Prepared for the Commissioner's Blue-Ribbon Committee on Education Governance January 7, 2000.

I. INTRODUCTION

The people of Florida approved sweeping changes to the education provisions of the state constitution in 1998. The 1997-98 Constitutional Revision Commission (CRC), which promulgated these changes, was profoundly concerned about the condition of public education in the pre-kindergarten through twelfth grades (pre-K-12). The CRC recommended that the constitution be amended to establish the education of children as a "fundamental value" and to impose upon the state a "paramount duty" to "make adequate provision for the education of all children residing within its borders. . . ." This language is now memorialized in article IX, section 1 of the Florida Constitution.

In order to guarantee this newly created value, the CRC proposed that the state board of education be reconstituted as an entity separate from the cabinet, that this new board's seven members be appointed by the governor and confirmed by the senate, and that the board appoint the commissioner of education. These recommendations were approved by the people as well, and are found in article IX, section 2, which will become effective January 7, 2003.

Under the current constitution, the state board of education is charged with the supervision of "public education." In what I believe to be a pivotal modification, the CRC inserted the word "free" before "public education" when it defined the responsibility of the new state board. This paper seeks to determine the meaning and consequences of these revisions, particularly as they relate to the structure of education governance in the State of Florida.

II. THE 1998 CONSTITUTIONAL REVISIONS

In order to understand the 1998 revisions to article IX of the Florida Constitution, it is necessary to examine their precise language in the context of the pre-existing document. Following are the redlined amendments as proposed by the CRC and approved by the people of Florida in the 1998 elections.
ARTICLE IX
EDUCATION
SECTION 1. System of Public education.--The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.
SECTION 2. State board of education.--The governor and the members of the cabinet shall constitute a state board of education, which shall be a body corporate and have such supervision of the system of free public education as is provided by law. The state board of education shall consist of seven members appointed by the governor to staggered 4-year terms, subject to confirmation by the senate. The state board of education shall appoint the commissioner of education.

It is instructive to examine these provisions in the light of the Constitutional Commission proceedings. The CRC established the "fundamental value" and "paramount duty" in section 1 in order to remove doubt as to the state's level of commitment to the education of children. This language was a direct response to the Florida Supreme Court's decision in Coalition for Adequacy and Fairness in School Funding v. Chiles, in which the plaintiffs argued that section 1 of article IX implied a fundamental right to an adequate education. A majority of the court rejected the argument that education was a fundamental right in Florida, and a plurality found that the constitution did not provide justiciable standards for determining the adequacy of resources appropriated for public education. Absent sufficient constitutional guidance, the court refrained from entering territory that it saw as the province of the legislature under the principle of separation of powers. The CRC added the words "efficient, safe, secure, and high quality" in section 1 to provide standards that a court could apply to determine whether the state had made "adequate provision" for the "system of free public schools."

These high standards are conspicuously absent from the clause in section 1 dealing with "institutions of higher learning and other public education programs." The CRC recommended no substantive change to this passage, which merely calls for "[a]dequate provision" for the "establishment, maintenance, and operation" of these institutions. The CRC, therefore, was neither attempting to attribute the standing of "fundamental value" to postsecondary education nor imposing a "paramount duty" to provide it. It is therefore clear that the CRC made a sharp distinction in section 1 between "free public schools," the vehicle for securing the fundamental value of the education of children, and "institutions of higher learning," which carry no such burden. This distinction is critical to an understanding of section 2 of article IX.

Section 2 defines the state board of education. It specifies the supervisory jurisdiction of the board, its size, the method of selecting members, and their terms of office. The purpose for creating a board of education separate from the cabinet was expressed clearly in the minutes of the CRC meetings:

COMMISSIONER FREIDIN: . . .But the point is that it makes an awful lot of sense to me to have a group of people deciding policy for an issue that is, as we have now determined, fundamental and important and paramount as education. It does not make sense to me to have a group of people who are experts in various different fields to be acting as a Board of Education.
Let this proposal go through and let the voters say, as they should, that they want to have a group of people who have expertise in an area making decisions about this very important subject.

Currently, the board of education, consisting of the cabinet and governor, has supervisory responsibility for all public education. The insertion of the word "free" before "public education" appears to limit the authority of the new appointed board to pre-K-12. This conclusion is a logical consequence of the differentiation made in section 1 between "free public schools" on the one hand and "institutions of higher learning" on the other. It follows also from the remarks of Commissioner Freidin just quoted, because they indicate that the board of education was created specifically to address the "fundamental value" and "paramount duty" created for the education of children by section 1 of article IX.

Most significantly, the issue of the jurisdiction of the state board of education under the 1998 revisions was thoroughly discussed during the meetings of the CRC. The author of the proposal that ultimately became section 2, Commissioner Judith Byrne Riley, was queried on this subject directly on several occasions. When asked what new board of education would do, she replied:

COMMISSIONER RILEY: Let me tell you what I think it will do. It will bring expertise to education that's already brought to other parts of education, such as the Board of Regents, such as the Board of Community Colleges. What about pre-K through 12? Why shouldn't they have a group that meets specifically for them, and specifically to bring the issues before them and put together a better educational system?

The following colloquy between Commissioners Stanley Marshall and Judith Riley addresses the issue of the purview of the commissioner of education and the new state board:

COMMISSIONER MARSHALL: Thank you. A question for . . . Commissioner Riley . . . . There appears to be no stipulation in the measure for the appointed Commissioner of education to have oversight of the state university system or the community college system. What is your intention about that?
COMMISSIONER RILEY: The intent is that it not. The intent is that it interface with the Board of Regents and also with the community college board, but that in no way does it -- is it an umbrella organization over those two bodies.

Later in the day, Commissioner Riley was asked the same question by Commissioner Mills:

COMMISSIONER RILEY: . . . .So I would ask that we give the voters an opportunity to vote in a State Board of Education that would allow better continuity, nonpartisan, and interface well with the Board of Regents and with the State Board of Community Colleges, both of whom have looked at these proposals, neither of whom have spoken against them.
CHAIRMAN DOUGLASS: Commissioner Mills.
COMMISSIONER MILLS: Well perhaps Commissioner Riley, since I told her I was going to ask that question has answered it. But we have two other statewide -- well, we have a statewide board with the Board of Regents and then we have a community college board. And the question is, do you have any vision of -- is this board supervisory over those?
COMMISSIONER RILEY: Absolutely not. Any more than the Regents is supervisory over the Board of Community Colleges, or that the acting State Board of Education is supervisory over the Board of Regents or the existing Community College Board. I see it as three boards working together but - they deal with different bodies. So, no, I don't. And I know they have both looked at this proposal. And as I said, they have not spoken against it.

As a result of these discussions, the CRC Committee on Style and Drafting recommended the limiting language:

READING CLERK: By the Committee on Style and Drafting, on Page 4, Line 24, after the word "of" insert "free."
CHAIRMAN DOUGLASS: You may proceed.
COMMISSIONER LOWNDES: As I say, it's Article IX, Section 2, with respect to the State Board of Education. It would change it from reading "the system of public education" to "the system of free public education." And the reason for that 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.

Commissioner Lowndes alludes to the description of free public education "another place in the Constitution." It is obvious that he is referring to the "free public schools" language in section 1 of article IX and therefore that the object of his amendment was to preserve the distinction made there between free public schools and institutions of higher learning.

The intent of the CRC is explicit and unambiguous. The new state board of education is to supervise the free public schools system, and its jurisdiction should not extend to the postsecondary system.

III. THE JUDICIAL PERSPECTIVE

While the intent of the authors of the constitutional revisions is abundantly evident, the issue that must ultimately be addressed is the interpretation that the Florida courts will give these provisions. The precise questions at issue here are the meaning of the word "free" inserted before "public education" by the CRC in section 2 of article IX and the extent to which that insertion affects the supervisory jurisdiction of the board of education. Could the legislature extend that jurisdiction to the postsecondary system notwithstanding the revisions?

The Supreme Court of Florida has consistently adhered to the doctrine that "[t]he fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it." The court expanded this precept in the recent case of Department of Environmental Protection v. Millender:

Intent is traditionally discerned from historical precedent, from the present facts, from common sense, and from an examination of the purpose the provision was intended to accomplish and the evils sought to be prevented. Furthermore, we may look to the explanatory materials available to the people as a predicate for their decision as persuasive of their intent. The amendment should also be construed as a whole in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole so as not to render any language superfluous. Less latitude is permitted when construing constitutional provisions because it is presumed that they have been more carefully and deliberately framed than statutes.

Therefore, the foregoing discussion of the CRC proceedings and the conclusions reached above are of supreme relevance to the judicial interpretation.

A. The Free Pubic School and the Meaning of "Free"

There is a rich history of the "free school" that traces its roots to the nineteenth century and Horace Mann, the public school advocate from Massachusetts. He argued that education should be available to all children and should be wholly financed by taxes levied on everyone. Over the intervening two hundred years, the establishment of free education for the elementary and secondary school levels has become universal in the United States. Therefore the term "free public school" has become synonymous with public education through the twelfth grade.

Indeed, in Florida the legislature has precisely defined what constitutes the system of free public schools as set forth in article IX of the Florida constitution. Section 228.051 of the Florida Statutes is entitled "Organization and funding of required public schools." It states:

The public schools of the state shall provide 13 consecutive years of instruction, beginning with kindergarten, and shall also provide such instruction for exceptional children and youth in Department of Juvenile Justice programs as may be required by law. The funds for support and maintenance of such schools shall be derived from state, district, federal, or other lawful sources or combinations of sources and shall include any tuition fees charged nonresidents as provided by law. Public schools, institutions, and agencies providing this instruction shall constitute the uniform system of free public schools prescribed by Art. IX of the State Constitution.

The constitutional establishment of "free public schools" has been interpreted by the courts to impose an obligation on the state to provide education free of charge. In Scavella v. School Bd. of Dade County the Florida Supreme Court had the opportunity to examine section 1 of article IX and to define "free."

The Florida Constitution mandates the legislature to provide for "a uniform system of free public schools." Article IX, Section 1, Florida Constitution. In compliance with this provision, the legislature has established a system of public schools which must provide "13 consecutive years of instruction . . . (and) such instruction for exceptional children as may be required by law." Section 228.051, Florida Statutes (1977). These schools are funded by governmental sources and nonresident tuition fees, not by the people utilizing them, except indirectly as taxpayers. The clear implication is that all Florida residents have the right to attend this public school system for free.
It is incumbent upon this court to construe this statute as not interfering with the right to a free education so as to prevent its being rendered unconstitutional.

There are a number of cases across the country that have considered matriculation fees and charges for materials and books in the light of constitutional or statutory language establishing free public schools. The Supreme Court of North Dakota spoke directly to the import of those words in its constitution when it invalidated fees for textbooks in the elementary grades:

The word "free" takes on its true and full meaning from the context in which it is used. There can be no doubt that the term means "without charge or cost." In the absence of any other showing we must conclude that the term was to mean "without charge or cost."

Although it has been suggested that the word "free" in this context may take on other meanings, the principles of constitutional construction cited above instruct otherwise. The historical, decisional and statutory contexts support the logical reading of sections 1 and 2 of article IX: free means without charge to the user. Additionally, the court has adopted a strong presumption that words are to be given their "usual and obvious meaning," and has rejected a technical interpretation of constitutional provisions, unless the context requires otherwise: "the court is not disposed to place such a narrow and technical construction upon this amended section of the Constitution as would defeat its evident intent and purpose."

B. Article IX, Section 2: "The System of Free Public Education"

To determine the purpose to be accomplished by inserting the word "free" in section 2 of article IX, we look to the deliberations of the framers of the amendments: "The constitutional amendment must be viewed in light of the historical development of the decisional law extant at the time of its adoption and the intent of the framers and adopters." As discussed above, the intent of the framers is clear: "free" was inserted to restrict the jurisdiction of the board to the free public schools, the pre-K-12 system.

The decisional context is provided by Coalition for Adequacy and Fairness in School Funding v. Chiles, cited above, and cases in other states taking a different stance and finding sufficient standards to measure the adequacy of public educational resources. The CRC commissioners were acutely aware of the inadequacies of Florida's efforts to educate children and the court's refusal to effectuate the constitutional mandate for "adequate provision," and they were determined to elevate the state's commitment to the problem to the highest levels. Therefore, they couched childhood education as a fundamental value and paramount duty of the state, established lofty standards to guide legislative and judicial action and created an appointed board of education to focus exclusively on the "evils" bedeviling the pre-K-12 system.

That these concerns were addressed by constitutional amendments is of special import. Significant changes to constitutional language are presumed to be intentional and to have an effect different from the original, and amendments are to be read in context. "[E]ach subsection, sentence, and clause must be read in light of the others to form a congruous whole so as not to render any language superfluous."

Therefore, the insertion of the word "free" before "public education" in section 2, article IX, must be viewed as modifying the meaning of the prior language. The meaning of "free" is to be determined from the context, and this is readily accomplished by reference to section 1, which distinguishes "free public schools" from postsecondary institutions.

The full context of article IX reinforces this interpretation. In that article the phrases "free public education" or "free public schools" appear four places. As we have seen, sections 1 and 2 contain two references. Section 4(b) defines the jurisdiction of the local school boards: "The school board shall operate, control and supervise all free public schools within the school district. . . ." Section 6 prescribes the appropriate use of the state school fund: "The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools."

The provision in section 4 that the school boards govern "free public schools" within their respective districts is particularly significant. The argument that the grant of jurisdiction to the state board of education over "free public education" is not limiting, and therefore would allow that body to supervise postsecondary education, would apply with equal force to the parallel grant to the local school boards. One could therefore assert that the legislature could empower school boards to supervise postsecondary institutions in their districts, a result obviously not contemplated by the constitution.

The precedents clearly require that constitutional language should be read in a consistent and uniform fashion: "Unless a different intent is clearly manifested, each section of the constitution should be read in conjunction with all other provisions to determine its proper meaning, and the entire document should receive a consistent and uniform interpretation." It would be anomalous to read section 4 as a limitation on the jurisdiction of the school boards and section 2 as merely a passing affirmation of the jurisdiction of the state board of education.

To infer jurisdiction of the state board of education over postsecondary education would render the word "free" ineffective and superfluous: the supervisory purview of the board of education would remain the same as before the amendment. This interpretation would be patently impermissible under the precedents cited above.

Additional judicial principles reaffirm this position. The Florida Supreme Court has consistently held "where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner." Moreover,

[e]ven though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. . . . Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision. . . . 'Every word of a state Constitution should be given its intended meaning and effect, and essential provisions of a Constitution are to be regarded as mandatory.'

This principle is a consequence of the very nature of state constitutions. State legislative power is inherent: the legislature needs no constitutional imprimatur to exercise its power to provide for the public welfare. Constitutional prescriptions of power

may be included for emphasis, indicating powers that the state government can exercise, without enlarging those powers. Or they may direct state legislatures to exercise powers that they command . . . . Most often, however, the apparent "grants of power" function as limitations. For in a constitution of plenary legislative powers, an authorization to pursue one course of action may by negative implication serve to preclude pursuing alternative courses that were available in the absence of the "grant," under the familiar doctrine of expressio unius es exclusio alterius.

Since section 2, article IX mandates that the board of education "shall … have such supervision of the system of free public education as is provided by law," to enlarge its sphere beyond pre-K-12 would substantially change its intended mission. The minutes of the CRC proceedings are specific about the scope of responsibility envisioned for the board: it should be focused sharply and exclusively on the pre-K-12 system. To saddle the board with the burdensome task of administering postsecondary education would deflect its attention from the paramount constitutional objectives assigned to it by the framers and would severely weaken the emphasis that was intended for the pre-K-12 system.

Two cases have been cited, in which the legislative assignment of duties to constitutional officers in addition to those attendant to their offices was approved, to justify extension of the jurisdiction of the new state board of education to the postsecondary system. The cases are Whitaker v. Parsons and Amos v. Matthews, and both deal with the statutory appointment of constitutional officers to administrative boards having responsibilities beyond those expressly imposed by the constitution. In the Whitaker case, the commissioner of agriculture, the superintendent of public instruction, the state treasurer and two members selected by the governor were appointed to the live stock sanitary board. In Amos v. Matthews the governor, comptroller and state treasurer were appointed to a state board of administration established to liquidate certain road and bridge bonds.

In both cases, the court was careful to point out that additional duties may be imposed only "so long as such duties are not inconsistent with their duties imposed by the Constitution." The expansion of the state board of education's authority beyond pre-K-12 would defeat the very purpose for the revision inserting the word "free" in section 2, article IX. That amendment was framed with the avowed objective of limiting the jurisdiction of the board so as not to extend to the state university system or the community college system. This would not be a case of merely appointing a member of the state board of education to another administrative body; it is an expansion of the duties of the board itself into territory proscribed by the constitution.

IV. CONCLUSION

A straightforward and consistent reading of sections 1 and 2 of article IX of the Florida Constitution, as amended by the voters in 1998, is reinforced by the history surrounding their promulgation and adoption. Controlling rules of constitutional interpretation lead ineluctably to the same conclusion: the new board of education should have supervisory power over free public education, that is pre-K-12, but not over the community college or state university systems.

The consequences of this conclusion are that the pre-K-12 system will have a powerful and focused advocate in the state board of education-of stature equal to the State Board of Community Colleges and the Board of Regents-and a professional champion in the commissioner of education chosen by that board. All three boards will be directly accountable to the governor, who appoints their members, to the Senate, which confirms them, and ultimately to the legislature as a whole. And while I believe the constitution limits the power of the legislature to expand the jurisdiction of the new state board of education beyond pre-K-12, the legislative prerogative within that sphere is extensive. Additionally, the legislature has broad powers to deal with issues of system-wide governance and articulation at all levels.

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