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IN THE DISTRICT COURT OF APPEAL,
FIRST DISTRICT, STATE OF FLORIDA
NAACP, INC., through its Florida
NOT FINAL UNTIL TIME EXPIRES TO
Conference of Branches of NAACP;
FILE MOTION FOR REHEARING AND
MATTIE GARVIN, on her own
DISPOSITION THEREOF IF FILED.
behalf and as mother of Keith Garvin;
and KEITH GARVIN,
Appellants/Cross-Appellees,
v.
CASE NO. 1D00-3138
FLORIDA BOARD OF REGENTS
and STATE BOARD OF
EDUCATION,
Appellees/Cross-Appellants.
__________________________/
Opinion filed June 18, 2004.
An appeal from an order of the Department of Administrative Hearings.
Charles C. Adams, Judge.
Daniel H. Thompson and Melanie Ann Hines of Berger Singerman, Tallahassee;
Mitchell W. Berger, of Berger Singerman, Fort Lauderdale, for Appellants/Cross-
Appellees.
Daniel Woodring, General Counsel; Nathan A. Adams, IV, Deputy General
Counsel; Jason K. Fudge, Assistant General Counsel, Tallahassee, for
Appellees/Cross-Appellants.

WEBSTER, J.
This is the second time this dispute has been before us. The first time, we held
that appellants/cross-appellees lacked standing to prosecute this administrative rule
challenge and, accordingly, dismissed on that basis. NAACP, Inc. v. Florida Bd. of
Regents, 822 So. 2d 1 (Fla. 1st DCA 2002). However, we also certified to the
supreme court a question that we believed to be of great public importance. Id. at 14
(on rehearing). A majority of the supreme court concluded that appellants did, in fact,
have standing, and remanded to us for further proceedings. NAACP, Inc. v. Florida
Bd. of Regents, 863 So. 2d 294 (Fla. 2003). Three justices dissented, stating that they
would remand to us "for consideration of the issue of whether this case [had become]
moot" in light of significant intervening changes in the entities responsible for operating
the state university system. Id. at 301 (Wells, J., dissenting). Although the majority
reached the merits, they stated in a footnote that their decision was not to be construed
as precluding consideration of the mootness issue on remand. Id. at 295 n.1.
Following remand to us, because it appeared that the case had become moot, we
issued an order directing appellants to show cause why it had not. Having now
carefully considered the briefs filed by the parties, we conclude that the case is moot
and, accordingly, dismiss the appeal and cross-appeal for that reason.
Appellants challenge a number of rule amendments adopted by the Florida
2

Board of Regents in February 2000. Their principal contention has been (and remains)
that the rules constitute "an invalid exercise of delegated legislative authority" (as that
term is defined in the Florida Administrative Procedure Act) because there is no
specific statutory authority authorizing the Board of Regents to prohibit consideration
of factors that a university might deem relevant in the admissions process, such as
race, national origin, or gender. See Southwest Fla. Water Mgmt. Dist. v. Save the
Manatee Club, Inc., 773 So. 2d 594 (Fla. 1st DCA 2000) (explaining the test to be
applied to determine whether agency rulemaking constitutes "an invalid exercise of
delegated legislative authority" as that term is defined in section 120.52(8), Florida
Statutes (1999)). Because we concluded that appellants lacked standing to prosecute
the rule challenge, we dismissed without addressing the merits of their argument.
When appellants commenced their rule challenge, the Board of Regents was a
legislatively created "body corporate," given responsibility by the legislature for
adopting rules pursuant to the Florida Administrative Procedure Act applicable to the
entire State University System "to implement provisions of law conferring duties on
[that System]"; and for "planning for the future needs of the State University System;
planning the programmatic, financial, and physical development of the system;
reviewing and evaluating the instructional, research, and service programs at the
universities; coordinating program development among the universities; and monitoring
3

the fiscal performance of the universities." �� 240.205, 240.209(1), Fla. Stat. (1999).
Although its composition has changed, the State Board of Education was (and
remains) a constitutionally created "body corporate," "hav[ing] such supervision of
the system of free public education as is provided by law." Art. IX, � 2, Fla. Const.
When the rule challenge was commenced, the State Board of Education was
legislatively charged with "general supervision and control over the Board of Regents."
� 240.203(2), Fla. Stat. (1999).
The Board of Regents was legislatively abolished as of July 1, 2001, and its
powers transferred to a new entity known as the "Florida Board of Education." ��
229.003(5)(a) & (b), 229.004(1)(a), Fla. Stat. (2001). In 2002, the legislature adopted
a law abolishing the Florida Board of Education effective as of January 7, 2003,
vesting that entity's powers in the State Board of Education. Ch. 2002-387, �� 19-21,
1058, 1065, at 3172-80, 4152-53, Laws of Fla.
However, in November 2002, Florida voters approved an amendment to article
IX of the Florida Constitution which provides:
SECTION 7. State University System.--
(a) PURPOSES. In order to achieve excellence
through teaching students, advancing research and
providing public service for the benefit of Florida's citizens,
their communities and economies, the people hereby
establish a system of governance for the state university
4

system of Florida.
(b) STATE UNIVERSITY SYSTEM. There shall be
a single state university system comprised of all public
universities. A board of trustees shall administer each public
university and a board of governors shall govern the state
university system.
(c) LOCAL BOARDS OF TRUSTEES. Each local
constituent university shall be administered by a board of
trustees consisting of thirteen members dedicated to the
purposes of the state university system. The board of
governors shall establish the powers and duties of the
boards of trustees. Each board of trustees shall consist of
six citizen members appointed by the governor and five
citizen members appointed by the board of governors. The
appointed members shall be confirmed by the senate and
serve staggered terms of five years as provided by law. The
chair of the faculty senate, or the equivalent, and the
president of the student body of the university shall also be
members.
(d) STATEWIDE BOARD OF GOVERNORS. The
board of governors shall be a body corporate consisting of
seventeen members. The board shall operate, regulate,
control, and be fully responsible for the management of the
whole university system. These responsibilities shall
include, but not be limited to, defining the distinctive
mission of each constituent university and its articulation
with free public schools and community colleges, ensuring
the well-planned coordination and operation of the system,
and avoiding wasteful duplication of facilities or programs.
The board's management shall be subject to the powers of
the legislature to appropriate for the expenditure of funds,
and the board shall account for such expenditures as
provided by law. The governor shall appoint to the board
fourteen citizens dedicated to the purposes of the state
university system. The appointed members shall be
confirmed by the senate and serve staggered terms of seven
years as provided by law. The commissioner of education,
5

the chair of the advisory council of faculty senates, or the
equivalent, and the president of the Florida student
association, or the equivalent, shall also be members of the
board.
(Emphasis added.) The Board of Governors created by this amendment came into
existence on January 7, 2003. Art. XI, � 5(d), Fla. Const. On that date, the Board of
Governors met for the first time, and adopted all of the rules challenged by appellants.
Appellees contend that appellants' rule challenge is now moot because the
challenged rules have been adopted by the Board of Governors, exercising its power
pursuant to article IX, section 7, of the Florida Constitution, and, therefore, are not
subject to challenge under the Florida Administrative Procedure Act. We agree.
Article IX, section 7(d), states that the Board of Governors "shall operate,
regulate, control, and be fully responsible for the management of the whole university
system." Appellees argue that such a broad grant of authority clearly includes control
over admissions policies which are essential to the management and operation of the
university system. We conclude that such a construction is consistent with the
provision's explicit language and the intent of the framers and voters. See Caribbean
Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492,
501 (Fla. 2003) (holding that interpretation of a constitutional provision begins with
examination of the provision's explicit language, and that a court must endeavor to
6

construe the provision in a manner consistent with the intent of the framers and
voters).
Appellees argue, further, that, with the exception of two sentences regarding the
terms of members appointed to the local boards of trustees and the Board of
Governors, article IX, section 7, appears to be "self-executing insofar as it bestows
specific powers on the Board of Governors that may be exercised without statutory
assistance." "The basic guide, or test, in determining whether a constitutional
provision should be construed to be self-executing, or not self-executing, is whether
or not the provision lays down a sufficient rule by means of which the right or purpose
which it gives or is intended to accomplish may be determined, enjoyed, or protected
without the aid of legislative enactment." Gray v. Bryant, 125 So. 2d 846, 851 (Fla.
1960). There is a presumption that constitutional provisions are intended to be self-
executing "because in the absence of such presumption the legislature would have the
power to nullify the will of the people expressed in their constitution, the most
sacrosanct of all expressions of the people." Id. Based on these principles, we
conclude that article IX, section 7, is self-executing by its own terms insofar as it
empowers the Board of Governors to "operate, regulate, control, and be fully
responsible for the management of the whole university system." The plain language
of the provision clearly contemplates that the Board of Governors' exercise of its
7

powers is subject only to the legislature's authority to appropriate funds, to confirm
the Board's appointed members, and to set members' staggered terms.
In short, the Board of Governors' power to adopt rules regarding university
admissions flows directly from the Florida Constitution. This distinguishes the Board
of Governors from the Florida Board of Regents, which was created, empowered,
and eventually abolished by the Florida Legislature. �� 240.205 & 240.209, Fla. Stat.
(1979); �� 229.003(6)(a) & 240.209, Fla. Stat. (2000); �229.003(5)(a), Fla. Stat.
(2001). This also distinguishes the Board of Governors from the State Board of
Education which, under article IX, section 2, of the Florida Constitution, has "such
supervision of the system of free public education as is provided by law." Because
the Board of Governors' constitutional authority to promulgate the challenged rules
is not dependent on any delegation from the Florida Legislature, those rules cannot be
challenged under the Administrative Procedure Act. See In re Advisory Opinion of
the Governor, 334 So. 2d 561, 562 (Fla. 1976) (stating that the Administrative
Procedure Act does not apply to powers of the governor "`derived' solely from the
Constitution," as opposed to "legislative enactment"); Phillips v. Board of Pardons,
487 So. 2d 1154, 1155 (Fla. 1st DCA 1986) (stating that, because "the power of
sentence commutation is clearly of constitutional origin[,] . . . the exercise thereof is
not subject to the Administrative Procedures [sic] Act"). Cf. Caribbean Conservation
8

Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492, 501 (Fla. 2003)
(indicating that, to determine whether the legislature can require a constitutionally
created entity to comply with the Administrative Procedure Act, a court must first
determine the extent of the power granted to the entity by the constitution).
Appellants maintain that such an interpretation of the Board of Governors'
rulemaking authority under article IX, section 7, "would require this Court to find that
the authority of the Legislature and the authority of the constitutionally created,
legislatively empowered State Board of Education has been eviscerated by the newly
created Board of Governors." As appellees correctly point out, this is simply not true.
Article IX, section 7, clearly contemplates a significant role in the management of the
state university system for the legislature, through its power over appropriations.
Moreover, although authority over the university system has been transferred by article
IX, section 7, to the Board of Governors, the authority of the State Board of
Education under article IX, section 2, has not been "eviscerated" insofar as the State
Board of Education remains responsible for K-12 and community college education.
To the extent that statutes remain on the books bestowing authority on the State Board
of Education (or individual university boards of trustees) in matters relating to the
management of the state university system, we agree with appellees that those statutes
have been implicitly repealed by the subsequent adoption of article IX, section 7. See
9

Florida Pub. Employees Council 79, AFSCME, AFL-CIO v. Pub. Employees
Relations Comm'n, 29 Fla. L. Weekly D694, 695 (Fla. 1st DCA Mar. 22, 2004)
(Webster, J., concurring in part and dissenting in part).
Appellants claim that, even if the State Board of Education no longer has
rulemaking authority over the state university system, their rule challenge is not moot
because the State Board's rules relating to the state university system have not been
repealed by the State Board and can still be found in the Florida Administrative Code
as rules of the Board of Regents. Moreover, appellants assert that there are
indications that the State Board is continuing to implement these rules. Even if this
is true, appellants' claim is still moot. "A case becomes moot, for purposes of
appeal, where, by a change of circumstances prior to the appellate decision, an
intervening event makes it impossible for the court to grant a party any effectual relief."
Montgomery v. Dep't of Health and Rehab. Servs., 468 So. 2d 1014, 1016 (Fla. 1st
DCA 1985). The adoption of article IX, section 7, of the Florida Constitution and the
Board of Governors' subsequent adoption of the challenged rules have made it
impossible for this court to grant effectual relief to appellants. If appellants were
allowed to proceed with their challenge to the State Board's rules and were successful,
the fact remains that the same rules have been adopted by the Board of Governors and
would remain in effect.
10

Because the intervening adoption of article IX, section 7, of the Florida
Constitution and the Board of Governors' adoption of the challenged rules pursuant
to the authority granted to it by that amendment have made it impossible for this court
to grant effectual relief to appellants, the appeal and cross-appeal are dismissed as
moot.
BROWNING and POLSTON, JJ., CONCUR.
11

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