Acad. for Positive Learning, Inc. v. Sch. Bd. of Palm Beach Cnty.

• Decision Date: 24 February 2021
• Docket Number: No. 4D19-2816,4D19-2816
• Parties: ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit corporation, Palm Beach Maritime Museum, Inc., a Florida not-for-profit corporation, d/b/a Palm Beach Maritime Academy, Marleny Olivo, an individual, and Pedro Olivo, an individual, Appellants, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida and G-Star School of the Arts, Inc., a Florida not-for-profit corporation, Appellees.
• Court: Florida District Court of Appeals

315 So.3d 675

ACADEMY FOR POSITIVE LEARNING, INC., a Florida not-for-profit corporation, Palm Beach Maritime Museum, Inc., a Florida not-for-profit corporation, d/b/a Palm Beach Maritime Academy, Marleny Olivo, an individual, and Pedro Olivo, an individual, Appellants,

v.SCHOOL BOARD OF PALM BEACH COUNTY, Florida and G-Star School of the Arts, Inc., a Florida not-for-profit corporation, Appellees.

No. 4D19-2816

District Court of Appeal of Florida, Fourth District.

[February 24, 2021]

Shawn A. Arnold and Braxton A. Padgett of The Arnold Law Firm, LLC, Jacksonville, for appellants.

Jon L. Mills of Boies Schiller Flexner LLP, Miami, and Stuart A. Singer and Sabria A. McElroy of Boies Schiller Flexner LLP, Fort Lauderdale, for appellee, School Board of Palm Beach County.

ON APPELLANTS’ MOTION FOR REHEARING EN BANC AND CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

Per Curiam.

After this court's 2-1 affirmance opinion issued April 22, 2020, appellants challenged the majority opinion by filing a motion for rehearing en banc and certification of question of great public importance under Florida Rules of Appellate Procedure 9.330 and 9.331, based on the following arguments, in pertinent part:

Statewide there are more than 194,000 charter school students in nineteen other counties across all five appellate districts of the state where a voter-approved school board operating millage is in place. Fla. H.R. Appr. Comm/Ways & Means Comm., HB 7123 (2019) Final Bill Analysis (May 28, 2019); Fla. Dept. of Educ., Fla. Charter School Enrollment Share. This Court's ruling will be precedent over matters in the Fourth District affecting 72,750 charter school students and parents (including over 21,000 in Palm Beach County) and millions of public dollars per year. Id. While House Bill 7123 (2019) amended section 1011.71(9), Florida Statutes, to codify the requirement that school boards share voted operating millage revenues with charter schools going forward, this legislative "fix" does not provide a remedy to Appellants because they were approved by voters prior to July 1, 2019.

Additionally, there are two lawsuits currently pending in the Eleventh Judicial Circuit of Florida related to a school board operating millage approved by voters in Miami-Dade County, from which charter schools have similarly been excluded. City of Aventura v. Sch. Bd. of Miami-Dade Cnty. , Case No. 2020-006112-CA-01 (Fla. 11th Cir. Ct. 2020); Archimedean Academy, Inc. v. Sch. Bd. of Miami-Dade Cnty. , Case No. 2019-030739-CA-01 (Fla. 11th Cir. Ct. 2019). Other litigation is easy to foresee.

This decision will also likely have a major impact on future charter school funding cases. The majority's interpretation of the opening sentence of section 1002.33(17), Florida Statutes, erodes a guiding principle established by the Legislature that charter school students be funded the same as their counterparts attending district schools. ...

Notably, the underfunded mandates of the School Safety Act apply to all public schools, including both charter schools and district schools alike. The exclusion of Palm Beach County's charter schools from the referendum has created a substantial disparity in funding between public charter schools and district schools. These charters now face a substantial hurdle in hiring qualified teachers to enable them to successfully compete with the other public schools in the district. § 1002.33(2)(c), Fla. Stat. (2019) ("Charter schools may fulfill the following purposes: ... Provide rigorous competition within the public school district to stimulate continual improvement in all public schools."). Further, taxes paid by parents for the safety of children should not favor the safety of school district children over public charter school children.

Given the far-reaching implications of the panel's decision on charter school students across the state, ongoing litigation involving the very same issue, and the varied conclusions of five reviewing judges in three separate suits, this case is exceptionally important and should be considered by this Court en banc under Fla. R. App. P. 9.331(d).

....

If this Court declines to rehear this case en banc , the Appellants alternatively request that this Court certify the following question as an issue of great public importance for review by the Supreme Court of Florida pursuant to Florida Rule of Appellate Procedure 9.330(a)(2)(C) :

Are local school boards required under section 1002.33(17), Florida Statutes, to share with public charter schools revenues generated from a voted operating millage levied pursuant to section 1011.71(9), Florida Statutes, which was approved by voters prior to July 1, 2019?

For the reasons argued above, we grant appellants’ motion for rehearing en banc, withdraw this court's 2-1 affirmance opinion issued April 22, 2020, and substitute the following reversal opinion in its place. We also grant appellants’ motion for certification of question of great public importance, although we certify a different question than that which appellants have requested, as shown at the end of the following opinion.

Opinion

During the November 2018 election, the School Board of Palm Beach County, Florida placed a referendum on the ballot asking county voters to approve an ad valorem levy for the operational needs of only non-charter district schools. We conclude the 2018 referendum's exclusion of charter schools violated section 1002.33(17), Florida Statutes (2018), providing "[s]tudents enrolled in a charter school, regardless of the sponsorship, shall be funded as if they are in a basic program or a special program, the same as students enrolled in other public schools in the school district." (emphasis added).

Based on the foregoing, we reverse the circuit court's final judgment (and its incorporated "Orders on Pending Motions for Summary Judgment") and find that the 2018 referendum violated Florida law, as explained below. We remand for the circuit court to enter an order denying the school board's motion for summary judgment and granting appellants’ motions for summary judgment, and to determine the proper remedy to which appellants are entitled under their complaint.

The 2018 Referendum

The 2018 referendum appeared on the ballot as follows:

REFERENDUM TO APPROVE AD VALOREM LEVY FOR SCHOOL SAFETY, TEACHERS AND OPERATIONAL NEEDS

Shall the School Board of Palm Beach County have authority to levy 1.00 mills of ad valorem millage dedicated for operational needs of non-charter District schools to fund school safety equipment, hire additional school police and mental health professionals, fund arts, music, physical education, career and choice program teachers, and improve teacher pay beginning July 1, 2019 and automatically ending June 30, 2023, with oversight by the independent committee of citizens and experts?

______Yes

______No

Palm Beach County voters approved the 2018 referendum, which went into effect on July 1, 2019.

The Underlying Litigation

After County voters approved the referendum, but before the referendum went into effect, two Palm Beach County charter schools and the parents of a student attending one of those charter schools (collectively, "appellants") filed a complaint for declaratory and injunctive relief against the school board. The complaint requested the circuit court to: (1) enter a declaratory judgment requiring the school board to share the 2018 referendum revenues with charter schools on a pro rata basis; and (2) enjoin the school board from denying charter schools their proportionate share of the 2018 referendum revenues. In the alternative, the complaint requested the circuit court to declare the 2018 referendum to be illegal and void. Appellants asserted the 2018 referendum's exclusion of charter schools violated section 1002.33(17), Florida Statutes (2018), providing that "[s]tudents enrolled in a charter school, regardless of the sponsorship, shall be funded as if they are in a basic program or a special program, the same as students enrolled in other public schools in the school district." (emphasis added).

Appellants and the school board filed cross-motions for summary judgment. The parties agreed no factual issues existed and the case involved only statutory construction. However, despite having initially pled an alternative request for relief asking the circuit court to declare the 2018 referendum to be illegal and void, appellants’ motion for summary judgment primarily sought the entry of a declaratory judgment requiring the school board to share the 2018 referendum revenues with charter schools on a pro rata basis and enjoining the school board from denying charter schools their proportionate share of the 2018 referendum revenues. As the circuit court later observed, "Neither side wants to lose the money, rather the parties simply disagree about who gets the money."

Following a hearing, the circuit court issued an order granting the school board's motion for summary judgment and denying appellants’ motions. The circuit court found the 2018 referendum did not violate Florida law. The circuit court later entered a final judgment in the school board's favor, prompting this appeal.

We conclude the 2018 referendum's exclusion of charter schools violated Florida law, as explained below.

A. Interpreting sections 1002.33(17) and 1011.71(9) in harmony according to plain meaning favors the charter schools’ position.

The method by which students enrolled in charter schools are funded, and the sources from which such funding is derived, are provided in Section 1002.33(17), Florida Statutes (2018), titled "Charter schools." That section provides, in pertinent part:

(17) Funding. -- Students enrolled in a charter school, regardless of the sponsorship, shall be funded as if they are in a basic program or a special program, the same as students enrolled in other public schools in the school district ....

....

(b) The basis for the agreement for funding students enrolled in a charter school

...