        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

            PAUL KUNZ, as next friend of W.K., a minor child,
                             Appellant,

                                        v.

              SCHOOL BOARD OF PALM BEACH COUNTY,
                           Appellee.

                                 No. 4D17-648

                             [February 14, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Lisa    S.   Small,     Judge;   L.T.    Case     No.
2015CA010870XXXXMB.

    Paul Kunz, Boca Raton, for appellant.

    Sean Fahey and Shawntoyia N. Bernard, West Palm Beach, for appellee.

KUNTZ, J.

   Paul Kunz, as next friend of W.K., 1 filed a complaint asserting the
School Board of Palm Beach County (“School Board”) falsified its class-size
counts to conceal violating article IX, section 1 of the Florida Constitution.
After the circuit court dismissed the complaint without prejudice, W.K.
declined to amend the complaint and appealed the court’s order.

   On multiple occasions our supreme court has held the constitutional
amendment at issue (otherwise known as the Class-Size Amendment)
compelled an appropriation of funds by the legislature, not the utilization
of any specific procedure by that branch. Because the amendment

1 We question whether Kunz, as the alleged guardian of W.K., was required to
proceed as “next friend.” Fla. R. Civ. P. 1.210(b). However, regardless of the
label, W.K. is the real party in interest whether the suit is brought on behalf of
W.K. or as next friend of W.K. Gilbertson v. Boggs, 743 So. 2d 123, 128 (Fla. 4th
DCA 1999), receded from on other grounds in Beckford v. Drogan, 216 So. 3d 1
(Fla. 4th DCA 2017); see also Watson By & Through Watson v. State Farm Mut.
Auto. Ins. Co., 639 So. 2d 687, 688 (Fla. 2d DCA 1994). Therefore, we proceed to
the merits without altering the semantics of Kunz’s action on behalf of his child.
compelled appropriation to achieve a goal, and not a method of
enforcement, it does not provide a private right of action to enforce any
specific procedure. Furthermore, such a challenge to the procedure
implemented by the legislature, and enforced by the executive branch, is
not appropriately addressed by the judiciary. Nor is the judiciary in a
position to monitor the classroom count of each classroom in the nearly
4,200 public schools in this state. Instead, the issue presented is a
political question best left to the legislative and executive branch of
government. As such, we affirm the circuit court’s dismissal.

                                Background

   W.K., a student in a Palm Beach County school, filed a complaint
seeking declaratory relief based upon the assertion that, since 2010, the
School Board had “falsified” its class-size counts to conceal violating article
IX, section 1 of the Florida Constitution. In the complaint, W.K. sought:
(1) a declaration that the School Board’s student-teacher count was
unconstitutional; (2) to enjoin the School Board from using a student-
teacher count that did not comply with the Class-Size Amendment; (3) to
require a re-count of all elementary schools in the county; and (4) to
require the School Board to provide sufficient teachers to bring all
elementary classes into compliance with the Class-Size Amendment.

       The School Board moved to dismiss, arguing the Class-Size
Amendment was not self-executing and did not confer a private cause of
action. The court held a hearing on the motion to dismiss; however, a
transcript of the hearing was not provided. After the hearing, the court
issued a written order granting the motion to dismiss for three stated
reasons. First, the court found W.K. did not have a legal right to pursue
a private cause of action against the School Board because the plain
language of the Class-Size Amendment did not provide for private causes
of action. Second, the court found W.K. failed to sufficiently plead a claim
challenging section 1002.13, Florida Statutes. Third, the court found W.K.
did not have a legal right to pursue “district or county wide relief.”

    The court’s order dismissed the complaint without prejudice and
allowed W.K. twenty days to file an amended complaint. W.K. declined to
amend and, instead, filed a notice of appeal.            We subsequently
relinquished jurisdiction and the court issued a final order dismissing the
complaint with prejudice, noting that the record showed W.K. had failed
to file an amended complaint.




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                                  Analysis

   Our constitution establishes that each of the state’s 67 counties
constitute a school district, and that each school district is to be governed
by a school board. Art. IX, § 4, Fla. Const. Further, it is the function of
the school board to “operate, control and supervise all free public schools
within the school district.” Id. In other words, the school board is vested
with exclusive authority over the free public schools within its district,
subject only to “such infringement . . . expressly contemplated . . . by the
Florida Constitution.” Sch. Bd. of Palm Beach Cty. v. Fla. Charter Educ.
Found., Inc., 213 So. 3d 356, 360 (Fla. 4th DCA 2017).

   In 2002, the Class-Size Amendment “add[ed] both a maximum class
size requirement and an obligation on the legislature to fund the class size
requirement to article IX, section 1, of the Florida Constitution.” Fla. Educ.
Ass’n v. Fla. Dept. of State, 48 So. 3d 694 (Fla. 2010). The language of the
Class-Size Amendment provides:

   To assure that children attending public schools obtain a high
   quality education, the legislature shall make adequate provision to
   ensure that, by the beginning of the 2010 school year, there are a
   sufficient number of classrooms so that:

   (1) The maximum number of students who are assigned to each
   teacher who is teaching in public school classrooms for
   prekindergarten through grade 3 does not exceed 18 students;

   (2) The maximum number of students who are assigned to each
   teacher who is teaching in public school classrooms for grades 4
   through 8 does not exceed 22 students; and

   (3) The maximum number of students who are assigned to each
   teacher who is teaching in public school classrooms for grades 9
   through 12 does not exceed 25 students.

Art. IX, § 1(a), Fla. Const.

   The Class-Size Amendment specifically provides that “the legislature
shall make adequate provision to ensure that” the amendment is carried
out. And, consistent with that obligation, “in the last two decades, K–12
education has been the single largest component of the state general
revenue budget.” Citizens for Strong Sch., Inc. v. Fla. State Bd. of Educ., 42
Fla. L. Weekly D2640, D2642 (Fla. 1st DCA Dec. 13, 2017) (internal
quotation omitted). In an effort to ensure the legislative appropriations are

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used to reduce classroom size, the legislature enacted section 1003.03,
Florida Statutes, which instructs school boards to meet the various class-
size requirements at each school “on or before the October student
membership survey” of each respective school year.

    Here, W.K. purports to avoid attacking the legislative funding or the
reporting requirements. Instead, W.K. states that the challenge is limited
to the validity of the report submitted by one particular school. W.K.
argues the School Board “adopted a practice of intentionally miscounting
and thereby falsely certifying class-size compliance.” Specifically, W.K.
alleged that “[t]he District took the position that it could average class size
across grades kindergarten through 3rd because the District arbitrarily
designated [the school] a choice school.” W.K. also challenged other
aspects of the classroom count calculation, and argued that “the District
utilized as ‘classes’ small group pull out sessions, including l-on-1
sessions, for children needing remedial instruction. Thus, under the
District’s method, a class of thirty-five children can be averaged with one-
on-one remedial instruction, and the class goes from grossly over the limit
to compliant.”

   Putting aside the labels, W.K.’s challenges are to the process of
conducting classroom counts, which the legislature has established. For
example, the legislature enacted legislation to provide for a system of
classroom counts—one that presents various options, and which charges
Florida’s Department of Education with enforcement. The Department of
Education is also charged with monitoring the classroom counts, and with
instituting the legislature’s chosen system to ensure each district is in
compliance with the requirements. §1003.03(4), Fla. Stat. (2016). With
regard to the challenge to labeling classes as “core curricula,” that is also
a decision made by the legislature, which enacted specific legislation to
determine what could be considered “core-curricula courses,” and what is
to be included in the classroom counts. §§ 1003.01(14), .03(6), Fla. Stat.
(2016). If the Department of Education finds a school is not in compliance,
the Department is also charged with levying penalties.

    Essentially, W.K. asks this court to reach inside a system established
by the legislature and direct the process be conducted in a different
manner. That we cannot do. As the First District recently explained, “[a]
strict separation of powers supports the foundation and logic of the
political-question doctrine, in that Florida’s organic law does not permit a
‘dispersal of decisional responsibility’ which would allow the courts to
dictate educational policy choices and their implementation to the other
two branches of government, absent specific authorization by law.
Citizens for Strong Sch., Inc., 42 Fla. L. Weekly at D2643 (citation omitted).

                                      4
It is not appropriate, nor would it be wise, for this court to order this
specific school to conduct its count in a manner contrary to the system
developed by the legislature. Nor is it appropriate for us to question
whether the system established by the legislature is the most effective
system.

    Further, on a more basic level, W.K.’s argument that the classroom
count of one school violates the constitution fails to appreciate our
supreme court’s prior holdings regarding this specific amendment. In
allowing the Class-Size Amendment to be placed on the ballot, our
supreme court was clear that the amendment dealt with reducing class
size through legislative funding.      The Class-Size Amendment was
presented to the voters with a summary that our supreme court stated
“makes clear that the Legislature is responsible for providing funding to
reduce the number of students in public school classrooms in various
grade levels.” Advisory Op. to the Att’y Gen. re Fla.’s Amend. to Reduce
Class Size, 816 So. 2d 580, 585 (Fla. 2002).

   The court also noted that “the primary purpose of the amendment—the
legislative funding of reduced classroom size—is adequately disclosed in
the ballot title and summary.” Id. Importantly, the court held that the
fact that the amendment dictated the manner in which class sizes would
be reduced, through legislative appropriations, did not violate the single
subject requirement. Id. at 583.

   Later, our supreme court again addressed this specific amendment and
noted that the provision at issue in this appeal “requires the State to make
adequate provision for reasonable class size.” Bush v. Holmes, 919 So. 2d
392, 416 n.16 (Fla. 2006). And, in considering a subsequent proposed
constitutional amendment in 2010, our supreme court held that the
proposed amendment would not diminish a constitutional right because
“Floridians would have the same right to have the Legislature ‘make
adequate provision’ to ensure that there are a sufficient number of
classrooms for the required class sizes.” Fla. Educ. Ass’n, 48 So. 3d at
703.

   Clearly, the constitutional provision at issue placed a burden on the
legislature to sufficiently fund our schools in order to reduce class size.
But, our supreme court held, it was a requirement that the legislature
appropriate funds and not a directive that they accomplish the task in any
specific manner. The legislature has done so through appropriations and
by establishing a system that requires schools to report classroom size to
the county school board, and ultimately the state, before an established


                                     5
deadline. The legislative and executive branches have also established
rules the schools must follow when conducting the required counts.

   It is not for the courts to question whether the manner in which the
legislative or executive branch carries out these requirements is wise. Nor
could we mandate the amendment be carried out in any particular
manner. Such decisions are best left to the legislative or executive branch
of our government, comprised of persons who must answer to their
constituents. There is no place for the courts in such disputes, especially
on an individual classroom basis and outside the process established to
handle this exact issue.

    Finally, we note that the circuit court allowed W.K. the opportunity to
file an amended complaint to correct the deficiencies in the original
complaint. W.K. declined to do so. Therefore, to the extent any of the
issues in the complaint could have been cured, those issues have been
waived.

                               Conclusion

   W.K. sought a declaration that the Palm Beach County School District
was intentionally falsifying classroom counts in violation of the Class-Size
Amendment to the Florida Constitution. However, our supreme court has
decided that the amendment at issue related to appropriations by the
legislature. Further, the legislature has appropriated funds to reduce
classroom size and has established a process, enforced by the Department
of Education, to ensure schools comply with that process. It is not for the
courts to question the wisdom of that process, nor to intervene on a
classroom by classroom basis to oversee the process. Therefore, the
court’s dismissal of W.K.’s complaint is affirmed.

   Affirmed.

WARNER and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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