they wound up removing the people who were leading the consideration of charter status, to the extent that charter status can no longer be considered …

… That’s the kind of conduct that is prohibited by the statute. That’s what the court was making clear in its decision.

Will this allow more principals to preside over the charter conversion process? Is that something that would be more likely to occur now that the statute has been tested in court and this precedent has been set?

What it means is that, should a principal choose to to do this, he is certainly free to do it. What they have to do is, as Albert Fernandez did in this case, follow the statute and follow the rule. If they do that, then they’re protected by the unlawful reprisal statute. So you do that, and you’re OK. That’s why they called me in at the beginning of their whole process – just to make sure that they were staying within the confines of the law. That’s one of the reasons the result turned out the way it did – because they didn’t do anything wrong.

Do you know if the plaintiffs in this case will consider pursuing a civil case in this matter?

We’re going to take this one step at a time. They’re certainly eligible.

Are there any important points you think we’re missing here?

I think the most important point is, the fact that the statute that has always been on the books and never been interpreted now has a full-fledged interpretation that people can rely on. They can rely on the fact that the statute is going to be interpreted just the way it says.

The legislative intent is for an objective consideration as to whether a charter school would be better for the particular population involved. You have a vote of the faculty and a vote of the parents, and in the democratic process, if they believe that it’s better, their school could be operated by a local board. They have that option. And the consideration of that will not be interfered with by the district. The incentive is for the district to do a great job, to where the charter option is unnecessary.

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BY Travis Pillow

Travis Pillow is Director of Thought Leadership at Step Up For Students and editor of NextSteps. He lives in Sanford, Fla. with his wife and two children. A former Tallahassee statehouse reporter, he most recently worked at the Center on Reinventing Public Education, a research organization at Arizona State University, where he studied community-led learning innovation and school systems' responses to the Covid-19 pandemic. He can be reached at tpillow (at)