by Erika Donalds and Ben Gibson
Amendment 81 would impose term limits on school board members; increase the legislature’s ability to authorize the creation of certain public schools; and enshrine in the constitution the requirement for students to achieve civic literacy.
School Board Term Limits
Each Florida county constitutes a local school district governed by an elected school board of at least five members.2 The school board operates, controls, and supervises all public schools in the school district and determines policies and programs that affect every student.3 In most Florida counties, the district school board is also one of the largest employers.4 School board members are voted into office in nonpartisan elections, and serve four-year, staggered terms.5 Currently, school board members may serve an unlimited number of terms.
In 1992, a citizens’ initiative6 amended the Florida Constitution to require eight-year term limits for state legislators, the lieutenant governor, and members of the cabinet.7 The constitution also effectively limits the governor to two consecutive four-year terms.8 These term limits apply prospectively only.
Amendment 8 proposes an amendment to Fla. Const. art. IX, §4(a), to provide a consecutive eight-year term limit for school-board members.9 It states: “A person may not appear on the ballot for re-election to the office of school board if, by the end of the current term of office, the person would have served, or but for resignation would have served, in that office for eight consecutive years.”10 This term limit would apply only prospectively.11 The earliest a school board member would be term-limited under this proposal would be 2026. Unlike the rest of Amendment 8, the term-limit portion would take effect immediately.12
School Board Control
Florida’s constitution creates a hierarchy between the state and the local school districts in governing and overseeing Florida’s public education system. The State Board of Education supervises free public education system as a whole, but only the school board has the power to operate, control, and supervise the free public schools within its district boundaries.13 Amendment 8 revises art. IX, §4(b), and specifies that the school board shall operate, control, and supervise all free public schools “established by the district school board” within the school district.
Florida is known for providing flexible educational options for parents and students, including public schools, charter schools, virtual education, and scholarship programs for public and private schools.14 Charter schools are considered public schools under the purview of the district school board.15 Most charter schools must be sponsored by the local school board.16
Amendment 8 would allow the legislature to authorize schools in a district to be established, operated, controlled, and supervised by an entity other than the school board. It would remove absolute control over public schools from the school board, and as a result, allow the legislature to create further educational options to respond to the needs of students. Previous legislative attempts to allow entities other than school boards to authorize schools, including charter schools, have been rejected by courts as unconstitutional.17
Amendment 8 seeks to address this: “The amendment maintains a school board’s duties to public schools it establishes, but permits the state to operate, control, and supervise public schools not established by the school board.”18 Amendment 8, if passed, would not be self-executing; changes would have to be passed by the legislature and signed by the governor.
Amendment 8 also directs the legislature to “provide by law for the promotion of civic literacy in order to ensure that students enrolled in public education understand and are prepared to exercise their rights and responsibilities as citizens of a constitutional republic.”19
Florida currently has laws that require and prioritize civic education in public schools, state colleges, and universities.20 Amendment 8 would simply elevate this priority to the constitution.
1 Throughout this article, the CRC proposal will be referred to as “Amendment 8,” which denotes its ballot number for the 2018 general election. It also may be referred to in other contexts as Proposal 6003 or Am. Proposed by Constitution Revision Commission, Revision No. 3, 2018, filed with the Secretary of State May 9, 2018.
2 See Fla. Const. art. IX, §4(a).
3 See id.; Fla. Stat. §§1001.41 and 1001.42.
4 “District school boards are one of the two largest employers in 61 counties [out of 67], the largest in 46 counties, and the second largest in 15.” See Florida Tax Watch, Florida’s Top 10 Largest Public Employers By County (May 2012), available at: http://www.floridataxwatch.org/resources/pdf/jobsbriefing.pdf.
5 See Fla. Const. art. IX, §4(a); Fla. Stat. §§1001.34 and 1001.35; see Fla. School Boards Association, Proposal 6003 Analysis (Apr. 10, 2018), available at http://fsba.org/wp-content/uploads/2018/04/Proposal-6003-Key-Points.pdf.
6 The 1992 term limit amendment garnered nearly 77 percent of the vote. For more information on the amendment including the full text see http://dos.elections.myflorida.com/initiatives/initdetail.asp?account=1066&seqnum=1 .
7 See Fla. Const. art. VI, §4. The constitutional language also includes term limits for U.S. representatives and senators from Florida. But the term limits on federal officeholders were held unconstitutional by the U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (finding that states may not impose qualifications for federal offices in addition to those set forth in the U.S. Constitution); see also Ray v. Mortham, 742 So. 2d 1276 (Fla. 1999) (finding that the unconstitutional term limit language in citizens’ initiative amendment relating to federal legislators was severable from the term limit language on state officials).
8 Fla. Const. art. IV, §5(b) (“No person who has, or but for resignation would have, served as governor or acting governor for more than six years in two consecutive terms shall be elected governor for the succeeding term.”).
9 The portion of Proposal 6003 regarding school board term limits was originally proposed by the author, CRC Commissioner Erika Donalds, in P43, available at http://flcrc.gov/Proposals/Commissioner/2017/0043.
10 Amendment 8, available at http://dos.elections.myflorida.com/initiatives/fulltext/pdf/11-22.pdf.
11 Amendment 8 adds a schedule to Fla. Const. art. XII, stating that, “no service in a term of office which commenced prior to November 6, 2018, will be counted against the limitation imposed by this amendment.”
12 Proposal 6003’s schedule to Fla. Const. art. XII states “the amendment to Section 4 of Article IX imposing term limits for the terms of office for members of a district school board shall take effect on the date it is approved by the electorate….”
13 See Fla. Const. art. IX, §§2 and 4.
14 Information on Florida school choice programs available at Florida Department of Education, School Choice, http://www.fldoe.org/schools/school-choice/.
15 Fla. Stat. §1002.33.
16 Id. However, the legislature has also provided for state universities to sponsor charter lab schools, and the state oversees the Florida School for the Deaf and Blind. Fla. Stat. §§1002.32 and 1002.36.
17 Duval Cty. School Bd. v. State Bd. of Educ., 998 So. 2d 641, 643-44 (Fla. 1st DCA 2008). The First District Court of Appeal held that the statute (Fla. Stat. §1002.335 (2006)) establishing Florida Schools of Excellence Commission, an independent, state-level entity with the authority to authorize charter schools throughout the state was facially unconstitutional because it violated the local school boards’ authority under Fla. Const. art. IX, §4, to “operate, control and supervise all free public schools within the school district.” Duval Cty. School Bd., 998 So. 2d at 643-44.
18 Full text of the ballot summary available at Department of State, Revision 3, http://dos.elections.myflorida.com/initiatives/fulltext/pdf/11-22.pdf.
20 See Fla. Stat. §1003.42 (requiring civics instruction in K-12 schools); Fla. Stat. §1003.41(2)(d) (including civics as part of Florida’s Next Generation Sunshine State Standards for social studies for K-8 and 9-12 grades); Fla. Stat. §1003.4156(1)(c) (high-school promotion requires one semester of civics); Fla. Stat. §1003.4282(3)(d) (requiring high-school students to take U.S. History and U.S. Government to graduate); and Fla. Stat. §1007.25(4) (requiring each student enrolling in a Florida College System institution or state university to demonstrate competency in civic literacy); Ch. 2017-116, L.O.F.
ERIKA DONALDS served as a commissioner on the 2017-18 Constitution Revision Commission, appointed by the Speaker of the House. She serves on the Collier County School Board, having been elected in 2014. She also serves as CFO/CCO and partner at Dalton, Greiner, Hartman, Maher & Co., LLC (DGHM), an investment management firm in Naples.
BEN GIBSON is a partner in the Tallahassee office of Shutts & Bowen, LLP, where he is a member of the business litigation practice group and regularly practices in the areas of government and election law. He serves on the Board of Governors for The Florida Bar Young Lawyers Division, and is a member of The State Board of Education.