Why is Rep. Fischer Hiding Alternate Charter School Authorization in HB1197?

Article IX, Section 4, of the Florida Constitution mandates that elected school boards “shall operate, control and supervise all free public schools within the school district.” Representative Jason Fischer’s HB1197 would change all that and he’s hoping no one will notice.

So far, it seems few, if any, have.

HB1197 would allow charter schools to bypass duly elected school boards entirely by creating an alternate system of sponsoring and authorizing charter schools, allowing the appointed trustees of state colleges and university to serve as de-facto school boards, establishing and overseeing a “portfolio” of charter schools. There is no limit to the number of charter schools these institutions can establish (line 151) and a single university can establish schools in multiple districts (line 68-69). The bill also calls on the Florida Department of Education (FLDOE), in collaboration with charter school sponsors and operators, to develop a sponsor evaluation framework and report results in its annual charter school application report, potentially establishing an accountability system separate and distinct from the current A-F District Grade system used to grade traditional school districts.

In the 4/16/19 House Education Committee, Representative Susan Valdes asked specifically about the accountability changes, asking whether the new charter schools, sponsored by the colleges and universities, would factor into the local school district’s district grade. Rep. Fischer’s response was his “understanding is that it won’t but there is a possibility that it could.”

Later Representative Fine asked: “so I understand what we are voting on… other than allowing one of our 40 public universities or state colleges to be able to charter schools, are you changing anything about how charter schools work, or run or their guidelines or anything else… it’s just another way for a charter school to be created in compliance with all of our laws that exist for other charter schools. Am I right?”

Rep. Fischer claimed the bill only deals with the authorizer; that it doesn’t change any other rules or standards. This, by the way, is patently not true. By allowing an alternative system of charter authorizers, HB1197 could create a parallel system of charter schools with a separate funding source and alternate accountability requirements.

In HB1197 (lines 822-824), these new charter schools will be funded through a completely new process, with funds appropriated from state funds in the General Appropriations Act rather than via the combination of local property tax and state funds, through the Florida Education Finance Program (FEFP), which funds charter schools in districts today.

HB1197 also allows the establishment of charter schools in communities, outside the local control of their duly elected school board. These new charter sponsor will have a different accountability system and funding mechanism. HB1197 hides this stripping away of local control from elected school boards by using the word “sponsor” to describe the alternate authorization system. The bill is 45 pages line because it adds the word “sponsor” to state statute, often replacing the word “district,” over 150 times. “Sponsor” is merely a substitute for “authorizer.”

Is Rep. Fischer relying on the reputations of our state colleges and universities to sneak this authorizer legislation past lawmakers?  The bill passed through three committees without a single representative of the the State College or University system making an appearance. Instead the bill has had strong support from Corporate Ed Reform lobbyists from Americans for Prosperity (Koch funded), Foundation for Florida’s Future (Jeb Bush’s organization), the James Madison Institute, the Libre Initiative (also Koch funded) and the School Choice Movement. Do our universities and colleges even want this responsibility or is this just a “camel’s nose under the tent” opening the door for other authorizers?

Establishing an alternate charter school authorizer is in violation of Article IX, Section 4, of the Florida Constitution, and Rep. Fischer and his Corporate Ed Reform friends know it because, for years, they have been attempting to amend the constitution to allow such authorization. Perhaps even more surprising is that none of the three Staff Analyses for HB1197 even mention the constitutional questions involved with alternate authorization of charter schools. Have the analysts been paying attention or are they fooled by the word “sponsor” as well?

Establishing an alternate charter school authorizer has been a goal of Corporate Ed Reform/School Choice advocates for many years. In 2006, Florida passed a law establishing the “Schools of Excellence Commission,” which would serve as an alternate charter school authorizer. The law was challenged and overturned by the courts who found it in violation of Article IX, Section 4, of the Florida Constitution (elected school boards “shall operate, control and supervise all free public schools within the school district”). The courts dismissed arguments that the law would only affect a relatively small number of students stating:

“We make no distinction between a small violation of the Constitution and a large one. Both are equally invalid. Indeed, in the system of government envisioned by the Founding Fathers, we abhor the small violation precisely because it is precedent for the larger one.”

https://caselaw.findlaw.com/fl-district-court-of-appeal/1334243.html

Could supporters of HB1197 be hoping for a constitutional challenge to this “small” authorizer bill in the hopes that Governor DeSantis’ new “conservative” Supreme Court might set the precedent for the expansion of alternate authorization?

Recently, there have been several failed attempts to amend the Florida Constitution to allow for Alternate Charter School Authorizers. In 2015, then Representative, Manny Diaz Jr, filed HJR759, titled “Statewide Charter School Authorizer.” HJR759 proposed an amendment to State Constitution requiring the State Board of Education to establish a statewide charter school authorizer to “authorize, operate, control, & supervise charter schools.” The bill sailed through its House committee stops, but its Senate Companion, SJR 976 (Stargel), died in committee.

In 2017, school choice activist, Erika Donalds, a former Collier County School Board member and member of the recent Constitution Revision Commission, proposed changing the Constitution to allow lawmakers to create “alternative processes to authorize the establishment of charter schools within the state.” The proposal’s language was eventually changed to merely amend Article IX, Section 4, to state that elected school boards were only required to “operate, control and supervise” public schools that were “established by” that school board. The language was bundled with School Boards Term Limits and Civics Education into Amendment 8 and, ultimately, the Florida Supreme Court pulled the item from the ballot, citing the amendment’s ballot title and summary failed ‘to inform voters of the chief purpose and effect of this proposal.”  You can read about Amendment 8’s “deceptive by design” language here.

HB1197 attempts to establish an alternate charter school authorizer and that is in violation of Article IX, Section 4, of the Florida Constitution. Duly elected school boards, NOT appointed trustees at colleges and universities, “shall operate, control and supervise all free public schools within the school district.” If HB1197 is signed into law, new charter schools could shop around, avoiding the oversight of their elected school boards, and choosing the authorizer, funding source and accountability system, that “best suits their needs,” creating yet another parallel system of publicly funded school, despite the constitutional mandate for a “uniform system of free public K-12 schools.”

We grow weary of lawmakers in Tallahassee attempting to pass blatantly unconstitutional legislation. Sadly, this session, it seems par for the course…