Activist judges just effectively abolished Florida school boards. Gut check time for board members.

In the last couple weeks, I’ve discovered a pair of stark realities that profoundly affect how I see my role as your representative to the Polk County School Board.

  1. Participating in the test-driven, teacher-hating Florida Model of education stunts the achievement and human growth of children, no matter which district or type of school they attend. Florida has the worst individual test score growth in America. And Florida experiences a relentless, catastrophic collapse relative to other states in measured aggregate performance of students after 4th grade on its favorite national test, the NAEP. This has occurred in every NAEP subject, in every NAEP cycle. Since 2003. I explained and documented that in my last article. The entire Jeb Bush era is characterized by these measurements and those facts. Florida has ignored or lied about these facts the entire time. And we’re all trapped in the lie and the fraud if we live in this state. There’s no place to go. We’ve got to win here.

2. Activist judges have abolished, with clarity, any meaningful governance role for elected school boards. This happened very recently in the 7069 lawsuit appeal. A number of Florida counties, including Polk County, challenged the “Schools of Hope” law from 2016, also know as House Bill 7069. On the surface, it was about charter schools and sharing referendum funds and various other practical policies. In reality, the suit was always about where power vests. The Florida courts have spoken unequivocally. Tallahassee has all the power over your kids and the adults who see them every day. In fact, the activist judges provided no limit on state power related to local power in governing. Your School Board is ceremonial, as I’ve said before. The courts agree with me fully. Go read the decision for yourself.

The activist judges of the state appeals court demonstrated the power structure through two very, very important points. Both make it clear that we have a state school system, dominated completely by state officials. However, this is not the defeat it sounds like. As I will explain.

Activist judges say: your local elected officials have no standing to challenge a state law on your behalf

With narrow exceptions, the appeals court ruled that no School Board — or other local government — can challenge the constitutionality of any Florida law in court. Only private citizens can challenge the constitutionality of a statute. (Yes, this would appear to neuter you, too, city and county commissions.)

Here is the appeals court overturning the trial court on the issue of “standing.” I will translate this afterward:

In rejecting the standing argument, the trial court cited section 86.021, Florida Statutes, which permits any person whose rights may be in doubt to “obtain a declaration of rights, status, or other equitable or legal relations thereunder.” The trial court determined that because the school boards alleged that the “statutes at issue” affected their rights, they had standing to seek declaratory relief. We hold, however, that the public official standing doctrine controls the issue of standing in this case, not the declaratory judgment statute.

The doctrine, which we recently addressed and which is grounded in the separation of powers, “recognizes that public officials are obligated to obey the legislature’s duly enacted statute until the judiciary passes on its constitutionality.” Sch. Dist. of Escambia Cty. v. Santa Rosa Dunes Owners Ass’n, 274 So. 3d 492, 494 (Fla. 1st DCA 2019). It is for that reason that a public official’s “‘[di]sagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justiciable controversy or provide an occasion to give an advisory judicial opinion.’’’…

The school boards’ constitutional challenge to HB 7069’s provisions represents their disagreement with new statutory duties enacted by the Legislature. As the foregoing authority makes clear, however, the school boards must presume that the provisions at issue are constitutional.

What does that mean in practicality?

If the Legislature passed a law requiring school guardians to execute children on site if they wore polka dots to school, local board members and the superintendent would be legally obliged to carry out the executions until a citizen challenged the constitutionality of the law. The School Board could not challenge that law as unconstitutional on the citizens’ behalf. Feel free to correct my understanding of that, legal scholars. I only play one on the Internet. But I can also read.

There is an exception to the “standing” issue based on a statute’s direct bearing on how local districts distribute funding. So, school boards might have standing to challenge any requirement that we buy the bullets to execute the polka dot-wearing children.

Activist judges say: “May at [all?] times infringe”

However, the bullet-buying standing wouldn’t matter because of the second part of the activist judges’ decision. In this conclusion, the appellate judges upheld the trial court, which ruled against the school districts over funding issues based on this reasoning.

The Florida Constitution therefore creates a hierarchy under which a school board has local control, but the State Board supervises the system as a whole. This broader supervisory authority may at times infringe on a school board’s local powers, but such infringement is expressly contemplated – and in fact encouraged by the very nature of supervision – by the Florida Constitution.

There’s obvious “some animals are more equal than others” in that wording. But particularly note the lack of wording in the part in bold. The empty space between “at” and “times” is profound.

Is it “some?” Is it “all”? Is it “many”? There is no standard of legal infringement proposed by the court. And every infringement is presumed constitutional until proven guilty, under the “standing” ruling. In most cases, only private citizens can sue to get clarity. As a result, in a practical sense, this means state government infringement must be individually challenged on its own case-by-case merit. That’s completely impractical. And we can expect activist political judges to endorse all the infringements anyway. I see no evidence, at all, to the contrary.

Thus, the courts make it clear here that your School Board is little more than 5 or 7 people you’re paying $40K/year and health insurance to take the public blame for Tallahassee’s decisions and record.

Activist judges say: like all other superintendents, Jackie Byrd works for Richard Corcoran and Jacob Oliva

Your School Board gets to hire and fire the Polk superintendent, in theory, but she doesn’t actually work for us. She works for Education Commissioner Richard Corcoran and Chancellor Jacob Oliva, right down to the classroom level, as our recent VAM experience shows. That’s the hierarchy. If internal school VAM transfers the day before school starts are a legal infringement, then there is no such thing as an illegal one.

The activist judges make this quite clear: in any disagreement between DoE and the Polk School Board, the superintendent is obligated to answer to her actual bosses, which are not the Polk School Board. That puts her in a very stressful position in Polk County, which I fully recognize and regret. And I’m actually quite grateful to the activist judges for making this so clear. It’s liberating. I think it may be to her as well. I expect it to ease any existing tensions between me and senior staff.

The totality of this hierarchy has been true for a long time; but it was always cloaked in ambiguity and nonsense about partnerships and the possibility that judges would interpret the Florida Constitution textually. Now, the activist judges have slammed the door on legal avenues for local School Boards and districts to provide meaningful local input — much less “local control.” It’s bracing for those of us who have long recognized what we face to have it spelled out in writing by activist judges.

In theory, the Supreme Court might change something; but we have activist judges there now, too. I think this is settled law in Florida. I’m not particularly inclined to authorize any further appeal.

So what now? My crisis of conscience

As a board member serving the Polk County public, I’m confronted with this fundamental problem of conscience: I’m participating in a fraudulent model shown to dehumanize and hurt all of our children on its own measures, which our state Department of Education openly lies about. Since at least 2003. And activist judges have now told me clearly that I’m legally powerless to take any vote or action at the local level to change that model if in any way that conflicts with the whims and dictates of Richard Corcoran and Jacob Oliva and Kelli Stargel. I’m also stressing our superintendent and her top staff, I suspect. It is very hard to be caught between dishonest educrats and me. I feel very badly about that.

So what should I do?

I could resign. And I think I would, if resigning would put the public any closer to where power resides, with the state government in Tallahassee. But it would not. An honest state government would simply abolish school boards openly. But they need this toothless local layer of blame absorption at home. So they allow local taxpayers to choose who they most want to yell at. And $40K/year plus health insurance buys of lot of local blame absorption. It is an insane arrangement for local government and voters; but it’s quite brilliant for state leaders, who get to do whatever they want with essential impunity, even though most received far fewer public votes than I did.

This won’t change if I resign. I’ll just open a seat for someone else to get yelled at, who is unlikely to have the public and moral confrontations I believe are necessary to save public education and end the systematic harm and fraud that activist judges have just endorsed.

I can still be your journalist on the board

Indeed, I believe that elected school boards must self-consciously become a public platform for operational and moral clarity, political confrontation, constituent service, and a source of pressure for humanity within our districts that tries to offset the inhumanity and failed performance imposed from Tallahassee.

We have to demand and apply humanity in our local operational culture to help the minimize the consistent statewide collapse in proficiency and damage to personal growth. That’s part of what our recent Math/Science Roundtable with Paul Cottle and Adam LaMee was aiming to do. See it below. Where we have some limited ability to do things locally, we need to explore new and better ways to do them.

I will also continue to live constantly in staff’s ear about stakeholder management and our response to bullying, violence, etc. This often doubles as assertive constituent service. Both are crucial to serving the human development of our kids and limiting the damage of the overall state model. It’s hard to fight for humanity against the inhuman current of grift from Tallahassee; but we have to keep trying.

My powers, of course, are limited in direction of personnel and culture as well, as has been made clear to me repeatedly. I have little or no legal or political power to dictate personnel decisions. For instance, I could never order the transfer of a Polk County teacher from one class to another based on VAM. Richard Corcoran and Jacob Oliva can and do. Again, the hierarchy and the infringement, endorsed by activist judges.

Above all else, I plan to continue to serve as your journalist in your school district and your failed state education system. That means I will continue to do exactly what I told you I would do when I asked you to elect me in 2016: tell you the unvarnished truth about what I see and experience, to the best of my ability. And offer myself openly to critique and correction for anyone who is able. Bring it. You know where to find me.

You, the public, deserve that clarity so you can make good, informed choices. Providing that clarity is the most important function I offer as a board member, in my opinion. The activist judges made no ruling to restrict that power.

Impose your own test calendar on us, Ron, Richard, and Jacob. I’m not going to do it for you.

And I’m going to try something new as I comply with the ruling of the activist judges. I’m going to try to identify every issue in which the state says I’m not allowed to vote “No” — and vote “No” on it.

Here’s an example: our Polk County testing calendar, which is mostly full of state tests and the NAEP. We’ve done a pretty good job of reducing district testing from its peak just prior to my election. It could be argued that everything on the calendar is a state requirement in one way or another. And nothing more symbolizes the fraud and harm of the last 20 years than this test calendar. All of that hierarchy-imposed testing has done nothing but kill the growth of our children, including on tests themselves. Which again, Florida can’t stop lying about, with the eager help of corrupt national “rankings” and “report cards.”

I will never again vote to establish that test calendar in Polk County. But I do not question the power of Richard Corcoran and Kelli Stargel and Jacob Oliva to impose it. I’m just declining to do it for them. They are the top of the hierarchy; they can own the engine of fraud and harm for your children. I will not.

We started to discuss this a bit at our Tuesday School Board work session. You can see it below, starting at about 52:00.

Now, what happens if the entire board votes not to impose the test calendar? I asked that in our meeting; and everybody looked at each other and went \_(ツ)_/¯.

Here’s what I would expect, based on the ruling of the activist judges: Corcoran and Oliva would just order their employee, Mrs. Byrd, to impose the test calendar. And I would submit to that under protest. That’s how the hierarchy works — and how life as an advisory board works. I think it would be a lot easier on Mrs. Byrd, too, honestly. Clarifying lines of authority always is.

Remember, here is the language of the decision: “This broader supervisory authority may at times infringe on a school board’s local powers.”

And we’ve established that means “any” or “all” because there are no demonstrated limits. So when I vote “no,” I would expect the state to infringe, as they have the legal right to do at any time. If they want their calendar and their engine of fraud so badly, the activist judges can give it to them. And I’ll exact a political and public price from them for it.

Here’s the fun speculation: would someone try to coerce me into voting “yes,” even though my vote lacks any legal standing to halt their infringement? Are they so desperate to make board members complicit in their two-decade fraud that they would use the power of the state to punish me for a thought crime? I don’t know; but I kinda like that fight for what I’m trying to accomplish. So bring that on. And think if every Florida School Board voted no on every test calendar — and said, “do it your damn self, DoE.”

That would be quite a story.

Also, the activist judges give Richard Corcoran the right to jam his buddy Ralph Arza’s charter school down our throats, even though I’m very concerned that any school that chooses Arza as its public face will treat parents exactly the way Corcoran’s good friend Arza is known to behave.

I’m not going to vote to impose a famously racist and confessed criminal harasser charter school lobbyist on the people of Polk County. Never. Ever. Lucky for Corcoran, the activist judges give him the clear power to infringe at any time. So I’m sure he’ll do that on behalf of his friend. Bring that on, too.

The grifters who didn’t bark

For such a total legal victory, for people who talk so much trash, the governor and the Corcoran cabal have been curiously quiet about the triumph their activist judges handed them. Why is that? Because ambiguity is always the friend of power and grifters, alike.

The courts won’t save us. But even in a defeat like this, they can clarify the battlefield. And we have the bigger army, which the grifters know. This legal victory is a political problem for them, which is why they aren’t gloating. They don’t really want anybody to know. Their activist judges were too active. And that’s why lawsuits can be valuable, even if you lose them.

I’m no more a political scientist than I am a lawyer, but I predict this decision will be wildly unpopular with the public, if the public is ever able to perceive it. Hence, the deep, deep state quiet about it. It echoes the deep deep quiet about the Stanford Death Purple Study and what NAEP “national report card” actually says about Florida, which is a scandal so big that no one will acknowledge it, especially the NAEP. Basically that’s because all of American education is a giant inhuman data grift; and basically every important player is in on it. Florida has always led the way on that grift.

As I said before, Florida’s educrats (and America’s) always produce equal metric tons of bullshit and silence. Silence is in their interest now. We’ll see for how long.

Courts are about power, not law

Moreover, in my opinion, education activists, especially in Florida, have too often looked with too much expectation to the courts to overcome deficits of political or personal power. Indeed, I think people without power have sometimes been led by people with some power to think of the courts as an equalizer. They’re not — at least not very often. Courts are rarely brave because power is rarely brave. And courts are more about power than law. Studying history — and just paying attention — has taught me that.

Indeed, the law is no more than what a human judge [in some cases a human jury] vested with state power says it is. Up to the point that the human judges vested with the most state power have the last word on what the law is and end the conversation through ultimate state power. This is true for everything from who wins presidential elections to who owns Florida’s local district testing calendars. It’s also contingent upon state power accepting the rulings, which is never guaranteed in human societies. Or America. (Study your history. See Andrew Jackson and Brown v. Board, among others.)

Relying on a judge’s vision of legality to deliver us is a mistake.

For instance, I don’t oppose taxpayer-funded vouchers because they’re illegal; I oppose them because the provider network is mostly Kingdom Preppish garbage and has no oversight. I oppose them because kids don’t do well in too many of these schools and tend to abandon the vouchers quickly. That’s also why vouchers are much less a threat to public education to the human suffocation of overtesting and fraudulent school grades that play on the dark temptation of personal branding and other people’s approval.

Thus, I think these activist judges have provided us a great service by telling us to stop expecting them to find anything illegal. Assume that vouchers are legal. Assume that anything Corcoran wants to do is legal. Assume “schools of fraud” are legal. Great. Now let’s worry about what’s good and what’s vicious. Let’s identify it publicly without mercy.  Let’s use the unpopularity and irredeemable corruption of the Florida Model to take power. And let’s end it. Then, let’s finally begin to protect, nurture, and develop our children as a state.

This is not the same as saying don’t use the courts.

Use them to clarify. Use them to raise issues. The legal battles the Opt Out folks fought when no one else would were crucial. The new Jacksonville suit is great, win or lose. It drives confrontation and forces power to reveal its hand. Just don’t expect to win. Go in looking for clarity and political weapons, not victories. “Winning” doesn’t come from the people in the robes. Lasting victory comes from the understanding of the people in the street and the voting booth, probably in that order.

Gut check. What is our purpose, Florida board members?

The clarity of the activist judges in the 7069 provides an uniquely unsparing gut check for all of Florida’s elected school board members. What are you going to do now that you are explicitly legally superfluous? What is our purpose? Do we exist to collect $40K and health insurance in the public’s dime just to cheerlead for 20 years of fraud and the whims of Richard Corcoran?

I’ve shared with you my moral crisis as a board member and my calculation for addressing it. But that’s only mine. All other elected board members have to decide for themselves how to live and serve within the systemic, statewide, human failure and grift of the Florida Model and the legal “hierarchy” that enforces it.

If you want to deny that either exists — if you want to ignore that data and the courts — I can’t stop you. Indeed, I urge all board members to do their own journalism about the districts and state they serve. It’s about the only real power you have.

And you damn well better read the 7069 decision yourselves. Maybe you’ll come to different conclusions than mine. If so, be honest with the public about what you find. We all owe that much to the voters who chose us and the people who look to us for leadership, protection, and support.

I’m deeply, deeply thankful to Florida’s activist judges for laying bare this reckoning and calling us to it.

 

6 comments

  1. Ann Whitehead

    Please keep advocating for teachers. I received a reply from Kimberly Moore to an e-mail that I sent her. I encouraged her to talk with teachers about referral issues. Her response indicated that teachers and parents with whom she spoke didn’t want to go on the record and didn’t want to be in the paper. “All of them feared retaliation.” a direct quote by Ms. Moore. Reading and re-reading that sentence sends chills down my spine. Citizens fearing to speak out on behalf of children is so far from the goals of our democracy.

  2. Steve Abney

    I urge you to do more. The board sets policy. Why not a policy that each zoned high school will offer calculus and physics? Why not a policy that every principal will receive training on personnel practices? Why not a policy that the principal’s supervisor will review any firing go ensure all procedures were followed? Why not a policy that district staff will pay teachers for extra duties within one month of receiving the required paperwork? Why not a policy that one board member will sit on the interview panel for each position with a six-figure salary? Why not?

    • Billy Townsend

      All very good policy suggestions. I know I’ve personally pushed for versions of at least the first three. Last two are good ideas as well. Each of those fall under the areas of action I described as still relevant for us.

  3. I would love a copy of this article. Very concise and informative and true
    Caroline Zucker

  4. Could teachers at least now get state health insurance?

  5. Bruce Kendall

    Mr. Townsend, while I no longer live in Florida, good luck.