Hold-Out School Districts Distribute $15M To Charters 'Under Protest,' Accuse State of Threats

Feb 9, 2018

Broward County Public Schools and another large Florida school district begrudgingly distributed more than $15 million in local construction funding to privately-run charters on Friday after they were urged to — and, the districts claim, threatened — by the state Department of Education.

The school districts in Broward and Orange counties — which include the major Florida metropolitan areas of Fort Lauderdale and Orlando — missed a Feb. 1 deadline for providing  local property tax revenue for construction and facilities maintenance to eligible charter schools in their districts. The administration of Gov. Rick Scott  sent them letters earlier this week warning them to make the payments or provide a valid legal explanation why they didn’t by Friday at noon.

Both districts provided evidence to the state on Friday that they had distributed the money to charter schools — including, in Broward’s case, about $204,000 to five schools that have indicated they plan to close at the end of the school year. “Much of those funds will likely be unrecoverable,” the Broward school board’s general counsel, Barbara Myrick, wrote in a Friday letter to the department.

In fiery responses set against the backdrop of an ongoing legal battle, the Broward district’s attorney accused the department of presenting an “ultimatum,"  and the chief legal officer for Orange County schools wrote that his district’s payments to charter schools were being made “under protest.”

Most notably, the districts accused the Department of Education of leveling threats against Broward. According to their claims, the agency warned it would withhold regular school funding from Broward and that Scott would remove school board members if the district did not comply with a controversial new law that’s being disputed in court, House Bill 7069, which the Legislature passed last year. (The department denies the allegations.)

Myrick wrote in her letter that top leaders of the education department “made it clear” in communications on Thursday that the state would withhold regular school funding from the district if the money wasn’t distributed to charters by the Friday-noon deadline.

“You also threatened to accuse … school board members of possible malfeasance and seek adverse action against them by the governor,” Myrick wrote to Hershel Lyons, who is the state chancellor of K-12 public schools.

Orange County Public Schools’ top lawyer backed up Myrick’s claims in a similar letter sent to the department on Friday.

“It came to my attention late yesterday afternoon that other similarly situated districts were threatened with the immediate withholding of education funds if they failed to pay,” OCPS general counsel Diego “Woody” Rodriguez wrote. “This is punitive and lacks any fairness or due process.”

He added that the amount of money the state was allegedly threatening to withhold was much more than what was owed to charter schools.

“For Orange County, the amount would have been twenty-fold” the $3.7 million in construction funding the district was supposed to pay to charter schools under the law.

Rodriguez continued, presumably referring to Broward school board members: “Complicating matters the same [Department of Education] official(s) threatened to have the board members removed for malfeasance by the governor’s office.” He described the alleged threats as “retribution” and called them “irresponsible and heavy-handed.”

Department press secretary Audrey Walden, who provided the letters in response to a public records request, wrote in an email: “The Department of Education never ‘threatened’ to remove anyone from office contrary to suggestions made by the districts. The department was simply checking with these districts on how they planned to follow the law.”

She added: “We are pleased that both districts have agreed to distribute the Local Capital Improvement Revenue funds allocated to charter schools in their districts.”

Together and with several other districts, Broward and Orange counties have challenged the constitutionality of House Bill 7069.

They had asked a court to hold the contested money in escrow until the lawsuit was resolved. A judge indicated during a late-January hearing that he would likely side against them, but he has not yet issued a formal order deciding the issue, Broward’s Myrick wrote in her letter. (In a separate case led by Palm Beach County, a judge rejected a request for an injunction that would have halted the payments temporarily.)

Even if the judge formally rules against Broward’s request to delay the distribution of the funding, the district would consider appealing that decision, Myrick wrote in the letter. So the department’s “ultimatum” robbed the district of  its right to appeal, she argued.

Both districts noted in their letters they plan to try to recoup the money if the law is struck down, by withholding school funding payments to the charters in the future. The Orange County district’s attorney said he obtained five charter schools’ written agreement to forfeit those funds in the future, depending on the outcome of the lawsuit.

“Payment arrangements are being made with all charter schools today, but such payments are certainly being made under protest," Rodriguez wrote, "and by no means does this waive any arguments Orange County may potentially raise in any pending or future legal proceedings.”

Read the letters here: Broward, Orange