FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-2040

_____________________________

THE SCHOOL BOARD OF COLLIER 

COUNTY, FLORIDA,

Appellant/Cross-Appellee,

v.

FLORIDA DEPARTMENT OF 

EDUCATION; STATE BOARD OF 

EDUCATION; RICHARD 

CORCORAN, in his official 

capacity as Florida 

Commissioner of Education;

ANDY TUCK, in his official 

capacity as Chair of the State 

Board of Education, THE 

PASSPORT SCHOOL, INC.; HOPE 

CHARTER SCHOOL, INC.; LEGACY 

HIGH SCHOOL, INC.; MARCO 

ISLAND ACADEMY, A Public 

Charter High School, Inc.;

JENNY CARTWRIGHT; BETH 

SCHMUDE; LISA BURDUE 

TACKETT; THE SCHOOL BOARD OF 

ALACHUA COUNTY, FLORIDA; THE 

SCHOOL BOARD OF BAY COUNTY,

FLORIDA; THE SCHOOL BOARD OF 

BROWARD COUNTY, FLORIDA;

THE SCHOOL BOARD OF CLAY 

COUNTY, FLORIDA; THE SCHOOL 

BOARD OF DUVAL COUNTY,

FLORIDA; THE SCHOOL BOARD OF 

HAMILTON COUNTY, FLORIDA;
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THE SCHOOL BOARD OF LEE 

COUNTY, FLORIDA; THE SCHOOL 

BOARD OF ORANGE COUNTY,

FLORIDA; THE SCHOOL BOARD OF 

PINELLAS COUNTY, FLORIDA;

THE SCHOOL BOARD OF POLK 

COUNTY, FLORIDA; THE SCHOOL 

BOARD OF ST. LUCIE COUNTY,

FLORIDA; THE SCHOOL BOARD OF 

VOLUSIA COUNTY, FLORIDA; and

THE SCHOOL BOARD OF 

WAKULLA COUNTY, FLORIDA,

Appellees/Cross-Appellants.

_____________________________

No. 1D18-2072

_____________________________

THE SCHOOL BOARD OF ALACHUA

COUNTY, FLORIDA, THE SCHOOL

BOARD OF BAY COUNTY,

FLORIDA, THE SCHOOL BOARD OF

BROWARD COUNTY, FLORIDA,

THE SCHOOL BOARD OF

HAMILTON COUNTY, FLORIDA,

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA, THE SCHOOL

BOARD OF ORANGE COUNTY,

FLORIDA, THE SCHOOL BOARD OF

PINELLAS COUNTY, FLORIDA,

THE SCHOOL BOARD OF POLK

COUNTY, FLORIDA, THE SCHOOL

BOARD OF ST. LUCIE COUNTY,

FLORIDA, and THE SCHOOL

BOARD OF VOLUSIA COUNTY,

FLORIDA,

Appellants/Cross-Appellees,
3

v.

FLORIDA DEPARTMENT OF

EDUCATION; STATE BOARD OF

EDUCATION; RICHARD

CORCORAN, in his official 

capacity as Florida 

Commissioner of Education;

ANDY TUCK, in his official 

capacity as Chair of the State 

Board of Education, THE

PASSPORT SCHOOL, INC., HOPE

CHARTER SCHOOL, INC., LEGACY

HIGH SCHOOL, INC., MARCO

ISLAND ACADEMY, A Public

Charter High School, Inc.,

JENNY CARTWRIGHT, BETH

SCHMUDE, LISA BURDUE

TACKETT, THE SCHOOL BOARD OF

CLAY COUNTY, FLORIDA, THE

SCHOOL BOARD OF COLLIER

COUNTY, FLORIDA, THE SCHOOL

BOARD OF DUVAL COUNTY,

FLORIDA and THE SCHOOL

BOARD OF WAKULLA COUNTY,

FLORIDA,

Appellees/Cross-Appellants.

_____________________________

On appeal from the Circuit Court for Leon County.

John C. Cooper, Judge.

August 29, 2019
4

LEWIS, J.

Appellants/Cross-Appellees, several Florida school boards, 

appeal a final judgment entered in favor of Appellees, the Florida 

Department of Education, the State Board of Education, the 

Florida Commissioner of Education, and the Chair of the State 

Board of Education, seeking review of the trial court’s rejection of 

their facial constitutional challenge to several provisions contained 

in Chapter 17-116, Laws of Florida, also known as House Bill 7069

(“HB 7069”), pertaining to charter schools, including the new 

“schools of hope.” The school boards contend, as they did below, 

that the challenged provisions violate their right to “operate, 

control and supervise all free public schools” in Florida pursuant 

to Article IX, section 4(b) of the Florida Constitution, that certain 

provisions violate the uniformity requirement contained in Article 

IX, section (1)(a), and that HB 7069’s capital millage provisions 

violate Article VII, section 1 by permitting the State to levy ad 

valorem taxes. On cross-appeal, Cross-Appellants/Appellees

challenge the trial court’s rejection of their defenses of lack of 

standing, estoppel, and failure to exhaust administrative 

remedies. For the reasons that follow, we conclude that the school 

boards have standing to challenge only those provisions of HB 

7069 that address capital millage and federal Title I funds. 

However, because we find the school boards’ challenge to those 

provisions unavailing on the merits, we affirm the Final 

Judgment. 

FACTUAL BACKGROUND

In October 2017, the school boards filed a Complaint for 

Declaratory and Injunctive Relief against Appellees, alleging that 

HB 7069 unconstitutionally: (1) mandates that they share a 

portion of their discretionary capital outlay millage revenues with 

charter schools; (2) allows for the creation of charter schools called 

“schools of hope” that would be allowed to operate outside of any 

meaningful control or supervision by the school boards and create 

dual or even multiple systems of public education; (3) allows 

schools of hope and authorized charter school systems to serve as 

local education agencies; (4) strips the school boards of their ability 

to supervise and control charter schools by requiring them to enter 

into a standard charter contract with charter school operators; (5) 
5

restricts the authority of the school boards to effectively use federal 

Title I funds to operate, supervise, and control public schools in 

their district; and (6) divests the school boards of their authority 

and responsibility to decide how best to improve a public school 

that the State has identified as low-performing. 

With respect to capital millage, the school boards claimed that 

before HB 7069 was passed, they had full discretion as to whether 

to use any portion of their capital millage for charter schools. They 

also challenged the fact that HB 7069 prescribed a specific formula 

for the Florida Department of Education to use and directed that 

each district distribute funds to charter schools according to the 

formula. They alleged that the distribution of funds would 

severely impact their ability to build new and necessary schools 

and to adequately maintain the facilities they currently operated. 

As to federal Title I funding, the school boards alleged that HB 

7069 restricted their authority to use the funds for purposes they 

deemed to be the most educationally beneficial and most likely to 

effectively address the educational needs of low-income students. 

The undisputed facts common to all of the school boards’ 

claims, as set forth by the trial court, are as follows:

The parties agree that “constitutional authority over 

public education in Florida is shared among the State and 

local district school boards.” . . . Article IX, section 1(a) of 

the Florida Constitution provides that the State shall 

make “adequate provision . . . 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.” Article IX, section 2 of the Florida 

Constitution gives the State Board of Education “such 

supervision of the system of free public education as is 

provided by law.” And article IX, section 4(b) provides 

that the local “school board shall operate, control and 

supervise all free public schools within the school 

district.”

This shared authority is reflected in Florida’s longstanding system of free public schools and education 

finance. “Public education is a cooperative function of the 

state and local educational authorities,” and “[t]he state 
6

retains responsibility for establishing a system of public 

education through laws, standards, and rules.” § 

1000.03(3), Fla. Stat. In addition, “[t]he district school 

system shall be considered as a part of the state system 

of public education. All actions of district school officials 

shall be consistent and in harmony with state laws and 

with rules and minimum standards of the state board.” . 

. . Florida’s charter schools are likewise “part of the 

state’s program of public education,” and “[a]ll charter 

schools in Florida are public schools.” § 1002.33(1), Fla. 

Stat. 

The Local Boards do not challenge the overall 

structure of Florida’s system of public schools or its 

primary funding mechanism, the Florida Education 

Finance Program (“FEFP”), and Florida courts have 

repeatedly acknowledged the constitutionality of 

Florida’s basic funding formula for public education. . . . 

Nor do the Local Boards challenge the underlying 

constitutionality of public charter schools or the State’s 

authority to require local boards to approve an 

application to open a charter school – both of which also 

have been upheld by Florida courts. . . . 

Under these presumptively constitutional laws, local 

school boards are responsible for considering and 

approving applications to open a charter school (including 

“[t]he facilities to be used and their location”) and for 

monitoring and reviewing any charter schools that they 

approve or “sponsor.” . . . The Local Boards thus “monitor 

the revenues and expenditures of [each] charter school” 

and may terminate or nonrenew a charter for a variety of 

reasons, including “failure to meet the requirements for 

student performance stated in the charter” and “[f]ailure 

to meet generally accepted standards of fiscal 

management.” . . . Since the creation of public charter 

schools in 1996, Florida’s charter-school laws have also 

required local school boards to “make timely and efficient 

payment and reimbursement to charter schools” based on 

a statutory funding formula that includes “gross state 

and local funds, discretionary lottery funds, and funds 

from the school district’s current operating discretionary 

millage levy.” . . . For example, during the 2016-2017 
7

school year, 12 of the Local Boards (excluding the school 

boards for Hamilton and Collier counties) distributed 

nearly $780 million in FEFP funding to charter schools –

including over $330 million in locally generated ad 

valorem tax revenues. . . .

The parties filed cross-motions for summary judgment. 

Appellees challenged the school boards’ standing to raise all but 

their capital millage claim. Following the summary judgment 

hearing, the trial court entered its Final Order and Judgment. 

Therein, the trial court, set forth in part:

A. The State Defendants’ Procedural Defenses 

Do Not Warrant a Summary Judgment in Their 

Favor.

Before reaching the parties’ arguments on the 

merits, the Court rejects the State Defendants’ 

arguments that some or all of the Local Boards’ claims 

are barred by a lack of standing, the doctrine of estoppel, 

or a failure to exhaust administrative remedies. 

With respect to standing, the Local Boards seek a 

declaratory judgment that various statutes interfere with 

their authority under article VII and article IX of the 

Florida Constitution. Florida law allows “[a]ny person . . 

. whose rights, status, or other equitable or legal relations 

are affected by a statute” to “obtain a declaration of 

rights, status, or other equitable or legal relations 

thereunder.” § 86.021, Fla. Stat. The Local Boards allege 

that the statutes at issue affect their rights, and despite 

the State Defendants’ arguments to the contrary, the 

Local Boards have standing to seek declaratory relief in 

this action.

. . . .

B. The Local Boards’ First Claim Challenging 

the “Capital Millage Provisions,” Fails as a Matter 

of Law.
8

The Local Boards’ claim that HB 7069’s capitalmillage provisions violate article VII and article IX of the 

Florida Constitution is barred by binding and settled 

precedent. The Florida Constitution “creates a hierarchy 

under which a school board has local control, but the 

State Board supervises the system as a whole.” . . . The 

State’s “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.” . . . And “there is nothing in the 

constitution” – not in article VII, nor in article IX – “which 

requires that [junior colleges or other public education 

programs] be under the control of the local school board 

or that prohibits the legislature [from] enacting laws 

requiring that some local school funds be used in support 

of such institutions to the extent that they serve a local 

purpose.” . . .

In Brevard County, the Florida Supreme Court held 

that requiring local boards of education to share their 

property-tax revenues with junior colleges (which were 

outside the local boards’ control) did not violate article 

VII or article IX of the Florida Constitution. 

. . . .

The Local Boards’ attempt to distinguish Brevard 

County on the ground that the junior colleges in that case 

were not “under the control of the local schools boards” . . 

. is unpersuasive. If local tax revenues could be used in 

Brevard County to support junior colleges that were not 

even under the local board’s control, surely those funds 

can be used to support local public charter schools that 

will in turn use the funds to house and educate local 

schoolchildren. The Legislature has at least as much 

authority to require the use of local taxes to support 

locally sponsored and supervised charter schools here as 

it did to require local boards to fund junior colleges that 

were beyond the local boards’ control in Brevard County. 

Thus, Brevard County forecloses the Local Boards’ article 

VII and article IX claims.
9

The Court also rejects the Local Boards’ argument 

that HB 7069 unconstitutionally requires them to share 

capital-outlay revenues “on an arbitrary basis” because 

the enrollment-based distribution formula does not 

consider each eligible “charter school’s actual need.” . . . 

To the contrary, it is undisputed that the average 

distribution of capital-millage funds to eligible charter 

schools under HB 7069 for the 2017-2018 school year was 

not enough to cover the full cost of a typical charter-school 

lease. . . . HB 7069’s enrollment-based formula for 

charter-school capital-outlay funding accounts for the 

fact that schools with more students need more 

classrooms, and charter schools are required to spend 

capital-outlay funding for substantially the same 

purposes as school districts. . . . The Local Boards have 

not shown that the capital-millage provisions are 

constitutionally different from the numerous other, 

presumptively constitutional requirements governing the 

use of local tax dollars in Florida’s public schools – which 

have included charter schools for more than 20 years.

This Court cannot wade into policy debates about 

“the enactment of educational policies regarding teaching 

methods and accountability, the appropriate funding of 

public schools, the proper allowance of charter schools 

and school choice, the best methods of student 

accountability and school accessibility, and related 

funding priorities.” . . . Regardless of whether requiring 

the Local Boards to share capital-millage revenues with 

their local charter schools is “bad policy” . . ., the Court 

cannot determine that HB 7069’s capital-millage 

provisions “cross constitutional lines” . . . when those 

policies are supported by a conceivable rational basis.

Nor have the Local Boards explained how the 

Constitution could preclude the State from imposing 

conditions on a discretionary capital-millage tax that can 

be levied only with legislative authorization and the 

Local Boards’ voluntary approval. . . . This requirement 

is no more intrusive than the presumptively 

constitutional requirements imposed on local school 

districts by the FEFP and many other statutory 
10

requirements that the Local Boards have not challenged 

in this litigation.

. . . . 

F. The Fifth Claim, Regarding “Title I” Funds, 

Fails a Matter of Law.

The Local Boards’ Title I claim – which is based on 

the theory that they have a state constitutional right 

under article IX, section 4(b) “to allocate Title I [federal] 

funds in the manner [they] deem[] most beneficial” . . . –

fails as a matter of law because the Local Boards do not 

have any state constitutional right to federal Title I 

dollars. Under federal law, a school district cannot 

receive any of those funds unless the State determines 

that the district’s Title I plan meets the requirements of 

federal law and “provides that schools served under this 

part substantially help children served under this part 

meet the challenging State academic standards.” . . . .

HB 7069’s effort to direct more Title I funding toward 

individual schools is also rationally related to legitimate 

concerns about ensuring that Title I funds benefit schools 

with the highest proportions of economically 

disadvantaged students. It is undisputed that federal 

policy has “emphasized poverty and established the 

priority that Title I funding flow to high-poverty schools 

before serving schools with less poverty.” . . . And 

guidance from the U.S. Department of Education has 

further encouraged the use of Title I funds in specific 

schools as opposed to reserving those funds at the district 

level. . . . The State Defendants are entitled to judgment 

as a matter of law on the Local Boards’ fifth cause of 

action. 

Thereafter, the trial court entered a Final Judgment in favor of 

Appellees. This appeal and cross-appeal followed. 
11

ANALYSIS

Standing

Cross-Appellants/Appellees contend on cross-appeal that the 

trial court erred in rejecting their arguments that the school 

boards lacked standing to raise all but their capital millage claim, 

that they should be estopped from raising their claims, and that 

they failed to exhaust their administrative remedies. We reject the 

latter two arguments without comment. As to the standing 

argument, we review the issue de novo. Cartwright v. LJL Mortg. 

Pool, LLC, 185 So. 3d 614, 615 (Fla. 4th DCA 2016). 

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.’’’ Id. (quoting Dep’t of Revenue v. Markham, 396 So. 2d 

1120, 1121 (Fla. 1981), superseded by statute as recognized in 

Crossings at Fleming Island Cmty. Dev. Dist. v. Echeverri, 991 So. 

2d 793, 802-03 (Fla. 2008)). The prohibition against public officials 

attacking the constitutionality of a statute is not limited to those 

public officials charged with a duty under the challenged law, but 

also extends to public officials whose duties are affected by the 

challenged law. Id. at 495; see also Echeverri, 991 So. 2d at 794–

803 (holding that a property appraiser acting in his or her official 
12

capacity lacks standing to raise the constitutionality of a statute 

as a defense in an action by a taxpayer and finding its earlier 

holding in State ex rel. Atlantic Coast Line Railway Co. v. State 

Board of Equalizers, 94 So. 681, (1922), that a public official may 

not challenge the constitutionality of the statute as “promot[ing] 

an important public policy of ensuring the orderly and uniform 

application of state law”); Dep’t of Educ. v. Lewis, 416 So. 2d 455, 

458 (Fla. 1982) (“State officers and agencies must presume 

legislation affecting their duties to be valid, and do not have 

standing to initiate litigation for the purpose of determining 

otherwise.”); Island Resorts Invs., Inc. v. Jones, 189 So. 3d 917, 922 

(Fla. 1st DCA 2016) (holding that the property appraiser and tax 

collector lacked standing to raise the constitutionality of the 

statute at issue based upon the public official standing doctrine). 

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. In reaching our 

determination on standing, we reject the school boards’ argument 

that this case is governed by the rule that standing is allowed 

where a public official is willing to perform his or her duties but is 

prevented from doing so by others. See Reid v. Kirk, 257 So. 2d 3, 

4 (Fla. 1972) (recognizing that standing is permitted when a public 

official is prevented “by others” from performing the duties that he 

or she is willing to perform). While the school boards rely upon the 

supreme court’s determination in Coalition for Adequacy & 

Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 411 n.4 

(Fla. 1996), that the schools boards in that case had standing 

under the “prevention of duties” doctrine to challenge “a 

constitutional violation which renders them unable to adequately 

discharge their duties,” the plaintiffs in that case, which included 

private plaintiffs as well as school boards, sought a declaration 

that the State failed to provide Florida students an adequate 

education by failing to allocate adequate resources for a uniform 

system of free public schools. It was not a situation where the 

school boards were claiming that a statute was unconstitutional, 

as is the case here. See Markham, 396 So. 2d at 1121 (“For 

important policy reasons, courts have developed special rules 

concerning the standing of governmental officials to bring a 
13

declaratory judgment action questioning a law those officials are 

duty-bound to apply. As a general rule, a public official may only 

seek a declaratory judgment when he is ‘willing to perform his 

duties, but ... prevented from doing so by others.’ Reid v. Kirk, 257 

So.2d 3, 4 (Fla.1972). Disagreement 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.”). 

Based upon the foregoing, the school boards lack standing to

challenge the constitutionality of HB 7069’s provisions pertaining 

to the schools of hope, the charter school standard contract, and 

the charter school “turnaround” provisions. As for the school 

boards’ claims regarding capital millage and federal Title I funds, 

we find that the public funds exception, which allows for standing 

to challenge the constitutionality of a law providing for the 

expenditure of public funds, confers standing upon the school 

boards to raise those claims. See Echeverri, 991 So. 3d at 797

(recognizing the public funds exception); Branca v. City of 

Miramar, 634 So. 2d 604, 606 (Fla. 1994) (same); Island Resorts 

Invs, Inc., 189 So. 3d at 922 (same). As such, we will address the 

school boards’ constitutional claims as to those provisions on the 

merits.

Constitutional Claims 

The determination of whether a statute is constitutional is a 

pure question of law reviewable de novo. Scott v. Williams, 107 So. 

3d 379, 384 (Fla. 2013). The same standard applies to a summary 

judgment ruling where there is no genuine issue of material fact. 

Id. “As a general rule, courts may not reweigh the competing 

policy concerns underlying a legislative enactment.” Bush v. 

Holmes, 919 So. 2d 392, 398 (Fla. 2006). When the Legislature acts 

within its constitutional limits, its power to resolve issues of civic 

debate is to receive great deference. Id. A facial constitutional 

challenge considers only the text of the statute, not its application 

to a particular set of circumstances. Duval Cty. Sch. Bd. v. State, 

Bd. of Educ., 998 So. 2d 641, 643 (Fla. 1st DCA 2008). A 

determination that a statute is facially unconstitutional means 

that no set of circumstances exists under which the statute would 

be valid. Id. The party claiming that a statute is facially 
14

unconstitutional must demonstrate that the statute’s provisions 

pose a present total and fatal conflict with applicable 

constitutional standards. Id. 

As for the State’s constitutional authority for education, 

article IX, section 1(a) of the Florida Constitution provides in part:

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.

Article IX, section 2 provides that the “state board of education 

shall be a body corporate and have such supervision of the system 

of free public education as is provided by law.” With respect to the 

school boards’ constitutional authority, article IX, section 4

provides in part:

(b) The school board shall operate, control and 

supervise all free public schools within the school district 

and determine the rate of school district taxes within the 

limits prescribed herein. Two or more school districts 

may operate and finance joint educational programs.

Article IX, Section 4 Claims

The school boards contend that HB 7069 removes their 

discretion over financial decisions by imposing strict limits on how 

they can spend the tax dollars they raise and, therefore, violates 

their constitutional right to operate, control, and supervise the 

schools in their districts. Prior to the passage of HB 7069, section 

1011.71(2), Florida Statutes (2016), read, “In addition to the 

maximum millage levy as provided in subsection (1), each school 

board may levy not more than 1.5 mills against the taxable value 
15

for school purposes for district schools, including charter schools at 

the discretion of the school board” to fund certain enumerated 

expenses and projects. HB 7069 amended the provision and 

removed “at the discretion of the school board.” Ch.17-116, § 29, 

Laws of Fla. (codified at § 1011.71(2), Fla. Stat. (2017)). Prior to 

the passage of HB 7069, section 1013.62(1), Florida Statutes 

(2016), set forth, “In each year in which funds are appropriated for 

charter school capital outlay purposes, the Commissioner of 

Education shall allocate the funds among eligible charter schools 

as specified in this section.” That provision was deleted in HB 

7069, and the following was added in its place: “Charter school 

capital outlay funding shall consist of revenue resulting from the 

discretionary millage authorized in s. 1011.71(2) and state funds 

when such funds are appropriated in the General Appropriations 

Act.” Ch. 17-116, § 31, Laws of Fla. (codified at § 1013.62(1), Fla. 

Stat. (2017)). The Legislature also added, “The department shall 

use the following calculation methodology to allocate state funds 

appropriated in the General Appropriations Act to eligible charter 

schools.” Id. (codified at § 1013.62(2), Fla. Stat. (2017)). The 

Legislature added as well, “If the school board levies the 

discretionary millage authorized in s. 1011.71(2), the department 

shall use the following calculation methodology to determine the 

amount of revenue that a school district must distribute to each 

eligible charter school . . . .” Id. (codified at § 1013.62(3), Fla. Stat.

(2017)).∗

 ∗ As the parties point out, the Legislature amended section 

1013.62 in 2018 by providing that charter school capital outlay 

funding would consist of only state funds rather than state funds 

and revenue resulting from discretionary millage. Ch. 18-6, § 45, 

Laws of Fla. The Legislature added, “Beginning in fiscal year 

2019-2010, charter school capital outlay funding shall consist of 

state funds when such funds are appropriated in the General 

Appropriations Act and revenue resulting from the discretionary 

millage authored in s. 1011.71(2) . . . .” The school boards contend 

that even with this postponement of the implementation of the 

capital millage provision to 2019-20, they “still must plan for this 

diversion of revenue in their long-term budgeting plans.”
16

The school boards claim that they are not attacking the 

formula chosen by the State or the concept that charter schools 

must be funded. Their “narrow complaint” is that the Florida 

Constitution requires the funding decisions to be made by local 

elected officials, not by state employees far removed from local 

needs and concerns. In rejecting their argument, the trial court 

reasoned in part that the school boards failed to explain how the 

Florida Constitution could preclude the State from imposing 

conditions on a discretionary capital millage tax that can be levied 

only with legislative authorization. The school boards have failed 

to show any error on the trial court’s part. Appellees are correct 

that what the Legislature has done with respect to the capital 

millage provisions is exercise its supervisory power under article 

IX, section 1(a) to ensure adequate provision be made for the “free 

public schools” in Florida. While charter schools are statutorily 

considered to be public schools, the reality is that they do compete 

with the traditional public schools in their districts. Indeed, 

section 1002.33(2)(c)2., Florida Statutes (2017), sets forth that one 

of the purposes of charter schools is to “[p]rovide rigorous 

competition within the public school district to stimulate continual 

improvement in all public schools.” Given such, the State’s 

constitutional duty to make adequate provision for Florida’s public 

schools must be interpreted to mean that the State has a duty to 

ensure that charter schools are not neglected by the school boards. 

By requiring that charter schools receive a certain portion of 

capital millage funds, the State is not violating article IX, section 

4, but is fulfilling the purpose of article IX, section 1. As the Fourth 

District has reasoned:

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.

Sch. Bd. of Palm Beach Cty. v. Fla. Charter Educ. Found. Inc., 213 

So. 3d 356, 360 (Fla. 4th DCA 2017). Moreover, as Appellees 

contend, section 1013.62(4) is very detailed as to what charter 

schools may spend capital outlay funds on, and subsection (5) of 
17

that statute provides that if a charter school is nonrenewed or 

terminated, any unencumbered funds and all equipment and 

property purchased with school board funds revert to the boards’ 

ownership. We, therefore, reject the school boards’ constitutional 

challenge to the capital millage provisions under article IX, section 

4.

Turning to Title I, the federal program that helps fund the 

needs of low-income students, HB 7069 added the following 

language to section 1011.69, Florida Statutes:

After providing Title I, Part A, Basic funds to schools 

above the 75 percent poverty threshold, school districts 

shall provide any remaining Title I, Part A, Basic funds 

directly to all eligible schools as provided in this 

subsection. For purposes of this subsection, an eligible 

school is a school that is eligible to receive Title I funds, 

including a charter school. . . . 

Ch. 17-116, § 45, Laws of Fla. (codified at § 1011.69(5), Fla. Stat. 

(2017)). The school boards contend that prior to the enactment of 

HB 7069, they could use a portion of the Title I funds to fund 

district-wide programs, such as summer school, after-hours 

programs, district-wide science and technology initiatives, or a 

transportation system to ensure that low-income students could 

take advantage of the programs. They claim that the foregoing 

provision unconstitutionally divested them of their right to decide 

how to spend federal Title I funds. In rejecting this claim, the trial 

court correctly recognized that the school boards do not have any 

constitutional right to federal Title I funds. Moreover, as is the 

case with capital millage, we find that the Title I issue is governed 

by the State’s constitutional authority under article IX, section 1

to ensure the adequate provision of education for all children in 

Florida. Ensuring that students in charter schools receive the 

federal funds that they are entitled to without relying upon the 

school boards’ discretion on how to allocate those funds does not 

violate Florida’s Constitution. 
18

Article VII Claim

The school boards also challenge HB 7069 by contending that 

the Legislature imposed forbidden state ad valorem taxation by 

adding the capital millage provisions. Article VII, section 1(a) of 

the Florida Constitution provides in part that “[n]o tax shall be 

levied except in pursuance of law” and “[n]o state ad valorem taxes 

shall be levied upon real estate or tangible personal property.” 

Article VII, section 9(a), which addresses “[l]ocal taxes,” sets forth

in part that “[c]ounties, school districts, and municipalities shall, 

and special districts may, be authorized by law to levy ad valorem 

taxes and may be authorized by general law to levy other taxes, for 

their respective purposes . . . .” As the supreme court has 

explained, article VII, section 9(a) requires legislative 

authorization before the entities named therein may levy ad 

valorem taxes. Fla. Dep’t of Educ. v. Glasser, 622 So. 2d 944, 946-

47 (Fla. 1993). 

In rejecting the school boards’ capital millage argument under 

article VII, the trial court relied upon Board of Public Instruction 

of Brevard County v. State Treasurer of Florida, 231 So. 2d 1 (Fla. 

1970). There, the issue was whether two 1967 statutes, sections 

230.0111(2) and 230.0117(7), which provided “for the support of 

junior colleges by county (now district) boards of public 

instruction,” were constitutional. Id. at 2. According to the trial 

court’s judgment, which the supreme court adopted as its decision, 

it was the appellant board’s position that it had the power and duty 

to operate, control, and supervise all free public schools within the 

school district under article IX, section 4(b) of the 1968 Florida 

Constitution, that the control and supervision of junior colleges 

were placed under officers, and that if junior colleges were no 

longer part of the free public school system, they could not be 

supported by funds of the county or district boards. Id. The trial 

court, in citing article VII, section 9, which placed a limit of ten

mills on taxes “for all school purposes,” set forth, “‘All school 

purposes’ is certainly broader than ‘free public schools.’ This would 

seem to imply that while the local board must determine the rate 

of all school district taxes, some of the taxes . . . can properly be 

used for local school purposes other than the support of the free 

public school . . . .” Id. The opinion further set forth, “Nor is there 

anything in the constitution which requires that all taxes levied by 
19

a county-wide school district be appropriated exclusively to free 

public schools or that requires that no part of such funds may be 

appropriated for other school purposes and administered by other 

officers.” Id. The opinion also provided in part:

But it [the appellant] takes the position that once the 

junior college ceases to be a part of the system of free 

public schools (and thus is removed from its control) any 

local financing of the junior college becomes 

unconstitutional. Nothing in the constitution justifies 

this conclusion. Subject to the power of the legislature to 

establish a Uniform system of free public schools the 

control of the free public schools in each district is vested 

in the local school board. This does not prohibit the 

legislature from placing upon the local school districts the 

duty to render financial support to junior colleges which 

are not under the control of the local school boards but 

which have been established at their request.

‘Plaintiff finally asserts that the whole legislative plan is 

to establish junior colleges as state institutions and to 

require their support by local ad valorem taxes, thus 

circumventing the provision section 1 article VII which 

prohibits state ad valorem taxes. Junior colleges serve a 

state function. So do the universities. So do the free public 

schools. Junior colleges also serve a distinctly local 

function. The law requires that the plan of each junior 

college ‘contain provisions for serving all eligible students 

in the junior college district.’ The court knows what 

everybody knows. One of the major reasons for 

establishing a junior college is to bring this level of 

education within commuting distance of large numbers of 

students who could not otherwise attend college. The 

local board must recognize the need and request its 

establishment before it can be authorized. Ad valorem 

taxes levied by school districts for support of such 

institutions are local taxes levied for local purposes.

‘While the legislature may not circumvent the prohibition 

of state ad valorem taxation by any scheme or device 

which requires local ad valorem taxes and then channels 
20

the proceeds into essentially state functions which are 

not also local functions, no such situation is here 

presented.

Id. at 4; see also Sandegren v. State, Sarasota Cty. Pub. Hosp. Bd., 

397 So. 2d 657, 659 (Fla. 1981) (citing Brevard County in support 

of its conclusion that there was nothing in the state constitution 

that prohibited the Legislature from enacting laws requiring the 

expenditure of local funds to support programs, such as mental 

health service programs, that served a local purpose).

The trial court properly rejected the school boards’ arguments

that Brevard County is a highly fact-specific case that does not 

address the funding of the system of free public schools that are 

under their operation, control, and supervision and that HB 7069’s 

mandate is completely different because it tells them how to spend 

capital dollars on schools. As the trial court reasoned, if local tax 

revenues could be used in Brevard County to support junior 

colleges that were not even under the local board’s control, “surely 

those funds can be used to support local public charter schools that 

will in turn use the funds to house and educate local 

schoolchildren.” While the school boards also contend that 

Brevard County is distinguishable because there “was no evidence 

that local dollars were spent on state priorities,” education, 

whether it be at the K-12 level or at the college level, is not only a 

state or legislative interest, nor should it be. The school boards’

assertion that “when the State determines how local taxes are 

being spent, and mandates that these taxes be spent to satisfy 

State priorities, these taxes can no longer be considered local 

taxes” ignores the fact that charter schools serve their local 

communities. While charter schools may indeed be considered a 

legislative or state priority in Florida, their primary purpose is the 

education of children, which is unquestionably a local priority. 

Given such, the use of local taxes to fund charter schools does not, 

as the school boards assert, convert or transform those local taxes 

into something else. Moreover, while the school boards argue that 

“local management makes all the difference” in its attempt to 

distinguish Brevard County, the local boards in that case no longer 

had control over the junior colleges, which was a point clearly 

made in the opinion. The fact that the school boards in Florida 

continue to have a role in the operation of charter schools supports 
21

our conclusion that HB 7069’s capital millage provisions are 

constitutional. 

CONCLUSION

For the reasons set forth herein, we hold that the school 

boards lacked standing to raise all but their capital millage and 

federal Title I funding constitutional claims. Because those claims 

fail on the merits, the Final Judgment is affirmed.

AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Christopher D. Donovan and James D. Fox of Roetzel & Andress, 

LPA, Naples, for Appellant/Cross-Appellee The School Board of 

Collier County.

Jon L. Mills and Stephen Zack of Boies Schiller Flexner LLP, 

Miami; Stuart H. Singer and Sabria A. McElroy of Boies Schiller 

Flexner LLP, Fort Lauderdale, for Amicus Curiae The School 

Board of Palm Beach County, in support of Appellants/CrossAppellees The School Boards of Alachua, Bay, Broward, Hamilton, 

Lee, Orange, Pinellas, Polk, St. Lucie, and Volusia Counties.

Franklin R. Harrison and Heather K. Hudson of Hand Arendall 

Harrison Sale LLC, Panama City; Steven L. Brannock, Ceci C. 

Berman, and Joseph T. Eagleton of Brannock & Humphries, 

Tampa; Philip J. Padovano of Brannock & Humphries, 

Tallahassee, for Appellees/Cross-Appellants The School Boards of 

Alachua, Bay, Broward, Hamilton, Lee, Orange, Pinellas, Polk, St.

Lucie, and Volusia Counties. 
22

Shawn A. Arnold, Melissa Gross-Arnold, and Braxton A. Padgett 

of The Arnold Law Firm, LLC, Jacksonville, for Appellees/CrossAppellants Hope Charter School, Inc., Legacy High School, Inc., 

Marco Island Academy, A Public Charter High School, Inc., The 

Passport School, Inc., Jenny Cartwright, Beth Schmude, and Lisa 

Burdue Tackett.

Amit Agarwal, Solicitor General, and Edward M. Wenger, Chief 

Deputy Solicitor General, Office of the Attorney General, 

Tallahassee; Rocco E. Testani of Eversheds Sutherland (US) LLP, 

Atlanta, pro hac vice; and Matthew H. Mears, Department of 

Education, for Appellees/Cross-Appellants The Florida

Department of Education, State Board of Education, Richard

Corcoran, and Andy Tuck.