Robinson v. Stewart, No. 1D13–3583.

CourtCourt of Appeal of Florida (US)
Writing for the CourtTHOMAS, J.
Citation161 So.3d 589
PartiesBrandt ROBINSON, Beth Weatherstone, Vicki Hall, Carolyn Lofton, Cory Williams, and Christine Mayer, Appellants, v. Pam STEWART, as Florida Commissioner of Education, State Board of Education, and State of Florida, Department of Education, Appellees.
Decision Date23 January 2015
Docket NumberNo. 1D13–3583.

161 So.3d 589

Brandt ROBINSON, Beth Weatherstone, Vicki Hall, Carolyn Lofton, Cory Williams, and Christine Mayer, Appellants
Pam STEWART, as Florida Commissioner of Education, State Board of Education, and State of Florida, Department of Education, Appellees.

No. 1D13–3583.

District Court of Appeal of Florida, First District.

Jan. 23, 2015.

161 So.3d 590

Ronald G. Meyer, Thomas W. Brooks, Jennifer S. Blohm, and Lynn C. Hearn of Meyer, Brooks, Demma and Blohm, P.A., Tallahassee; Pamela L. Cooper, General Counsel of Florida Education Association, Tallahassee, for Appellants.

Michael Mattimore, Jason E. Vail, and Matthew D. Stefany of Allen, Norton & Blue, P.A., Tallahassee, for Appellees.



This case involves the appeal of an unsuccessful constitutional challenge brought by Appellants seeking a declaration that the “Student Success Act” passed

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by the 2011 Legislature1 violates Article II, section 3, of the Florida Constitution by invalidly delegating legislative powers to the Executive Branch. Appellants carry a heavy burden of persuasion:

Although the Court's review [of a claim that a statute is unconstitutional] is de novo, statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome. As this Court has stated, ‘[s]hould any doubt exist that an act is in violation ... of any constitutional provision, the presumption is in favor of constitutionality. To overcome the presumption, the invalidity must appear beyond reasonable doubt, for it must be assumed the legislature intended to enact a valid law.’

Crist v. Fla. Ass'n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 139 (Fla.2008) (quoting Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004) (emphasis added; citations omitted)).

Appellants have not established that the legislature delegated core legislative authority to the Board of Education and intended to violate the separation of powers requirement of Article II, section 3 of the Florida Constitution. Thus, we hold that Appellants have failed to show beyond a reasonable doubt that the legislature violated the constitution by enacting the Student Success Act, and we affirm the trial court's decision finding the Act constitutional.

Under our precedent in Florida Teaching Profession–National Education Association v. Turlington, 490 So.2d 142 (Fla. 1st DCA 1986), this statute confers permissible discretion to allow the Board of Education to implement a highly technical matter regarding the evaluation of teachers, not a fundamental policy decision. In Turlington, this court rejected a nondelegation challenge to a statute that was similar to the statute here in terms of the subject matter and discretion allowed to the administrative agency. InTurlington, the statute granted a range of decisions to the education agency for determining teacher evaluations for pay incentives and incentive funding for schools. Id. at 142–45. The statute in Turlington, like here, did not dictate to the Board of Education every conceivable variable to apply, but instead allowed school officials and the Board of Education to apply improvements in student test scores to determine whether a school merited the incentive status. Furthermore, this court rejected the arguments that because the statute allowed principals to “confer extra evaluation points,” it violated Article II, section 3 of the Florida Constitution. Id. at 146.

Under the Student Success Act, the legislature revised certain requirements for evaluating classroom teachers and other personnel, which in part required that at least fifty percent of a teacher's evaluation must be based on “student learning growth.” This factor of measuring student improvement is assessed statewide based on a formula adopted by the Commissioner of Education, unless the subject matter is better evaluated by an “equally appropriate formula” adopted by the local school district. §§ 1012.34(3)(a) &

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1012.34(7), Fla. Stat. (2011).2

The Student Success Act requires that teacher evaluations must be based on four levels of performance: highly effective; effective; needs improvement or developing; and unsatisfactory. § 1012.34(2)(e), Fla. Stat. (2011). In addition, the Board of Education is directed to adopt rules which establish “sufficient [consistent] differentiation” in performance levels, including the student learning growth standard, which “if not met” will render a teacher's performance level unsatisfactory. This legislation further requires that the student learning growth standard must be met before a teacher can be classified as attaining a “highly effective” or “effective” rating. § 1012.34(8), Fla. Stat. (2011). These classifications affect teachers' eligibility for salary increases, promotions, placements, transfers and layoffs. §§ 1012.22(1)(c) & (e); 1012.28(6); 1012.33(5), Fla. Stat. (2011).

The Commissioner of Education must “consult with experts, instructional personnel, school administrators, and education stakeholders in developing the criteria for the performance levels.” § 1012.34(2)(e), Fla. Stat. (2011). The critical component, student learning growth, must be developed by the Commissioner of Education, based on standardized test scores and other factors, including a student's past academic performance. The Commissioner is prohibited from establishing different formulae based on gender, race, ethnicity, or socioeconomic status.

When creating the student learning growth criterion, the Board of Education is not free to invent factors out of whole cloth; instead, it must utilize the described components. The statute provides that this criterion will be based on standardized test scores, where possible, and other factors, such as a student's past performance and related measures for areas not subject to standardized test scores. We are not determining whether the statute is perfect or comprehensive in its direction to the Board of Education, but rather whether the statute grants the Board of Education “unbridled discretion” to enact fundamental policy choices. This it does not do.

The statute provides the Board of Education with sufficient direction to implement the technical aspects of the law in accordance with the legislature's express policy goals to “promote enhanced academic success and funding efficiency of educational delivery systems by aligning responsibility with accountability ... [and to ensure that the] guiding principles for Florida's K–20 education system are ... student-centered in every facet [and] provide [ ] for local operational flexibility while promoting accountability for student achievement and improvement. §§ 1000.02(1) & (2), Fla. Stat. (2011) (emphasis added). In addition to these overarching principles, in section 1012.34(1)(a), the legislature states that its purpose in evaluating teachers and other personnel is to “increase[ ] student learning growth by improving the quality of instructional ... services in the public schools of the state....”

In the seminal case defining the parameters of the nondelegation doctrine, Askew v. Cross Key Waterways, the statute allowed the Administrative Commission to select certain areas of the state for more stringent environmental, economic and growth regulations, and by doing so, gave the Commission unbridled discretion to choose large areas of the state for these

161 So.3d 593

more stringent regulations. 372 So.2d 913 (Fla.1978). The court emphasized that the statute was deficient, because it would not be subject to meaningful judicial review. Id. at 918–19. The court further emphasized that while a law can allow an agency to “flesh out” a legislative policy under Article II, section 3, that law cannot allow the agency to “flesh out” what it has “first conceived”; that is, the statute will not pass constitutional muster if it allows the agency the unfettered discretion to enact policy and then implement that policy. Id. at 920.

Here, the statute does not confer on the Board of Education the power to “conceive” or enact the policy. Quite the opposite. Rather, the Board is directed to implement a detailed teacher evaluation plan that includes standardized test scores.

In addition to our own precedent in Turlington and the test established under Cross Key Waterways, under the authority of Avatar Development Corporation v. State, 723 So.2d 199 (Fla.1998), Brown v. Apalachee Regional Planning Council, 560 So.2d 782 (Fla.1990), and Microtel, Inc. v. Florida Public Service Commission, 464 So.2d 1189 (Fla.1985), this statute passes constitutional muster.

In Brown, the supreme court recognized that under the nondelegation doctrine, the legislature may delegate certain decisions to administrative agencies, where “given the highly technical nature of the [Development of Regional Impact] review process, details relating to the imposition of a cost-based review fee can be viewed as a technical matter of implementation rather than a fundamental policy decision.” 560 So.2d at 785 (emphasis added). This is a pragmatic view which properly shows respect to the legislative branch, which cannot be expected to include every technical...

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