Duval Schools move toward litigation on ‘unconstitutional’ Schools of Hope bill

A rainy Monday morning saw the often fractious Duval County School Board move forward in suing the state of Florida.

At issue: HB 7069, the “Schools of Hope” bill, which would divert capital dollars to charter schools from local schools.

Multiple urban districts — Broward, Miami-Dade, Orange, and Palm Beach — are already in the mix on a joint lawsuit encompassing nine counties and counting.

The Duval County School Board moved forward toward initiating litigation, with an initial allocation of $25,000 toward the $400,000 estimated costs of the action.

The motion passed 4-2, with board members Scott Shine and Ashley Smith-Juarez in opposition.

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A representative of the Jacksonville Office of General Counsel discussed an memorandum regarding HB 7069, noting that ten other school boards around the state have identified “items of concern.”

“The main arguments essentially are this explicitly infringes with a school board’s Constitutional right” to control schools in its district, handle taxing authority, and other issues that are “vulnerable to a legal challenge.”

The Schools of Hope concept and millage sharing are among those issues that render the bill open to a challenge, as is the standard charter contract and the charter structure writ large.

HB 7069 reduces school boards to a “ministerial function” relative to charter contracts, opined OGC representative Karen Chastain in a pre-vote workshop, presenting a memo that said the bill would “negatively impact” functions of local boards.

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Chair Paula Wright posited that the bill strips prerogatives of the School Board as an “elected body.”

The OGC representative again echoed that the school board would not have ability to negotiate charter contracts, and that “any change to the standard is presumed … to be an infringement.”

Appeals, meanwhile, are difficult.

“If it doesn’t fit in that scope, you really have no teeth,” board member Becki Couch observed.

Another issue: if a charter school closes and stiffs the landlord on the rent, the school board can be on the hook for costs — in part because the school board has to maintain permanent records.

“It’s a real life example that I’ve seen over and over and over,” the OGC representative said.

Couch described the board as a local “representative democracy” example, saying the action of the State Legislature “took away … decision-making at a local level.”

“When they challenge us on a contract, this HB 7069 says we have to pay their attorney’s fees,” Couch said, with the OGC rep saying those costs could be “easily six figures, times two.”

Another wrinkle: capital funds. Mortgages on charter school buildings can often lead the school board to abandon its interest in the building.

Essentially, the thinking is that the board absorbs the risks of private investment on the public dime, and forfeits power to negotiate contracts and other home rule functions in the bargain.

Board member Couch noted that while “we have great charter schools here in Duval County, we also have people who pay taxes and trust us to make decisions on their behalf.”

Couch noted that many charter providers won’t even do business in Duval, because of stringent accountability standards.

“We are an elected body by the people. Representative government,” Couch said. “When you have an outside group that can now begin deciding how to spend outside dollars, it raises the question ‘who’s in charge’?”

“Charter schools can open up across the street from a public school and demonstrate no need whatsoever,” Couch noted.”

“There’s no accountability … it’s a free for all … an experiment,” Couch said, noting that charters have no requirement to show capital needs in the way districts do.

Couch added that charter schools may even be able to operate in public school buildings, further eroding the district’s ability to “protect the taxpayers.”

Chairwoman Paula Wright also suggested that HB 7069 would cut into federal Title I funds, which could abrogate the School Board’s ability to determine the most efficient use of funds.

“This goes against the oath that we took as constitutional officers,” Wright said.

Regarding charter schools, Wright emphasized that DCPS is “one of the most choice-rich districts in the state of Florida.”

“Do we allow HB 7069 to infringe on our local, state, and federal opportunities … for the benefit of our students in Duval County?”

Even Shine realized there’s “a lot of problems with the bill” and a “lot of truth around this table.”

However, Shine thinks pushback will lead to “more to disempower school boards” from Tallahassee.

“If we litigate, we lose the ability to have good faith negotiation,” Shine added.

Shine’s position was in the minority, with multiple board members waxing poetic about the Constitutional obligation to function as an independent board.

“As watchmen of public education,” said Board Member Lori Hershey, “we have an obligation.”

This is a chance, Hershey said, to “stand up for students” against this “unconstitutional” legislation.

Former board chair Ashley Smith-Juarez held forth against this “destructive … beyond problematic” bill, noting that litigation is part of the design of the government.

That said, Smith-Juarez doesn’t feel “litigation is the next step,” with “other tools in the toolbox” being available before “swinging the litigation hammer.”

Board member Warren Jones suggested the bill was passed in Tallahassee despite “conflicts of interest,” noting that “we have to litigate to get their attention” regarding disproportionate impacts.

“We’ve got 10 counties, we’re going to be the 11th one … we are at a point where we have to live with this law or hope it’s repealed,” Jones said, if a lawsuit doesn’t happen.

Chairwoman Wright credited herself with “laying everything on the line” ahead of litigation.

“This is a difficult decision, yet to me it’s not difficult,” Wright said.

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There are caveats: there could be a negotiated solution. The case could be thrown out. The district could withdraw.

But at this point, the board will move forward, investing $25,000 in a suit, with the eye of protecting at least $16M in capital dollars over the next five years.

“There needs to be accountability. We either believe in accountability or we don’t.”

Support litigation 4-2, Shine and Smith-Juarez opposed.