Does this add up? Florida teachers sue to end their own bonus pay program.

A state program that awards bonuses to top-rated teachers based on their own SAT and ACT scores from high school violates federal and state civil rights laws against employment discrimination, argues a potential class-action lawsuit filed this week by Florida’s largest teachers union and seven classroom teachers from South Florida.

The Best and Brightest program — first enacted in 2015 and now in its third year — continues to be envisioned by Florida House Republicans as an innovative means to recruit and retain the best teachers in the state’s public schools.

But it’s been a subject of ongoing controversy because the program relies on teachers’ own test scores — sometimes decades old and unavailable — which has no proven correlation to teacher effectiveness.

The Florida Education Association is now asking a federal judge to step in and declare the program illegal and discriminatory against teachers who are older and who are non-white.

The FEA first made the accusation two years ago through a complaint to the federal Equal Employment Opportunity Commission — an avenue the union said Friday it had to exhaust before it was recently given federal authorization to file a lawsuit.

“The SAT/ACT score requirement has an illegal disparate impact on teachers based on their age and on teachers based on their black and Hispanic race,” the plaintiffs’ attorneys, John Davis and Kent Spriggs, argued in the 58-page lawsuit, which was filed Wednesday in U.S. District Court in Tallahassee. “The SAT/ACT score requirement is not required by business necessity and is not related to job performance.”

Targeted by the lawsuit are the Florida Department of Education and all 67 county school boards, which play a role in implementing the state law by reporting which teachers in their districts qualify each year for the bonus.

“The defendants have engaged in system-wide and continuing pattern and practice in violation [of state and federal civil rights laws],” the lawsuit alleges.

Florida DOE spokeswoman Meghan Collins said the agency does not comment on litigation. A court summons issued Thursday said the department had 21 days to respond to the complaint.

Like the FEA, several school district superintendents have criticized the Legislature’s bonus plan, but the districts are nonetheless all named as defendants in the lawsuit because they employ teachers.

Daisy Gonzalez-Diego, a spokeswoman for Miami-Dade County Public Schools, the state’s largest school district, said the lawsuit was “a matter for the courts to decide.”

“However, there is the general consensus amongst educators that there are better ways to incentivize meritorious teacher performance,” she said in a statement.

In Palm Beach County, “the district’s stance remains that the focus should be on giving teachers sustainable raises that they can count on to plan their lives, build their families and purchase homes in their communities,” spokeswoman Amity Schuyler said in a statement. “Bonuses are a distraction from the real issue of teacher pay and teacher shortages.”

FEA is seeking class-action status for its lawsuit. It estimates there are potentially 30,000 “highly effective” teachers statewide who could be part of the class based on their age being 40 or older — as well as 4,000 top-rated black teachers and 7,000 top-rated Hispanic teachers based on their race.

The FEA says it has 140,000 members and represents more than 250,000 teachers and education staff statewide.

The lawsuit seeks to have members of the class action “recover the amount of the bonus they did not receive because of the defendants’ illegal practices,” plus a to-be-determined amount in financial damages for the plaintiffs.

Among the individual plaintiffs named in the suit are seven female teachers from Miami-Dade, Broward and Palm Beach counties — some of whom are older than 40 and all of whom are either black or Hispanic and had been rated “highly effective” in their job performance, the lawsuit said.

The FEA argues that each of them either couldn’t apply for the bonus or were denied one because of the constraints of the program.

For instance: Jenny Cisneros and Angela Ferreira of Miami-Dade are “Hispanic and over 40 years of age,” Joy Jackson of Broward “is a black,” and Djuna Robinson, also of Broward, “is a black and over 40 years of age,” the lawsuit states.

For each of those four women, the FEA argues she “would have applied for the bonus under the program in 2015, but she was deterred from applying because it would have been a futile act because she did not have an SAT/ACT score that met the requirements of the program, and thus she was denied” the bonus.

Similarly, three other teachers described individually in the lawsuit as “a black” — two of whom are listed as older than 40 — were “denied and did not receive the bonus because she did not have an SAT/ACT score that met the requirements,” according to the complaint.

Those teachers are: Dorothy Dunson-Thomas and Shannel Gordon of Palm Beach County and Keysha Pinkney of Broward County.

The Best and Brightest program — the brainchild of former Miami Republican Rep. Erik Fresen, under the leadership of current House Speaker Richard Corcoran, R-Land O’Lakes — specifically rewards teachers who are rated “highly effective” on a statewide formula and who scored in the 80th percentile or higher on college entrance exams.

Percentile data is not available for ACT or SAT exams taken before 1972, the FEA said. To work around that, Republican lawmakers have urged older teachers to simply retake one of the exams and use that score to qualify.

However, since the program’s inception, “the defendants did not and have not made any effort to validate the SAT/ACT requirement as correlating with teacher performance or effectiveness,” the FEA argues.

Corcoran believes the lawsuit is completely frivolous,” his spokesman, Fred Piccolo, said in a statement. “Only the teachers union would sue to take money from teachers.”

Hialeah Republican Rep. Manny Diaz Jr. — who succeeded Fresen as House pre-K-12 education budget chairman and is now the Legislature’s standard-bearer for the program — said “it’s just unfortunate that the organization that should be representing teachers is now trying to take thousands of dollars out of teachers’ pockets.”

“I think they should have a conversation with all the teachers that have been helped by this program,” Diaz said in a statement to the Herald/Times. “They oppose any money that goes into teachers’ pockets that isn’t directed by them.”

Diaz led the charge to expand Best and Brightest last spring through provisions that were ultimately enacted in a controversial and sweeping education policy bill known as House Bill 7069.

For its first two years, lawmakers approved the program not through traditional legislation but through budget compromises between the House and the Senate that resulted in it being paid for through a special line-item.

In 2015, Fresen slipped the program’s $44 million in funding into the budget at the last minute. In 2016, the Senate reluctantly agreed during budget talks to extend Best and Brightest for another year and boost its funding by $5 million.

This past spring — to ensure the program continued for additional years — the House inserted Best and Brightest into HB 7069, which includes dozens of other policy changes affecting K-12 public schools.

HB 7069 expands Best and Brightest so top principals can benefit, too, and so “highly effective” and “effective” teachers are now guaranteed annual bonuses of $1,200 or “up to $800,” respectively, for each of the next three years.

The revised program also sought to address complaints over the use of test scores in determining which teachers can qualify for the original Best and Brightest award. However, those compromises — reducing the qualifying percentile to 77 percent and expanding the types of exam scores teachers can submit to qualify — don’t take effect until the 2020-21 school year.

In the suit, FEA notes that of the classroom teachers rated “highly effective” in October 2015, 78 percent were white, 13 percent were Hispanic and 8 percent were black. But when it came to doling out the bonus money that year, 90 percent of the recipients were white, while 4 percent were Hispanic and less than 1 percent were black.

Those numbers, the FEA argues in the lawsuit, “shows the statistically significant disparate impact on black and Hispanic teachers produced by the SAT/ACT selection requirement.”

In seeking to demonstrate a similar disparity based on age, the FEA noted that more than half of the recipients — 56 percent — who were paid bonuses in 2015-16 were under 40 years of age, even though those younger teachers made up only 36 percent of all teachers with a “highly effective” rating. Meanwhile, teachers who were 40 and older made up 64 percent of top-rated teachers but comprised only 44 percent of the bonus recipients that school year.

When the lawsuit was filed Wednesday, many Floridians remained focused on recovering from Hurricane Irma. Several school districts, including Miami-Dade and Broward, won’t resume normal operations until at least next week.

FEA spokesman Mark Pudlow called the timing of the lawsuit just after the hurricane a “coincidence.” He said the lawsuit had to be filed within 90 days after the union got its authorization from the EEOC and the U.S. Department of Justice. “The 90-day period was about to expire,” he said.

This story has been updated to correct the spelling of Daisy Gonzalez-Diego’s name.

This story was originally published September 15, 2017 at 3:02 PM with the headline "Does this add up? Florida teachers sue to end their own bonus pay program.."