Education superboard may hinge on word

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By MARTIN DYCKMAN

© St. Petersburg Times, published April 16, 2000

What's in a word?

The difference, perhaps, between success and failure for Florida politicians who want a powerful superboard to govern the entire education system from kindergarten to postdoctoral studies.

The word is "free." When John Lowndes, an Orlando lawyer serving on the Constitution Revision Commission (CRC), wrote it into a pending amendment on March 17, 1998, some say he foredoomed the superboard to the overflowing dustbin of unconstitutional Florida enactments.

The CRC intended to replace the State Board of Education, comprising the governor and elected Cabinet, with a seven-member board the governor would appoint. Advocates had made clear in earlier debates that they wanted it to control only the public schools. But as the Cabinet board currently has oversight of the universities and community colleges as well, sponsors were warned that they needed to refine their language.

Lowndes did that by changing "the system of public education" to "the system of free public education."

"The reason for that," he explained to the CRC, "is that the system of free public education is described another place in the Constitution and it differentiates it from having jurisdiction or authority or business over the university and college systems."

Senate President Toni Jennings, who had appointed herself and Lowndes to the CRC, was there to hear that and to vote against the entire amendment a minute or so later. But it passed, and the voters ratified it. Now, Jennings and other powerful legislators are relying on it to do what Lowndes and others say the CRC intended to prevent.

The legislation, on express tracks in both houses, would abolish the Board of Regents, which runs the university system, along with the Board of Community Colleges, effective in January 2003. (Jennings says that gives the Legislature time to fix anything that turns out to be wrong with it.)

The 10 universities would acquire their own boards of trustees. These, along with the community colleges' local boards and the 67 county school boards, would report through an appointed commissioner to the new state superboard. The regents and university presidents have opposed it bitterly but so far only to deaf ears.

It's not necessarily a bad idea, and could be a good one, assuming the state board invests its time in policy rather than details and that the universities, once freed from the regents' heavy hand, don't take their turf fights and turkeys directly to the Legislature any more brazenly than they do now.

The schools, universities and junior colleges have never worked as closely together under the Cabinet's gaze as they should have or as superboard proponents intend. The need for improved coordination is not in doubt.

But whether their remedy is constitutional remains very much in doubt.

Education Commissioner Tom Gallagher's Blue Ribbon Committee on Education Governance, which developed the superboard proposal, was aware of the constitutional question because Marilyn Evans-Jones, a member, had served on the CRC. She produced a memorandum from Debby Kearney, who had been the CRC's general counsel, saying that the word "free" didn't make a difference. Though she conceded she had made no "exhaustive research," Kearney cited cases from 1920 and 1930 in which the Supreme Court let the Legislature give additional duties to various officers. Matt Oelnick, Gallagher's general counsel, said that was his view, too.

That's not how the CRC's chairman, W. Dexter Douglass, sees it. He wrote to Jennings Thursday to warn her that other precedents prevent the Legislature giving the new board duties beyond what the CRC intended.

Douglass concedes that the Legislature can abolish the Regents and community college board because they were created by law rather than by the Constitution. It can do anything it wants about higher education, he says, except to put it under the new Board of Education.

Who, then, would control higher education?

"The governor," says Douglass, as he does now through the Regents and community college boards.

The cases on which Douglass relies figured in the March 14 Leon County Circuit Court decision striking down the voucher component of Gov. Jeb Bush's controversial education bill.

"The Florida Supreme Court has long held," wrote Judge L. Ralph Smith Jr., "that "(w)hen a constitution directs how a thing shall be done, that is in effect a prohibition to its being done in any other way.' "

Smith's ruling, now on appeal, turned on the same definition of "free" public schools that Lowndes cited.

There's no doubt what the CRC intended. In debate, the prime sponsor answered "no" when asked if she meant to abolish the Regents or Junior College Board. After being warned that her language would, she accepted Lowndes' amendment.

"Well," Lowndes said Friday, "I'm not sure what the legal interpretation of it is, but I can tell you what I thought the intention was: to create the board of education to deal with the free public schools. It was not the intention of anyone who discussed it or my intention to include the junior colleges or the university system. ... The university system and the junior colleges are doing fine. It was the public schools that needed attention."

Phil Lewis, a former Senate president and current member of the Board of Regents, was also a member of Gallagher's committee and dissented to its report. Lewis says he tried to persuade the committee to look for a way to get the courts to resolve the constitutionality of the superboard before basing the whole plan on it. He also objected to the proposed individual university boards of trustees.

"It just seems to me that if Dexter is right, we've got a problem," Lewis said Friday.

"That's been a blood sport, going after the Regents, for the past 30 years," he added. "They can dissolve us. The question is whether they can put us under that overall board. ... I think they're under the impression that the Legislature can do everything. I don't think that's completely accurate."

Both bills prudently call for a study commission. If Douglass is right about Lowndes' language and the precedents, its first job would be to reinvent yet another grand design that looked better to the Legislature than to the Supreme Court.

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