Revision 6: Strengthening the duty to provide public education.

• Author: Mills, Jon L.
• Position: Florida Constitution Revision Commission

Ballot Title: Public Education of Children

Ballot Summary: Declares the education of children to be a fundamental value of the people of Florida; establishes adequate provision for education as a paramount duty of the state; expands constitutional mandate requiring the state to make adequate provision for a uniform system of free public schools by also requiring the state to make adequate provision for an efficient, safe, secure, and high quality system.

With its proposed Revision 6, the Constitution Revision Commission has offered to Florida's voters an amended education article that substantially strengthens and specifies the state's duty to provide for public education. The members of the Constitution Revision Commission and the sponsors were encouraged in their consideration of this proposal by a strong consensus on the importance of education for Florida's citizens.(1) Furthermore, as a matter of principle, education is the glue that makes democracy work. As Thomas Jefferson wrote, "If a nation expects to be ignorant and free, it expects what never was and never will be."(2) Likewise, the more tangible economic and business benefits of quality education in Florida are acknowledged and accepted.(3)

The Constitution Revision Commission's proposal also marks a response to disputes about the existing constitutional standards for education. The commission was aware both of the recent case, Coalition for Adequacy and Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 1996),(4) in which a majority of the Florida Supreme Court declined to read any measurable standard for adequacy into Florida's current requirement that "[a]dequate provision shall be made by law' for the public schools,(5) and, in contrast, numerous cases where courts in other states have found a sufficient standard in their respective constitutions to measure the provision of resources to education.(6)

Education, under the current standard of Article IX, is the only substantive government function that has its own constitutional article. Other articles deal with branches of government, or certain government fundamentals such as taxation or elections. Arguably, education is the most important function of state governments under our federal system. Yet education in Florida is in a crisis. A re cent report in "Education Week" listed Florida's relative problems: schools not operated in a way conducive to learning;(7) only 49 percent of Florida high school graduates go on to study in a two-year or four-year college;(8) Florida is 33rd in order of the states with regard to the adequacy of resources it provides to education, but 46th with regard to the allocation of these resources to instruction of students.(9) One bright spot, however, is the overall equity of spending among school districts, where Florida is fourth in the nation,(10) and in the establishment of state standards, where Florida measures well.(11) The result is perhaps not "uniformly bad," but is of doubtful quality. Lack of resources is one major problem, though not the only one. The sponsors submitted the proposed revision to the education article as far more than a noble aspiration, but rather to spell out a guidepost and benchmark for the state to move education forward.

Constitutional Provisions on Education

One impetus for consideration of a new education provision was a comparison of Florida's education article with the provisions of other states. Scholars considering the education clauses of the various state constitutions have divided them into four categories based upon the level of duty imposed upon the state legislature.(12) Under this categorization, states with the lowest requirements would be Category I, while the maximum duty would be imposed under Category IV.(13) The Florida Supreme Court noted in its recent Coalition for Adequacy decision that Florida's current constitutional clause is a Category II, meaning that there is some minimal level of support required for education.(14)

As the Supreme Court and other commentators have noted, however, Florida's constitution once contained a very strong educational mandate. The Constitution of 1868 provided that "[i]t is the paramount duty of the State to make ample provision for the education of all children residing within its borders, without distinction or preference."(15) Such a provision imposed a Category IV duty upon the legislature.(16) The 1868 Constitution was also important for introducing the uniformity requirement into Florida's education article.(17) In 1885, the "paramount duty" language was dropped from the constitution, and the provision adopted read, "The legislature shall provide for a uniform system of public free schools, and shall provide for the liberal maintenance of the same."(18)

Likewise, adoption of the 1968 Constitution brought the current language, removing the "liberal maintenance" requirement, and adding the current "adequate provision" standard.(19) The 1978 Constitution Revision Commission considered several possible constitutional changes involving education, including a proposed addition to Art. I, [sections] 2, that would have guaranteed each person "[e]quality of educational opportunity," as well as a proposed revision to Art. IX, [sections] 1, that would have guaranteed the right "to an efficient and high quality education from the kindergarten to the secondary level."(20) Ultimately these proposals were withdrawn, but the 1978 commission did propose to add a subsection (b) to Art. IX, [sections] 1 specifying that the primary purpose of elementary and secondary education should be "to develop the ability of each student to read, communicate and compute."(21) Ultimately, however, Florida's voters rejected all of the 1978 revision commission's proposals,(22) and the text of Art. IX remains as it was drafted in 1968.

The Florida Supreme Court, in several recent cases, has given some definition and scope to Art. IX, [sections] 1, both as to the uniformity and the adequacy requirements. In the first case, St. Johns County v. Northeast Florida Builders, 583 So. 2d 635 (Fla. 1991), the court found that a county ordinance imposing an impact fee on building permits to pay for new school facilities did not violate the uniformity clause of Art. IX, [sections] 1.(23) Rejecting arguments that the scheme violated uniformity by introducing variations into school finance, the court found that uniformity requires only that every student should have an equal chance to achieve the basic educational goals set by the Legislature.(24) Again, in Florida Department of Education v. Glasser, 622 So. 2d 944 (Fla. 1993), the court revisited uniformity. Overturning an attempt by a school board to increase ad valorem taxes without legislative authorization.(25) the court rejected arguments that its earlier broad reading of uniformity allowed school boards to provide any level of support so long as this met the legislative educational goals.(26) The result, according to Justice Kogan, is a system where "Florida law now is clear that the uniformity clause will not be construed as tightly restrictive, but merely establishing a larger framework in which a broad degree of variation is possible."(27)

The most recent case addresses not merely uniformity, but also adequacy. In Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996),(28) the court upheld dismissal of a suit by certain students, parents, and school boards against the Governor and other state officials.(29) The plaintiffs sought a declaration that Art. IX, [sections] 1 created a fundamental right to an adequate education, which the state had violated by failing to provide sufficient resources to public education.(30) Finding that "adequacy" had no "judicially discoverable and manageable standards," the three-judge plurality of the court(31) decided that the issue of "adequacy" was a nonjusticiable, political question committed by the constitution to the legislature.(32) The members of the court stated that the constitution gives the legislature "enormous discretion" to appropriate funds for education and other matters.(33) Absent definable standards to provide guidance, the court decided that intrusion into this area would transgress the separation of powers doctrine by usurping legislative powers.(34)

The majority of the court in Coalition for Adequacy rejected any notion of a fundamental right to education,(35) However, a majority of the justices did find that Article IX created a duty for the legislature to provide some minimum level of support for education, and that this duty could be enforced by the courts.(36) Four justices agreed that a plaintiff who made certain allegations ("were a complaint to assert that a county in this state has a 30-percent illiteracy rate") would be able to state a justiciable cause of action under Art. IX, [sections] 1.(37)

The division of the Supreme Court in Coalition for Adequacy, with Justice Overton poised in the middle apparently writing for the dissent, though voting with the majority, has prompted much analysis and speculation for those concerned with public education in Florida. Optimists found room for hope in the opinion. Indeed, the dissent seemed to invite another suit by plaintiffs or others who could make the necessary allegations.(38) Other commentators also see room for success in future education suits challenging specific legislative enactments which would give the court the opportunity to fashion criteria or standards for adequacy to guide the legislature.(39)

Others have sought to change the constitution itself. In 1997, a group of education organizations proposed an initiative amendment to the constitution which would have provided a very specific definition to "adequate provision," as used in Art. IX, [sections] 1. The "Requirement for Adequate Public Education Funding" initiative would have required education funding to equal a minimum of...