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IN THE SUPREME COURT OF OHIO

DALE R. DEROLPH, et al., :Case No. 95-2066
:
Plaintiffs-Appellants, :On Appeal from the Court of
:Appeals for Perry County,
vs.: Fifth Appellate District,
:Case No. 94-CA-477
STATE OF OHIO, et al., :
:
Defendants-Appellees. :


APPELLANTS' REPLY BRIEF


Nicholas A. Pittner (0023159)
Counsel of Record
John F. Birath, Jr. (0022024)
Sue W. Yount (0034514)
Michael D. Smith (0059870)
Susan B. Greenberger (0010154)
BRICKER & ECKLER LLP
100 South Third Street
Columbus, Ohio 43215
Telephone: (614) 227-2300
Counsel for Appellants

BETTY D. MONTGOMERY
ATTORNEY GENERAL OF OHIO

Jeffrey S. Sutton (0051226)
State Solicitor
Counsel of Record
Christopher M. Culley (0022870)
Sharon A. Jennings (0055501)
Assistant Attorneys General
30 East Broad Street, 17th floor
Columbus, Ohio 43215-3428
Telephone: (614) 466-8980
Counsel for Appellees

Robert B. McAlister (0023108)
Elizabeth A. McNellie (0046534)
BAKER & HOSTETLER
65 East State Street, Suite 2100
Columbus, Ohio 43215
Telephone: (614) 228-1541

Special Counsel for Appellee
Ohio State Board of Education

Lawrence A. Kane, Jr. (0012711)
Mark A. VanderLaan (0013297)
Joel S. Taylor (0019572)
David K. Mullen (0046857)
William M. Mattes (0040465)
DINSMORE & SHOHL
175 South Third Street, Suite 1000
Columbus, Ohio 43215
Telephone: (614) 224-7887

Special Counsel for Appellees
State of Ohio, Ohio Superintendent of
Public Instruction, and the Ohio
Department of Education

TABLE OF CONTENTS

Page
TABLE OF CONTENTSi
TABLE OF AUTHORITIESiv
I. The Ohio Constitution Mandates A single, Statewide system Of Thorough And Efficient Common Schools; The Notion Of A "Dual System" Is a Fiction Advanced By The State For The Purpose Of Avoiding Accountability2
    Horton v. Meskill (1977), 172 Conn. 615, 651, 376 A.2d 359, 375-76
2
    Dupree v. Alma School Dist. (1983), 279 Ark. 340, 349, 651 S.W.2d 90, 95
4
    Roosevelt Elem. Sch. Dist. v. Bishop (1994), 179 Ariz. 233, 242, 877 P.2d 806, 815
3
    Tennessee Small School Systems v. McWherter (Tenn. 1993), 851 S.W. 2d 139, 140-41
3
II. Educational Costs Have Increased Faster Than Funding4
III. The State Has Resorted To Inaccurate And Misleading Comparisons And "Facts" Not Found In The Record In A Desperate Effort To Make The System Look Better Than It Really Is5
    Alabama Coalition for Equity v. Hunt (Ala. Cir. Ct., Montgomery Cty. 1993), 19 IDELR 810, 830
4
    A. The State, Like The Court Of Appeals, Ignores The Record
5
    Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273, 1276
6
    Rose v. Council for Better Edn. (Ky. 1989), 790 S.W.2d 186, 215
5
    B. This Case Must Be Decided On The Record, Not On Data Never Presented To The Trial Court
6
    C. Ohio's Funding System Is One Of The Most Inequitable In The Nation; The State's Use Of "Equity Statistics" To Suggest Otherwise Is Misleading And Erroneous
8
    D. Changes In State Basic Aid Have Not Improved The Funding Of Public Education
9
    E. The State Misrepresents The Circumstances Of The Plaintiff School Districts
10
IV. The State Has Failed To Respond To Its $10.2 Billion Facilities Problem13
V. The School Funding System In Place Today Is Not Governed By Walter13
    Bd. of Edn. v. Walter (1979), 58 Ohio St. 2d 368 at 370, 371
13
    A. Today, There Are No Meaningful Standards For Public Education Except For Proficiency Test Passage
10
    Ohio Adm. Code 3301-35-07
15
    Gomez v. Illinois State Bd. of Edn. (C.A. 7 1987), 811 F..2d 1030
14
    Rose v. Council for Better Edn. (Ky. 1989), 790 S.W.2d 186, 216
16
    Ohio Adm. Code 3301-51-03
15
    B. Local Control: A Cruel Illusion Perpretrated By The State
17
    Alabama Coalition for Equity v. Hunt (Ala. Cir. Ct., Montgomery Cty. 1993), 19 IDELR 810, 828
18
    Helena Elem. School Dist. v. State(Mont. 1989), 769 P.2d 684, 690
16
    Edgewood Indep. School Dist. v. Kirby(Tex. 1989), 777 S.W.2d 391, 398
18
    Campbell v. Wyoming(Wyo. 1995), 907 P.2d 1238, 1270
17
    Tennessee Small School Sys. v. McWherter(Tenn. 1993), 851 S.W.2d 139, 155-56
17
VI. The Ohio Constitution Establishes Education As A Fundamental Right20
    A. The Extent Of Educational Entitlement Was Not Fixed At The Time The Education Clauses Were Adopted
20
    Pauley v. Kelly (1979), 162 W.Va. 672, 684-85, 255 S.E.2d 859, 866-67
18
    Seattle School Dist. No. 1 v. State (1978), 90 Wash. 2d 476, 516-17, 585 P.2d 71, 94
18
    Arnold v. Cleveland (1993), 67 Ohio St. 3d 35 616 Wash.2d 476, 516-17, 585 P.2d 71, 94
21
    B. The Bill of Rights Is Not The Exclusive Source of Fundamental Rights
18
    State v. Bidinost (1994), 71 Ohio St. 3d 449, 644 N.E.2d 318
19
    Bowman v. Davis (1976), 48 Ohio St. 2d 41, 356 N.E.2d 496
19
    Blount v. Smith (1967), 12 Ohio St. 2d 41, 47, 231 N.E.2d 301, 305
19
    Keyser v. Board of Elections of Cuyahoga Cty. (1972), 33 Ohio App. 2d 52, 291 N.E.2d 775
19
CONCLUSION22
    Rose v. Council for Better Edn., Inc. (Ky. 1989), 790 S.W.2d 186, 205
23
CERTIFICATE OF SERVICE21
APPENDIX
Edu. Disbursements as a % of total State Disbursements FY81-931
Interoffice Memorandum from Ohio Department of Education2
SchoolNet Supplemental Agreement3
Ohio Legislative Service Commission Letter10
Portions of Alabama Coalition for Equity v. Hunt (Ala. Cir. Ct., Montgomery Cty. 1993), 19 IDELR (pp. 810, 830)13

TABLE OF AUTHORITIES

Page
Cases
Alabama Coalition for Equity v. Hunt (Ala. Cir. Ct., Montgomery Cty. 1993), 19 IDELR 810, 8284, 16
Arnold v. Cleveland (1993), 67 Ohio St. 3d 35, 616 N.E.2d 1634, 18
Bd. of Edn. v. Walter (1979), 58 Ohio St. 2d 368 at 370, 371passim
Blount v. Smith (1967), 12 Ohio St. 2d 41, 47, 231 N.E.2d 301, 30519
Bowman v. Davis (1976), 48 Ohio St.2d 41, 356 N.E. 49619
Briggs v. Elliott (E.D. S.C. 1951), 98 F.Supp 5291
Brown v. Bd. of Edn. of Topeka (1956), 347 U.s. 483, 74 S.Ct. 686, 98 L.Ed. 8731
Campbell v. Wyoming (Wyo. 1995), 907 P.2d 1238, 127017
Dupree v. Alma School Dist. (1983), 279 Ark. 340, 349, 651 S.W. 2d 90 953
Edgewood Indep. School Dist. v. Kriby (Tex. 1989), 777 S.W.2d 39116
Gomez v. Illinois State Bd. of Edn. (C.A. 7 1987), 811 F.2d 103014
Helena Elem. School Dist. v. State (Mont 1989), 769 P.2d 68416
Horton v. Meskill (1977), 172 Conn. 615, 651, 376 A.2d 359, 375-762
Kyser v. Board of Elections of Cuyahoga Cty. (1972), 33 Ohio App.2d 52, 291 N.E. 2d 77519
Pauley v. Kelly (1979), 162 W.Va. 672, 684-85, 255 S.E.2d 859, 866-6718
Roosevelt Elem. Sch. Dist. v. Bishop (1994), 179 Ariz. 233, 242, 877 P.2d 8063
Rose v. Council for Better Edn. (Ky. 1989), 790 S.W.2d 186, 21615, 20
Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, 12765
Seattle School Dist. No.1 v. State (1978), 90 Wash.2d 476, 516-17, 585 P.2d 7118
State v. Bidinost (1994), 71 Ohio St.3d 449, 644 N.E.2d 31819
Tennessee Small School System v. McWherter (Tenn. 1993), 851 S.W.2d 139, 140-413, 17
Statutes
R.C. 3302.01-0215
Regulations
Ohio Adm. Code 3301-35-0714
Ohio Adm. Code 3301-51-0315
Miscellaneous
Monk, Educational Finance (1990) 219-22113
National Education Association (1995), Research Division, pp. 28-29, 31, 47, 486

This case brings to the Court a massive record of educational disparity and deprivation in Ohio. The Trial Court's extensive findings of fact documenting that deprivation remain unchallenged. In a desperate attempt to turn the Court's attention from the record, the State now presents as "facts" information never before the Trial Court, including distorted, inaccurate comparisons and misleading portrayals of legislative "fixes," most of which were enacted after the commencement of this litigation. Unable to respond to the issues before it, the State resorts to "scare tactics," arguing that the goal of this litigation is to force a "one-size-fits-all" educational system on the State. These scare tactics are unfounded and misleading.

This case is about the constitutional rights of Ohio's school children to a "thorough and efficient" public education and not, as the State would have this Court believe, about judicial intrusion into legislative fiscal policy. The right to a basic level of education that affords pupils equal access to the knowledge necessary to function as adult citizens of our State is fundamental under the Ohio Constitution, and the enormous disparity in opportunity among school districts is an impermissible denial of that right under any level of constitutional scrutiny. Plaintiffs are entitled to a level playing field--access to basic education. Courts in many other states have recognized that the right to public education is fundamental; Ohio's children deserve no less.

The State replies by raising fears that recognition of the Plaintiffs' rights will result in a loss of local control and public support for education. Identical arguments, together with the claimed necessity that the judiciary defer to the legislature on educational matters, were relied upon a half century ago as a justification for racial segregation.[1] In Brown v. Bd. of Edn. of Topeka (1956), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the United States Supreme Court repudiated once and for all any argument that fears such as those expressed by the State in this case may excuse constitutional violations. In more recent years, numerous state courts have rejected these fears as justification for preserving unconstitutional state school funding systems.[2]

No court has ever been called on to create a new school funding system, and this Court is not asked to do so today. Rather, the issue before the Court is whether the Court of Appeals erred in reversing the Trial Court's thorough and comprehensive decision that the system fails to meet the requirements of the Ohio Constitution.

I. The Ohio Constitution Mandates A Single, Statewide System Of Thorough And Efficient Common Schools; The Notion Of A "Dual System" Is A Fiction Advanced By The State For The Purpose Of Avoiding Accountability.

The terms "dual system" or "dual funding system" appear 29 times in the State's brief, suggesting repeatedly the notion that the State is not responsible for the sorry state of school funding in Ohio. The State urges that it bears only a "modest" responsibility, resulting from a "delegation of legislative discretion" under the Constitution. Having thus divided responsibility, the State goes on to assign the reason for the vast disparities in school funding: the willingness or unwillingness of school district voters (the other half of the "dual system") to approve additional taxes. Because it is a "dual system," the State says, the resulting inequities are permissible, since they result from the choices of local voters, not the State.

The State's characterization of its educational system as a "dual system" is pure fiction that strikes at the very heart of our basic principles of constitutional government. Could the State permit school district voters to limit the first amendment rights of free speech, to provide differing standards of due process, or to impose additional requirements on the right to vote within their school district? Of course not. Yet the State stands before this Court seeking a judicial stamp of approval on a "dual system" for education--a right equally prominent in the Ohio Constitution. The State can no more permit school district voters to deprive pupils of education than it can permit those voters to impair other constitutional rights.[3] The State's creation of 611 separate districts cannot relieve the State of absolute accountability under the constitution.

Dupree v. Alma School Dist. (1983), 279 Ark. 340, 349, 651 S.W.2d 90, 95.[4]

II. Educational Costs Have Increased Faster Than Funding.

Increases in the cost of delivering education, primarily the result of unfunded State mandates, have far outpaced increases in the State's education budget. Since 1988, the State Board of Education has repeatedly submitted testimony to the legislature, and the Trial Court found, that the foundation level has not kept pace with school district expenditures. (Pl. Exhs. 15, 16, 155, 156, 168, 178; Findings 86) Expenses have increased so much faster than revenues that many of Ohio's public schools are bankrupt. (Findings 76) Between 1981 and 1993, the percent of the State's budget going to public education has steadily declined.[5] If education were adequately funded, why have school districts, as of the time of trial, been required to borrow over $389 million since 1978 just to keep their doors open, and why does the State's $10 billion school facilities problem remain unsolved?[6] The State has no answer but to point to inflated State budget figures, which have already been found inadequate. (Findings 35-37; 454-55; 474)

III. The State Has Resorted To Inaccurate And Misleading Comparisons And "Facts" Not Found In The Record In A Desperate Effort To Make The System Look Better Than It Really Is.

The majority of the Court of Appeals disregarded the findings of the Trial Court, findings overwhelmingly supported by the evidence, and the State wants this Court to do the same. Such disregard violates the well-established principle that "an appellate court should not substitute its judgment for that of the trial court." Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, 1276. Based upon monumental amounts of largely undisputed evidence, much of it provided by the State, the Trial Court issued extensive findings documenting unconscionable levels of educational deprivation and inequity, all directly caused by the State's funding system. As a reviewing court, this Court must do what the Court of Appeals did not--"be guided by a presumption that the findings of the trier-of-fact were indeed correct." Id. According appropriate deference to the Trial Court's findings, the conclusion is inescapable that the State's system provides a constitutionally inadequate and unequal education to many of Ohio's youth, with lifelong consequences for them and for all Ohioans.[7]

Notwithstanding the extensive and well documented findings of the Trial Court, supported by the massive record of testimony and exhibits, the State has gone far from the record, citing statistical comparisons of questionable validity in a desperate effort to convince this Court that things have "gotten better." A striking example is the claim that appears in the State's brief at page 32, Senator Aronoff's brief at page 3, and Governor Voinovich's brief at page 2, comparing Ohio's per pupil average spending in 1992-93 with the spending at the time of Walter,[8] and proudly proclaiming that Ohio has improved its ranking among the states from 26th at the time of Walter to 16th at the time of the trial of this case. In support of this conclusion, each brief cites to a publication of the National Center for Educational Statistics (NCES), which was never before the Trial Court and is not evidence in this case, indicating that the average per-pupil expenditure in Ohio for the 1992-93 school year was $6005. In fact, that report is wrong. The actual expenditure per pupil for that year was $5306.[9] The correct per pupil expenditure indicates that Ohio has declined in ranking from 26th in the nation to 28th during that period.[10] The State's glaring error demonstrates clearly why this case should be decided on the facts determined by the Trial Court and not on unsubstantiated information never before that Court.

Finding itself unable even to attempt to explain the disastrous plight of many of Ohio's school pupils as a result of the school funding system, the State has sought to convince the Court that circumstances are really quite different from those found by the Trial Court. In this effort, the State confuses "equity statistics" (statistical distribution formulae) with "equity" in the sense of fairness and ignores the fact that school funding has worsened by either test.[11] Significantly, the State's own witnesses--including the President of the State Board of Education, the State Superintendent, Department of Education staff--and numerous experts expressed the belief that school funding is more unfairly distributed now than in the 1980s. (See, e.g., Findings 25-27; 44-45; 87-88; Supp. at 596) The Trial Court has so found, noting that Ohio ranks 48th among states in the level of disparity. (Findings 474)

The State's expert witness's conclusion that "Ohio's system of school finance is more equitable in 1991 than it was in 1979" was reached only after manipulation of the data by excluding approximately 30% of the school revenue (all DPIA and categorical aid), excluding numerous school districts, excluding a number of pupils as large as the entire student population of ten of our states, and weighing the largest school district (Cleveland) equally with the smallest. When applying more realistic analysis, even Dr. Guthrie acknowledged that some of his own measures showed that distribution of funds has become more inequitable.[12] More importantly, Dr. Guthrie declined to offer any opinion about whether the distribution of school funding in Ohio is equitable in the sense of being fair or proper: "I didn't make a judgment about whether it's equitable or inequitable." (Tr. 5374) Dr. Kern Alexander concluded that the distribution of school funding in Ohio is "highly disequalized, greatly disparate" and has become more disequalized over time. (Tr. 4032) Dr. Porter, Dr. Fleeter, and the State's research analyst, Dr. Payton, all agreed that the distribution of school funding has become increasingly inequitable.[13]

The basic flaws in the foundation formula identified by the Trial Court have not been fixed and in some cases have been worsened by the "band-aid" approach to reform instituted since the commencement of this litigation.[14] The basic aid level still bears no relationship whatsoever to the cost of educating a public school pupil and is a budgetary residual, consisting of funds left over after the entitled state budget programs have been funded. This basic aid level is substantially greater than the number of dollars per pupil the State puts into the foundation formula. Thus, for example, while the current year's basic aid level is $3315 per pupil, the actual amount of per pupil State funds going into the formula statewide is only $1259 per pupil.[15] The difference is made up through local tax revenue.

Since the early 1980s, the difference between the basic aid level and the average expenditure per pupil statewide has steadily increased, casting an increasingly larger burden on school districts to make up the difference through local tax revenues. Further, the increases in the "charge-off" millage, touted by the State as an example of legislative dedication to improving school funding, have in fact contributed to the worsening school funding crisis.[16] At the time of trial, the "charge-off" millage (local portion) of the school foundation formula was 20 mills. Since the trial of this case, the State has legislatively increased the charge-off millage in the foundation formula from 20 to 25 mills, with the current charge-off level at 23 mills. This change will simply shift an increasingly greater portion of the basic aid funding burden from the State to its school districts, amounting to over $450 million per year. This additional burden will amplify the irrational operation of the funding system, falling more harshly on poor school districts than on their wealthy counterparts.

In an attempt to have this Court overlook the harm the State has imposed upon the children in the Plaintiff School Districts, the State exalts the fact that it provided State funds in addition to the locally-raised revenue for building assistance at Plaintiffs Southern and Dawson-Bryant Local Schools. The State overlooks the harm it perpetrated upon the children from the time the State itself designated nearly all of the Southern Local's pupils as "improperly housed" in 1980 and until 1993. (Findings 184) During those years, nearly a generation of students were exposed to rain pouring through asbestos-laden ceilings, falling plaster,[17] poor lighting, inconsistent heat, and bathrooms that were without hot water and unfit for use.[18] How many more years will students at Northern Local have to continue to endure similar deprivations?

As discussed in Plaintiffs' Merit Brief, State building assistance funds have been appropriated at less than 1% of the need documented by the State.[19] The State also touts the "equity funds" distributed to the Plaintiff School Districts over a period of two fiscal years immediately following the filing of this litigation, but fails to acknowledge that these funds served only to delay or avoid borrowing for three of the Plaintiff School Districts rather than to enhance the quality of education. (Findings 79-80) The State acclaims its efforts to provide equity technology grants, but fails to mention that applications for grants in fiscal year 93 (FY93) totaled nearly ten times the $3.9 million awarded (Stip. Exhs. 18, 19), and the limited grants certainly did not meet the needs of the two recipient Plaintiff Districts.[20] The grants provided no funds whatsoever for wiring, maintenance, repair, or paper for any of the equipment. (Tr. 775-76; Findings 280)

The State's minimum salary schedule has remained unchanged at $17,000 per year since 1991, while actual school district salaries have grown well above that level, primarily as the result of State-mandated collective bargaining. (Findings 324). Today few, if any, school districts in Ohio pay their teachers according to the State minimum salary schedule. Each of the Plaintiff School Districts from 1982 to 1991 paid an average salary far less than the state average, (Pl. Exh. 214) and each has had problems recruiting and maintaining teachers.[21] It is unthinkable to expect Youngstown City Schools to recruit and retain quality teachers for schools in high-crime areas--where teachers' cars are stolen and teachers visiting neighborhoods are issued bulletproof vests--for Youngstown's starting salary of $19,281, let alone the State minimum of $17,000. (Tr. 3242, 3347; Pl. Exh. 204)

The State tries to defend the current funding system by pointing to and comparing "average" levels of expenditure in various categories both within and outside the State. For a state such as Ohio, which is third worst in the nation in the degree to which expenditures per pupil vary from the state mean, such comparisons are meaningless. (Findings 474) When the State defends its system by quoting "average" per pupil funding levels, it ignores the fact that tragic numbers of our children are educated at levels far below the average. Is a child educated in abjectly impoverished and unsafe facilities to be comforted by the knowledge that elsewhere in Ohio children learn in state-of-the-art facilities? For Plaintiff Jami Blankenship, is the total lack of science laboratories in her schools made acceptable by the fact that students in Beachwood have access to science labs and a broadcasting studio? Does one district's yearly purchase of new texts balance another's use of worn texts that are decades out of date?[22] The State's reliance on "averages" in the context of a suit that challenges inequity is preposterous.

IV. The State Has Failed To Respond To Its $10.2 Billion Facilities Problem.

The State's only response to the disastrous condition of Ohio's school buildings is to try to disown its own study reflecting over $10 billion in facilities needs. The State hopes this Court will ignore that study as well, claiming that it "merely reflected the cost of bringing existing buildings up to code, something not required for these buildings." State's Brief 25, fn. 3. Contrary to the State's claim, the study was not focused on building code issues alone, and the vast majority of the needs identified were in areas such as heating ($1 billion), roofing ($309 million), windows ($317 million), asbestos ($328 million), plumbing ($193 million), interior lighting ($147 million) and handicapped access ($153 million).[23] The State's willingness to condemn its children to attend school in hazardous, sub-standard and educationally outmoded facilities, knowing that of all school buildings only 6% had satisfactory life safety code systems and only 30% had satisfactory fire alarm systems (Pl. Exh. 14; Supp. 774, 767), is indicative of how little regard it has for their welfare.

The State touts the SchoolNet and SchoolNet Plus programs as examples of the "improvements" it will make in school funding.[24] These improvements have been proposed by the State in response to the threat posed by this suit; if the threat disappears, the motivation for further improvements will likely do the same. At the same time, the State fails to address the fact that 46% of the school buildings in Ohio have electrical systems in need of repair or replacement and 69% are in need of asbestos abatement. (Pl.Exh. 14; Supp. 757, 773) How will schools install computer wiring through asbestos laden walls? How will schools provide electrical power for computers in classrooms with only one outlet? The State provides no answers. Neither the SchoolNet nor the SchoolNet Plus program makes provision for dealing with the problem of asbestos or deficient electrical systems in any substantial fashion. It does little good to put a computer in a classroom with an untrained teacher and without electricity to run it.[25]

V. The School Funding System In Place Today Is Not Governed By Walter.

The State's claim that the school foundation program at issue today is "identical in all meaningful respects" to the equal yield system reviewed by the Court in Walter is simply wrong. There are fundamental differences between the "foundation" program in place today and the "equal yield" program reviewed in Walter. Walter's approval of the equal yield formula cannot be construed as an endorsement of the current school funding system.[26] In fact, scholars have recognized that the equal yield formula (which was at issue in Walter) was enacted as a reform measure, intended to stave off the school funding challenges presented in that case.[27] Once Walter was decided and the threat of legal challenge averted, the State quickly returned to the foundation program. While the potential of the equal yield formula to remedy the school funding problems in 1976 may have driven the Court's decision in Walter, the short-lived formula's ultimate effectiveness as a reform measure was never realized. There has been no statutory mechanism for the equalization of millage above the foundation level since 1981. (Findings 34)

The State claims that it has met its duty to Ohio's school children if it has adopted any standards for education, regardless of how inadequate, outmoded, and unenforced they may be. The State further acknowledges that it ignores its own standards, blatantly failing to comply with its own requirement that it evaluate all school districts "once every five years." Ohio Adm.Code 3301-35-07.[28] In the face of the Trial Court's comprehensive findings that the Plaintiff School Districts are unable to comply with even the abandoned 1983 standards, the State argues that the Trial Court's findings should be ignored, and the testimony of professional educators not believed, because there is no "independent expert" testimony that Plaintiff School Districts "do not have the means" to comply with the irrelevant, outmoded and now long abandoned "minimum standards."[29] The Trial Court's extensive and undisputed findings document the many respects in which the Plaintiff School Districts do not and cannot comply with the 1983 minimum standards. More important, however, is the fact that today there are no educational standards upon which this Court, unlike the Walter Court, may rely for assurance that Ohio's school children are receiving an adequate educational program. (Findings 288-90)

In light of the Trial Court's extensive findings that the Plaintiff School Districts do not meet even the 1983 minimum standards, the State's argument that these Districts "have the financial means to comply with state minimum standards" but choose to "spend funds for other purposes" is spurious. Even if that were the case, the State's permitting its "standards" to be flaunted in such an egregious fashion flies in the face of any notion of State responsibility for public education. By any definition, "standards" are meaningless if they can be ignored with impunity, either by the State or by its school districts.[30]

Rose v. Council for Better Edn. (Ky.1989), 790 S.W.2d 186, 216.

One of the starkest examples of the current education crisis is the extensive failure of Ohio's pupils to pass the ninth grade proficiency test, now a requirement for graduation. While the test is uniform throughout the state, the resources available to pupils are vastly different. As a consequence, pupils in poor and large urban school districts, including the Plaintiff School Districts, experience failure and thus denial of a high school diploma in disproportionately large numbers.[31] (Supp. 1290-1300) This harsh result falls particularly heavily on minority students, who are concentrated in the urban school districts. (Findings 298-302) The State's only answer is to blame the pupils. "Of course, these are minimum graduation requirements placed on students, not schools, and therefore do not govern a school district's financial ability to meet State minimum requirements." State's Brief 33, fn. 6, (emphasis sic). Yet, the relationship between the inadequate resources provided poor school districts and the failure of their students remains undisputed. The State concedes that passage of proficiency tests is one of the criteria by which the effectiveness of its system should be measured.[32] The system fails.

The State has asked this Court to uphold the extreme disparities in educational opportunity produced by its funding system because, it says, to do otherwise will somehow impede local control of education. What the State means by "local control" is the unfettered ability to continue the impoverishment of educational programs for students in property-poor school districts. Courts increasingly have recognized, however, that meaningful local control requires an adequately funded system of public education.

Alabama Coalition for Equity v. Hunt (Ala. Cir. Ct., Montgomery Cty.1993), 19 IDELR 810, 828 (included in Appendix to Plaintiffs' Merit Brief).[33] These courts are among the many that, like the Trial Court here, have recognized that local control is not an excuse for the violation of constitutional rights and that adequate and equitable funding, far from impairing local control, will enable it.

Edgewood Indep. School Dist. v. Kirby (Tex.1989), 777 S.W.2d 391, 398 (footnote omitted).

The State has not challenged the Trial Court's unequivocal findings that the Plaintiff School Districts do not have local control of their educational policies because of the school funding system. (Findings 408-413) For the Plaintiffs, local control of education is a "cruel illusion." (Findings 469)

The mantra of "local control" cannot excuse the constitutional violations resulting from the State's educational system.[34] Surely, it would be universally regarded as outrageous if schools authorized teachers to offer varying levels of educational opportunity to individual students based upon the property wealth of--and hence the property tax paid by--the students' parents. There can be no doubt that such wealth-based tracking within a school would fail the constitutional requirements of "common" schools and equal protection, nor can there be any doubt that the analogous system created by the State at the school district level, allocating education according to the wealth of the district, violates these same fundamental constitutional precepts.

VI. The Ohio Constitution Establishes Education As A Fundamental Right.

The State argues that the Education Clauses of Ohio's Constitution have no substantive meaning beyond that "schools should exist" and a "method of funding should be created." State's Brief 20. In support of this view, the State cites a proposal rejected at the 1850 Constitutional Convention to tie school funding to a fixed number of dollars. In fact, however, the legislative history conclusively shows that the delegates believed they were creating an educational entitlement that would grow in response to the changing needs of the children and of society. [35] The State further argues that the method and extent of State support for education in 1851 necessarily remains constitutionally adequate today. This argument, too, fails, both as a matter of history and of constitutional interpretation. The Education Clauses never were intended to limit educational benefits to those provided at a single point in time. As noted by the Washington Supreme Court, such an argument is "utter nonsense."[36] This Court as well as numerous other courts have taken a more enlightened approach, considering the application of such clauses both in light of the intent of the framers and the demands on modern society. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163.

The State claims that education is not entitled to protection as a fundamental right because it is not explicitly referenced in the Bill of Rights. In support of this claim, the State cites cases finding rights fundamental because they are found in the Bill of Rights for the logically unrelated proposition that only rights found in the Bill of Rights are fundamental. A number of rights have been declared to be fundamental in Ohio despite lack of express mention in the Ohio Bill of Rights--or indeed in any part of the Ohio Constitution--including the right of privacy, the right to procreate, the right to contract, and the right to vote (which is included in the Ohio Constitution but not the Ohio Bill of Rights).[37] Clearly, the State's assertion that fundamental rights are limited to those expressly found in the Bill of Rights is patently without merit. For all of the reasons set forth in Plaintiffs' Merit Brief, education is a fundamental right in Ohio.

CONCLUSION

The framers understood that constitutional government cannot survive without the benefit of an educated electorate and an economically viable work force. Rather than leave the attainment of these essential goals to the whim of the political process, they wove them into the constitutional fabric of our government, enhancing and enriching that commitment by amendments in 1851 and again in 1913. As our society has evolved, so has the urgency of the rich education legacy left by our founders. Today, our children not only are faced with an information age and global economy in which to compete, they also are confronted by a society in which the basic concepts of constitutional government are routinely challenged. Terrorism and anarchy lurk at the fringes of society, waiting. If our "grand experiment" in democracy is to endure, we must give substance and meaning to the "common school" concept--our constitutional legacy. The urgency of this mandate transcends all considerations of politics and popular opinion. Whatever may be the cost of success, the price of failure is immeasurably greater.

The State ignores in its brief what it also has neglected in its practice--the conditions in our schools. It is impossible to determine whether the State's oversight is intentional--implicitly conceding that the system cannot candidly be defended--or whether the State's omission reflects a reckless indifference to the intolerable conditions in the State's schools and the insidious consequences of such neglect. However, whether out of arrogance or ignorance, a State that closes its eyes to such a tragedy, when the relevant facts have been so thoroughly and so forcefully documented, cannot be relied upon to take remedial action. The State persuasively demonstrates that, left to its own devices, it never will undertake a serious reform effort. Whatever the risks in this case, the children's stake is greatest.