FLORIDA: Define ‘Free Public Schools’ and Limit School Board ‘Home Rule’ Authority

Every 20 years, Florida convenes a Constitutional Review Commission to consider possible changes to Florida’s Constitution, and to then place those proposed revisions on the ballot.  The Constitutional Review Commission convened this year, in anticipation of the November 2018 ballot.

Preamble to the Florida Constitution of 1865.

Many of us have observed first-hand the overreach of our local school boards beyond classroom “reading, writing and arithmetic” into collectivist “collaborative partnerships” with various non-government community organizations. This is classic “mission drift” that surely goes beyond our state’s constitutional framers when they drafted Art. IX, Section 4(b) which provides that the School Boards shall operate the “free public schools.”

The problem is, “free public schools” has never been defined, and to this day the Florida Attorney General and Florida courts struggle to understand the outer limits of that term.

Adding to this problem, in 1983 the Florida Legislature gave school boards “home rule power,” telling them in essence that they can do whatever they want — without any check from other branches of government — unless the Legislature has “expressly prohibited” the school board from acting on that subject.  Here is an excerpt from an  Florida Attorney General advisory opinion drafted shortly after the 1983 legislative change:

Section 230.03(2), F.S. [now 1001.32(2), F.S.], currently provides: “SCHOOL BOARD.–In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.” (e.s.) Section 7 of Ch. 83-324, Laws of Florida, deleted the language contained in s. 230.03(2), F.S. 1981, which stated that district school boards may exercise any power “for educational purposes except as otherwise provided by the State Constitution or law” and added the language “except as expressly prohibited by the State Constitution or general law.” (e.s.) Since the issuance of AGO 83-72, it has been the position of this office that the 1983 amendment conferred on school boards a variant of “home-rule power,” and that a district school board may exercise any power for school purposes in the operation, control, and supervision of the free public schools in its district except as expressly prohibited by the State Constitution or general law. See also AGO’s 84-95, 84-58.

Most people will agree that local control of schools is a good thing, and thus the concept of “home rule power” is also a good thing.  But most people would also agree that our public school system should focus on education in the classroom, plus traditional extracurricular activities such as athletics, music, academic clubs, etc.  Schools go beyond their mission when they delve into (i) instructing parents on how to be better parents; (ii) providing welfare to students; (iii) providing affordable housing; and (iv) “collectively collaborating” with local non-profits on pet projects such as “Future Ready Collier” and NCH’s self-serving special interest “Blue Zones Project.”  These all take the eye off of the ball of teaching in the classroom; they are expensive; and they create a bloated school district administration that becomes an out-of-control behemoth.

As Joe Whitehead analogized on his 8/19/2017 radio show, the behemoth bureaucratic administration becomes like “Hal 9000,” the computer in 2001: a Space Odyssey, which takes on a life of its own and serves itself rather than the people it was originally designed to serve.

So here’s a simple proposed solution to this mission drift:

1. Constitutionally define “free public schools” under Art. IX, Section 4(b) of the Florida Constitution.  Limit it to teaching students within the four corners of the school district campus, with focus on reading, writing, arithmetic, science, fact-based American history, and traditional extracurriculars.

2. Legislatively amend Fla. Stat. Section 1001.32(2) to allow school board home rule authority only within the constitutional definition of “free public schools.”  The amended statute might read as:

(2) DISTRICT SCHOOL BOARD.—In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall operate, control, and supervise all free public schools, as constitutionally defined, in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.  For actions or matters beyond the scope of free public schools, district school boards may not exercise any power except as expressly authorized by the Legislature.

(changes in bold).

3.  Legislatively define the statutory terms “educational purposes” and “school purposes” in alignment with the new definition of “free public schools.”

4.  Constitutionally (or at least legislatively) prohibit school boards from engaging in “for profit” activities such as after-school child care, or affordable housing.  All school board programs should be “revenue neutral,” with the school board required to provide studies containing sufficient data to demonstrate fiscal neutrality.

ADDITIONAL ITEMS FOR FURTHER CONSIDERATION BASED ON THE PREMISE THAT SCHOOL DISTRICTS HAVE BECOME TOO BIG, BUDGETS TOO LARGE AND DIFFICULT TO TRACK, AND SUPERINTENDENTS HAVE TOO MUCH ABILITY TO CONSOLIDATE POWER, NOT JUST WITHIN THE SCHOOL SYSTEM, BUT IN THE COMMUNITY:

5.  Amend Fla. Const. Art. IX, Sect. 4(a) to define a “school district” as something smaller than the region of each county.  That may have been appropriate a century ago when Florida’s population was smaller and more spread out, but it now consolidates too much power in a centralized school district administration.  (Take, for instance Collier’s  annual budget which now for the first time exceeds $1 billion).  Alternatively, keep the “county” geographical limits for a school district, but break it into elementary, middle and high school subdistricts, each with a separate superintendent and budget.  Some may counter that this will lead to fiscal inefficiencies in areas such as busing, athletic fields, etc., but this can be resolved legislatively by allowing inter-district sharing of such resources and services.

6.  Change F.S. 1010.33 to state that each School Board “shall” (not just “are authorized to”) have its own independent certified public accountant to perform its own annual financial and performance audit.  In other words, take this out of the control of the superintendents, who may otherwise too easily control these audits. 

6.  Provide term limits for superintendents.  They have too much ability to “roll up” individual power by their connections within the community, serving themselves more than the students.  Also provide a prohibition on superintendents lobbying school boards once they depart.

7.  Recognize that individual school board members were elected by the people as their policy-making representatives.  Enact legislation authorizing any school board member to add a policy item to the school board agenda, so that the rights of the “minority” board group may be heard and not subverted by all-powerful superintendents and the “majority” board members they all-too-often control.

Constitutional Review Commission member / Collier School Board member Erika Donalds.

We in Collier County are fortunate to have one of our school board members, Erika Donalds, serving on the Constitutional Review Commission.  In fact, Ms. Donalds chairs the “local government” panel and serves on the “education” panel , which includes Article IX of the Constitution which needs amending as mentioned herein.  Ms. Donalds would do well to consider the foregoing constitutional proposals, with local state representatives Byron Donalds and Bob Rommel leading on the legislative issues.**

** (Particularly Mr. Donalds, who now serves on various k-12 legislative subcommittees.)

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