A state demand that Broward schools provide charter schools about $80 million from a 2018 tax referendum has left the school district scrambling to respond, but there were warning signs for years that it might have to pay out this money.
School districts around the state, including Palm Beach, Miami-Dade and Pinellas counties, got hit with lawsuits over referendum funding during the past five years, and courts have sided with charter schools.
And even before the courts or state law explicitly addressed the issue, one Broward School Board member voiced concern in 2018 that shutting out charters could be a risky move because “charter schools fight back.” The School Board decided to give charters $4.6 million for safety and security, but not a proportional share of the $455 million collected over four years.
The district now is in a bind. In October, about 30 charter schools sued the Broward School Board for referendum money, and on Wednesday, the state Board of Education found probable cause that Broward was breaking the law by not fully sharing it. The state estimates the total at $80 million. The district has until April 17 to come up with a plan to resolve the issue and until Dec. 31 to make all payments.
The consequences for failing the meet the state’s demands could be dire. Education Commissioner Manny Diaz threatened March 19 to withhold state or federal dollars from the district. Gov. Ron DeSantis also could take action if he’s not satisfied with Broward’s response.
“If they don’t share the full amount, or they don’t do it quickly enough, I do think there’s a little bit fear that the governor could remove one or more of those School Board members again,” said Aubrey Jewett, an associate professor of political science at the University of Central Florida.
DeSantis suspended four Democratic School Board members in August 2022 following a grand jury report that blasted the district’s management of 2014 referendum related to school safety and construction. He replaced them with four Republicans, enough to give the School Board a Republican majority for three months.
“The governor and the commissioner of education have put their thumb on the scales of justice, and they want it to go a certain way,” Jewett said. “They want it to basically be the full amount, and I’d be surprised if your School Board doesn’t do that.”
DeSantis weighed in on the Broward charter school issue when asked by a reporter Thursday at a news conference in Fort Lauderdale.
“I haven’t spoken to Manny Diaz about that per se, but I think what they were doing is not following the spirit of the law,” he said, while also voicing his strong support for charter schools.
The laws on the books in 2018 didn’t specifically address whether school districts had to share referendum dollars with charter schools, and most districts that put them on the ballot that year didn’t initially share any money.
Broward asked for a tax increase that year of $50 per $100,000 in assessed property, with 72% of the money going to increase teacher pay, 20% going to pay for school safety officers and 8% going to mental health counselors. That tax expired in 2023 and was replaced by a tax of $100 per $100,000 approved by voters in August 2022. Charter schools were fully included in the newer tax.
Broward School Board members debated in May 2018 whether to include charter schools for the first ballot initiative. Donna Korn, who was on the board at the time, argued that excluding charter schools could hurt the referendum’s chances of passing, since it was going before voters in an August primary, where turnout would be smaller than in a general election.
“My concern is the negative publicity that will come with this from those charter schools is going to hurt us more because they’re going to have a targeted audience to attack the fact that we only want to fund those in district schools with everyone’s taxpayer money,” Korn said in 2018.
“They’ve made it very clear that collectively as charter schools, if the [School] Board is going to fight a fight against them, they’re going to fight back,” Korn said.
Some board members at the time were resistant to give any money to charter schools, saying they couldn’t ensure it would be spent properly. They told stories of charter schools that had received scathing financial audits, failed to pay their teachers and closed unexpectedly in the middle of the school year. They also voiced concerns that charter schools divert money from traditional public schools.
But in the wake of the Marjory Stoneman Douglas High tragedy that had happened three months earlier, board members acknowledged charter schools may need money for school security. The state had passed a law that year requiring all public schools to have armed personnel on campus. The School Board agreed the referendum would pay for one armed officer for every charter school with at least 900 students.
“One side of my mind is saying we’ve already had money taken away from us and given to charter schools. They’ve gotten money,” then-Board member Rosalind Osgood said. “But when I’m thinking about children going to school and being safe, it’s hard to exclude children that are in charter schools.”
Osgood is now a Democratic state senator. Reached Friday, she said there was confusion at the time about whether charter schools should be included in referendums run by a school district.
“We always interpreted public schools to mean traditional schools. The state later came back and clarified the language to say public schools mean traditional and public charter schools,” she said. “For subsequent referendums, it was spelled out and we did share that money.”
Charter schools in Broward didn’t mount any organized opposition in 2018, and the referendum easily passed that August. Some Broward School Board members say they also hadn’t gotten requests after it passed to share the money until they were sued. They said they assumed that was because Broward gave some money to charters.
A similar referendum passed in Palm Beach County, except that district didn’t share any money. In 2019, two charter schools filed a lawsuit against the Palm Beach County Board in hopes of collecting. That same year, the Legislature passed a law requiring school districts to share a proportional amount of future referendum dollars with charter schools.
There was uncertainty about whether money from referendums passed before 2019 should be shared with charter schools, with different courts reaching different conclusions. But the courts provided clarity in 2021, state and charter school officials say.
The 4th District Court of Appeal, overruling a district court, determined that the Palm Beach County charter schools were entitled to a proportional share of 2018 referendum dollars. Broward is in the same judicial circuit as Palm Beach County. Broward fully included charter schools in a 2022 referendum, but didn’t go back and add them to the 2018 one.
“The courts, the FDOE and the state board of education all agree that the nearly 50,000 students who attend public charter schools in Broward are entitled to the benefits of referendum funds wrongfully withheld by the Broward School Board,” Lynn Norman Teck, executive director of the Florida Charter School Alliance, a membership and advocacy group, told the Sun Sentinel on Friday.
After the appellate court ruling, Shawn Arnold, a lawyer who represents several charter schools, sent a letter to then-Superintendent Robert Runcie saying the court ruling made clear that Broward needs to fully share the referendum money.
“It is my sincere hope that we can come to an amicable agreement about how to right this wrong. In the event the School Board refuses to pay the Charter Schools their share of the 2018 Referendum proceeds in accordance with the law, we will have no choice but to pursue legal action against the School Board,” Arnold wrote in the letter dated April 19, 2021.
Arnold said he never got a response. Two days after the letter was sent, Runcie and then-General Counsel Barbara Myrick were indicted by a grand jury on perjury charges and agreed to resign from the district. The charges against Runcie were dropped but are still pending against Myrick. She has pleaded not guilty.
Palm Beach County schools appealed the 4th District ruling, but it became final after the state Supreme Court declined to hear the appeal in September 2021.
The Sun Sentinel asked Broward schools at the time whether the Supreme Court’s decision meant Broward would have to fully share its referendum dollars.
“We have been advised that this issue will be addressed at an argument before the appellate court on October 22,” the district’s communications office responded on Sept. 24, 2021. “The Court would issue an order thereafter. When the order is entered, it would affect the entire state, including Broward County Public Schools.”
The Sun Sentinel asked recently whether that order came and brought any clarity.
“In September 2021, an opinion was issued regarding the equitable distribution of referendum funds to charter schools,” district spokesman John Sullivan said. “This opinion, however, stood in opposition to the specific language outlined in the Broward referendum. According to the language approved by voters within the Broward referendum, only funds pertaining to safety and security were to be shared with charter schools.
“Furthermore, it was not until March 2023 that a court decision mandated the retroactive provision of funds,” Sullivan said. “By this juncture, the referendum funds from 2018 had already been allocated and expended, particularly for the last year of the referendum, the 2022-2023 school year.”
However, General Counsel Marylin Batista appeared to acknowledge at Wednesday’s state Board of Education meeting that Broward was bound by the 2021 decisions, leading to a pointed exchange with board member Esther Byrd.
“You said that in September of 2021 the court ruled against you,” Byrd said to Batista. “I understand the period of time before that where you were waiting on a court ruling, but why are we here in March of 2024? Why wasn’t it resolved after that September 2021 ruling?”
“I’m really unable to answer that question,” Batista responded. “That’s an operational decision that the district at the time may have made. I’m not aware of all the particulars of how it came about.”
Byrd asked Batista how long she’d been general counsel. Batista said two years.
“Were you aware of this the entire time you have been general counsel that this issue was pending?” Byrd asked Batista.
“I would say that I became aware of the fact in September of last year when I was first approached by the charter schools with this issue,” Batista responded.
Batista was interim general counsel in 2021 when the appellate court decision became final. She was hired as permanent general counsel in February 2023.
Board member Debbi Hixon told the Sun Sentinel on Thursday she only became aware of the charter school referendum concerns when the School Board was served with the lawsuits in October.
“I honestly don’t remember having a discussion about it. And part of that was because we did include charter schools. It wasn’t as if we didn’t include them,” she said.
Hixon said the district has a good reason to fight the lawsuits in court, despite other rulings. She said other districts that were sued, including Palm Beach and Miami-Dade counties, hadn’t initially shared any money with charter schools, and they were sued while their referendum dollars were still being collected.
“So there was a different kind of defense or a different situation, so ours might look different than theirs and we might have a good chance of having a different outcome,” she said.
But with the state finding the district out of compliance on this issue, School Board members aren’t eager to fight. They have contracted with lawyer and former U.S. Sen. George LeMieux to mediate and resolve the issue within the next couple of weeks.
Meanwhile, the State Board of Education is investigating the school district on matters related to construction and separation pay of former administrators, and Board member Torey Alston, a DeSantis appointee, has asked the state to review the School Board’s decision to use one-time COVID dollars for teachers raises and some board members’ relationship with the Broward Teachers Union.
Some School Board members question whether the goal of these efforts is to build a case to remove Democratic School Board members.
“It does feel that way sometimes,” said Hixon, a Democrat running for reelection this year. “I’m just gonna do what I think is the best for the students and staff in our district, and as long as I know I did the right thing that I can live with whatever the results are.”
