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Advocates Say Government By Initiative Has Its Pitfalls

USA Today

Education advocates went to court this week to argue that Florida isn’t complying with a 20-year-old constitutional mandate to provide a “uniform” and “high quality” education. But the legal tug of war is raising questions about the power of petition drives to effect meaningful change.  

“It is reprehensible that we would take a child and make them stay in a failure factory not for one year, not for two years, not for three years, not for four years, but five years. That whole system has to end. And so, we’re going to fund it.”

That was House Speaker Richard Corcoran arguing recently for his highly controversial, $200 million, “Schools of Hope,” charter expansion plan.

Progressive groups like “Citizens for Strong Schools,” rarely agree with conservative Republicans like Richard Corcoran. But earlier this week, their attorney Jodi Siegel essentially made the same argument to First District Court of Appeal.

“This case is about how the state is failing to adequately provide for those students who are underperforming. It’s about the zero percent of students with disabilities in Lafayette and Madison who are passing third-grade reading.”

The group’s lawsuit is based on a simple argument -- poor test scores in impoverished schools show that Florida isn’t living up to a constitutional mandate to provide a “high quality” and “uniform” education.

The group is appealing after a Tallahassee circuit judge dismissed their suit last summer. After a six-week trial, Judge George Reynolds III ruled that it’s not possible for the courts to apply a strictly legal definition to the term “high quality.”

And Appellate Judge James Wolf appeared to be struggling with the same issue.

“Is it the student’s grades in a particular county, can the school system substitute for……parental support? I’m a little concerned, because I don’t know, what, uniformity?....”

The Legislature’s attorney, Rocco Testani, argues it’s not a definition the court’s can provide. In legal jargon, it’s called, “non-justiciable.”

“These words, in other courts and other settings, have not been found to be justiciable, and I think, you look at them, they are adjectives of degree. And it’s very difficult to articulate how you would manage judging it.”

Chief Judge Bradford Thomas noted that another voter mandate, to lower class size, at least set numeric goals. Sounding slightly irritated, Thomas pressed Siegel to define “high quality.”

“What is the judicially manageable standard by which this system, this incredibly complex, multi-billion-dollar system, is going to be judge to determine whether it’s a high-quality system?”

When Siegel responded that poor test scores show what isn’t high quality, Thomas cut her off.

The Citizens for Strong Schools lawsuit is just the latest example of the pitfalls of governing by ballot initiative. Voters can change the constitution, but lawmakers and bureaucrats implement the changes, and not always to the sponsor’s liking. And when advocates sue, the courts don’t always have an answer. 

“If they get passed, the Legislature tends to not automatically listen to the citizen’s voice of what they have voted for, but tend to want to put up roadblocks.”

That’s Florida League of Women Voters president Pamela Goodman. She estimates her group spent $4 million to $5 million on a campaign to pass the Fair Districts Amendment. The League spent millions more on a five-year court battle.   

And that’s not to mention the $10 million tab taxpayers paid for the Legislature’s lawyers, Goodman said. In the end, the Florida Supreme Court enforced the amendment and wrote Florida’s political boundaries.

Goodman acknowledges it can be frustrating, but she says sometimes, there’s just no other way when elected officials won’t listen.

“It’s, uh, the only tool that we have right now, to affect real legal change in this state through citizens. And, unfortunately, it is not perfect.”

Voters legalized medical marijuana in November, but it took a special session to get lawmakers to implement it, and backers are already in court.

Environmental groups want another judge to force the Florida Legislature to redirect tens of millions of dollars that was earmarked for land conservation by Amendment 1 in 2014.

Clean Water Network activist Linda Young says even if amendments get blocked by the system, they send an important message.

“Hopefully, enough voters will see, and pay attention, and recognize when their elected officials are not listening to the will of the people.”

It’s not clear when the First District Court of Appeal will rule on the education amendment. But the issue of governing by the ballot box isn’t going away.

The education amendment was put on the ballot 20 years ago by the Constitution Revision Commission, and the same body is meeting again this year.

A Miami native, former WFSU reporter Jim Ash is an award-winning journalist with more than 20 years of experience, most of it in print. He has been a member of the Florida Capital Press Corps since 1992.