
    FLORIDA TEACHING PROFESSION-NATIONAL EDUCATION ASSOCIATION, Pinellas Classroom Teachers Association, FTP-NEA David Clark, and Marilyn B. Louwerens, Appellants, v. Ralph TURLINGTON, as Commissioner of Education of the State of Florida, the Florida State Board of Education, the Florida Department of Education, and Gerald Lewis, as Comptroller of the State of Florida, Appellee.
    No. BG-489.
    District Court of Appeal of Florida, First District.
    June 10, 1986.
    
      Mark F. Kelly and Robert F. McKee, of Kelly & McKee, P.A., Tampa, for appellants.
    Judith A. Brechner, Gen. Counsel, State Bd. of Educ., and Leonard A. Carson and Richard T. Donelan, Jr., of Carson & Linn, P.A., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a declaratory judgment of the Circuit Court, Leon County, upholding, as against various attacks, the constitutionality of Sections 231.532 and 231.533, Florida Statutes (1984 Supp.). We affirm and adopt the following portions of Judge Miner’s opinion as our own:

“Plaintiffs here seek a judicial declaration that Secs. 231.532 and 231.533, F.S. are unconstitutional. The former section relates to what has been called the ‘Merit Schools Program’ and the latter makes provision for the ‘State Master Teacher Program’. Plaintiffs are employee organizations which collectively bargain with school boards on behave [sic] of instructional employees and two classroom teachers, one from Tallahassee and the other from Pensacola. Defendants are various officials of the State of Florida responsible for the administration of public education.

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“Section 231.532, F.S., the so-called ‘Merit Schools Program’ took effect in July of 1984. This program authorizes state funding for voluntary, locally-negotiated plans designed to increase the performance of students and to provide economic incentives for teachers and other school personnel who meet specified statutory criteria. In order to be eligible for state funding, each school district plan is required to be of no more than one year duration, cover the 1984-85 school year, be voluntary and nondiscriminatory, and provide, for the expenditure of no less than 50 percent of the funds allocated to it on the basis of ‘employment at a meritorious school.’ Sec. 231.532(2)(a), (3)(f), F.S. The statute authorizes each district to devise a plan which devotes its remaining allocation of funds to employee incentive awards based on one or more specified optional categories, including outstanding attendance, employment in a critical teachers shortage area or school site, successful completion of in-field graduate course work with a grade of ‘B’ or better, superior evaluation scores, or other related categories devised at the local level. Each plan is also required to provide for recognition of student progress at ‘meritorious schools.’ Sec. 231.532(3)(f)(2), F.S.

“The statute requires that all plans be subject to collective bargaining negotiations and specifically provides that implementation and state funding of a plan is contingent upon its ratification by both the District School Board and the public employees involved.

“The statutory section in question also contains detailed criteria which govern the selection process for ‘meritorious schools.’ It requires that a ‘meritorious school’ be selected, in part, by being in the upper quartile of District Schools in terms of its relative or expected rate of student gain as measured by standardized tests of verbal and quantitative achievement. Where there are too few district schools to establish a meaningful ‘upper quartile’, the statute authorizes the determination of a school’s ‘meritorious’ status in part by the degree to which actual aggregate student scores on standardized achievement tests exceed predicted scores.

“In excess of nineteen million dollars was appropriated to this program for disbursement by eligible school districts under plans to be certified by the Department of Education before January 1,1985, as being in compliance with statutory requirements.

“The Department of Education, the reviewing authority, received proposed plans from thirty-three school districts prior to the October 1, 1984, cutoff date. None of these plans was certified by the Department of Education as originally submitted. However, none was rejected outright by the Department. Each plan was reviewed by separate committees of Department of Education officials responsible for assessing the compliance of each proposed plan with specific aspects of the statutory standards contained in the enactment.

“Representatives of the Pinellas Classroom Teachers Association (PCTA) and the District School Board of Pinellas County reached agreement on a proposed Pinellas District Merit Schools plan in mid-September of 1984. This plan was ratified by the parties and submitted to the Department of Education for review in late September. Following discussions of the Pinellas plan between state education officials and representatives from Pinellas County, a revised plan was submitted and certified by Commissioner Ralph Turlington prior to January 1, 1985. This certificate of compliance made the Pinellas County School District eligible to receive its pro-rata share of the funds appropriated for this program in October, 1985, when awards are due.

“The State ‘Master Teacher Program’ created by Sec. 231.533, F.S. also took effect in July of 1984. This program authorizes the payment of a recognitional incentive award of not less than three-thousand dollars directly from the State Comptroller’s office to superior teachers who voluntarily document their fulfillment of statutory eligibility criteria. A teacher may participate in the program as an associate master teacher or as a master teacher. Because three years of associate master teacher status is required for master teacher eligibility, and this is the first year of the program, there are no eligible master teacher candidates.

“To qualify as an associate master teacher eligible for an award, a teacher must satisfy three criteria representing experience, a knowledge base, and demonstrated superior performance.

“Under the statutory section in question the State Board of Education is directed to adopt rules for this program. Pursuant to this directive, the State Board of Education adopted Rule 6A-4.46 which sets forth extensive criteria governing the performance evaluations and subject area examinations required by the program. This Rule also prescribes that acceptable subject area examinations for certification as associate master teachers can be either a Specialty Area Test of a National Teacher Examination or a subject area examination constructed by the Institute for Instructional Research and Practice and Student Education Evaluation and Performance. All subject area examinations must be approved by the State Board of Education. Currently there are subject area tests available to at least 80% of the potential candidates for the associate master teacher award, which tests also cover all primary subject areas. More examinations are presently under development. It is noted that there are no subject area examinations in certain instructional areas at this time.

“Approximately 35,000 of Florida’s teachers applied to participate in this Program by the application deadline and on or about June 1, 1985, the Office of Teacher Certification is required to notify the Commissioner of Education of the names of individuals who qualify as associate master teachers. The Commissioner will then certify the names of the teachers so designated to the State Comptroller, who will draw a warrant payable directly to each teacher for the first fifteen hundred dollar installment of the $3,000 incentive award. The first installment is required to be paid in June of 1985 and the second in September, 1985.

“Plaintiffs challenge the constitutionality of these statutes on different constitutional theories, four of which in the Court’s view do not represent serious claims and will be summarily dismissed before attention is directed to the more involved claims.

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Plaintiffs contend that the

Merit Schools statute contravenes teacher collective bargaining rights secured under Article I, Sec. 6 of the Florida Constitution. This Court previously upheld the constitutionality of the State Master Teacher Program against a similar argument. United Teachers of Dade, et al v. Dade County School Board, et al, [Case No. 85-167, opinion filed March 19, 1985]. The Court remains unable to see how teacher bargaining rights are abridged by Sec. 231.532, F.S., which makes collective bargaining mandatory concerning merit schools plans and makes ratification by teachers a condition precedent to Department of Education approval of such plans.

“Plaintiffs contend that the detailed Merit Schools Plan criteria established by statute ‘over regulate’ mandatory bargaining. They also argue that Department of Education plan review authority creates a system under which a third party may arbitrarily reject bargained plans for no good reason. These arguments are not persuasive. To the contrary, the Court finds neither the statutory criteria nor the Department of Education’s review authority constitute ‘over regulation’.

“The Court has carefully considered the issues, raised by the two remaining constitutional claims of the Plaintiffs. First, they argue that both statutes represent an unlawful, standardless delegation of legislative authority to the Department of Education in violation of the principle of separation of powers. Secondly, they argue that both statutes create unreasonable and arbitrary distinctions by which the distribution of public funds is determined, thus denying to Plaintiffs the equal protection of the law guaranteed by the Florida and U.S. Constitutions. Further, as to the Merit Schools Program, Plaintiffs contend that rewarding teachers based on increased student test scores is irrational because they see no relationship between effective teaching and student test scores. As to the Master Teacher Program, Plaintiffs contend that, as implemented by the Department of Education, the Master Teacher statute fails to permit all candidates to compete equally for the associate master teacher incentive award, primarily because subject area examinations do not exist in all disciplines for all teachers.

“The constitutional prohibition against the unlawful delegation of legislative authority is designed to prevent the exercise by any one but the legislature of the sovereign power to enact laws. It is also designed to safeguard against the exercise of unrestricted discretion in the application of the law by an administrative agency charged with this enforcement. League of Mercy Association v. Walt, 376 So.2d 892 (Fla. 1st DCA 1979). This doctrine does not preclude all administrative discretion as to a statute, provided that reasonable guidance is contained in the statute under attack. Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982).

“Thus, the question for the Court in this context is whether the challenged statutes permit the unrestricted exercise of discretion by officials of the Department of Education. The Court concludes they do not. The statutes confer permissible administrative discretion on the Department of Education officials to administer new and innovative programs, but they do not enable those officials to ‘say what the law is.’ Brewer v. Department of Insurance, 392 So.2d 593 (Fla. 1st DCA 1981).

“The initial Merit Schools Plan sanctioned by Plaintiff Pinellas Classroom Teacher Association is presented as a primary example of what Plaintiffs believe to be unlawfully exercised discretion. The Court is not persuaded that the initial failure by the Department of Education to approve this plan was in any way unlawful. Indeed, the plan as originally submitted did not require student test score improvement as a mandatory criterion for selection. This was required by statute. Too, it must be noted that the Merit Schools statute necessarily permitted a range of plan options to be negotiated at the local level. It seems somewhat ironic that the range of options specified in the statute is argued to confer unconstitutional discretion on the Department of Education but at the same time it is argued that the Merit Schools Program ‘chokes’ the bargaining process. Quite obviously, a balance must be struck and the Court finds that the balance so struck is appropriate.

“As to the Master Teacher Program, Plaintiffs urge that the ability of principals to confer extra evaluation points on teachers represents unlawful discretion. This argument, however, seems to overlook that the ‘extra points’ available under the statute may only be recommended by the principal. Also overlooked is the fact that candidates who are denied associate master teacher designation may also obtain review of such decision under Sec. 120.57, F.S. The safeguards contained in the statute and in the aforestated Rule, in the Court’s view, adequately protect candidates for associate master teacher designation from the arbitrary exercise of discretion.

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“The final issue to be addressed is whether the Master Teacher Program is constitutionally objectionable because some potential candidates are not presently able to qualify for the program through a subject area examination but, instead are required to possess a master’s degree. While subject matter tests have been approved for all the basic subject areas encompassing some 80% of Florida’s teachers, no approved test exists in other subject areas. Even as this Order is being written additional ¡tests covering other subject areas are being developed and will be implemented as soon as possible. The fact that subject area examinations do not now exist in some areas is not the result of a deliberate classification by the Legislature. Rather, it is purely a practical imperfection resulting from the short time the Program has existed. Neither the Merit Schools statute or the Master Teacher statute is perfect. The glitches in both have been widely chronicled in the print and broadcast media. It is, however, not the function of this Court to stifle legitimate legislative innovation or judicially rewrite legislative enactments.

“Plaintiffs do not contend that it is irrational to identify and provide incentives to superior teachers. In concept, the Master Teacher Program like the Master Schools Program represents a bold initiative — one that seeks to reward superior experience, knowledge and teaching performance. That these programs may not to date have proven all that one might have hoped, the Court expresses the view that Department of Education officials responsible for fleshing out these programs have achieved rather remarkable success in carrying out expressed legislative intent in a short period of time.

“That subject area examinations do not now exist for the more restricted educational assignments is not constitutionally fatal. The lack of a subject area test, standing alone, does not preclude any teacher from program candidacy. Any teacher who has a Master’s Degree may qualify.

“In sum, Plaintiffs have not discharged their burden demonstrating beyond a reasonable doubt that the challenged statutes offend either the Florida or the Federal Constitution. They are imperfect to be sure. More fine tuning will be required before results can be evaluated. There are now those and there will be others who question the wisdom of these programs but, that is a matter properly taken up with the Legislature and not with the judiciary.”

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Appellants raise an additional issue which we treat somewhat differently than did the trial court, although we agree with the result below. They raise an equal protection claim arguing that rewarding schools based on student performance on standardized exams has no relationship to the goal of enhanced teaching. They do not argue that better teaching will not result in better test scores. Rather, they argue that, at least in Pinellas County, students change schools frequently. Test results do not reflect which school is responsible for the improved performance. We disagree.

In this case, where there is no fundamental right implicated, the test to be applied is whether there is a rational relationship between the legislative classification (schools in which student test performance shows improvement), and the goal to be attained (enhancement of teaching ability). Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983). We are limited to an inquiry as to whether it is “conceivable” that the regulatory classification bears some relationship to the goal to be attained. The Florida High School Activities Association, Inc. v. Thomas, 434 So.2d 306 (Fla.1983). On the present record, we cannot say the appellant demonstrated that better test performance has no conceivable relationship to enhanced teaching, even in Pinellas County.

AFFIRMED.

SHIVERS, JOANOS and NIMMONS, JJ., concur. 
      
      . Two of the four constitutional theories referred to here by the trial court have not been raised on appeal. Accordingly, the trial court’s treatment of those two theories is omitted from this opinion.
     