Does public education in Florida get a passing grade? Appeals court to decide.

The Florida Constitution requires the state to provide “a uniform, efficient, safe, secure, and high quality system of free public schools” — but is that general standard something that can be measured?

That’s what an appeals court in Tallahassee will decide in the latest round of a long-standing battle over whether the Legislature, state Board of Education and the Florida Department of Education are fulfilling their constitutional obligations for 2.8 million children in the state’s public schools.

After a five-week trial last year, a Leon County Circuit Court judge tossed out the lawsuit that was filed in 2009. While the plaintiffs — led by two advocacy organizations, Citizens for Strong Schools and Fund Education Now — argued that the state was failing to meet its constitutional duty, Judge George S. Reynolds III found that they hadn’t met the burden to prove that was the case.

Now the First District Court of Appeal will decide whether Reynolds erred in that ruling. Central to that decision is whether the constitutional standard — adopted by voters in the late 1990s — is one that can be definitively measured.

Focused on that theme, the three-judge appeals panel peppered attorneys for the state and for the plaintiffs with questions during an hourlong hearing Tuesday.

In arguing that the state was violating the Constitution, attorney Jodi Siegel cited various disparities among counties where some low-income children and children with disabilities struggle to meet grade-level expectations.

However, she couldn’t answer when the judges pressed her to cite the specific standard Florida wasn’t meeting — whether it was funding, school grades or some other metric of achievement.

“If all of the right conditions are set up, we cannot guarantee every student is going to achieve,” Siegel acknowledged, “but at the moment ... we have a system in which there are such vast differences across the districts and across different groups of children that we have to look at what more is needed — and that has not been analyzed by the state.”

Rocco Testani, lead defense attorney for the state, said the plaintiffs failed — both at the lower court and in the appeals hearing —“to come forward with articulable, measurable standards from which to judge the [public education] system.”

He added that even without such specific benchmarks, Florida’s education system has seen vast improvements in the past two decades that demonstrate the state’s commitment to “uniform” and “high-quality” schools.

“Any way you look at this system … there has been incredible improvement and a set of policies that have been effective,” he argued. “This is not a system in any way shape or form that is broken; it’s a system that’s working.”

However, lawmakers spent much of their 2017 session this spring in a contentious debate about how to help the state’s lowest performing schools, with House Speaker Richard Corcoran, R-Land O’Lakes, repeatedly decrying traditional public schools for allowing “failure factories” to serve Florida’s children. That recent debate, however, was not brought up during Tuesday’s hearing.

Meanwhile, Testani was equally pressed by the appeals judges.

“Isn’t this constitutional amendment totally useless” without standards to enforce it? asked Judge James Wolf, who was appointed to the bench in 1990 by Republican Gov. Bob Martinez.

Testani argued that the constitutional provision is “inherently political” and was meant as a mission statement rather than a literal standard to meet, which the courts could weigh in on.

“Aspirational statements are enforced at the ballot box, not in the courts,” Testani said.

Judge Bradford Thomas, an appointee of former Republican Gov. Jeb Bush, countered: “The argument is — the position of the trial court and your position, logically has to be — that this amendment is solely an oratory provision. It is simply the people of the state of Florida telling the Legislature, ‘we want you to do as much as you can for education and the school boards, but that’s up to you.’ Therefore, no matter the circumstances in the education system, the ‘F’ school for 10 years, whatever it is, there is no legal remedy in the courts for that situation?”

“Yes, my position is these words are not capable of judicial interpretation,” Testani said. “They are adjectives of degree, and it’s very difficult to articulate how you would manage judging it.”

It’s unclear how quickly the judges might rule in the case. Regardless of the outcome, the case is likely to escalate to the Florida Supreme Court.

The third judge on the panel, Judge Thomas Winokur — an appointee of Republican Gov. Rick Scott — asked no questions during the hearing.

This story was originally published July 18, 2017 at 4:04 PM with the headline "Does public education in Florida get a passing grade? Appeals court to decide.."