The School Board of Collier County, Florida v. Florida Department of Education State Board of Education

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-2040

_____________________________

THE SCHOOL BOARD OF COLLIER

COUNTY, FLORIDA,

Appellant/Cross-Appellee,

v.

FLORIDA DEPARTMENT OF

EDUCATION; STATE BOARD OF

EDUCATION; RICHARD

CORCORAN, in his official

capacity as Florida

Commissioner of Education;

ANDY TUCK, in his official

capacity as Chair of the State

Board of Education, THE

PASSPORT SCHOOL, INC.; HOPE

CHARTER SCHOOL, INC.; LEGACY

HIGH SCHOOL, INC.; MARCO

ISLAND ACADEMY, A Public

Charter High School, Inc.;

JENNY CARTWRIGHT; BETH

SCHMUDE; LISA BURDUE

TACKETT; THE SCHOOL BOARD OF

ALACHUA COUNTY, FLORIDA; THE

SCHOOL BOARD OF BAY COUNTY,

FLORIDA; THE SCHOOL BOARD OF

BROWARD COUNTY, FLORIDA;

THE SCHOOL BOARD OF CLAY

COUNTY, FLORIDA; THE SCHOOL

BOARD OF DUVAL COUNTY,

FLORIDA; THE SCHOOL BOARD OF

HAMILTON COUNTY, FLORIDA;

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA; THE SCHOOL

BOARD OF ORANGE COUNTY,

FLORIDA; THE SCHOOL BOARD OF

PINELLAS COUNTY, FLORIDA;

THE SCHOOL BOARD OF POLK

COUNTY, FLORIDA; THE SCHOOL

BOARD OF ST. LUCIE COUNTY,

FLORIDA; THE SCHOOL BOARD OF

VOLUSIA COUNTY, FLORIDA; and

THE SCHOOL BOARD OF

WAKULLA COUNTY, FLORIDA,

Appellees/Cross-Appellants.

_____________________________

No. 1D18-2072

_____________________________

THE SCHOOL BOARD OF ALACHUA

COUNTY, FLORIDA, THE SCHOOL

BOARD OF BAY COUNTY,

FLORIDA, THE SCHOOL BOARD OF

BROWARD COUNTY, FLORIDA,

THE SCHOOL BOARD OF

HAMILTON COUNTY, FLORIDA,

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA, THE SCHOOL

BOARD OF ORANGE COUNTY,

FLORIDA, THE SCHOOL BOARD OF

PINELLAS COUNTY, FLORIDA,

THE SCHOOL BOARD OF POLK

COUNTY, FLORIDA, THE SCHOOL

BOARD OF ST. LUCIE COUNTY,

FLORIDA, and THE SCHOOL

BOARD OF VOLUSIA COUNTY,

FLORIDA,

Appellants/Cross-Appellees,

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v.

FLORIDA DEPARTMENT OF

EDUCATION; STATE BOARD OF

EDUCATION; RICHARD

CORCORAN, in his official

capacity as Florida

Commissioner of Education;

ANDY TUCK, in his official

capacity as Chair of the State

Board of Education, THE

PASSPORT SCHOOL, INC., HOPE

CHARTER SCHOOL, INC., LEGACY

HIGH SCHOOL, INC., MARCO

ISLAND ACADEMY, A Public

Charter High School, Inc.,

JENNY CARTWRIGHT, BETH

SCHMUDE, LISA BURDUE

TACKETT, THE SCHOOL BOARD OF

CLAY COUNTY, FLORIDA, THE

SCHOOL BOARD OF COLLIER

COUNTY, FLORIDA, THE SCHOOL

BOARD OF DUVAL COUNTY,

FLORIDA and THE SCHOOL

BOARD OF WAKULLA COUNTY,

FLORIDA,

Appellees/Cross-Appellants.

_____________________________

On appeal from the Circuit Court for Leon County.

John C. Cooper, Judge.

August 29, 2019

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LEWIS, J.

Appellants/Cross-Appellees, several Florida school boards,

appeal a final judgment entered in favor of Appellees, the Florida

Department of Education, the State Board of Education, the

Florida Commissioner of Education, and the Chair of the State

Board of Education, seeking review of the trial court’s rejection of

their facial constitutional challenge to several provisions contained

in Chapter 17-116, Laws of Florida, also known as House Bill 7069

(“HB 7069”), pertaining to charter schools, including the new

“schools of hope.” The school boards contend, as they did below,

that the challenged provisions violate their right to “operate,

control and supervise all free public schools” in Florida pursuant

to Article IX, section 4(b) of the Florida Constitution, that certain

provisions violate the uniformity requirement contained in Article

IX, section (1)(a), and that HB 7069’s capital millage provisions

violate Article VII, section 1 by permitting the State to levy ad

valorem taxes. On cross-appeal, Cross-Appellants/Appellees

challenge the trial court’s rejection of their defenses of lack of

standing, estoppel, and failure to exhaust administrative

remedies. For the reasons that follow, we conclude that the school

boards have standing to challenge only those provisions of HB

7069 that address capital millage and federal Title I funds.

However, because we find the school boards’ challenge to those

provisions unavailing on the merits, we affirm the Final

Judgment.

FACTUAL BACKGROUND

In October 2017, the school boards filed a Complaint for

Declaratory and Injunctive Relief against Appellees, alleging that

HB 7069 unconstitutionally: (1) mandates that they share a

portion of their discretionary capital outlay millage revenues with

charter schools; (2) allows for the creation of charter schools called

“schools of hope” that would be allowed to operate outside of any

meaningful control or supervision by the school boards and create

dual or even multiple systems of public education; (3) allows

schools of hope and authorized charter school systems to serve as

local education agencies; (4) strips the school boards of their ability

to supervise and control charter schools by requiring them to enter

into a standard charter contract with charter school operators; (5)

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restricts the authority of the school boards to effectively use federal

Title I funds to operate, supervise, and control public schools in

their district; and (6) divests the school boards of their authority

and responsibility to decide how best to improve a public school

that the State has identified as low-performing.

With respect to capital millage, the school boards claimed that

before HB 7069 was passed, they had full discretion as to whether

to use any portion of their capital millage for charter schools. They

also challenged the fact that HB 7069 prescribed a specific formula

for the Florida Department of Education to use and directed that

each district distribute funds to charter schools according to the

formula. They alleged that the distribution of funds would

severely impact their ability to build new and necessary schools

and to adequately maintain the facilities they currently operated.

As to federal Title I funding, the school boards alleged that HB

7069 restricted their authority to use the funds for purposes they

deemed to be the most educationally beneficial and most likely to

effectively address the educational needs of low-income students.

The undisputed facts common to all of the school boards’

claims, as set forth by the trial court, are as follows:

The parties agree that “constitutional authority over

public education in Florida is shared among the State and

local district school boards.” . . . Article IX, section 1(a) of

the Florida Constitution provides that the State shall

make “adequate provision . . . 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.” Article IX, section 2 of the Florida

Constitution gives the State Board of Education “such

supervision of the system of free public education as is

provided by law.” And article IX, section 4(b) provides

that the local “school board shall operate, control and

supervise all free public schools within the school

district.”

This shared authority is reflected in Florida’s long-

standing system of free public schools and education

finance. “Public education is a cooperative function of the

state and local educational authorities,” and “[t]he state

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retains responsibility for establishing a system of public

education through laws, standards, and rules.” §

1000.03(3), Fla. Stat. In addition, “[t]he district school

system shall be considered as a part of the state system

of public education. All actions of district school officials

shall be consistent and in harmony with state laws and

with rules and minimum standards of the state board.” .

. . Florida’s charter schools are likewise “part of the

state’s program of public education,” and “[a]ll charter

schools in Florida are public schools.” § 1002.33(1), Fla.

Stat.

The Local Boards do not challenge the overall

structure of Florida’s system of public schools or its

primary funding mechanism, the Florida Education

Finance Program (“FEFP”), and Florida courts have

repeatedly acknowledged the constitutionality of

Florida’s basic funding formula for public education. . . .

Nor do the Local Boards challenge the underlying

constitutionality of public charter schools or the State’s

authority to require local boards to approve an

application to open a charter school – both of which also

have been upheld by Florida courts. . . .

Under these presumptively constitutional laws, local

school boards are responsible for considering and

approving applications to open a charter school (including

“[t]he facilities to be used and their location”) and for

monitoring and reviewing any charter schools that they

approve or “sponsor.” . . . The Local Boards thus “monitor

the revenues and expenditures of [each] charter school”

and may terminate or nonrenew a charter for a variety of

reasons, including “failure to meet the requirements for

student performance stated in the charter” and “[f]ailure

to meet generally accepted standards of fiscal

management.” . . . Since the creation of public charter

schools in 1996, Florida’s charter-school laws have also

required local school boards to “make timely and efficient

payment and reimbursement to charter schools” based on

a statutory funding formula that includes “gross state

and local funds, discretionary lottery funds, and funds

from the school district’s current operating discretionary

millage levy.” . . . For example, during the 2016-2017

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school year, 12 of the Local Boards (excluding the school

boards for Hamilton and Collier counties) distributed

nearly $780 million in FEFP funding to charter schools –

including over $330 million in locally generated ad

valorem tax revenues. . . .

The parties filed cross-motions for summary judgment.

Appellees challenged the school boards’ standing to raise all but

their capital millage claim. Following the summary judgment

hearing, the trial court entered its Final Order and Judgment.

Therein, the trial court, set forth in part:

A. The State Defendants’ Procedural Defenses

Do Not Warrant a Summary Judgment in Their

Favor.

Before reaching the parties’ arguments on the

merits, the Court rejects the State Defendants’

arguments that some or all of the Local Boards’ claims

are barred by a lack of standing, the doctrine of estoppel,

or a failure to exhaust administrative remedies.

With respect to standing, the Local Boards seek a

declaratory judgment that various statutes interfere with

their authority under article VII and article IX of the

Florida Constitution. Florida law allows “[a]ny person . .

. whose rights, status, or other equitable or legal relations

are affected by a statute” to “obtain a declaration of

rights, status, or other equitable or legal relations

thereunder.” § 86.021, Fla. Stat. The Local Boards allege

that the statutes at issue affect their rights, and despite

the State Defendants’ arguments to the contrary, the

Local Boards have standing to seek declaratory relief in

this action.

....

B. The Local Boards’ First Claim Challenging

the “Capital Millage Provisions,” Fails as a Matter

of Law.

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The Local Boards’ claim that HB 7069’s capital-

millage provisions violate article VII and article IX of the

Florida Constitution is barred by binding and settled

precedent. The Florida Constitution “creates a hierarchy

under which a school board has local control, but the

State Board supervises the system as a whole.” . . . The

State’s “broader supervisory authority may at times

infringe on a school board’s local powers, but such

infringement is expressly contemplated – and in fact

encouraged by the very nature of supervision – by the

Florida Constitution.” . . . And “there is nothing in the

constitution” – not in article VII, nor in article IX – “which

requires that [junior colleges or other public education

programs] be under the control of the local school board

or that prohibits the legislature [from] enacting laws

requiring that some local school funds be used in support

of such institutions to the extent that they serve a local

purpose.” . . .

In Brevard County, the Florida Supreme Court held

that requiring local boards of education to share their

property-tax revenues with junior colleges (which were

outside the local boards’ control) did not violate article

VII or article IX of the Florida Constitution.

....

The Local Boards’ attempt to distinguish Brevard

County on the ground that the junior colleges in that case

were not “under the control of the local schools boards” . .

. is unpersuasive. If local tax revenues could be used in

Brevard County to support junior colleges that were not

even under the local board’s control, surely those funds

can be used to support local public charter schools that

will in turn use the funds to house and educate local

schoolchildren. The Legislature has at least as much

authority to require the use of local taxes to support

locally sponsored and supervised charter schools here as

it did to require local boards to fund junior colleges that

were beyond the local boards’ control in Brevard County.

Thus, Brevard County forecloses the Local Boards’ article

VII and article IX claims.

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The Court also rejects the Local Boards’ argument

that HB 7069 unconstitutionally requires them to share

capital-outlay revenues “on an arbitrary basis” because

the enrollment-based distribution formula does not

consider each eligible “charter school’s actual need.” . . .

To the contrary, it is undisputed that the average

distribution of capital-millage funds to eligible charter

schools under HB 7069 for the 2017-2018 school year was

not enough to cover the full cost of a typical charter-school

lease. . . . HB 7069’s enrollment-based formula for

charter-school capital-outlay funding accounts for the

fact that schools with more students need more

classrooms, and charter schools are required to spend

capital-outlay funding for substantially the same

purposes as school districts. . . . The Local Boards have

not shown that the capital-millage provisions are

constitutionally different from the numerous other,

presumptively constitutional requirements governing the

use of local tax dollars in Florida’s public schools – which

have included charter schools for more than 20 years.

This Court cannot wade into policy debates about

“the enactment of educational policies regarding teaching

methods and accountability, the appropriate funding of

public schools, the proper allowance of charter schools

and school choice, the best methods of student

accountability and school accessibility, and related

funding priorities.” . . . Regardless of whether requiring

the Local Boards to share capital-millage revenues with

their local charter schools is “bad policy” . . ., the Court

cannot determine that HB 7069’s capital-millage

provisions “cross constitutional lines” . . . when those

policies are supported by a conceivable rational basis.

Nor have the Local Boards explained how the

Constitution could preclude the State from imposing

conditions on a discretionary capital-millage tax that can

be levied only with legislative authorization and the

Local Boards’ voluntary approval. . . . This requirement

is no more intrusive than the presumptively

constitutional requirements imposed on local school

districts by the FEFP and many other statutory

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requirements that the Local Boards have not challenged

in this litigation.

....

F. The Fifth Claim, Regarding “Title I” Funds,

Fails a Matter of Law.

The Local Boards’ Title I claim – which is based on

the theory that they have a state constitutional right

under article IX, section 4(b) “to allocate Title I [federal]

funds in the manner [they] deem[] most beneficial” . . . –

fails as a matter of law because the Local Boards do not

have any state constitutional right to federal Title I

dollars. Under federal law, a school district cannot

receive any of those funds unless the State determines

that the district’s Title I plan meets the requirements of

federal law and “provides that schools served under this

part substantially help children served under this part

meet the challenging State academic standards.” . . . .

HB 7069’s effort to direct more Title I funding toward

individual schools is also rationally related to legitimate

concerns about ensuring that Title I funds benefit schools

with the highest proportions of economically

disadvantaged students. It is undisputed that federal

policy has “emphasized poverty and established the

priority that Title I funding flow to high-poverty schools

before serving schools with less poverty.” . . . And

guidance from the U.S. Department of Education has

further encouraged the use of Title I funds in specific

schools as opposed to reserving those funds at the district

level. . . . The State Defendants are entitled to judgment

as a matter of law on the Local Boards’ fifth cause of

action.

Thereafter, the trial court entered a Final Judgment in favor of

Appellees. This appeal and cross-appeal followed.

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ANALYSIS

Standing

Cross-Appellants/Appellees contend on cross-appeal that the

trial court erred in rejecting their arguments that the school

boards lacked standing to raise all but their capital millage claim,

that they should be estopped from raising their claims, and that

they failed to exhaust their administrative remedies. We reject the

latter two arguments without comment. As to the standing

argument, we review the issue de novo. Cartwright v. LJL Mortg.

Pool, LLC, 185 So. 3d 614, 615 (Fla. 4th DCA 2016).

In rejecting the standing argument, the trial court cited

section 86.021, Florida Statutes, which permits any person whose

rights may be in doubt to “obtain a declaration of rights, status, or

other equitable or legal relations thereunder.” The trial court

determined that because the school boards alleged that the

“statutes at issue” affected their rights, they had standing to seek

declaratory relief. We hold, however, that the public official

standing doctrine controls the issue of standing in this case, not

the declaratory judgment statute.

The doctrine, which we recently addressed and which is

grounded in the separation of powers, “recognizes that public

officials are obligated to obey the legislature’s duly enacted statute

until the judiciary passes on its constitutionality.” Sch. Dist. of

Escambia Cty. v. Santa Rosa Dunes Owners Ass’n, 274 So. 3d 492,

494 (Fla. 1st DCA 2019). It is for that reason that a public official’s

“‘[di]sagreement with a constitutional or statutory duty, or the

means by which it is to be carried out, does not create a justiciable

controversy or provide an occasion to give an advisory judicial

opinion.’’’ Id. (quoting Dep’t of Revenue v. Markham, 396 So. 2d

1120, 1121 (Fla. 1981), superseded by statute as recognized in

Crossings at Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So.

2d 793, 802-03 (Fla. 2008)). The prohibition against public officials

attacking the constitutionality of a statute is not limited to those

public officials charged with a duty under the challenged law, but

also extends to public officials whose duties are affected by the

challenged law. Id. at 495; see also Echeverri, 991 So. 2d at 794–

803 (holding that a property appraiser acting in his or her official

11

capacity lacks standing to raise the constitutionality of a statute

as a defense in an action by a taxpayer and finding its earlier

holding in State ex rel. Atlantic Coast Line Railway Co. v. State

Board of Equalizers, 94 So. 681, (1922), that a public official may

not challenge the constitutionality of the statute as “promot[ing]

an important public policy of ensuring the orderly and uniform

application of state law”); Dep’t of Educ. v. Lewis, 416 So. 2d 455,

458 (Fla. 1982) (“State officers and agencies must presume

legislation affecting their duties to be valid, and do not have

standing to initiate litigation for the purpose of determining

otherwise.”); Island Resorts Invs., Inc. v. Jones, 189 So. 3d 917, 922

(Fla. 1st DCA 2016) (holding that the property appraiser and tax

collector lacked standing to raise the constitutionality of the

statute at issue based upon the public official standing doctrine).

The school boards’ constitutional challenge to HB 7069’s

provisions represents their disagreement with new statutory

duties enacted by the Legislature. As the foregoing authority

makes clear, however, the school boards must presume that the

provisions at issue are constitutional. In reaching our

determination on standing, we reject the school boards’ argument

that this case is governed by the rule that standing is allowed

where a public official is willing to perform his or her duties but is

prevented from doing so by others. See Reid v. Kirk, 257 So. 2d 3,

4 (Fla. 1972) (recognizing that standing is permitted when a public

official is prevented “by others” from performing the duties that he

or she is willing to perform). While the school boards rely upon the

supreme court’s determination in Coalition for Adequacy &

Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 411 n.4

(Fla. 1996), that the schools boards in that case had standing

under the “prevention of duties” doctrine to challenge “a

constitutional violation which renders them unable to adequately

discharge their duties,” the plaintiffs in that case, which included

private plaintiffs as well as school boards, sought a declaration

that the State failed to provide Florida students an adequate

education by failing to allocate adequate resources for a uniform

system of free public schools. It was not a situation where the

school boards were claiming that a statute was unconstitutional,

as is the case here. See Markham, 396 So. 2d at 1121 (“For

important policy reasons, courts have developed special rules

concerning the standing of governmental officials to bring a

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declaratory judgment action questioning a law those officials are

duty-bound to apply. As a general rule, a public official may only

seek a declaratory judgment when he is ‘willing to perform his

duties, but ... prevented from doing so by others.’ Reid v. Kirk, 257

So.2d 3, 4 (Fla.1972). Disagreement with a constitutional or

statutory duty, or the means by which it is to be carried out, does

not create a justiciable controversy or provide an occasion to give

an advisory judicial opinion.”).

Based upon the foregoing, the school boards lack standing to

challenge the constitutionality of HB 7069’s provisions pertaining

to the schools of hope, the charter school standard contract, and

the charter school “turnaround” provisions. As for the school

boards’ claims regarding capital millage and federal Title I funds,

we find that the public funds exception, which allows for standing

to challenge the constitutionality of a law providing for the

expenditure of public funds, confers standing upon the school

boards to raise those claims. See Echeverri, 991 So. 3d at 797

(recognizing the public funds exception); Branca v. City of

Miramar, 634 So. 2d 604, 606 (Fla. 1994) (same); Island Resorts

Invs, Inc., 189 So. 3d at 922 (same). As such, we will address the

school boards’ constitutional claims as to those provisions on the

merits.

Constitutional Claims

The determination of whether a statute is constitutional is a

pure question of law reviewable de novo. Scott v. Williams, 107 So.

3d 379, 384 (Fla. 2013). The same standard applies to a summary

judgment ruling where there is no genuine issue of material fact.

Id. “As a general rule, courts may not reweigh the competing

policy concerns underlying a legislative enactment.” Bush v.

Holmes, 919 So. 2d 392, 398 (Fla. 2006). When the Legislature acts

within its constitutional limits, its power to resolve issues of civic

debate is to receive great deference. Id. A facial constitutional

challenge considers only the text of the statute, not its application

to a particular set of circumstances. Duval Cty. Sch. Bd. v. State,

Bd. of Educ., 998 So. 2d 641, 643 (Fla. 1st DCA 2008). A

determination that a statute is facially unconstitutional means

that no set of circumstances exists under which the statute would

be valid. Id. The party claiming that a statute is facially

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unconstitutional must demonstrate that the statute’s provisions

pose a present total and fatal conflict with applicable

constitutional standards. Id.

As for the State’s constitutional authority for education,

article IX, section 1(a) of the Florida Constitution provides in part:

The education of children is a fundamental value of

the people of the State of Florida. It is, therefore, a

paramount duty of the state to make adequate provision

for the education of all children residing within its

borders. 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 and for the establishment,

maintenance, and operation of institutions of higher

learning and other public education programs that the

needs of the people may require.

Article IX, section 2 provides that the “state board of education

shall be a body corporate and have such supervision of the system

of free public education as is provided by law.” With respect to the

school boards’ constitutional authority, article IX, section 4

provides in part:

(b) The school board shall operate, control and

supervise all free public schools within the school district

and determine the rate of school district taxes within the

limits prescribed herein. Two or more school districts

may operate and finance joint educational programs.

Article IX, Section 4 Claims

The school boards contend that HB 7069 removes their

discretion over financial decisions by imposing strict limits on how

they can spend the tax dollars they raise and, therefore, violates

their constitutional right to operate, control, and supervise the

schools in their districts. Prior to the passage of HB 7069, section

1011.71(2), Florida Statutes (2016), read, “In addition to the

maximum millage levy as provided in subsection (1), each school

board may levy not more than 1.5 mills against the taxable value

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for school purposes for district schools, including charter schools at

the discretion of the school board” to fund certain enumerated

expenses and projects. HB 7069 amended the provision and

removed “at the discretion of the school board.” Ch.17-116, § 29,

Laws of Fla. (codified at § 1011.71(2), Fla. Stat. (2017)). Prior to

the passage of HB 7069, section 1013.62(1), Florida Statutes

(2016), set forth, “In each year in which funds are appropriated for

charter school capital outlay purposes, the Commissioner of

Education shall allocate the funds among eligible charter schools

as specified in this section.” That provision was deleted in HB

7069, and the following was added in its place: “Charter school

capital outlay funding shall consist of revenue resulting from the

discretionary millage authorized in s. 1011.71(2) and state funds

when such funds are appropriated in the General Appropriations

Act.” Ch. 17-116, § 31, Laws of Fla. (codified at § 1013.62(1), Fla.

Stat. (2017)). The Legislature also added, “The department shall

use the following calculation methodology to allocate state funds

appropriated in the General Appropriations Act to eligible charter

schools.” Id. (codified at § 1013.62(2), Fla. Stat. (2017)). The

Legislature added as well, “If the school board levies the

discretionary millage authorized in s. 1011.71(2), the department

shall use the following calculation methodology to determine the

amount of revenue that a school district must distribute to each

eligible charter school . . . .” Id. (codified at § 1013.62(3), Fla. Stat.

(2017)). ∗

∗

As the parties point out, the Legislature amended section

1013.62 in 2018 by providing that charter school capital outlay

funding would consist of only state funds rather than state funds

and revenue resulting from discretionary millage. Ch. 18-6, § 45,

Laws of Fla. The Legislature added, “Beginning in fiscal year

2019-2010, charter school capital outlay funding shall consist of

state funds when such funds are appropriated in the General

Appropriations Act and revenue resulting from the discretionary

millage authored in s. 1011.71(2) . . . .” The school boards contend

that even with this postponement of the implementation of the

capital millage provision to 2019-20, they “still must plan for this

diversion of revenue in their long-term budgeting plans.”

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The school boards claim that they are not attacking the

formula chosen by the State or the concept that charter schools

must be funded. Their “narrow complaint” is that the Florida

Constitution requires the funding decisions to be made by local

elected officials, not by state employees far removed from local

needs and concerns. In rejecting their argument, the trial court

reasoned in part that the school boards failed to explain how the

Florida Constitution could preclude the State from imposing

conditions on a discretionary capital millage tax that can be levied

only with legislative authorization. The school boards have failed

to show any error on the trial court’s part. Appellees are correct

that what the Legislature has done with respect to the capital

millage provisions is exercise its supervisory power under article

IX, section 1(a) to ensure adequate provision be made for the “free

public schools” in Florida. While charter schools are statutorily

considered to be public schools, the reality is that they do compete

with the traditional public schools in their districts. Indeed,

section 1002.33(2)(c)2., Florida Statutes (2017), sets forth that one

of the purposes of charter schools is to “[p]rovide rigorous

competition within the public school district to stimulate continual

improvement in all public schools.” Given such, the State’s

constitutional duty to make adequate provision for Florida’s public

schools must be interpreted to mean that the State has a duty to

ensure that charter schools are not neglected by the school boards.

By requiring that charter schools receive a certain portion of

capital millage funds, the State is not violating article IX, section

4, but is fulfilling the purpose of article IX, section 1. As the Fourth

District has reasoned:

The Florida Constitution therefore creates a hierarchy

under which a school board has local control, but the

State Board supervises the system as a whole. This

broader supervisory authority may at times infringe on a

school board’s local powers, but such infringement is

expressly contemplated – and in fact encouraged by the

very nature of supervision – by the Florida Constitution.

Sch. Bd. of Palm Beach Cty. v. Fla. Charter Educ. Found. Inc., 213

So. 3d 356, 360 (Fla. 4th DCA 2017). Moreover, as Appellees

contend, section 1013.62(4) is very detailed as to what charter

schools may spend capital outlay funds on, and subsection (5) of

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that statute provides that if a charter school is nonrenewed or

terminated, any unencumbered funds and all equipment and

property purchased with school board funds revert to the boards’

ownership. We, therefore, reject the school boards’ constitutional

challenge to the capital millage provisions under article IX, section

4.

Turning to Title I, the federal program that helps fund the

needs of low-income students, HB 7069 added the following

language to section 1011.69, Florida Statutes:

After providing Title I, Part A, Basic funds to schools

above the 75 percent poverty threshold, school districts

shall provide any remaining Title I, Part A, Basic funds

directly to all eligible schools as provided in this

subsection. For purposes of this subsection, an eligible

school is a school that is eligible to receive Title I funds,

including a charter school. . . .

Ch. 17-116, § 45, Laws of Fla. (codified at § 1011.69(5), Fla. Stat.

(2017)). The school boards contend that prior to the enactment of

HB 7069, they could use a portion of the Title I funds to fund

district-wide programs, such as summer school, after-hours

programs, district-wide science and technology initiatives, or a

transportation system to ensure that low-income students could

take advantage of the programs. They claim that the foregoing

provision unconstitutionally divested them of their right to decide

how to spend federal Title I funds. In rejecting this claim, the trial

court correctly recognized that the school boards do not have any

constitutional right to federal Title I funds. Moreover, as is the

case with capital millage, we find that the Title I issue is governed

by the State’s constitutional authority under article IX, section 1

to ensure the adequate provision of education for all children in

Florida. Ensuring that students in charter schools receive the

federal funds that they are entitled to without relying upon the

school boards’ discretion on how to allocate those funds does not

violate Florida’s Constitution.

17

Article VII Claim

The school boards also challenge HB 7069 by contending that

the Legislature imposed forbidden state ad valorem taxation by

adding the capital millage provisions. Article VII, section 1(a) of

the Florida Constitution provides in part that “[n]o tax shall be

levied except in pursuance of law” and “[n]o state ad valorem taxes

shall be levied upon real estate or tangible personal property.”

Article VII, section 9(a), which addresses “[l]ocal taxes,” sets forth

in part that “[c]ounties, school districts, and municipalities shall,

and special districts may, be authorized by law to levy ad valorem

taxes and may be authorized by general law to levy other taxes, for

their respective purposes . . . .” As the supreme court has

explained, article VII, section 9(a) requires legislative

authorization before the entities named therein may levy ad

valorem taxes. Fla. Dep’t of Educ. v. Glasser, 622 So. 2d 944, 946-

47 (Fla. 1993).

In rejecting the school boards’ capital millage argument under

article VII, the trial court relied upon Board of Public Instruction

of Brevard County v. State Treasurer of Florida, 231 So. 2d 1 (Fla.

1970). There, the issue was whether two 1967 statutes, sections

230.0111(2) and 230.0117(7), which provided “for the support of

junior colleges by county (now district) boards of public

instruction,” were constitutional. Id. at 2. According to the trial

court’s judgment, which the supreme court adopted as its decision,

it was the appellant board’s position that it had the power and duty

to operate, control, and supervise all free public schools within the

school district under article IX, section 4(b) of the 1968 Florida

Constitution, that the control and supervision of junior colleges

were placed under officers, and that if junior colleges were no

longer part of the free public school system, they could not be

supported by funds of the county or district boards. Id. The trial

court, in citing article VII, section 9, which placed a limit of ten

mills on taxes “for all school purposes,” set forth, “‘All school

purposes’ is certainly broader than ‘free public schools.’ This would

seem to imply that while the local board must determine the rate

of all school district taxes, some of the taxes . . . can properly be

used for local school purposes other than the support of the free

public school . . . .” Id. The opinion further set forth, “Nor is there

anything in the constitution which requires that all taxes levied by

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a county-wide school district be appropriated exclusively to free

public schools or that requires that no part of such funds may be

appropriated for other school purposes and administered by other

officers.” Id. The opinion also provided in part:

But it [the appellant] takes the position that once the

junior college ceases to be a part of the system of free

public schools (and thus is removed from its control) any

local financing of the junior college becomes

unconstitutional. Nothing in the constitution justifies

this conclusion. Subject to the power of the legislature to

establish a Uniform system of free public schools the

control of the free public schools in each district is vested

in the local school board. This does not prohibit the

legislature from placing upon the local school districts the

duty to render financial support to junior colleges which

are not under the control of the local school boards but

which have been established at their request.

‘Plaintiff finally asserts that the whole legislative plan is

to establish junior colleges as state institutions and to

require their support by local ad valorem taxes, thus

circumventing the provision section 1 article VII which

prohibits state ad valorem taxes. Junior colleges serve a

state function. So do the universities. So do the free public

schools. Junior colleges also serve a distinctly local

function. The law requires that the plan of each junior

college ‘contain provisions for serving all eligible students

in the junior college district.’ The court knows what

everybody knows. One of the major reasons for

establishing a junior college is to bring this level of

education within commuting distance of large numbers of

students who could not otherwise attend college. The

local board must recognize the need and request its

establishment before it can be authorized. Ad valorem

taxes levied by school districts for support of such

institutions are local taxes levied for local purposes.

‘While the legislature may not circumvent the prohibition

of state ad valorem taxation by any scheme or device

which requires local ad valorem taxes and then channels

19

the proceeds into essentially state functions which are

not also local functions, no such situation is here

presented.

Id. at 4; see also Sandegren v. State, Sarasota Cty. Pub. Hosp. Bd.,

397 So. 2d 657, 659 (Fla. 1981) (citing Brevard County in support

of its conclusion that there was nothing in the state constitution

that prohibited the Legislature from enacting laws requiring the

expenditure of local funds to support programs, such as mental

health service programs, that served a local purpose).

The trial court properly rejected the school boards’ arguments

that Brevard County is a highly fact-specific case that does not

address the funding of the system of free public schools that are

under their operation, control, and supervision and that HB 7069’s

mandate is completely different because it tells them how to spend

capital dollars on schools. As the trial court reasoned, if local tax

revenues could be used in Brevard County to support junior

colleges that were not even under the local board’s control, “surely

those funds can be used to support local public charter schools that

will in turn use the funds to house and educate local

schoolchildren.” While the school boards also contend that

Brevard County is distinguishable because there “was no evidence

that local dollars were spent on state priorities,” education,

whether it be at the K-12 level or at the college level, is not only a

state or legislative interest, nor should it be. The school boards’

assertion that “when the State determines how local taxes are

being spent, and mandates that these taxes be spent to satisfy

State priorities, these taxes can no longer be considered local

taxes” ignores the fact that charter schools serve their local

communities. While charter schools may indeed be considered a

legislative or state priority in Florida, their primary purpose is the

education of children, which is unquestionably a local priority.

Given such, the use of local taxes to fund charter schools does not,

as the school boards assert, convert or transform those local taxes

into something else. Moreover, while the school boards argue that

“local management makes all the difference” in its attempt to

distinguish Brevard County, the local boards in that case no longer

had control over the junior colleges, which was a point clearly

made in the opinion. The fact that the school boards in Florida

continue to have a role in the operation of charter schools supports

20

our conclusion that HB 7069’s capital millage provisions are

constitutional.

CONCLUSION

For the reasons set forth herein, we hold that the school

boards lacked standing to raise all but their capital millage and

federal Title I funding constitutional claims. Because those claims

fail on the merits, the Final Judgment is affirmed.

AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Christopher D. Donovan and James D. Fox of Roetzel & Andress,

LPA, Naples, for Appellant/Cross-Appellee The School Board of

Collier County.

Jon L. Mills and Stephen Zack of Boies Schiller Flexner LLP,

Miami; Stuart H. Singer and Sabria A. McElroy of Boies Schiller

Flexner LLP, Fort Lauderdale, for Amicus Curiae The School

Board of Palm Beach County, in support of Appellants/Cross-

Appellees The School Boards of Alachua, Bay, Broward, Hamilton,

Lee, Orange, Pinellas, Polk, St. Lucie, and Volusia Counties.

Franklin R. Harrison and Heather K. Hudson of Hand Arendall

Harrison Sale LLC, Panama City; Steven L. Brannock, Ceci C.

Berman, and Joseph T. Eagleton of Brannock & Humphries,

Tampa; Philip J. Padovano of Brannock & Humphries,

Tallahassee, for Appellees/Cross-Appellants The School Boards of

Alachua, Bay, Broward, Hamilton, Lee, Orange, Pinellas, Polk, St.

Lucie, and Volusia Counties.

21

Shawn A. Arnold, Melissa Gross-Arnold, and Braxton A. Padgett

of The Arnold Law Firm, LLC, Jacksonville, for Appellees/Cross-

Appellants Hope Charter School, Inc., Legacy High School, Inc.,

Marco Island Academy, A Public Charter High School, Inc., The

Passport School, Inc., Jenny Cartwright, Beth Schmude, and Lisa

Burdue Tackett.

Amit Agarwal, Solicitor General, and Edward M. Wenger, Chief

Deputy Solicitor General, Office of the Attorney General,

Tallahassee; Rocco E. Testani of Eversheds Sutherland (US) LLP,

Atlanta, pro hac vice; and Matthew H. Mears, Department of

Education, for Appellees/Cross-Appellants The Florida

Department of Education, State Board of Education, Richard

Corcoran, and Andy Tuck.

22