          Supreme Court of Florida
                                   ____________

                                    No. SC18-67
                                   ____________

              CITIZENS FOR STRONG SCHOOLS, INC., et al.,
                             Petitioners,

                                          vs.

             FLORIDA STATE BOARD OF EDUCATION, et al.,
                           Respondents.

                                   January 4, 2019

PER CURIAM.

      This case involves a nearly ten-year attempt by Petitioners to have the State

of Florida’s K-12 public education system declared unconstitutional due to the

State’s alleged failure to comply with article IX, section 1(a) of the Florida

Constitution, which provides in relevant part as follows:

             (a) The education of children is a fundamental value of the
      people of the State of Florida. It is, therefore, a paramount duty of the
      state to make adequate provision for the education of all children
      residing within its borders. Adequate provision shall be made by law
      for a uniform, efficient, safe, secure, and high quality system of free
      public schools that allows students to obtain a high quality education
      ....
Art. IX, § 1(a), Fla. Const. Specifically, Petitioners seek a declaration that the

State is breaching its “paramount duty to make adequate provision for a uniform,

efficient, safe, secure, and high quality system of free public schools that allows

students to obtain a high quality education.” And Petitioners request the courts to

order the State “to establish a remedial plan that . . . includes necessary studies to

determine what resources and standards are necessary to provide a high quality

education to Florida students.”

      The language in article IX, section 1(a) regarding “fundamental value,”

“paramount duty of the state,” and “efficient, safe, secure, and high quality system

of free public schools that allows students to obtain a high quality education” was

added in 1998, after the changes were proposed by the Constitution Revision

Commission (CRC) and approved by the voters. Prior to 1998, article IX, section

1 provided in relevant part as follows:

      Adequate provision shall be made by law for a uniform system of free
      public schools . . . .

      The 1998 amendments were in part in response to Coalition for Adequacy &

Fairness in School Funding, Inc. v. Chiles (Coalition), 680 So. 2d 400 (Fla. 1996),

in which this Court upheld the trial court’s dismissal with prejudice of a complaint

that “asked the trial court to declare that an adequate education is a fundamental

right . . . and that the State has failed to provide its students that fundamental right

by failing to allocate adequate resources for a uniform system of free public

                                          -2-
schools.” Id. at 402. The allegations in Coalition—made in the context of “a

blanket assertion that the entire system is constitutionally inadequate,” id. at 406—

focused on purported inadequacies in funding and disparities relating to certain

subgroups of students, including “[e]conomically deprived students,” disabled

students, and “[s]tudents in property-poor counties.” Id. at 402. This Court upheld

the dismissal with prejudice because the appellants made “an insufficient showing”

“to justify” “judicial intrusion” into the Legislature’s powers and responsibilities.

Id. at 407; see id. at 408 (Overton, J., concurring).

      Here, Petitioners’ blanket challenge bears a striking resemblance to that in

Coalition, namely in its focus on purportedly inadequate funding and on disparities

relating to certain subgroups of students. The trial court, relying on Coalition and

dismissing the relevance of the 1998 amendments, rejected Petitioners’ challenge.

The First District Court of Appeal affirmed.

      We have for review Citizens for Strong Schools, Inc. v. Florida State Board

of Education (Citizens), 232 So. 3d 1163 (Fla. 1st DCA 2017), in which the First

District concluded that the 1998 amendments—namely, the words “efficient” and

“high quality”—do not provide sufficiently manageable standards to overcome the

political question and separation of powers concerns that were determinative in

Coalition. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.




                                          -3-
      We conclude that Coalition defeats Petitioners’ claim because Petitioners—

like the appellants in Coalition—fail to present any manageable standard by which

to avoid judicial intrusion into the powers of the other branches of government.

Accordingly, we approve the result reached by the First District. Before

explaining our decision, we review the lengthy procedural history of this case.

                                 I. BACKGROUND

      This case began in November 2009—in the wake of the Great Recession—

when certain public school students, parents, and citizen organizations

(collectively, Petitioners) filed suit against the State Board of Education, the

President of the Florida Senate, the Speaker of the Florida House of

Representatives, and the Florida Commissioner of Education (collectively,

Respondents) seeking a declaration that the State is breaching its paramount duty

under article IX, section 1(a). Or as the First District later described it, Petitioners’

claim is “that the State’s entire K-12 public education system—which includes 67

school districts, approximately 2.7 million students, 170,000 teachers, 150,000

staff members, and 4,000 schools—is in violation of the Florida Constitution.”

Citizens, 232 So. 3d at 1165.

      In their complaint, Petitioners cited the 1998 amendments to article IX,

section 1 and asserted that “adequate provision” and “high quality” are to be

“measured by both the enumerated characteristics of and inputs into the system


                                          -4-
itself as well as the outcome results of that system.” Petitioners largely focused on

purported inadequacies in funding and alleged that the “2009 Appropriations Act

for K-12 education violates the Education Clause of the Florida Constitution.”

Petitioners also criticized, among other things, the State’s “current accountability

policy,” “misus[e]” of standardized test results, inadequate graduation rates, and

achievement test results. Petitioners further alleged that the State’s alleged “failure

to provide a high quality education disproportionately impacts minority, low

income and students with disabilities.” In the end, Petitioners requested that the

trial court order Respondents “to establish a remedial plan that conforms with the

Florida Constitution.” Petitioners later amended their complaint to request that the

remedial plan “include[] necessary studies to determine what resources and

standards are necessary to provide a high quality education to Florida students.”

                         Respondents’ Motion to Dismiss

      Respondents moved to dismiss Petitioners’ complaint, principally on the

basis that Petitioners’ claim “alleges a non-justiciable political question” and was

similar to the blanket challenge rejected in Coalition. The trial court denied

Respondents’ motion, distinguishing Coalition as “no longer binding authority”

because the allegations there were less comprehensive and were “based on a prior

and weaker version of the current Article IX, Section 1.” The trial court instead

relied on this Court’s 2006 decision in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006),


                                         -5-
which interpreted the post-1998 article IX, section 1 in the context of a challenge

to a voucher program. The trial court pointed to language in Holmes that noted

that the 1998 amendments had been drafted “to provide standards by which to

measure the adequacy of the public school education provided by the state.”

(Quoting Holmes, 919 So. 2d at 403.) The trial court thus permitted Petitioners’

claim “seek[ing] system-wide declaratory and supplemental relief” to proceed.

                 Respondents’ Petition for a Writ of Prohibition

      Respondents—continuing to rely on Coalition—next petitioned the First

District for a writ of prohibition, asserting that the trial court lacked jurisdiction to

adjudicate the political questions presented by the case. Haridopolos v. Citizens

for Strong Sch., Inc., 81 So. 3d 465, 470 (Fla. 1st DCA 2011). The First District

sitting en banc denied the petition but noted that Respondents’ arguments

regarding the political question doctrine would remain available on appeal. Id. at

471. The First District also certified the following as a question of great public

importance:

      DOES ARTICLE IX, SECTION 1(A), FLORIDA CONSTITUTION,
      SET FORTH JUDICIALLY ASCERTAINABLE STANDARDS
      THAT CAN BE USED TO DETERMINE THE ADEQUACY,
      EFFICIENCY, SAFETY, SECURITY, AND HIGH QUALITY OF
      PUBLIC EDUCATION ON A STATEWIDE BASIS, SO AS TO
      PERMIT A COURT TO DECIDE CLAIMS FOR DECLARATORY
      JUDGMENT (AND SUPPLEMENTAL RELIEF) ALLEGING
      NONCOMPLIANCE WITH ARTICLE IX, SECTION 1(A) OF THE
      FLORIDA CONSTITUTION?


                                          -6-
Id. at 473. Judge Roberts and six other judges dissented, arguing that the petition

should be granted. Id. at 481 (Roberts, J., dissenting). Judge Roberts examined

Coalition and concluded that the 1998 amendments were “ultimately irrelevant”:

      Whether the [Constitution Revision] Commission intended to create a
      justiciable standard is ultimately irrelevant. The test is whether an
      enforceable standard was actually created by the text of the
      amendment itself. Because the terms “efficient . . . and high quality”
      are no more susceptible to judicial enforcement than the term
      “adequate,” this claim cannot be enforced by the courts.

Id. at 478 (Roberts, J., dissenting).

      This Court declined to exercise jurisdiction. Haridopolos v. Citizens for

Strong Sch., Inc., 103 So. 3d 140 (Fla. 2012) (table).

                     Petitioners’ Second Amended Complaint

      In May 2014—nearly 4.5 years after their original complaint challenging the

“2009 Appropriations Act”—Petitioners filed a Second Amended Complaint. 1

Petitioners again focused on funding, including alleged failures of the State both to

provide an adequate “overall level of funding” and to “conduct[] a cost analysis in

order to determine the amount of funding required to institute a high quality

education system.” Petitioners also alleged that the State had failed to provide “a

‘uniform’ system of free public schools,” was instead “systematically diverting



      1. Among other things, the Second Amended Complaint included a new
Count challenging the State’s voluntary, pre-kindergarten program. That Count
was severed and is not before this Court.


                                        -7-
public funds to private schools,” and had “created a parallel system of schools.”

To support their uniformity argument, Petitioners described two choice

programs—the Florida Tax Credit Scholarship Program (FTC) and the McKay

Scholarship for Students with Disabilities Program (McKay). Petitioners also

alleged for the first time that the State had failed to provide an “efficient system of

free public schools,” claiming that the State’s various reforms and programs had

“wasted millions of dollars without producing the desired effect of a high quality

public school system.” Petitioners reiterated their allegation that the State had

failed to produce a “high quality” system, and they again requested an order

directing Respondents “to establish a remedial plan that . . . includes necessary

studies to determine what resources and standards are necessary to provide a high

quality education to Florida students.”

                             FTC/McKay Intervenors

      In the wake of Petitioners’ factual allegations regarding the FTC and McKay

programs, the trial court permitted certain parents whose children were

beneficiaries of those programs to intervene (Intervenors). Petitioners later filed a

Motion for Partial Summary Judgment seeking a declaratory judgment that the

FTC and McKay programs violate the uniformity requirement of article IX, section

1(a). The Intervenors opposed and submitted their own Motion for Partial

Judgment on the Pleadings.


                                          -8-
      The trial court eventually ruled that the Second Amended Complaint did not

contain any “claim that either program violates the Florida Constitution” and did

not include any request for declaratory relief with respect to either program. The

trial court also ruled that Petitioners lacked standing to challenge the FTC program.

The trial court nevertheless permitted Petitioners—consistent with the pleadings—

to present evidence “regarding the impact of each program on the uniformity and

funding of the overall public education system.”

                        The Trial Court’s Final Judgment

      After years of substantial discovery, the case proceeded to trial in 2016.

After a nearly four-week bench trial involving dozens of witnesses and more than

5,000 exhibits, the trial court—a different trial judge than the one who originally

denied Respondents’ motion to dismiss—entered Final Judgment against

Petitioners “on all claims.” The trial court did so after making extensive and

detailed findings. Indeed, the Final Judgment includes a 175-page appendix of

findings of fact.

      The trial court early on noted that “Florida’s system of education is

structurally complicated,” in part because each county has its own school board

with constitutional duties and authority. The trial court thus explained that

variability necessarily exists between school districts, even among those with

equivalent funding, given “variations in how the local districts allocate their


                                         -9-
resources.” And the trial court concluded that the school districts, who were not

parties to the suit, were “indispensable parties” to the extent Petitioners “seek relief

for decisions that Florida law entrusts to local school districts—including decisions

on hiring, staffing, and the allocation of resources among schools within a

particular district.”

       The trial court went on to address the issue of justiciability anew, concluding

that Petitioners presented a nonjusticiable “blanket” challenge to the adequacy of

the entire education system and that, despite the 1998 amendments, the “new

adjectives . . . —‘efficient and high quality’—do not give judicially manageable

content to the adequacy standard that was held non-justiciable in the Coalition

case.” In other words, the issues remained “political questions best resolved in the

political arena.” The trial court noted for example that “many of Florida’s

education policies and programs are subject to ongoing debate without any

definitive consensus.” The trial court also held that Petitioners’ claim fails because

of “Florida’s strict separation-of-powers doctrine.”

       Nevertheless, given the lack of a final appellate ruling on the justiciability

issue, the trial court—at great length—addressed the evidence. After determining

that the burden was on Petitioners to show that Respondents’ actions “are irrational

or unconstitutional beyond a reasonable doubt,” the trial court repeatedly discussed




                                         - 10 -
the “weight of the evidence” and what the evidence showed for each of Petitioners’

major subdivisions of allegations. For example, the trial court concluded:

             The weight of the evidence shows that the State has made
      education a top priority both in terms of implementation of research-
      based education policies and reforms, as well as education funding.
      The State has an accountability and assessment system that is rated
      among the best in the nation, resulting in more “A” graded schools
      over time. The State has also adopted rigorous teacher certification,
      training and evaluation standards, resulting in over 94% of courses
      being taught by teachers who are “highly qualified” under federal
      standards.

Regarding funding, the trial court found, “based on the evidence presented, that

there is not a constitutional level lack of resources available in Florida schools.”

More specifically, the trial court observed:

             With respect to funding, the evidence indicates that over the
      past twenty years, K-12 education has been the single largest
      component of the state general revenue budget. Even during the
      recent, severe economic downturn, the State ensured that education
      funding was less impacted than other government services and
      functions. In the current school year, the State funds education at the
      highest level in Florida history. Since the 1997-98 school year,
      education funding has outpaced inflation. The State has made efforts
      to equalize its funding and considers education costs for different
      student programs and cost-of-living differences across the state. It
      also is significant that the State has provided sufficient funding for
      schools to meet the class size requirements set forth in Article IX. 2




       2. As discussed below, article IX, section 1(a) was amended in 2002 to
impose certain class size requirements and to require the Legislature to fund the
costs associated with meeting those requirements.


                                         - 11 -
The trial court also found that the State’s “complex funding formula”—the Florida

Education Finance Program—“is generally recognized as one of the most

equalizing school funding formulas in the nation.” The trial court also determined

that “all of the school districts in Florida have excess capacity for generating

revenue through local property taxes or sales surtaxes” and that “many” of the

district witnesses cited “political” reasons for not doing so.

      The trial court also addressed Petitioners’ arguments regarding graduation

rates, test results, and disparities among certain subgroups. After determining that

the “most appropriate” examination of student performance is one that views that

performance “over time and in context,” the trial court described substantial,

dramatic, and sustained improvements that have taken place in Florida since the

late 1990’s, including that “the high school graduation rate has increased by over

25 points, with more students of all racial, ethnic, and socioeconomic backgrounds

graduating than ever before.” The trial court also cited “dramatic” and sustained

improvement on test results as measured by “a variety of measures, including

national and international assessments.” Regarding achievement and performance

gaps, the trial court found that these gaps unfortunately “exist throughout the

country,” but that “Florida’s gaps are smaller than the national gaps, and Florida

has outpaced the nation in closing these gaps.” (Emphasis added.) As one

example, the trial court found that “Florida’s students eligible for free-and-


                                         - 12 -
reduced-price lunch ranked first in the nation, outperforming similar economically

disadvantaged students in all other states.” As another example, the trial court

found that during the relevant period, Florida was “the only state in the nation to

narrow the achievement gap between White and Black/African-American students

in both reading and mathematics in the fourth and eighth grades.” And as it relates

to Petitioners’ theory of the case—that is, the “need for more resources”

argument—the trial court specifically found that Petitioners “failed to establish any

causal relationship between any alleged low student performance and a lack of

resources.” (Emphasis added.) In the end, the trial court described an education

system that is not perfect but that is working very well overall and has been “a top

priority” of the State.

      Finally, regarding the FTC and McKay programs, the trial court reiterated its

prior rulings and found “no negative effect on the uniformity or efficiency of the

State system of public schools due to these choice programs.”

                           The First District’s Decision

      On appeal, the First District affirmed in all respects. Citizens, 232 So. 3d at

1174. The First District agreed with the trial court that Petitioners’ arguments

“raise political questions not subject to judicial review, because the relevant

constitutional text does not contain judicially discoverable standards by which a

court can decide whether the State has complied with organic law.” Id. at 1165.


                                        - 13 -
The First District also agreed that Florida’s “strict separation of powers . . .

requires judicial deference to the legislative and executive branches to adopt and

execute educational policies those branches deem necessary and appropriate to

enable students to obtain a ‘high quality’ education.” Id. at 1165-66. According to

the First District, article IX, section 1(a) does not “empower judges to order the

enactment of educational policies regarding teaching methods and accountability,

the appropriate funding of public schools, the proper allowance of charter schools

and school choice, the best methods of student accountability and school

accountability, and related funding priorities.” Id. at 1166.

      The First District began by examining Coalition and its reference to the

Supreme Court’s analysis of the political question doctrine in Baker v. Carr, 369

U.S. 186 (1962). Citizens, 232 So. 3d at 1168. The First District explained how

the instant case fell within Baker’s “dominant considerations” of “attributing

finality to the action of the political departments and also the lack of satisfactory

criteria for a judicial determination.’ ” Id. (quoting Baker, 369 U.S. at 210).

Indeed, the First District noted that this case “consume[d] years in the court

system . . . over the meaning of subjective and undefined phrases that might

function to give guidance to political decision makers as laudable goals, but cannot

guide judges in deciding whether a state or local government has in fact complied

with the text.” Id. at 1169.


                                         - 14 -
      The First District then explained how Coalition rejected a similar “blanket

challenge to the adequacy of the education system.” Id. at 1169-70. The First

District noted that the plaintiffs in Coalition “failed to demonstrate any

manageable standards that could be applied without ‘a substantial risk of judicial

intrusion into the powers and responsibilities assigned to the legislature.’ ” Id. at

1170 (quoting Coalition, 680 So. 2d at 408). The First District agreed with the

trial court that “ ‘efficient’ and ‘high quality’ are no more susceptible to judicial

interpretation than ‘adequate’ was under the prior version of the education

provision.” Id.

      The First District concluded that its holding was supported “by Florida’s

strict separation of powers doctrine and by the language of the amended

constitutional article itself.” Id. On the latter point, the First District noted that the

1998 amendments retained the language that “adequate provision shall be made by

law,” id. at 1171 (quoting art. IX, § 1(a), Fla. Const.), leading the First District to

conclude “that the constitution continues to commit education policy

determinations to the legislative and executive branches,” id.

      The First District “recognize[d] that courts in other states have sometimes

purported to define” similar concepts in their education articles, but the First

District concluded that those decisions were “insufficiently deferential to the

fundamental principle of separation of powers . . . and the practical reality that


                                          - 15 -
educational policies and goals must evolve to meet ever changing public

conditions.” Id. at 1172. The First District instead agreed with other courts that

have declined to impose upon the legislature the court’s view of “adequacy,

efficiency, and quality.” Id. 3

      Lastly, the First District affirmed the trial court’s rejection of Petitioners’

arguments regarding uniformity and the FTC and McKay programs. Id. at 1173-

74.

                                   II. ANALYSIS

      This Court is being asked to determine whether in this case we have been

presented with a manageable standard for assessing—in the context of a blanket

challenge to the constitutionality of the K-12 education system—whether the State

has made “adequate provision” for an “efficient” and “high quality” system of

education “that allows students to obtain a high quality education” under article IX,

section 1(a) of the Florida Constitution. The trial court and the First District both

held in the negative, relying on the reasoning in Coalition. This question presents




       3. The First District specifically noted its agreement with the Pennsylvania
Supreme Court’s decision in Marrero v. Commonwealth, 739 A.2d 110, 112 (Pa.
1999). However, as Petitioners point out, the Pennsylvania Supreme Court had
distanced itself from Marrero prior to the First District’s decision. See William
Penn Sch. Dist. v. Pennsylvania Dep’t of Educ., 170 A.3d 414, 457 (Pa. 2017)
(“We find irreconcilable deficiencies in the rigor, clarity, and consistency of the
line of cases that culminated in [Marrero].”).


                                         - 16 -
a pure issue of law that is subject to de novo review. W. Fla. Reg’l Med. Ctr., Inc.

v. See, 79 So. 3d 1, 8 (Fla. 2012) (“Statutory and constitutional construction are

questions of law subject to a de novo review.”). We decline to address the other

issues raised by Petitioners.4

      We agree with the lower courts that Petitioners’ blanket challenge does not

survive the reasoning in Coalition, notwithstanding the 1998 amendments to article

IX, section 1(a). Although we do not necessarily agree with what appears to be the

district court’s conclusion that an article IX challenge could never be justiciable,

see Coalition, 680 So. 2d at 408 (declining to say “never”), we need not decide that

issue. Instead, this case turns in part on Petitioners’ failure to present the courts

with any roadmap by which to avoid intruding into the powers of the other

branches of government.

      At the outset, we strongly reject any suggestion in the dissenting opinions

that those of us agreeing to approve the result reached by the First District are

shirking a constitutional duty or somehow care less than the dissenting justices

about the education of Florida’s children. Indeed, the refusal to recognize both the




       4. Petitioners argue that the trial court incorrectly applied rational basis
scrutiny and ask this Court to determine the appropriate standard and then remand
so their claim can be reexamined under that standard. We find no need to address
this argument. Petitioners also present arguments regarding the McKay and FTC
programs. These arguments were not adequately preserved.


                                         - 17 -
blanket nature of Petitioners’ challenge and that this case amounts to a request for

the courts to determine the appropriate amount of education funding explains in

large part the asserted struggle to understand the “judicial universe” in which this

case is being decided. Dissenting op. at 42, 64 (Pariente, J.).5

      This suit began nearly a decade ago in what largely resembled a funding

challenge to the “2009 Appropriations Act.” Since then, not only has that

appropriations act come and gone, but so too have many subsequent appropriations

acts. Moreover, in that same time span, the Legislature has revised—on more than

one occasion—the standards and assessments complained of by Petitioners. And

the trial court explained how the State’s process for developing, administering,

scoring, and reporting is “an inclusive process involving Florida educators all

along the way.” The point being, the education system—and education policy

itself—does not remain static and is instead continually being shaped by various




       5. The dissent disputes the notion that Petitioners’ claim is a “ ‘blanket
challenge’ to the entire state education system.” Dissenting op. at 46 (Pariente, J.).
But the blanket nature of Petitioners’ claim is not reasonably in dispute. The
original trial judge recognized that Petitioners sought “system-wide declaratory
and supplemental relief.” The trial judge who later rendered Final Judgment
recognized that Petitioners “have ‘made a blanket assertion that the entire system is
constitutionally inadequate.’ ” (Quoting Coalition, 680 So. 2d at 406.) And the
First District recognized that Petitioners “assert[ed] that the State’s entire K-12
public education system . . . is in violation of the Florida Constitution.” Citizens,
232 So. 3d at 1165. The attempt by the dissenters to recharacterize this case is
totally at odds with the way this case has been presented by Petitioners.


                                        - 18 -
interested parties. Thus, Petitioners’ challenge is fundamentally different than a

challenge to a specific program or a specific funding issue. In effect, Petitioners

ask this Court to declare the current educational system unconstitutional based on

years-old evidence.

      In any event, to explain why we approve the result reached by the First

District, we begin by reviewing this Court’s 1996 decision in Coalition. We then

examine certain subsequent amendments to and failed attempts to amend article

IX, section 1, including the adopted 1998 amendments at issue. We then examine

this Court’s more recent decision in Holmes. We conclude by explaining why

Petitioners fail to overcome Coalition. As this Court did in Coalition, we decline

to look to other jurisdictions. Coalition, 680 So. 2d at 404-05. Instead, we look to

the language of the Florida Constitution and this Court’s decisions.

                                      Coalition

      In Coalition, this Court addressed a similar challenge to the “adequacy” of

the entire school system, but one brought under the pre-1998 article IX, section 1.

Coalition, 680 So. 2d 400. The appellants in Coalition sought a declaration “that

an adequate education is a fundamental right under the Florida Constitution, and

that the State has failed to provide its students that fundamental right by failing to

allocate adequate resources for a uniform system of free public schools.” Id. at

402. Among other things, the allegations focused on purported inadequacies


                                         - 19 -
relating to certain subgroups of students. Id. The trial court dismissed the

complaint with prejudice, and this Court affirmed. Id.

      Coalition began by exploring the history of Florida’s education article,

noting among other things that the Constitution was amended in 1868 to provide

that it was “the paramount duty of the State to make ample provision for the

education of all the children,” and that the “paramount duty” language was

subsequently deleted in 1885. Id. at 405.6 Coalition then examined the language

of the present education article, noting that “adequate provision” had not been

defined but that this Court had on numerous occasions “attempted to define” the

phrase “uniform system of free public education.” Id. at 406. In doing so, this

Court noted that those prior cases all involved “an objection to some specific

funding issue,” as opposed to “a blanket assertion” against the adequacy of “the

entire [education] system.” Id. Recognizing the nature of the case as a challenge

to the Legislature’s overall funding of education, this Court ultimately agreed with

the trial court that “the courts cannot decide whether the Legislature’s

appropriation of funds is adequate in the abstract, divorced from the required




       6. In a footnote, Coalition referenced a “four-category system” developed
by certain scholars that “attempt[s] to measure the level of duty imposed on the
state legislature” depending upon the language of the state’s education clause.
Coalition, 680 So. 2d at 405 n.7. Coalition then contrasted Florida’s 1868
education clause with the “present educational clause.” Id.


                                        - 20 -
uniformity” because doing so “would necessarily” require the courts “to

subjectively evaluate the Legislature’s value judgments as to the spending

priorities to be assigned to the state’s many needs, education being one among

them.” Id. at 406-07 (quoting trial court’s order). This Court further agreed that

“if the Court were to declare present funding levels ‘inadequate,’ presumably the

Plaintiffs would expect the Court to evaluate, and either affirm or set aside, future

appropriations decisions.” Id. at 407 (quoting trial court’s order).

      Coalition then more directly addressed the separation of powers doctrine,

explaining that the appellants’ funding challenge implicated constitutional

provisions other than just article IX. Indeed, after noting that the separation of

powers doctrine was “expressly set[] forth” in article II, section 3 and that article

VII, section 1(c) “expressly reserve[s] to the legislative branch” the power to

appropriate funds, this Court concluded that “an insufficient showing has been

made to justify judicial intrusion” into the Legislature’s appropriations power. Id.

at 407-08. This Court further concluded that, unlike the term “uniform,” the term

“ ‘adequacy’ simply does not have such straightforward content.” Id. at 408. This

Court thus agreed with the appellees’ reliance on Baker, in which the Supreme

Court “set forth six criteria to gauge whether a case involves a political question,”

including “(1) a textually demonstrable commitment of the issue to a coordinate




                                         - 21 -
political department; [and] (2) a lack of judicially discoverable and manageable

standards for resolving it.” Id. Coalition summed up:

            While we stop short of saying “never,” appellants have failed to
      demonstrate in their allegations, or in their arguments on appeal, an
      appropriate standard for determining “adequacy” that would not
      present a substantial risk of judicial intrusion into the powers and
      responsibilities assigned to the legislature, both generally (in
      determining appropriations) and specifically (in providing by law for
      an adequate and uniform system of education).

Id. In doing so, this Court stated “that the legislature has been vested with

enormous discretion by the Florida Constitution to determine what provision to

make for an adequate and uniform system of free public schools.” Id. (emphasis

added).

      In a concurring opinion, Justice Overton agreed with the majority that an

insufficient showing had been made to justify judicial intrusion but wrote

separately to express his view that the majority’s holding does not preclude the

judiciary from being involved in the enforcement of article IX, section 1. Id. at

408 (Overton, J., concurring). Justice Overton opined that although the education

article “does not ensure a perfect system” or “guarantee[] a perfect or ideal

education,” it also “does not preclude the treatment of education as an essential,

fundamental right.” Id. at 409 (Overton, J., concurring). And Justice Overton

suggested that the term “adequate” must have some “minimum threshold . . . below

which the funding provided by the legislature would be considered ‘inadequate.’ ”


                                        - 22 -
Id. As an example, Justice Overton suggested that an allegation of “a thirty

percent illiteracy rate” in a county would “at least state[] a cause of action.” Id. 7

      In a dissenting-in-part opinion joined by two other justices, Justice Anstead

argued that, given the “comprehensive allegations of inadequacies set out in

appellants’ complaint,” the appellants should have been permitted to establish a

factual context and that this Court had “failed to carry out its duty to ensure that

the legislature has performed its constitutional mandate.” Id. at 410 (Anstead, J.,

dissenting in part). Justice Anstead also emphasized the importance of education,

positing that “[s]urely all would agree that education is a fundamental value in our

society.” Id. In Justice Anstead’s view, the education article “recognized the

fundamental value of education,” and there was no need “to add ‘puffing’ words to

suggest the quality of the system contemplated.” Id. at 410-11 (Anstead, J.,

dissenting in part).

                       Failed 1997 Amendment to Article IX

      One year after Coalition, this Court addressed an initiative petition that

sought to amend article IX, section 1 by defining “[a]dequate provision for funding

public education” to mean a minimum percentage (40%) of total appropriations.




       7. The trial court here directly addressed Justice Overton’s “excellent
example of why the judicial branch should never say never,” finding that “[t]his
case is not about a significant level of illiteracy.”


                                         - 23 -
Advisory Op. to the Att’y Gen. re Requirement for Adequate Pub. Educ. Funding,

703 So. 2d 446, 447 (Fla. 1997). This Court struck the proposed amendment as

violative of the single subject requirement of article XI, section 3. Id. at 448. This

Court found that the amendment “arbitrarily” and “substantially affects . . . other

functions” of government in Florida, including “various vital functions.” Id. at

449. This Court also noted the proposed amendment’s impact on the “functions of

executive approval and veto” set forth in article III, section 8. Id.

                       The 1998 Amendments to Article IX

      In 1998, the CRC proposed and the voters approved the changes to article

IX, section 1 at issue here. The 1998 amendments did not adopt Justice Overton’s

view in Coalition and declare education to be a “fundamental right.” Coalition,

680 So. 2d at 409 (Overton, J., concurring). Instead, the amendments stated that

education of children is “a fundamental value of the people,” tracking some of the

language in Justice Anstead’s dissenting-in-part opinion in Coalition. See id. at

410 (Anstead, J., dissenting in part). The 1998 amendments also returned the

“paramount duty” language to the education article, although the amendments—

presumably in recognition of the Legislature’s need to fund “the various vital

functions of State government, including not only education,” Advisory Op. to the

Att’y Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So. 2d at 449—

described the State’s duty to make adequate provision as “a paramount duty,”


                                         - 24 -
whereas the 1868 Constitution described the duty as “the paramount duty.”

Finally, the 1998 amendments added words such as “efficient” and “high quality”

to describe the contemplated system of free public schools.

      Members of the 1998 CRC submitted competing amicus briefs in this case.

On the one hand, some of the members assert that one of the goals of the 1998

amendments was “to provide a judicially-enforceable right to a public school

system that is ‘uniform, efficient, safe, secure, and high quality.’ ” On the other

hand, other members argue that “common sense” indicates that “the ambiguous

terms ‘high quality’ and ‘efficient’ ” were used to “set forth aspirational goals” and

“to avoid litigation of the type brought in this case.”

             2002 Amendment to Article IX—Class Size Reduction

      In 2002—before any judicial interpretation of the term “high quality”—

article IX, section 1(a) was amended by initiative petition. The 2002 amendment

set a maximum number of students per classroom for various grade levels. See

Advisory Op. to the Att’y Gen. re Florida’s Amend. to Reduce Class Size, 816 So.

2d 580, 581-82 (Fla. 2002). The 2002 amendment also established a phase-in

period and expressly provided that the costs associated with meeting the class size

reductions were to be borne by “the legislature”—i.e., “the state”—as opposed to

the “local school districts.” Id. at 581. The 2002 amendment also directly

referenced the term “high quality” added to article IX, section 1(a) in 1998:


                                         - 25 -
      To assure that children attending public schools obtain a high quality
      education, the legislature shall make adequate provision to ensure
      that . . . there are a sufficient number of classrooms . . . .

(Emphasis added.) This Court upheld the validity of the initiative petition. Id. at

585-86.

      Here, there is no suggestion that the Legislature failed to “make adequate

provision” for the reduction of classroom sizes. On the contrary, the trial court

found it “significant that the State has provided sufficient funding for schools to

meet the class size requirements set forth in Article IX.” In arguing to this Court

that “high quality” is a judicially manageable standard for measuring the State’s

compliance with article IX, Petitioners make no mention of the 2002 amendment

and the fact that the citizens constitutionalized a specific statewide policy with

funding mandate “[t]o assure that children attending public schools obtain a high

quality education.” See Holmes, 919 So. 2d at 407 (“[W]hen the Constitution

prescribes the manner of doing an act, the manner prescribed is exclusive . . . .”

(quoting Weinberger v. Bd. of Pub. Instruction, 112 So. 253, 256 (Fla. 1927))).

And in effectively urging the adoption of Petitioners’ argument, the dissent

references “basic rules of statutory construction,” dissenting op. at 60 (Pariente, J.),

and yet—like Petitioners—ignores the language added to article IX in 2002. We

are unaware of any principle of statutory construction that supports Petitioners’ and

the dissent’s approach.


                                         - 26 -
                                       Holmes

      In 2006, this Court in Holmes addressed article IX, section 1(a) but not in

the context of a blanket challenge to the K-12 system. Rather, Holmes involved a

challenge to a specific voucher program known as the Opportunity Scholarship

Program (OSP), under which any student from a “fail[ing]” public school could

either move to a different, non-failing public school or “receive funds from the

public treasury, which would otherwise have gone to the student’s school district,

to pay the student’s tuition at a private school.” Holmes, 919 So. 2d at 397. The

“narrow question” in Holmes was whether that second option involving the use of

public funds was prohibited by article IX, section 1(a). Id. at 397-98. Holmes

answered in the affirmative, concluding that the OSP “diverts public dollars into

separate private systems parallel to and in competition with the free public schools

that are the sole means set out in the Constitution for the state to provide for the

education of Florida’s children” and that the OSP “funds private schools that are

not ‘uniform’ when compared with each other or the public system.” Id. at 398.

      As Coalition did previously, Holmes examined the history of Florida’s

education article. In doing so, Holmes noted that the 1998 amendments were made

“in response in part to Coalition . . . to make clear that education is a ‘fundamental

value’ and ‘a paramount duty of the state,’ and to provide standards by which to

measure the adequacy of the public school education provided by the state.” Id. at


                                         - 27 -
403. Holmes also cited certain commentary from individuals involved with the

1998 CRC explaining that the 1998 amendments represented “an attempt” to

provide measurable standards. Id. at 404. Holmes later recognized the 1998

amendments as “imposing a maximum duty on the state to provide for public

education that is uniform and of high quality.” Id. And Holmes later described

article IX, section 1(a) as “provid[ing] a comprehensive statement of the state’s

responsibilities regarding the education of its children.” Id. at 408.

      Although Holmes recognized the usual framework of the presumptive

constitutionality of statutes, Holmes ultimately invalidated the OSP because it was

“in direct conflict with the mandate in article IX, section 1(a).” Id. at 405. Holmes

explained that article IX, section 1(a) contained not just a mandate to make

adequate provision for the education of all children, but also a restriction that the

mandate be fulfilled solely by means of a system of free public schools. Id. at 407.

In other words, the constitutional provision “does not authorize additional

equivalent alternatives.” Id. at 408.

     The Reasoning and Result in Coalition Defeat Petitioners’ Challenge

      In Coalition, this Court upheld a dismissal with prejudice of a blanket

challenge to the “adequacy” of the entire K-12 system—a challenge that bears a

close resemblance to the challenge here. 680 So. 2d at 402. This Court rejected

the challenge in part because the phrase “adequate provision” did not have


                                         - 28 -
“straightforward content.” Id. at 408. In doing so, this Court explained that

previous cases attempting to interpret the education article all involved some

“specific” challenge. Id. at 406. This Court thus balked at the possibility of

intruding into the powers of the other branches, including possibly being expected

“to evaluate, and either affirm or set aside, future appropriations decisions.” Id. at

407 (quoting trial court’s order). However, this Court refused to say “never.” Id.

at 408. Rather, the case turned on the challengers’ “fail[ure] to demonstrate . . . an

appropriate standard . . . that would not present a substantial risk of judicial

intrusion.” Id.

      In his concurring opinion, Justice Overton agreed with the majority “that an

insufficient showing has been made by the appellants to justify a judicial intrusion

under the circumstances of this case.” Id. at 408 (Overton, J., concurring). He

went on to add that, in his view, the holding of the Court “does not mean that the

judiciary should not be involved in the enforcement of this constitutional

provision.” Id.

      In sum, although recognizing the possibility that some future case might

present a justiciable claim under article IX, section 1, a majority of the Court

determined that the Coalition appellants had not presented such a claim. There is

no basis for concluding that Petitioners here have been any more successful in

framing a claim that is justiciable.


                                         - 29 -
      The 1998 amendments to article IX, section 1 undoubtedly heightened the

Legislature’s mandate to “a paramount duty.” But the fact that the Legislature’s

duty to make “adequate provision” was heightened does not in and of itself provide

the courts with “an appropriate standard for determining ‘adequacy.’ ” Coalition,

680 So. 2d at 408. Rather, the primary issue here is whether the term “high

quality” provides such a standard. Although Holmes spoke of the 1998

amendments as “provid[ing] standards by which to measure the adequacy of the

public school education provided by the state,” 919 So. 2d at 403, that language

has no relevance here. Holmes did not involve a blanket “adequacy” challenge and

did not remotely address the issue of whether the entire K-12 system was

“efficient” or of “high quality.” Instead, Holmes addressed a “narrow question,”

id. at 397, involving a specific voucher program and turned on other language in

article IX, primarily “system of free public schools.” In other words, Holmes in no

way answers the question presented.8

      Looking to the language of article IX, section 1(a), we conclude that the

term “high quality” in and of itself does not have “straightforward content,”




      8. We disagree with the dissent’s suggestion that the reasoning of Holmes
was intended to and should apply to the type of blanket challenge brought in this
case. Dissenting op. at 51 (Pariente, J.). Not only did Holmes expressly note the
“narrow” scope of the issue presented in that case, Holmes, 919 So. 2d at 397, but
Holmes turned on language in article IX that long predated the 1998 amendments.


                                       - 30 -
Coalition, 680 So. 2d at 408, at least in the context of a blanket challenge to the

adequacy of the entire K-12 system. Indeed, “high quality” can reasonably be

viewed as “puffing.” Id. at 411 (Anstead, J., dissenting in part). It is thus hardly

surprising that article IX, section 1(a) was subsequently amended in 2002 to

constitutionalize a specific statewide policy—a classroom-size policy—along with

a funding directive to “assure that children attending public schools obtain a high

quality education.” Art IX, § 1(a), Fla. Const.; see Reduce Class Size, 816 So. 2d

580.

       Putting aside the class size amendment, Petitioners simply cannot overcome

this Court’s reasoning and the result in Coalition. As in Coalition, they have failed

to present the courts with any manageable standard by which to avoid judicial

intrusion into the powers of the Legislature. Moreover, we find that the standard

actually proposed by Petitioners for measuring the Legislature’s compliance with

article IX, section 1(a) is foundationally flawed.

       Petitioners’ argument largely is that the constitutional test “for measuring

whether the State is providing an opportunity for a high quality education” should

be based solely on the assessment results that measure whether students have

learned the core content standards established by the Legislature. In other words,

Petitioners do not ask this Court to define “high quality.” Rather, they assert that

the Legislature itself has already defined “high quality” and how to measure it.


                                        - 31 -
They thus allege that the educational system is constitutionally inadequate because

the “assessment results show low achievement and wide disparities,” particularly

“for children experiencing poverty or attending school in poorer school districts.”

      Petitioners essentially ask this Court to constitutionalize the Legislature’s

own standards, which in part serve as goals. We reject that argument. In effect,

Petitioners’ argument is that a “high quality” system is whatever the Legislature

says it is, so long as some acceptable—yet unknown—percentage of all subgroups

of students achieve a satisfactory level of “3” on the assessment. Nothing in the

language of article IX, section 1(a) supports Petitioners’ argument. Nor does this

Court’s case law. Moreover, as amicus Foundation for Excellence in Education

logically points out, “adopting State standards as constitutional minima would have

the perverse effect of encouraging the weakening of curriculum standards in order

to achieve higher passage rates and to satisfy court-imposed requirements.” See

Br. of Amicus Foundation for Excellence in Education in Support of Respondents,

at 13-14 (explaining how this phenomenon occurred in the wake of the federal No

Child Left Behind Act of 2001). 9



       9. The dissent attempts to undercut amicus’s sound logic in part by stating
that amicus was “founded by former Governor Jeb Bush” and citing the website
“conservativetransparency.org” to support the assertion that amicus’s mission is to
privatize schools. Dissenting op. at 54 n.18 (Pariente, J.). We disagree with the
dissent’s ad hominem approach to challenging logic and reason, an approach that
not so subtly attempts to drag politics into judicial decision making.


                                        - 32 -
      Not only do Petitioners conflate constitutional requirements with legislative

standards, they also ignore—as do the dissenters—that in the years since this suit

was first filed, the Legislature has revised the complained-of standards and

assessments on more than one occasion. Moreover, Petitioners’ argument flies in

the face of the trial court’s detailed findings, none of which Petitioners challenge

for lacking a basis in the record. As just a few examples, the trial court found that:

“Florida has been a national leader in education reform”; Florida intentionally

adopted rigorous standards and set cut scores at a level that places the majority of

students below the satisfactory level; scoring a “Level 1 or 2” on the assessment

“is not an indication that a student ‘can’t read’ or is illiterate”; the State’s “high

performance standards . . . have led to improvement over time”; and Florida “has

outpaced the nation in closing” achievement and performance gaps that “exist

throughout the country.”

      While Petitioners’ proposed standard is problematic in and of itself,

Petitioners’ own pleadings expose the flaws in their arguments and highlight why

Coalition requires that we approve the result reached by the First District. Indeed,

what Petitioners seek is for the courts to order Respondents “to establish a remedial

plan that . . . includes necessary studies to determine what resources and standards

are necessary to provide a high quality education to Florida students.” (Emphasis

added.) In other words, Petitioners do not know what a “high quality system”


                                          - 33 -
looks like, how it can be achieved, or what resources and standards are necessary.

Instead, they—and presumably the courts—will know an “efficient” and “high

quality” system, as well as an “adequate” level of overall funding, when they see a

study that shows what it is. Petitioners invite this Court to not only intrude into the

Legislature’s appropriations power, see Coalition, 680 So. 2d at 407

(“[P]resumably the Plaintiffs would expect the Court to evaluate, and either affirm

or set aside, future appropriations decisions . . . .”), but to inject itself into

education policy making and oversight. We decline the invitation for the courts to

overstep their bounds.

       Even if we were inclined to accept all of Petitioners’ arguments regarding

justiciability and separation of powers, on the record presented here Petitioners still

could not prevail. At bottom, Petitioners’ blanket challenge to the educational

system is a funding challenge, one rooted in the notion that the Legislature is not

providing an adequate overall level of funding and that the lack of funding has

resulted in disproportionate outcomes for certain students. That is clear from

Petitioners’ allegations, Petitioners’ specific request for relief, and the rest of the

record. Indeed, the trial court noted, among other things, that “[t]he primary thrust

of [Petitioners’] complaint is that there is a crisis . . . caused by the State of

Florida’s inadequate funding of education,” that Petitioners “asserted that more

resources were clearly needed to address the problems they identified in their


                                           - 34 -
complaint,” and “that the evidence was focusing on [Petitioners’] ‘need for more

resources’ argument.” But the trial court’s express findings doom Petitioners’

funding challenge and theory of the case. Not only did the trial court find that

Petitioners “failed to establish any causal relationship between any alleged low

student performance and a lack of resources,” but the trial court found that “the

weight of the evidence . . . establishes a lack of any causal relationship between

additional financial resources and improved student outcomes.” Petitioners’

failure to establish such a causal relationship provides an independent basis for

rejection of their claims. 10

                                III. CONCLUSION

       Given the blanket nature of Petitioners’ challenge, the trial court’s extensive

and detailed findings after Petitioners were permitted to establish a factual record,

and the failure of Petitioners to provide any manageable standard to support their

challenge to the adequacy of the funding of the entire K-12 education system, we

approve the result reached by the First District in affirming the trial court’s

rejection of Petitioners’ challenge.

       It is so ordered.



       10. The dissent disagrees that Petitioners’ failure on this point provides an
independent basis for rejecting Petitioners’ claims. Dissenting op. at 61 (Pariente,
J.). The dissent simply fails to acknowledge what indisputably is the “primary
thrust” of this case.


                                         - 35 -
CANADY, C.J., and LAWSON, J., and EDWARD C. LaROSE, Associate Justice,
concur.
CANADY, C.J., concurs with an opinion, in which LAWSON, J., and EDWARD
C. LaROSE, Associate Justice, concur.
LABARGA, J., concurs in result only.
PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ.,
concur.
LEWIS, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ.,
concur.
POLSTON, J., recused.

NO MOTION FOR REHEARING WILL BE ALLOWED.

CANADY, C.J., concurring.

      The manifest goal of the Petitioners and the dissenting justices is to put

educational funding and educational policy firmly under the control of the

judiciary. That is the only possible path forward once a judicial decision is made

that “the State has failed to ensure that its allocations are the best use of funding,”

that “the State is not funding schools in an efficient manner,” and that the State has

not “allocate[d] resources in a productive manner and without waste.” Dissenting

op. at 58-59 (Pariente, J.). The response to such a judicial decision would involve

judicial control of educational funding levels and judicial control of how

educational funds are used. There is no reason to believe that the judiciary is

competent to make these complex and difficult policy choices. And there is every

reason to believe that arrogating such policy choices to the judiciary would do

great violence to the separation of powers established in our Constitution.




                                         - 36 -
      Contrary to the position of the Petitioners and the dissenters, the addition to

the Constitution of the capaciously vague terms “efficient” and “high quality”

cannot be understood to have wrought a revolution in the separation of powers. I

therefore fully concur with the plurality opinion’s view that going down the path

charted by the Petitioners and the dissenters would be inconsistent with this

Court’s precedent in Coalition for Adequacy & Fairness in School Funding, Inc. v.

Chiles, 680 So. 2d 400 (Fla. 1996), that requires judicially manageable standards in

order for the judiciary to intervene.

      In striking down a delegation of legislative power to the executive, we

previously held that “[t]he legislative responsibility to set fiscal priorities through

appropriations is totally abandoned when the power to reduce, nullify, or change

those priorities is given over to the total discretion of another branch of

government.” Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 265 (Fla.

1991). We recognized the fundamental point that “[u]nder any working system of

government, one of the branches must be able to exercise the power of the purse,

and in our system it is the legislature, as representative of the people and maker of

laws, including laws pertaining to appropriations, to whom that power is

constitutionally assigned.” Id. at 267. We emphasized the importance of this

unique role played by the Legislature in controlling state spending:

            The constitution specifically provides for the legislature alone
      to have the power to appropriate state funds. More importantly, only

                                         - 37 -
      the legislature, as the voice of the people, may determine and weigh
      the multitude of needs and fiscal priorities of the State of Florida. The
      legislature must carry out its constitutional duty to establish fiscal
      priorities in light of the financial resources it has provided.

Id.

      Of course, this does not mean that the judiciary in adjudicating individual

constitutional claims can never make decisions that have an impact on state

spending. But it does mean that the judiciary cannot take over the appropriations

process and policymaking concerning the use of state funds for the public school

system. If the judiciary does so, it strikes a grievous blow against the

constitutional separation of powers. And that is exactly what the Petitioners and

the dissenters would have us do. This is not a case in which a constitutional attack

is made on specific identified actions of the government that have violated the

Constitution. Instead, it is a challenge based on particular conditions that allegedly

offend the Constitution and that are assumed to result from a complex series of

deficient actions of the State—involving appropriations and the use of appropriated

funds—that remains unidentified.

      At its core, this is a case in search of a remedy. Or more to the point, it is a

case in search of a remediator. In brief, the Petitioners and the dissenters take the

position that educational funding and policy in Florida are not working as well as

they should, and that the judiciary should figure out how funding and policy can

work better. The judiciary is very good at making certain types of decisions—that

                                        - 38 -
is, judicial decisions. But it lacks the institutional competence—or the

constitutional authority—to make the monumental funding and policy decisions

that the Petitioners and the dissenters seek to shift to the judicial branch. And there

is not a hint of any manageable judicial standards to apply in making those

decisions. Instead, if the Petitioners and the dissenters had their way, judges would

simply apply their own policy preferences. This collides with the basic principle

of our constitutional structure that “[t]he judicial power of the state extends” only

to “controversies justiciable in their nature.” Burnett v. Greene, 122 So. 570, 575

(Fla. 1929).

      The Supreme Court has held that the doctrine of justiciability can require the

rejection of “a broad call on judicial power to assume continuing regulatory

jurisdiction over the activities” of a coordinate branch of government. Gilligan v.

Morgan, 413 U.S. 1, 5 (1973). Such “continuing regulatory jurisdiction” exercised

by the judiciary over educational spending and policymaking is exactly what is at

issue in this case. Here, this Court properly turns aside the quest of the Petitioners

and the dissenters for “the assumption of a continuing judicial review of

substantive political judgments entrusted expressly to” a coordinate branch of

government. Id. at 11. This result is required by the fundamental structure of our

constitutional system and by the very nature of judicial power.

LAWSON, J., and EDWARD C. LaROSE, Associate Justice, concur.


                                        - 39 -
PARIENTE, J., dissenting.

       I dissent. With its decision today, the majority of this Court fails to provide

any judicial remedy for the students who are at the center of this lawsuit—African-

American students, Hispanic students, economically disadvantaged students, and

students who attend school in poorer school districts or attend persistently low-

performing schools. The majority of this Court eviscerates article IX, section 1, of

the Florida Constitution, contrary to the clear intent of the voters, and abdicates its

responsibility to interpret this critical provision and construe the terms “uniform,”

“efficient,” and “high quality,” enshrined in that provision. Today, even more

emphatically than before the 1998 amendment to article IX, section 1, I echo the

words of Justice Anstead, joined by Justices Kogan and Shaw: “By [the Court’s]

action today, we have reduced to empty words a constitutional promise to provide

an adequate educational system for our children.” Coalition for Adequacy &

Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 410 (Fla. 1996) (Anstead,

J., dissenting).

       Article IX, section 1 became one of the strongest education provisions in the

country when, in 1998, the voters of this State approved an amendment, which

designated the education of children “a fundamental value of the people of the

State of Florida” and placed “a paramount duty [on] the state” to provide a

“uniform, efficient, safe, secure, and high quality system of free public schools”


                                         - 40 -
for Florida’s students. Art. IX, § 1(a), Fla. Const. That amendment, a product of

the 1998 Constitution Revision Commission, was intended to remedy the Court’s

1996 opinion in Coalition, which held that article IX, section 1 did not provide

judicially manageable standards for the courts to adjudicate claims brought under

the provision. 680 So. 2d at 407-08.

      In this case, Petitioners—a group of public school parents, students, and

citizen organizations—brought a declaratory action against the State, alleging that

the State is violating its constitutional obligation to provide all students with a

uniform, efficient, and high quality education system. The trial court held a four-

week long bench trial, at which evidence was presented that, in 2014, only 58% of

Florida students across all grades scored on grade level on statewide reading

assessments; that number was only 56% for statewide math assessments. Petrs.’

Initial Br. at 4.11 To properly understand these statistics, “grade level” means only

that a student’s performance is at least “satisfactory;” 12 which also signifies that

the student “may need additional support for the next grade/course.”13 These


       11. 2014 provides the most recent results from the record. See Petrs.’ Initial
Br. at 4.

      12. § 1008.22(3)(e)1., Fla. Stat. (2018); see id. § 1008.34(1)(a).

       13. Florida Standards Assessments, Understanding Florida Standards
Assessments Reports 4 (2018),
https://fsassessments.org/core/fileparse.php/4344/urlt/Understanding_FSA_Report
s_2018_041918_Final.pdf.


                                         - 41 -
figures are on average lower for African-American students, Hispanic students,

and economically disadvantaged students.

       In what judicial universe do the facts presented demonstrate that the State is

fulfilling its constitutional obligation to provide a “uniform,” “efficient,” and “high

quality” education? 14 By holding that a claim like Petitioners’—which alleged

wide disparities in performance among certain subgroups of students and

persistently low-performing schools—cannot be adjudicated by the courts, the

majority of this Court renders article IX, section 1, a “hollow phrase[] of

nothingness.” Dissenting op. at 79 (Lewis, J.). Indeed, the effect of the plurality’s

holding is to deny Petitioners the opportunity to establish in a court of law that the

State has failed to live up to its paramount constitutional obligation set forth in

article IX, section 1. 15



       14. Although counsel for the Department of Education alleged during oral
argument that student performance in Florida is superior to student performance in
New Jersey, where the New Jersey Supreme Court first granted relief in Abbott v.
Burke, 575 A.2d 359 (N.J. 1990), the facts show otherwise. According to the 2017
report card issued by the Education Week Research Center, New Jersey ranked
second in the nation overall in education, while Florida ranked 29th. See Samuel
Stebbins & Thomas C. Frohlich, Geographic Disparity: States with the Best (and
Worst) Schools, USA Today (Feb. 8, 2018),
https://www.usatoday.com/story/money/economy/2018/02/08/geographic-
disparity-states-best-and-worst-schools/1079181001/.

       15. The plurality refuses to look at the jurisprudence of other state supreme
courts addressing similar constitutional provisions. And, while Florida’s education
system should not necessarily be compared to other states, it is worth noting that,
as of February of this year, Florida’s education system ranks 29th in the country.

                                         - 42 -
      For these and all the reasons that follow, I dissent from the conclusion of the

majority of this Court that the claim raised by Petitioners in this case is not

justiciable. I also concur with Justice Lewis’s excellent explanation of

justiciability and why this particular controversy is justiciable. See generally

dissenting op. (Lewis, J.).

                                  Petitioners’ Claim

      The plurality opinion is premised on a basic mischaracterization of

Petitioners’ claim as one to “have the State of Florida’s K-12 public education

system declared unconstitutional.” Plurality op. at 1. This mischaracterization sets

the stage for the rest of the plurality’s opinion, including its conclusion that

Petitioners’ claim is non-justiciable.

      Contrary to the plurality’s contention, Petitioners’ claim is not “a blanket

challenge to the constitutionality of the K-12 education system.” Plurality op. at

16. Rather, Petitioners allege that the State has violated its constitutional

obligation under article IX, section 1 in specific ways. Most notably, Petitioners




Stebbins & Frohlich, supra note 14. This ranking is based in part on the fact that
“Florida’s public schools receive some of the lowest funding of any state school
system in the country.” Id. In fact, Florida’s per-pupil spending falls well below
the national average. Map: Per-Pupil Spending, State-by-State, Educ. Week (June
6, 2018), https://www.edweek.org/ew/collections/quality-counts-2018-state-
finance/map-per-pupil-spending-state-by-state.html. Indeed, the national average
is $12,256 per student, while Florida spends a mere $9,737 per student.


                                         - 43 -
allege that the State has failed to address wide disparities in performance among

certain subgroups of students—specifically, African-American students, Hispanic

students, students experiencing poverty, and students attending school in poorer

school districts—as well as persistently low-performing schools. In support of

their claim, Petitioners set forth detailed statistics, which show, for example,

“disparities in reading achievement by subgroup as only 38% of Black students

passed reading; 54% of Hispanic students; 19% of English Language Learners

(ELL); 47% of students receiving Free-Reduced Lunch (FRL) (a proxy for

poverty); and 37% of homeless students.” Petrs.’ Initial Br. at 4 (footnotes

omitted). These statistics demonstrate that disparities do not just exist among

certain subgroups of students, but also between school districts. For example:

      The statewide average passing rate for reading for third graders is
      56%, and 55% for tenth graders. In St. Johns, 76% of third graders
      and 75% of tenth graders passed reading. Hamilton has the lowest
      overall reading passing rate for third graders at 35% of students. The
      lowest reading rate for tenth graders was Gadsden with 26%. Thus,
      the difference in reading rates among districts in third grade is 41
      percentage points, and 49 in tenth grade.
             On the 8th grade math assessment, Bradford had the lowest
      passing rate at 5% overall, 0% for Black students, 6% for FRL, and
      0% for students with disabilities.
             In 2015, Franklin had the lowest graduation rate at 49%, and
      three other school districts were below 60%. In contrast, St. Johns
      and three other districts had graduation rates over 90%, and Dixie had
      the highest at 96.9%. The difference in graduation rates between
      Franklin and Dixie was almost 48 percentage points. One of the
      State’s measures of college readiness shows a statewide average of
      27%, with disparities ranging from St. Johns at 55% versus Hamilton
      with 1%.

                                        - 44 -
Id. at 5 (footnotes omitted). The accuracy of these statistics are not challenged.

      Further, Petitioners set forth statistics showing that, among other things, “28

schools (all serving high poverty students) . . . are persistently low-performing (5

or more years as F).” Id. at 6. In fact, despite concluding that Petitioners’ claim

was non-justiciable, the trial court in this case expressed particular concern about

the issue of persistently low-performing schools:

      [T]he Court must note that it was surprised at how long a school could
      remain in “F” status pursuant to the enactments of the legislature. If
      there is one area that this Court was most concerned about based on
      the evidence heard, it is in the area of Differentiated Accountability.
      There can be little doubt that allowing a school to remain in F status
      for an extended period of time raises serious issue regarding the
      constitutional acceptance of such an event. . . . To bring the matter to
      a point, I would raise the following question. How many people
      would want a judge deciding or presiding over their lawsuit in a
      Circuit that had been rated by the Supreme Court with an “F” as to
      judicial performance for many years? Similarly, parents do not want
      their children attending a school that continues to receive an “F”
      based on its performance rating. The evidence presented, while not
      rising to the level of a constitutional violation, should serve as a
      warning not to be complacent about a local districts [sic] failure to
      address long term “F” schools. This is especially true since the
      Defendants [sic] own evidence shows that an “F” school can be turned
      around without additional resources being provided.

Final J. at 13-14.

      The trial court also expressed concern over the State’s “handling of local

School Districts [sic] failure to address the problem of long term ‘F’ schools at the

local level,” stating that “[a]t some point in time the State Board should do more if



                                        - 45 -
the local School District will not.” Findings of Fact at 70. Thus, contrary to the

plurality’s contention, Petitioners’ claim is not a “blanket challenge” to the entire

state education system but, rather, a claim that the State is violating its

constitutional obligation in specific ways—most significantly, by failing to address

wide disparities in performance among certain subgroups of students and schools.

     Petitioners’ Claim Brought Under Article IX, Section 1 Is Justiciable

       I completely agree with Justice Lewis that this Court “ha[s] a responsibility

to interpret and apply the rights and principles set forth in the Constitution,

including article IX, section 1(a).” Dissenting op. at 69 (Lewis, J.). This

responsibility includes adjudicating controversies brought under article IX, section

1.

       To conclude that the claim presented is not capable of judicial resolution

would “reduce to empty words a constitutional promise to provide an adequate

educational system for our children.” Coalition, 680 So. 2d at 410 (Anstead, J.,

dissenting). While deference to the Legislature and separation of powers are

clearly important constitutional principles, this Court cannot use those principles to

escape its obligation to interpret provisions of the Florida Constitution and enforce

the rights it grants to the citizens of this state. See League of Women Voters v.

Detzner, 172 So. 3d 363, 400 (Fla. 2015) (“While the Legislature is generally

entitled to deference as a result of its role in the redistricting process, that


                                          - 46 -
deference applies only ‘so long as [its redistricting] decision[s] do[ ] not violate the

constitutional requirements.” (alterations in original) (quoting In re Senate Joint

Res. of Legislative Apportionment 1176, 83 So. 3d 597, 599 (Fla. 2012)

(Apportionment I))).

      In 2012, for example, this Court was tasked with defining for the first time

the new standards set forth in the Fair Districts Amendment, which had been

approved by voters two years earlier. See generally Apportionment I, 83 So. 3d

597. This Court did not shy away from the task, but rather recognized its

“extremely weighty responsibility” entrusted to it “by the citizens of this state

through the Florida Constitution to interpret the constitutional standards and to

apply those standards to the legislative apportionment plans.” Id. at 599. Just as

the Court was able to define the terms in the Fair Districts Amendment, it is

equally able to define the terms in article IX, section 1.

      In concluding that Petitioners’ claim is not justiciable, the First District

Court of Appeal “respectfully disagree[d]” with other state supreme courts that

have found similar claims justiciable. Citizens for Strong Sch., Inc. v. Fla. State

Bd. of Educ., 232 So. 3d 1163, 1172 (Fla. 1st DCA 2017). Instead, the First

District relied on Marrero v. Commonwealth, 739 A.2d 110, 112-13 (Pa. 1999),

where the Pennsylvania Supreme Court held that such a claim was non-justiciable.

See Citizens for Strong Sch., 232 So. 3d at 1172. Three months before the First


                                         - 47 -
District’s decision, however, the Pennsylvania Supreme Court declined to follow

its decision in Marrero and held that Petitioner’s challenge to the education system

based on the state constitution was justiciable. William Penn Sch. Dist. v. Pa.

Dep’t of Educ., 170 A.3d 414, 457 (Pa. 2017). In declining to follow Marrero, the

Pennsylvania Supreme Court explained:

             To the extent that our prior cases have suggested, if murkily,
      that a court cannot devise a judicially discoverable and manageable
      standard for Education Clause compliance that does not entail making
      a policy determination inappropriate for judicial discretion, or that we
      may only deploy a rubber stamp in a hollow mockery of judicial
      review, we underscore that we are not bound to follow precedent
      when it cannot bear scrutiny, either on its own terms or in light of
      subsequent developments.

Id. at 456. Thus, in holding that article IX, section 1 of our state constitution does

not provide judicially manageable standards, the First District relied on outdated

and overruled precedent, to the exclusion of the majority of other state supreme

courts.

          Although the plurality does not go so far as to say that a claim under article

IX, section 1 could never be justiciable, it nevertheless concludes that Petitioners’

claim in this case is not justiciable. See plurality op. at 17. In reaching this

conclusion, the plurality, without explanation—like the First District—declines to

consider other jurisdictions that have found similar claims justiciable. See id. at

19. Instead, the plurality limits itself “to the language of the Florida Constitution

and this Court’s decisions,” ignoring the reasoning of the majority of other state

                                           - 48 -
supreme courts that have held that similar claims under their respective state

constitutions are justiciable. Id.16 Indeed, those courts adjudicated similar claims

even though many of the education constitutional provisions in their state

constitutions are less detailed than ours. 17


        16. See, e.g., Lobato v. State, 304 P.3d 1132, 1137 (Colo. 2013) (“Plaintiffs
presented a justiciable claim because ‘determin[ing] whether the state’s public
school financing system is rationally related to the constitutional mandate that the
General Assembly provide a “thorough and uniform” system of public education’
does not ‘unduly infring[e] on the legislature’s policymaking authority.’ ” (quoting
Lobato v. State, 218 P.3d 358, 363 (Colo. 2008))); Conn. Coalition for Justice in
Educ. Funding, Inc. v. Rell, 990 A.2d 206, 210 (Conn. 2010) (“[T]his court has a
role in ensuring that our state’s public school students receive th[e] fundamental
guarantee” provided in the state constitution.); Rose v. Council for Better Educ.
Inc., 790 S.W.2d 186, 189 (Ky. 1989); Cruz-Guzman v. State, 916 N.W.2d 1, 9
(Minn. 2018) (“Although specific determinations of educational policy are matters
for the Legislature, it does not follow that the judiciary cannot adjudicate whether
the Legislature has satisfied its constitutional duty under the Education Clause.”);
Columbia Falls Elementary Sch. Dist. No. 6 v. State, 109 P.3d 257, 261 (Mont.
2005) (“As the final guardian and protector of the right to education, it is
incumbent upon the court to assure that the system enacted by the Legislature
enforces, protects and fulfills the right. We conclude this issue is justiciable.”);
Leandro v. State, 488 S.E.2d 249, 253 (N.C. 1997) (“It has long been understood
that it is the duty of the courts to determine the meaning of the requirements of our
Constitution.”); McCleary v. State, 269 P.3d 227, 231 (Wash. 2012) (“The
judiciary has the primary responsibility for interpreting [the constitution] to give it
meaning and legal effect.”); see also, e.g., Hoke Cty. Bd. of Educ. v. State, 599
S.E.2d 365 (N.C. 2004).

       17. See Ala. Const. art. XIV, § 256; Alaska Const. art. VII, § 1; Ariz. Const.
art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const. art. IX, § 1; Colo. Const. title 22,
§ 1; Conn. Const. art. VIII, §§ 1-2; Del. Const. art. X, § 1; Ga. Const. art. VIII, § 1;
Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill. Const. art. X, § 1; Ind. Const.
art. VIII, § 1; Iowa Const. art. IX, § 1; Kan. Const. art. VI, § 1; Ky. Const. § 138;
La. Const. art. VIII, § 1; Me. Const. art. VIII, § 1; Md. Const. art. VIII, § 1; Mass.
Const. art. V, § 2; Mich. Const. art. VIII, § 2; Minn. Const. art. VIII, § 1; Miss

                                          - 49 -
      In concluding that a claim similar to Petitioners’ in this case was justiciable,

the Supreme Court of Kentucky wrote: “The judiciary has the ultimate power, and

the duty, to apply, interpret, define, construe all words, phrases, sentences and

sections of the . . . Constitution as necessitated by the controversies before it. It is

solely the function of the judiciary to so do.” Rose, 790 S.W.2d at 209. Likewise,

in declining to follow its earlier precedent, the Supreme Court of Pennsylvania

explained the importance of the court’s judicial review function:

             Two decades after Marbury [v. Madison, 5 U.S. 137 (1803)], in
      another paean to the importance of judicial review, Chief Justice
      Marshall cautioned that “[t]he judiciary cannot, as the legislature may,
      avoid a measure because it approaches the confines of the
      [C]onstitution. We cannot pass it by because it is doubtful. With
      whatever doubts, with whatever difficulties, a case may be attended,
      we must decide it, if it be brought before us.” Cohens v. Virginia, 19
      U.S. 264, 404 (1821). The spirit of Chief Justice Marshall’s
      cautionary refrain has informed the clear majority of state courts that
      have held it their judicial duty to construe interpretation—begging
      state education clauses like ours to ensure legislative compliance with
      their constitutional mandates, no matter the difficulties invited or, in
      many cases, confronted. We hold that our Education Clause, viewed




Const. art. VIII, § 201; Mo. Const. art. IX, § 1(a); Mont. Const. art. X, § 1; Neb.
Const. art. VII, § 1; Nev. Const. art. XI, § 1; N.H. Const. art. 83; N.J. Const. art.
XIII, § 1; N.M. Const. art. XII; N.Y. Const. art. XI, § 1; N.C. Const. art. I, § 15; id.
art. IX, §§ 1-2; N.D. Const. art. VIII, §§ 1, 4; Ohio Const. art. VI, § 2; Okla. Const.
art. XIII, § 1; Or. Const. art. VIII, §§ 3, 8; Pa. Const. art. III, § 14; R.I. Const. art.
XII, § 1; S.C. Const. art. XI, § 3; S.D. Const. art. VIII, § 1; Tenn. Const. art. XI,
§ 12; Tex. Const. art. VII, § 1; Utah Const. art. X, § 1; Vt. Const. § 68; Va. Const.
art. VIII, § 1; Wash. Const. art. IX, § 1; W. Va. Const. art. XII, § 1; Wis. Const.
art. X, § 3; Wy. Const. art. I, § 23.


                                          - 50 -
      in the overarching context of our cases taking up the question of
      abstention from political questions, compels the same result.

William Penn, 170 A.3d at 463.

      In support of its conclusion in this case, the plurality attempts to distinguish

this Court’s precedent in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), reasoning

that Holmes addressed a narrow question involving a specific voucher program.

See plurality op. at 27. However, nothing in Holmes suggests that its reasoning

applies only to specific education program challenges. In fact, in Holmes, we

clearly stated that the entire purpose of the 1998 amendment to article IX, section 1

was to “provide standards by which to measure the adequacy of the public school

education provided by the state.” 919 So. 2d at 403. And it was because the 1998

amendment added judicially manageable standards that this Court was able to

determine whether the program at issue in Holmes violated article IX, section 1.

Id. at 409. Just as in Holmes, a court can use the judicially manageable standards

added to article IX, section 1 in 1998 to determine whether the State has violated

its obligation in the context of Petitioners’ claim in this case.

      As an additional justification for concluding that Petitioners’ claim is not

justiciable, the plurality reasons that the claim “does not survive the reasoning in

Coalition.” Plurality op. at 17. But this ignores the purpose of the 1998

amendment, which was to provide judicially manageable standards so that, in the




                                         - 51 -
future, courts would be equipped to evaluate alleged constitutional violations. See

Holmes, 919 So. 2d at 403.

      The plurality’s main contention with Petitioners’ claim appears to be that

they failed to present a judicially manageable standard that would allow this Court

to consider their claim in a way that avoids judicial intrusion into the functions of

the legislative and executive branches. See plurality op. at 30-31. This

misunderstands Petitioners’ claim as well as the judiciary’s role. Petitioners do not

ask the judiciary to recreate Florida’s education system. Rather, they ask the

judiciary to adjudicate whether, in light of the performance statistics they have

presented and the State’s statutory standards, the State has violated its

constitutional obligation under article IX, section 1.

          Article IX, Section 1 Provides Judicially Manageable Standards

      As this Court stated almost ninety years ago, “[t]he object of constitutional

construction is to ascertain and effectuate the intention and purpose of the people

in adopting it.” Amos v. Mathews, 126 So. 308, 316 (Fla. 1930). This Court has

reiterated that principle on multiple occasions. See, e.g., Apportionment I, 83 So.

3d at 599 (“When interpreting constitutional provisions, this Court endeavors to

ascertain the will of the people in passing the amendment.”); Pleus v. Crist, 14 So.

3d 941, 944-45 (Fla. 2009).




                                        - 52 -
      Indeed, in asserting that the State has violated its constitutional obligation,

Petitioners explain that the State has already determined what a high quality

education is and how to measure it. They cite, for example, section 1003.41,

Florida Statutes (2017), which sets forth the “core content knowledge and skills

that K-12 public school students are expected to acquire.” § 1003.41, Fla. Stat.

(2017). In conjunction with the core content students are expected to learn, the

Legislature has tasked the Commissioner of Education with “design[ing] and

implent[ing] a statewide, standardized assessment program aligned to the core

curricular content” established in section 1003.41. Id. § 1008.22(3). The State

Board of Education then sets “a passing score for each statewide, standardized

assessment.” Id. § 1008.22(3)(e)2.

      Further, Petitioners cite section 1000.03(5)(d), which prioritizes that

“[a]cademic standards for every level of the K-20 education system are aligned,

and education financial resources are aligned with student performance

expectations at each level of the K-20 education system.” Id. § 1000.03(5)(d).

However, Petitioners argue that “[n]either the Legislature nor the Department of

Education has ensured that education financial resources are aligned with student

performance expectations as required by statute.” Petrs.’ Initial Br., at 9 (citing

§1000.03(5)(d)). This claim is very different than simply asking that the State

allocate additional funding; rather, it is about the “efficient” use of the resources


                                         - 53 -
provided based on evidence-based practices that is critical to the success of all

students. Thus, Petitioners do not ask the judiciary to re-create the state education

system, but only to determine whether the State has complied with its

constitutional obligation under its own standards in light of the fact that many

students—particularly certain subgroups of students—are failing to meet the

standards set by the State.

      The plurality contends that Petitioners’ reliance on the State’s own standards

is “foundationally flawed” because “adopting State standards as constitutional

minima would have the perverse effect of encouraging the weakening of

curriculum standards in order to achieve higher passage rates and to satisfy court-

imposed requirements.” Plurality op. at 31-32 (quoting Br. of Amicus Foundation

for Excellence in Educ. in Support of Resps., at 13-14). 18 The reasoning is faulty.




       18. Ironically the plurality relies on a statement by the Foundation for
Excellence in Education, an entity dedicated to charter schools and the promotion
of “privatization of schools.” The website of the Foundation for Excellence in
Education, a foundation based in Tallahassee and founded by former Governor Jeb
Bush, explains that it strongly supports charter schools and school choice. See
About Us, ExcelinEd, https://www.excelined.org/about/approach/ (last visited Dec.
17, 2018). Its mission is to promote “privatization” of schools. Foundation for
Excellence in Education, Conservative Transparency,
http://conservativetransparency.org/org/foundation-for-excellence-in-education/
(last visited Dec. 17, 2018). Explaining the mission of the amici is not an “ad
hominem approach to challenging [the] logic,” nor is it an “attempt[] to drag
politics into judicial decision making.” Plurality op. at 32, note 9. It is simply a
fact that the plurality embraces the faulty reasoning of the amici.


                                        - 54 -
If the State were to intentionally adopt low standards to achieve higher pass rates,

those standards could be challenged as a violation of the State’s constitutional

obligation to provide a “high quality” education. Simply because Petitioners in

this case do not challenge the standards set by the State does not render their claim

non-justiciable.

      In my view, using the State’s own standards, a court could evaluate

Petitioners’ claim by construing the judicially manageable terms set forth in article

IX, section 1, as other state supreme courts have done with their respective state

constitutions. See, e.g., Rose, 790 S.W.2d at 211; Davis v. State, 804 N.W.2d 618,

623-24 (S.D. 2011); Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1259 (Wyo.

1995). And, while the definitions set forth below could generally apply to any

claim brought under article IX, section 1 they are construed here in the context of

Petitioners’ claim, which does not include a challenge to the constitutionality of the

State’s standards.

                                     Uniformity

      When defining constitutional terms, it is appropriate to utilize dictionary

definitions. See Apportionment I, 83 So. 3d at 632; see also, e.g., Lobato, 218 P.3d

at 375; Davis, 804 N.W.2d at 624. “Uniform” is defined as “having always the

same form, manner, or degree: not varying or variable” or “consistent in conduct or




                                        - 55 -
opinion.” Merriam-Webster, https://www.merriam-

webster.com/dictionary/uniform (last visited Dec. 17, 2018).

      In 1997, construing the 1968 version of article IX, section 1, this Court

concluded that a “uniform” system is one that “operate[s] subject to a common

plan or serve[s] a common purpose.” Sch. Bd. of Escambia Cty. v. State, 353 So.

2d 834, 838 (Fla. 1977) (emphasis added). Thereafter, we explained that

“uniformity,” as used in article IX, section 1, “requires that a system be provided

that gives every student an equal chance to achieve basic educational goals

prescribed by the legislature.” St. Johns Cty. v. Ne. Fla. Builders Ass’n, 583 So. 2d

635, 641 (Fla. 1991); see also Rose, 790 S.W.2d at 211 (“Each child . . . must be

provided with an equal opportunity to have an adequate education.”).

      Significantly, in defending against the plaintiffs’ claim in Coalition, the

State conceded in this Court that “the phrase ‘uniform’ has manageable standards

because by definition this word means a lack of substantial variation.” 680 So. 2d

at 408. Further construing this term in Holmes, this Court concluded that the

Opportunity Scholarship Program at issue violated article IX, section 1 because it

“reduce[d] money available to the free schools” and “fund[ed] private schools that

[we]re not ‘uniform’ when compared with each other or the public system.” 919

So. 2d at 398 (emphasis added).




                                        - 56 -
      Importantly, as Justice Kogan explained, the uniformity requirement of

article IX, section 1 “is not and never was intended to require that each school

district be a mirror image of every other one.” Fla. Dep’t of Educ. v. Glasser, 622

So. 2d 944, 950 (Fla. 1993) (Kogan, J., specially concurring). Rather, “variance

from county to county is permissible so long as no district suffers a disadvantage

in the basic educational opportunities available to its students, as compared to the

basic educational opportunities available to students of other Florida districts.” Id.

(emphasis added). Other state supreme courts have expressed similar

understandings of the term “uniform,” as used in this context. E.g., Lobato, 304

P.3d at 1138 (defining “thorough and uniform” in the state’s constitution as “a free

public school system that is of a quality marked by completeness, is

comprehensive, and is consistent across the state”); Leandro, 488 S.E.2d at 348

(concluding that the right ensures that all children enjoy the right but does not

require equal funding among the school districts).

      These definitions provide a workable standard by which courts can

determine whether the State has fulfilled its paramount duty under article IX,

section 1. In this case, a court could apply these definitions and determine

whether, in the context of Petitioners’ claim, the State has violated its

constitutional obligation under article IX, section 1.




                                         - 57 -
                                        Efficient

      “Efficient” is defined as “productive of desired effects.” Merriam-Webster,

https://www.merriam-webster.com/dictionary/efficient (last visited Dec. 17, 2018).

Also looking to dictionary definitions, the Supreme Court of Wyoming defined

“efficient” in this context as “productive without waste.” Campbell, 907 P.2d at

1258-59 (quoting Webster’s Collegiate Dictionary (10th ed. 1994)); see also

Edgewood Independent Sch. Dist. v. Kirby, 777 S.W.2d 391, 395 (Tex. 1989)

(defining “efficient” as “the use of resources so as to produce results with little

waste”). The Supreme Court of Kentucky went further, defining “efficient,” as

used in its state constitution, as a system that is not only “operated with no waste,

no duplication, no mismanagement, and with no political influence,” but also,

“provide[s] funding which is sufficient to provide each child in Kentucky an

adequate education.” Rose, 790 S.W.2d at 212-13.

      Currently, the State uses a complex funding formula—the Florida Education

Finance Program (FEFP)—that includes both state and local funds and considers

many factors, including but not limited to economic disparity, cost of living, and

population, to determine how much money to allocate to each school district. See

generally § 1011.62, Fla. Stat. (2018). Petitioners do not challenge the amount of

funding but, rather, assert that the State has failed to ensure that its allocations are

the best use of funding. Petitioners allege that the State is not funding schools in


                                          - 58 -
an efficient manner, as required by article IX, section 1. See Second Am.

Complaint at 19 (“Many of the State’s reforms and programs . . . have wasted

millions of dollars without producing the desired effect of a high quality public

school system, and are thus not efficient.”).

      Accordingly, “efficient,” as used in article IX, section 1 should be defined to

mean that the State must allocate resources in a productive manner and without

waste. In this case, a court could apply this definition of “efficient,” and determine

whether, in the context of Petitioners’ claim, the State has violated its

constitutional obligation under article IX, section 1.

                                     High Quality

      Finally, perhaps the most critical term in article IX, section 1 must be

construed. “Quality” is defined as “degree of excellence.” Merriam-Webster,

https://www.merriam-webster.com/dictionary/quality (last visited Dec. 17, 2018).

“High,” of course, modifies the word “quality” to demand something more than

average quality. In defining this term, we are cognizant of the fact that the term

“high quality” is used twice in article IX, section 1. “Adequate provision shall be

made by law for a uniform, efficient, safe, secure, and high quality system of free

public schools that allows students to obtain a high quality education . . . .” Art.

IX, § 1, Fla. Const. (emphasis added). The plain language of the provision requires




                                         - 59 -
the State to not only provide a high quality system, but also allow students to

obtain a high equality education.

      As the Supreme Court of North Carolina has explained, courts may look to

“[e]ducational goals and standards” set forth by the Legislature for determining

whether the State has met its constitutional obligation. Leandro, 488 S.E.2d at

259. Indeed, the Florida Legislature has already defined “high quality” by

providing substantive content standards for students. As an example, the State

prioritizes students’ preparation for postsecondary education without remediation.

§ 1000.03(5)(a), Fla. Stat. (2018). The State also prioritizes students’ preparation

“to become civically engaged and knowledgeable adults who make positive

contributions to their communities.” Id. § 1000.03(5)(c).

      Accordingly, for purposes of the controversy before us, “high quality”

means an education system that allows all students an equal opportunity to learn

the core content knowledge set by the State and become knowledgeable and

engaged adults. In this case, a court could apply this definition of “high quality”

and determine whether, in the context of Petitioners’ claim, the State has violated

its constitutional obligation under article IX, section 1.

      Thus, contrary to the plurality’s contentions, using basic rules of statutory

construction—including looking to the dictionary to determine plain meaning—the

terms in article IX, section 1 are fully capable of being construed by the courts.


                                         - 60 -
Reading these definitions together, a court would be perfectly capable of

determining whether, under the facts presented, the State has fulfilled its

“paramount” constitutional duty to make “adequate provision” for a “uniform,

efficient . . . and high quality system of free public schools” for Florida’s children.

Art. IX, § 1, Fla. Const. In this case, because the trial court concluded that article

IX, section 1 did not provide judicially manageable standards and used the wrong

evidentiary standard for evaluating the petitioners’ claim, I would remand the case

back to the trial court to reconsider the evidence and Petitioners’ claim in light of

these definitions.

         No Independent Basis Exists for Rejecting Petitioners’ Claim

      As an “independent basis” for rejecting Petitioners’ claim, the plurality

concludes that “on the record presented here the Petitioners still could not prevail.”

Plurality op. at 34. In support of this conclusion, the plurality notes the trial

court’s finding that Petitioners “failed to establish any causal relationship between

any alleged low student performance and a lack of resources,” and that “the weight

of the evidence . . . establishes a lack of any causal relationship between additional

financial resources and improved student outcomes.” Id. at 35. However, even

though the trial court used the phrase “weight of the evidence,” it made clear that,

to prevail, Petitioners would have to show that the State’s actions “are irrational or

unconstitutional beyond a reasonable doubt.” Final J. at 24.


                                         - 61 -
      Although the trial court ultimately concluded that Petitioners failed to

establish causation, significant evidence was presented, indicating that when

additional resources were allocated to low-performing schools, those schools

improved. In fact, the State’s own expert agreed with Petitioners that more

resources are needed to educate African-American students, Hispanic students, and

students in poverty. That very expert has written articles on the fact that state

education systems “should . . . effectively use more resources for poor kids.” The

State’s expert further agreed with Petitioners’ contention that money matters when

it is spent efficiently, testifying: “Effective use by management, the funds will be

effective.”19 This is logical given that the students who perform the lowest on

statewide assessments generally attend schools in poorer school districts.

      Indeed, only 5% of 8th graders in Bradford County passed the statewide

mathematics assessment, with a pass rate of 0% among African-American

students. Petrs.’ Initial Br. at 5. That’s correct: Zero. None. And only 26% of the

10th graders in Gadsden County passed the statewide reading assessment. Id. On

the other hand, in St. Johns County, one of the State’s wealthier school districts,




       19. The State’s expert has consistently testified in over twenty of these
education cases nationwide on behalf of state governments since the 1970s that
there is generally no correlation between spending more money and higher student
performance.


                                        - 62 -
76% of 3rd graders and 75% of 10th graders passed the statewide reading

assessment. Id.

      Additionally, the trial court reached its conclusion on causation only after

determining that the terms in article IX, section 1, were not capable of judicial

construction. In other words, the trial court’s conclusion on causation is based on a

flawed premise—that article IX, section 1 does not provide judicially manageable

standards—and an improper evidentiary standard, beyond a reasonable doubt.

Thus, because the trial court’s findings on the merits were made in a constitutional

vacuum, they are not entitled to deference.

      Based on the evidence presented, Petitioners have made a strong showing

that the State has failed to provide a “high quality” and “efficient” education to all

of Florida’s students. Thus, we cannot presume that if this case were remanded to

the trial court to reconsider the evidence and Petitioners’ claim using these

definitions and the proper evidentiary standard, the trial court would reach the

same conclusion. Accordingly, I disagree that the trial court’s finding that

Petitioners’ “failure to establish such a causal relationship provides an independent

basis for rejection of their claims.” Plurality op. at 35.

 We Should Remand this Case to the Trial Court to Reconsider the Evidence
           and Petitioners’ Claim in Light of These Definitions

      In concluding that the State has not violated its constitutional obligation, the

trial court observed that in 2014, 58% of students across grades 3 through 10

                                         - 63 -
scored at or above grade level in reading, “a two percentage point improvement

over 2011.” Findings of Fact at 81. The trial court further found that, in 2001,

only 47% of students were reading at or above grade level. Id. at 80. The trial

court also devoted eight pages to comparing Florida’s results to other states’

results. See id. at 71-79. However, in my view, “adequate provision,” as used in

article IX, section 1, is an objective standard that does not consider improvements

that have been made or what other states are doing. Further, it is hard to

understand how objectively Florida compares to other states that might not even

have the “high quality” education mandate in their constitutions when it ranks 29th

overall in education and its per-pupil spending falls well below the national

average. See supra note 15.

      Instead of focusing on improvements over the years or state-by-state

comparisons, the trial court should have considered the statewide deficits on

achievement in reading and math. 20 While it cannot be disputed that Florida has

made improvements, the evidence, as found by the trial court, still shows that only

a bare majority of Florida’s children are reading at grade level; 42% are below

grade level. Again, I must ask: In what judicial universe does the set of facts




       20. See, e.g., Leandro, 488 S.E.2d at 259 (“Another factor which may
properly be considered in this determination is the level of performance of the
children of the state and its various districts on standard achievement tests.”).


                                        - 64 -
presented demonstrate that the State is fulfilling its constitutional obligation to

provide a “uniform,” “efficient,” and “high quality” education?

      Using the definitions provided and the State’s own standards as a measuring

stick, the trial court could very well have concluded on remand that the State has

violated its constitutional obligation under article IX, section 1 thereby entitling

Petitioners to a declaratory judgment. The trial court could then have heard

arguments on the appropriate remedy. 21

      Certainly, I recognize that the task of making adequate provision for a high

quality education is primarily for the Legislature. We are not legislators. We are

justices charged with enforcing the rights set forth in Florida’s Constitution. That

is why with article IX, section 1 the citizens of this State intended for

compliance—or noncompliance—with that provision to be adjudicated by the

judiciary when properly brought to the court. Indeed, the task of construing the

constitution and determining whether the State is fulfilling its express obligations

required by the constitution—and the citizens of this State who approved the




       21. See, e.g., Idaho Schs. for Equal Educ. Opportunity v. State, 976 P.2d
913, 922 (Idaho 1998) (“We do not express any opinion at this time about the
appropriate relief that should be granted if the trial court decides that Plaintiffs are
entitled to relief.”); Leandro, 488 S.E.2d at 261 (stating that if, on remand, the trial
court finds a violation “it will then be the duty of the court to enter a judgment
granting declaratory relief and such other relief as needed to correct the wrong
while minimizing the encroachment on the other branches of government”).


                                         - 65 -
relevant constitutional language—is solely the judiciary’s task. “This duty must be

exercised even when such action serves as a check on the activities of another

branch of government or when the court’s view of the constitution is contrary to

that of other branches, or even that of the public.” Rose, 790 S.W.2d at 209.

                                   CONCLUSION

      The significance of education both to the success of our children and to a

functioning democracy cannot be overstated. The drafters of Florida’s

Constitution recognized this fact “and, accordingly, included the education

provision to guarantee that a system of free public education be established for the

citizens of Florida.” Coalition, 680 So. 2d at 409 (Overton, J., concurring). That

guarantee means nothing, however, without a judicial branch willing to perform its

constitutional duty.

      With its decision today, “this Court has failed to carry out its duty to ensure

that the legislature” and the executive branch have complied with their

constitutional obligation under article IX, section 1. Id. at 410 (Anstead, J.,

dissenting). The plurality has abdicated its responsibility to interpret the

constitution and eviscerated article XI, section 1 contrary to the clear intent of the

voters. And, at the center of this dispute are the students who are at the greatest

risk of failing—African-American students, Hispanic students, economically




                                         - 66 -
disadvantaged students and school districts, and students attending persistently

low-performing schools.

      Because I would conclude that Petitioners’ claim is justiciable and would

allow them the opportunity to establish that the State is violating its constitutional

obligation, I dissent.

LEWIS and QUINCE, JJ., concur.

LEWIS, J., dissenting.

      My friends and colleagues in the majority make a very grave and harmful

mistake today. Although I understand their good-faith and well-intentioned

approach, only time will truly reveal the depth of the injury inflicted upon

Florida’s children. The words describing the right to a high quality education and

the constitutional concept of protecting that right ring hollow without a remedy to

protect the right.

      The Florida Constitution guarantees each child the right to a high quality

education. Art. IX, § 1(a), Fla. Const.; Scavella v. School Bd. of Dade Cty., 363

So. 2d 1095, 1098 (Fla. 1978) (“[A]ll Florida residents have the right to attend this

public school system for free.”). When that right is infringed upon by the

Legislature, the Department of Education, a county school board, or some other

entity, our children must have the opportunity to seek a remedy in the courts. Art.

I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any


                                         - 67 -
injury, and justice shall be administered without sale, denial or delay.”). This

proposition seems too basic to consume much ink here:

      The Government of the United States has been emphatically termed a
      government of laws, and not of men. It will certainly cease to deserve
      this high appellation if the laws furnish no remedy for the violation of
      a vested legal right.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). Here the majority now

places Florida among the very few other states which are in disagreement with

regard to whether these educational type claims are justiciable. In my view, article

IX, section 1(a) clearly presents many justiciable questions that Florida courts can

and should decide. See The Federalist No. 80, at 507-08 (Alexander Hamilton) (R.

Scigliano ed. 2000) (“The first point depends upon this obvious consideration, that

there ought always to be a constitutional method of giving efficacy to

constitutional provisions.”). This Court has already decided that article IX, section

1(a), Florida Constitution, is justiciable, and most other states which have

addressed the issue have held the same. I write separately, however, to emphasize

the propriety of Florida courts addressing these claims.

      Our Florida Constitution is a principled document, constructed with

principled words, which produces principled concepts that our citizens have

asserted as the organic law of our society. It is a dereliction of our duty as the

ultimate arbiter of Florida constitutional law to conclude that the interpretation of

that text is beyond our grasp and solely within the realm of legislative whims. We

                                         - 68 -
have a responsibility to interpret and apply the rights and principles set forth in the

Constitution, including article IX, section 1(a). Dade Cty. Classroom Teachers

Ass’n v. Legislature of Fla., 269 So. 2d 684, 686 (Fla. 1972) (“When the people

have spoken through their organic law concerning their basic rights, it is primarily

the duty of the legislative body to provide the ways and means of enforcing such

rights; however, in the absence of appropriate legislative action, it is the

responsibility of the courts to do so.”); see Marbury, 5 U.S. (1 Cranch) at 177 (“It

is emphatically the province and duty of the judicial department to say what the

law is.”). If we, as common law judges, do not discharge our duty to interpret the

Constitution—even in complex and at times largely passionate cases—then

constitutional protections would never have life. Therefore, the onus falls on this

Court to ensure that the principles enshrined by Floridians in our Constitution have

meaning and a field of operation, including the right to a high quality education.

See Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012) (“In general, the Judiciary

has a responsibility to decide cases properly before it, even those it ‘would gladly

avoid.’ ” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))).

      A “narrow exception” to the rule of judicial review is made for

nonjusticiable political questions. Id. To be sure, the doctrine of nonjusticiability

is proper in some cases under certain circumstances: for instance, when “there is ‘a

textually demonstrable constitutional commitment of the issue to a coordinate


                                         - 69 -
political department; or a lack of judicially discoverable and manageable standards

for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting

Baker v. Carr, 369 U.S. 186, 217 (1962)).22 Yet, in my view, neither of those

elements are present here.

      Preliminarily, “courts must, in the first instance, interpret the text in question

and determine whether and to what extent the issue is textually committed.”

Nixon, 506 U.S. at 228. Both the First District Court of Appeal below and the

Respondents argue that the inclusion of the phrase “by law” in article IX, section

1(a) somehow places the entire field of education as within the exclusive,

unreviewable province of the legislative and executive branches. That logic is

flawed. “By law” is a common phrase in our Constitution—used on 155

occasions—simply to signify that some legislation in the area is either permissible

or necessary. See Ison v. Zimmerman, 372 So. 2d 431, 434 (Fla. 1979); Fla. Carry,

Inc. v. City of Tallahassee, 212 So. 3d 452, 460 (Fla. 1st DCA 2017). Perhaps

nowhere is the fallacy of this reasoning more apparent than as it pertains to

Florida’s constitutional right to bear arms—article I, section 8(a), Florida

Constitution. That provision guarantees the “right of the people to keep and bear




      22. Although there are six Baker factors, the Supreme Court places most
emphasis on the first two, which are listed here. See Zivotofsky, 566 U.S. at 194-
95; see also Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion).


                                        - 70 -
arms,” “except that the manner of bearing arms may be regulated by law.” Id.

(emphasis added). Surely, neither the First District nor the Respondents could

argue with a straight face that Florida’s right to bear arms is a nonjusticiable

political question, despite it being a hot-button political issue and including the

phrase “by law.” Gun owners regularly challenge gun laws and courts

concomitantly adjudicate those challenges as justiciable. See Norman v. State, 215

So. 3d 18 (Fla. 2017). Therefore, nothing in the language of article IX, section

1(a) so much as hints at the notion that the definition of a right to education is

exclusively a legislative and executive prerogative.

      Next, courts look to whether there are “judicially discoverable and

manageable standards.” Vieth, 541 U.S. at 278 (quoting Baker, 369 U.S. at 217).

Article IX, section 1(a) expressly includes the standard for determining the

“adequate provision” for education: the public system must be “uniform, efficient,

safe, secure, and high quality.” Art. IX, § 1(a). One of these requirements,

uniformity, we have already construed and adjudicated. Bush v. Holmes, 919 So.

2d 392, 412-13 (Fla. 2006). Two of the other requirements, safe and secure, are

certainly subject to judicial review—as the trial court concluded in the final order.

Final Order at 19 (“The terms in Article IX relating to “safe” and “secure” are

subject to judicially manageable standards. . . . Florida’s trial courts deal with

issues related to safety and security all day long.”). That leaves two of the five


                                         - 71 -
requirements, which are the two at issue here, efficient and high quality. Both of

those terms are capable of interpretation. 23 Therefore, there are clearly judicial

standards to guide courts—those that the people of Florida specifically chose to

include in article IX, section 1(a).

      The process of interpreting and defining those terms may be somewhat

challenging, but nonjusticiability is simply not the appropriate solution. Judges

occasionally throw up justiciability barricades only to avoid the difficult or

complex cases, taking the easy way out by using excuses to defer the decision of a

case to a legislative body. But if our standard is to avoid difficult questions simply

because they may implicate some attenuated political concern, then the Legislature

has carte blanche to do as it pleases without any constitutional oversight or

protection. The Legislature is composed of politicians; so, by definition,

everything that the Legislature does is political in the abstract. Moreover, almost

every statute that the Legislature passes involves appropriations to some extent.

Therefore, it should be with severe caution that judges decide an entire




        23. Other courts have defined an efficient school system. E.g., DeRolph v.
State, 728 N.E.2d 993, 997-98 (Ohio 2000); Neeley v. West Orange-Cove Consol.
Indep. Sch. Dist., 176 SW.3d 746, 752-53 (Tex. 2005); Pauley v. Kelly, 255 S.E.2d
859, 705-07 (W. Va. 1979). Although high quality may be more difficult to define,
it is not beyond a precise definition. Contra Comm. for Educ. Rights v. Edgar, 672
N.E.2d 1178, 1191-93 (Ill. 1996) (holding that “high quality” cannot be judicially
ascertained based on the Illinois Constitution).


                                        - 72 -
constitutional provision is nonjusticiable on the basis that it touches upon politics

or the spending of money. I understand and recognize that separation of powers is

certainly a foundational principle of our system of government, art. II, § 3, Fla.

Const.; however, that proposition is as much about delineating a department’s

proper exercise of power as it is about establishing a system of checks and

balances to prevent the accumulation of power in any one branch. The Federalist

No. 51, at 331 (James Madison) (R. Scigliano ed. 2000) (“In framing a government

which is to be administered by men over men, the great difficulty lies in this: you

must first enable the government to control the governed; and in the next place

oblige it to control itself.”). The history of our constitutional experiment is riddled

with examples of courts struggling with difficult and complex questions—and

providing eloquent answers—to the extent and meaning of broadly phrased

constitutional protections, even when answering arguably political questions.

There are far too many illustrations to list here, so a few examples must suffice.

      First, courts have wrangled with the meaning of due process since the

inception of this country. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-35

(1976); Dent v. West Virginia, 129 U.S. 114, 122-24 (1889). Well over 100 years

ago, the United States Supreme Court concluded that “it may be difficult, if not

impossible, to give to the terms ‘due process of law’ a definition which will

embrace every permissible exertion of power affecting private rights.” Dent, 129


                                         - 73 -
U.S. at 123. Despite the impossibility of any bright-line judicial standard, here we

are today still deciding the meaning and extent of guaranteed due process rights.

E.g., Jennings v. State, 43 Fla. L. Weekly S427 (Fla. Oct. 4, 2018) (concluding that

a defendant’s due process rights were not violated). Correspondingly, courts

regularly wrestle with the rubik’s cube of due process to determine the extent of

constitutional protections despite those protections virtually always implicating

appropriations. For instance, in Goldberg v. Kelly, 397 U.S. 254 (1970), the

Supreme Court held that due process requires states to provide public-aid

recipients with a hearing before terminating their benefits. Id. at 261-66.

Although hearings necessitate funding and welfare benefits are a politically

charged issue, the Court properly decided the case on due process grounds without

mention of justiciability. Thus, for as long as courts are trying to define the

precisely undefinable, such as due process, they should be expected to apply

express constitutional principles, like those announced in article IX, section 1(a).

      Second, judges determine the meaning of equal protection, which regularly

implicates political, policy, and appropriations issues without absolute or

exactingly clear judicial standards. It is fitting to use Brown v. Board of

Education, 347 U.S. 483 (1954), as an example. The Court there held that

segregated schools are “inherently unequal” and, therefore, violate equal

protection. Id. at 495. Of course, Brown had wide-ranging effects on


                                        - 74 -
appropriations by Congress and state legislatures across the country. Moreover,

the case settled an abhorrent political debate. But, in ordering desegregation, the

Court could not set out exactingly detailed judicial standards on how the process

would occur—that was left for state school officials, legislatures, and courts to sort

out. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 299-300 (1955).24 The Court

understood that there was no one-size-fits-all judicial standard on the most

effective manner of desegregation, so it ordered state courts to supervise that

process—which most certainly entailed many policy decisions—to determine

compliance. Brown II, 349 U.S. at 299-300. A similar circumstance exists here.

Petitioners ask this Court to review certain actions, performances, and conduct of

the school system to decide whether it is within constitutional parameters. They do

not ask us to make any of the myriad policy decisions that go into the operation of

a school system; rather, they seek review of the system itself to determine if it

meets constitutional muster. Thus, any suggestion that the express Florida

constitutional right to an education is nonjusticiable cannot in my view withstand

scrutiny.



       24. In the aftermath of Brown, this Court displayed one of its most shameful
moments through the treatment of Virgil Hawkins and similarly situated students.
See State ex rel. Hawkins v. Bd. of Control, 83 So. 2d 20 (Fla. 1955). Although
any justiciability disagreement here cannot approach the foul factors at play there,
it is worth noting that not even the Hawkins Court suggested that desegregation of
schools was nonjusticiable. See generally id.


                                        - 75 -
      Third, courts draw lines every day on unreasonable searches and seizures

regardless of the fact that constantly changing circumstances make a final

resolution of Fourth Amendment protections with mathematical precision

impossible. For example, whether interpreting privacy rights in invoices for cases

of glass, Boyd v. United States, 116 U.S. 616 (1886), or cell phone location data,

Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court has

interpreted the same words to elucidate their meaning throughout the ages in vastly

different areas. Just because those standards will most assuredly change over time

does not portend that legislative actions are free from judicial review. With regard

to justiciability, it is also of no importance that court interpretations of the Fourth

Amendment will always remain behind the cutting edge of technology. Judges

will continue to interpret that language to determine the protections guaranteed for

as long as our system exists. The same should be true of the express right to an

education in Florida.

      Finally, courts have interpreted the implicit constitutional right to marriage.

In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court held that

same-sex couples have a fundamental right to marriage, which states cannot

abridge. Id. at 2604-05. Despite the fact that there is no express constitutional

right to marriage and Obergefell concerned a divisive political issue, the Court

decided the case. Tellingly for our purposes, however, not even the various


                                         - 76 -
dissenting opinions there disputed the justiciability of that question. Id. at 2611-

43. If implied constitutional rights are justiciable, then surely expressly stated

constitutional rights with parameters are—thus article IX, section 1(a) presents a

justiciable question.

      The point of these examples is to simply illustrate that courts regularly

define and interpret broad, principled constitutional language on politically

sensitive issues, regardless of appropriations and policy concerns, even in the

absence of bright-line mathematically precise standards. The instant dispute is not

about whether the education system is adequate; rather, we face the threshold

question of whether that issue can even be considered and ruled upon by Florida

courts. Our school system may or may not be adequate, but we will never know if

the Court categorically relegates the question to an unreviewable status. In my

view, justiciability is an excuse here to avoid a tough case in these education

adequacy challenges, rather than sound legal reasoning based on a valid separation

of powers analysis. And, when the risk is that a nonjusticiability label could render

nugatory our children’s constitutional right to an education, dodging our duty will

not suffice. A few months ago, our sister court in Minnesota succinctly

summarized this issue:

            Although specific determinations of educational policy are
      matters for the Legislature, it does not follow that the judiciary cannot
      adjudicate whether the Legislature has satisfied its constitutional duty
      under the Education Clause. Deciding that [these] claims are not

                                        - 77 -
      justiciable would effectively hold that the judiciary cannot rule on the
      Legislature’s noncompliance with a constitutional mandate, which
      would leave Education Clause claims without a remedy. Such a result
      is incompatible with the principle that where there is a right, there is a
      remedy.

Cruz-Guzman v. State, 916 N.W.2d 1, 9 (Minn. 2018).

      The importance of education to the people of this State and to the State itself

cannot be overstated. Education and educational opportunities are not only

foundational for the State of Florida but are part of the essential building blocks for

a free and open society. Letter from James Madison to W.T. Barry (Aug. 4, 1822),

in 9 The Writings of James Madison 103 (Gaillard Hunt ed. 1910) (“Knowledge

will forever govern ignorance: And a people who mean to be their own Governors,

must arm themselves with the power which knowledge gives.”). The life of a

strong and vibrant republic has and always will have a direct connection to the

quality of the educational status of our people.

      While the substantive concept of education generally has grown to become

both vast and complex, it does not always lend itself to fastidious description with

absolute and complete mathematical, formal precision. The politicians do not own

our government nor do they have the power to ignore specific rights placed in our

Constitution by our citizens. Art. I, § 1, Fla. Const. (“All political power is

inherent in the people.”). The protections our citizens have demanded are merely




                                         - 78 -
hollow phrases of nothingness if there is no remedy or actual access to the

protections listed.

      For these reasons, I would conclude that the rights enshrined in article XI,

section 1(a) are justiciable.

PARIENTE and QUINCE, JJ., concur.

Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction

      First District - Case No. 1D16-2862

      (Leon County)

Jodi Siegel and Kirsten Anderson of Southern Legal Counsel, Inc., Gainesville,
Florida; Timothy McLendon, Gainesville, Florida; Deborah Cupples, Gainesville,
Florida; Eric J. Lindstrom of Egan, Lev & Siwica, P.A., Gainesville, Florida; and
Neil Chonin, Gainesville, Florida,

      for Petitioners

Edward M. Wenger, Chief Deputy Solicitor General, Office of the Attorney
General, Tallahassee, Florida; Rocco E. Testani of Eversheds Sutherland (US)
LLP, Atlanta, Georgia; Matthew H. Mears, General Counsel, Department of
Education, Tallahassee, Florida; Dawn Roberts, General Counsel, Florida Senate,
Tallahassee, Florida; and Adam S. Tanenbaum, General Counsel, Florida House of
Representatives, Tallahassee, Florida,

      for Respondents

Ari Bargil of Institute for Justice, Miami, Florida; Timothy D. Keller of Institute
for Justice, Tempe, Arizona; and Richard Komer of Institute for Justice, Arlington,
Virginia,

      for Respondents Celeste Johnson, Kenia Palacios, Deaundrice Kitchen,
      Margot Logan, Karen Tolbert, and Marian Klinger



                                       - 79 -
Courtney Brewer of The Mills Firm, P.A., Tallahassee, Florida,

      for Amicus Curiae Education Law Center

Dena H. Sokolow and Renee Meenach Decker of Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC, Fort Lauderdale, Florida,

      for Amicus Curiae National Law Center of Homelessness and Poverty

Robert M. Brochin and Clay M. Carlton of Morgan, Lewis & Bockius LLP,
Miami, Florida; Jon Lester Mills and Stephen N. Zack of Boies Schiller & Flexner,
LLP, Miami, Florida; and Stuart H. Singer and Johnathan Lott of Boies Schiller &
Flexner, LLP, Fort Lauderdale, Florida,

      for Amicus Curiae Certain Commissioners of the 1998 Constitution
      Revision Commission

Lazaro J. Mur of The Mur Law Firm, P.A., West Palm Beach, Florida; Matthew J.
Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, Florida; Russell C.
Menyhart of Taft Stettinius & Hollister LLP, Indianapolis, Indiana; and Leslie
Davis Hiner of EdChoice, Indianapolis, Indiana,

      for Amici Curiae Florida State Hispanic Chamber of Commerce and
      EdChoice

Raoul G. Cantero and Josefina Aguila of White and Case LLP, Miami, Florida,

      for Amicus Curiae The Urban League of Greater Miami

Daniel P. Kearney, Jr., Daniel Hartman, and Kevin Gallagher of Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, District of Columbia; and Andy
Bardos of Gray Robinson, P.A., Tallahassee, Florida,

      for Amicus Curiae The Foundation for Excellence in Education, Inc.

Joseph S. Van de Bogart of Van de Bogart Law, P.A., Fort Lauderdale, Florida,

      for Amici Curiae United Cerebral Palsy Association of Miami, Inc., d/b/a
      United Community Options of Miami, and United Cerebral Palsy of
      Broward, Palm Beach and Mid-Coast Counties, Inc. d/b/a United

                                      - 80 -
     Community Options of Broward, Palm Beach and Mid-Coast Counties,
     jointly d/b/a United Community Options of South Florida

Kevin W. Shaughnessy of Baker & Hostetler LLP, Orlando, Florida,

     for Amicus Curiae Several Members of the 1998 Constitution Revision
     Commission




                                    - 81 -
