PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO STATE OF OHIO’S
MOTION FOR AN EXTENSION OF THE MARCH 24, 1998 DEADLINE

          Nearly a year ago, the Ohio Supreme Court declared that the laws that established Ohio's system of school funding were "inherently incapable of achieving their constitutional purpose." DeRolph v. State (1997), 78 Ohio St.3d 193, 212, 677 N.E.2d 733. Emphasizing that "[t]he importance of this case cannot be overestimated," id. at 197, the Court ordered the General Assembly to create "an entirely new school financing system," id. at 213. Recognizing that time was needed for "adequate study, drafting of the appropriate legislation, and transition from the present scheme of financing to one in conformity with this decision," the Supreme Court stayed the effect of its decision for twelve months and remanded the case to this Court. Id. at 213.

          Two months later, on May 28, 1997, Plaintiffs sought a scheduling order that would ensure that the State met the Supreme Court's deadline. The State vigorously opposed any such order, arguing that the General Assembly needed no impetus from the courts or from Plaintiffs to produce a timely remedy and should be left alone to do its job. It was.

          Today, more than eight months after the State's facile representation to the Court that it would meet the March 24 deadline, we are before the Court on the State's motion for an extension. The State has advanced no valid reason for extending the March 24^th deadline. The legislation touted by the State does not constitute a remedy, and any delay in the judicial evaluation of this legislation jeopardizes yet another generation of Ohio's children.

          If the State truly believes that it has created an entirely new funding system – one that remedies the constitutional deprivations inflicted by the old system – it should submit evidence in support of its claims to Plaintiffs and to this Court now. If the State's effusive optimism about the actions of the General Assembly is supported by its proofs, the State has nothing to fear from immediate judicial review. If, on the other hand, as Plaintiffs believe, the State's optimism is unjustified, delay is intolerable. The children of Ohio must not be made to endure further delay and further deprivation of constitutional rights.

I.  THE STATE'S REQUEST FOR AN EXTENSION DEFIES LAW AND LOGIC.

          The State maintains that its remedy is now complete. Yet it asks the Court to extend the deadline for compliance with the Supreme Court’s order until July 1 – more than three months past the Supreme Court's deadline, nearly two months past the State's proposed May 5 election, and, critically, less than two months before the commencement of the 1998-1999 school year. Clearly, the State is not asking the Court for more time so that it can continue to work on a remedy. Rather, the State is seeking to delay judicial scrutiny of a remedy it believes already exists. Premising its request upon Am.Sub.H.B. 697 (attached hereto as Exhibit 1) – a piece of legislation which may or may not be presented to the voters on May 5 and which in any case cannot justify delay of judicial scrutiny– the State's request defies both law and logic.

A.  This Court Lacks The Authority To Extend The Deadline Established By The Supreme Court.

          As an initial, threshold matter, the State errs in asking this Court for an extension of the Supreme Court's deadline. It is axiomatic that a lower court cannot disregard a decision of a superior court. In the instant case, the Supreme Court vested this Court with remand jurisdiction for the purpose of "taking such action as may be necessary to ensure conformity" with the Supreme Court's decision. DeRolph, 78 Ohio St.3d at 213 (emphasis added). Plaintiffs respectfully submit that this Court thus has been empowered to enforce the Supreme Court's order – not to delay it. Only the Supreme Court has the authority to alter the one-year deadline it established last March.

B.  The State's Funding Formula Does Not Depend Upon the May 5^th Election.

          The State's rationale for requesting an extension of the March 24 deadline appears to be as follows. The General Assembly has enacted a new funding system. An essential piece of this system is H.B. 697. H.B. 697 is contingent upon a popular vote in May. Therefore, the Court should wait until July to determine the constitutionality of the "new system."

          The State's reasoning is critically flawed. The relationship the State postulates between H.B. 697 and a school funding remedy does not exist. Fundamentally, H.B. 697 is a revenue bill. Despite its references to education, H.B. 697 has no bearing on the State's school funding formula and distribution mechanism. The formula and mechanism are fixed by other laws, including H.B. 650. Neither the funding formula contained in H.B. 650, nor any other legislation identified in the State's Memorandum in Support – as a component of the State's system for distributing funds for education, is contingent upon voter approval of H.B. 697.

          There is no reason to believe that H.B. 697 will ever result in one additional penny for education, even if passed by the electorate. To the extent that additional revenue, if any, results from H.B. 697, other aspects of the state's budget may be affected. But, under H.B. 650 and other laws, the public school children of Ohio will be allotted exactly the same amount of funds for their education with or without H.B. 697. Far from being the "last piece of this remedial puzzle," H.B. 697 is not part of the school funding puzzle at all.

          Significantly, the General Assembly has the authority to enact the provisions of H.B. 697 at any time, without referral to the voters, just as it has the authority to modify or repeal the provisions of H.B. 697 at any time, even if approved by the voters. In truth, the May election sought by the State is little more than a public opinion poll.

          The State's motion for an extension is founded upon the State's insinuation that school funding somehow depends upon H.B. 697. This insinuation is false. Assuming, arguendo, that H.B. 697 appears on a May ballot, the outcome of that election will not alter the State's professed remedy. The possibility of such an election should not delay this Court's consideration of Plaintiffs' challenge to that remedy.

C.  The State Cannot Condition Its Compliance With the Supreme Court's Order On Popular Vote.

          If, as the State suggests both to this Court and to the Supreme Court (in its Complaint in Prohibition and Mandamus filed February 20, 1998), H.B. 697 is an essential element of the State's school funding remedy, then the State's request for an extension of the March 24 deadline to allow the State to submit that element to the voters for their approval – with no backup plan in the event that the electorate rejects it – makes a mockery of the Supreme Court's DeRolph decision. The State either fails to understand the order of the Supreme Court or is contemptuous of it when it suggests that it may condition an essential element of its reform package on a vote of the electorate.

          The decision of the Supreme Court cannot be reconciled with the State's contention that "[j]ust as Ohio's school children deserve the promising public school system now laid before them, so too their parents and neighbors deserve a speedy resolution of any attempt to deprive them of the right to vote on the proposed remedy." State's Memorandum in Support at 8. The deprivation with which the State must be concerned in this case is that of the children. The State cannot continue to subordinate the constitutional entitlements of Ohio’s children to politics.

          On March 24 of last year, the Supreme Court declared that the State's school funding system was constitutionally flawed – not simply that the system was imperfect or that the Court preferred something different, but that the constitution, the supreme law of Ohio, required that the State cease operating under the existing system and design an entirely new one. That the State now comes before this Court proposing to condition its compliance with the order of the Supreme Court on popular vote is an affront to the rule of law.

          This is a case about responsibility. It arose precisely because the political branches of government failed to establish a thorough and efficient system of school funding for the children of this state. It was that failure that required the Supreme Court to step into the breach: "We admonish the General Assembly that it must create an entirely new school financing system….[T]he establishment, organization, and maintenance of public education are the state's responsibility." DeRolph, 78 Ohio St.3d at 213 (emphasis added).

          The Supreme Court could not have been more clear. The General Assembly cannot "shirk its obligation by espousing clichés about 'local control.'" Id. at 211. Neither can it evade its constitutional duty through a delegation to the electorate. The responsibility for the establishment of a constitutional system of school funding is the legislature's. The State's attempt to relegate school funding reform to the political arena was emphatically rejected by the Supreme Court last March, and it should be emphatically rejected by this Court now.

D. The System Isn't Fixed, And The Harm Continues.

          The State has not proffered with its motion sufficient information about the legislative response to DeRolph to permit a thorough evaluation of that response. Nonetheless, even a cursory comparison of the Supreme Court's opinion with the legislation enacted since March of last year reveals the constitutional inadequacies of that legislation.

1. The State has not solved the facilities problem.

                    The Supreme Court established the following standard for school facilities in DeRolph:

A thorough and efficient system of common schools includes facilities in good repair and the supplies, materials, and funds necessary to maintain these facilities in a safe manner, in compliance with all local, state, and federal mandates.

78 Ohio St.3d at 213. The Supreme Court reproached the State for the dismal conditions in many of its schools, and it referred to the 1990 School Facilities Survey which identified $10.2 billion in needed repairs and construction. Id. at 205-206. The State’s own update of that survey indicates that the 10.2 billion dollars needed by Ohio's schools in 1990 has escalated to 16.5 billion – even considering capital outlays that have taken place in fiscal years 1990 through 1996. Legislative Budget Office Study, Attached hereto as Exhibit 2.

          Plainly, the $750 million the State claims it has allocated to solve the school facilities problem (State's Memorandum in Support at 3) pales in comparison to the needs of Ohio's schools. Yet, incredibly, the State makes no commitment to allocate more dollars to alleviate the facilities problem in the future. While the State proclaims that school funding problems have now been remedied, Ohio's school buildings continue to rank among the worst of any state in the nation.

          While we wait for the State to take the school facilities problem seriously, students continue to be educated in dilapidated buildings that are no different from those condemned by the Supreme Court. For example, in the Shadyside Local School District in Belmont County, $1.2 million is needed for facilities repairs related to roofs, doors, windows, structural beams, heating, gymnasium, emergency lighting and alarms, plumbing, and handicapped accessibility. Affidavit of Gerald Narcisi, attached hereto as Exhibit 3, at ¶ 8. The district has applied for funding from the State and been informed that no funds are available for the district's needs. Id. Similarly, the South-Western City School District, the seventh largest district in the state, will be forced to institute split sessions next fall because it is ineligible for funds for the construction of new buildings. See Affidavit of Alan R. Hutchinson, attached hereto as Exhibit 4.

          Moreover, and despite the Supreme Court's warning that "[w]hen a district falls short of the constitutional requirement that the system be thorough and efficient, it is the state's obligation to rectify it," DeRolph 78 Ohio St.3d at 210, the State continues to condition receipt of facilities funds on locally raised matching funds. R.C. 3318.05 (as amended by S.B. 102).

          The Supreme Court declared the Classroom Facilities Act to be unconstitutional because it was underfunded. The State's "remedy" continues to underfund the capital needs of schools and, accordingly, is likewise unconstitutional.

2. State-mandated borrowing to fund school operations continues.

                    With respect to the massive foundation of debt upon which our school system rests, the Supreme Court issued the following warning:

The debt which stems from mandated borrowing programs is in many instances staggering, and the cyclical effect of continued borrowing has made it more difficult to maintain even minimal school operations. See R.C. 133.301 and 3313.483. These loan programs, discussed above, are nothing less than a clever disguise for the state's failure to raise revenue sufficient to discharge its constitutional obligations.

DeRolph 78 Ohio St.3d at 202.

          The State's reliance upon borrowing continues. Under the new funding system, as under the old, the State requires that countless local districts finance their operations through borrowing – albeit from a State-operated "advancement fund," pursuant to R.C. 3317.63 and R.C. 3313.64, rather than from commercial lenders, pursuant to R.C. 3313.483 (the borrowing statute declared unconstitutional by the Supreme Court).

          But borrowing is borrowing, and in trading one form of borrowing for another, the State has not remedied the evils inherent in this disguise – forcing program reductions to repay debt. At the beginning of 1998, Ohio's school districts owed, collectively, over $300 million in state-mandated debt for school operations, and the State's "remedy" has not solved that problem. School district debt is not simply an accounting issue. Debt impairs a district's ability to invest its financial resources in the education it delivers to its students. Thus, for example, the Groveport Madison Local School District – a district with very low per-pupil property valuation and a significant level of debt, subject to fiscal watch oversight – has had to eliminate a number of educational programs. See Affidavit of Charles V. Barr, attached hereto as Exhibit 7. This district has dropped advance placement courses in the high school, reduced professional staff, and dramatically increased class sizes. It has been unable to provide students with access to technology or to adequately equip its classrooms. As a result, "many of the pupils attending District schools do not receive or have available to them an educational program sufficient to prepare them to enter college or to enter the modern-day work force." Id. at ¶8. The State's remedy will not "bring about any significant improvement in the circumstances of the pupils in the District." Id.

          It matters little to a student receiving an inadequate education in an impoverished district that the State increases the amount of basic aid allocated to the district if the district must use the extra dollars to pay off debts rather than to upgrade educational facilities or operations. When the State allows school district debt to diminish the quality of a student's education in this way, the State is acting in a manner that is manifestly unconstitutional and in derogation of the principle that there is only one school system in Ohio, with the State responsible for deficiencies, wherever in that system they may occur.

          The borrowing problem is the State's problem, and unless and until the State seriously addresses this problem, it will not have created a school funding remedy that complies with the mandates of DeRolph.

3. Disparity continues.

                    The Supreme Court expressly identified the glaring inequities produced by the State's funding system as a source of the system's unconstitutionality.

At the heart of the present controversy is the School Foundation Program (R.C. Chapter 3317) for allocation of state basic aid and the manner in which the allocation formula and other school funding factors have caused or permitted to continue vast wealth-based disparities among Ohio's schools, depriving many of Ohio's public school students of high quality educational opportunities.

DeRolph, 78 Ohio St.3d at 198. Endorsing other courts' condemnation of such disparities, the Supreme Court continued as follows:

For instance, in Edgewood Indep. School Dist. v. Kirby, supra, 777 S.W.2d 391, the Texas Supreme Court invalidated its state funding structure, in which annual per-student expenditures varied from $2,112 in the poorest districts to $19,333 in the wealthiest districts. The court noted at 393:

"Property-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves. Because of their inadequate tax base, they must tax at significantly higher rates in order to meet minimum requirements for accreditation; yet their educational programs are typically inferior. The location of new industry and development is strongly influenced by tax rates and the quality of local schools. Thus, the property-poor districts with their high tax rates and inferior schools are unable to attract new industry or development and so have little opportunity to improve their tax base."

The plaintiffs in Edgewood presented compelling evidence of how fiscal inequities produced inadequate educational opportunities. The court in Edgewood stated that the inequalities resulting from Texas's school funding system violated the constitutional requirement of efficiency. Thus, the court declared that the legislature must provide for an efficient system in which funds are distributed more equitably. As the court noted, at 397, to correct the deficiencies, "[a] band-aid will not suffice; the system itself must be changed."

DeRolph, 78 Ohio St.3d at 204-205.

          Although the State's school funding "remedy" defies rational analysis, one thing is plain: there is no clear connection between the cost of serving the educational needs of a district’s pupils and the amount of funding provided to the district by the State. Under the new legislation, some relatively wealthy districts will receive large increases in State funding, while other heavily indebted districts with far less in the way of local resources will receive relatively small increases in State funding. See Affidavit of Charles Barr, attached hereto as Exhibit 7; Ruth E. Sternberg, State Funding Figures Baffle School Officials, Columbus Dispatch, Feb. 27, 1998, at A1-2, attached hereto as Exhibit 8. A chart appearing in the February 27, 1998, Columbus Dispatch demonstrates the lack of relationship between funding increases/decreases and the socioeconomic status of a district. Id. Similarly, a chart prepared from the Ohio Department of Education (ODE) figures, showing the percentage change in funding for districts with average per pupil valuations ranging from $33,975 to $605,237, demonstrates the lack of relationship between funding increases/decreases and property wealth. Attachment B to Affidavit of William L. Phillis, Attached hereto as Exhibit 9.

          Before DeRolph the quality of a child’s education depended upon the wealth of the district in which he or she resided. The same is true under the system that the State would have this          Court believe is a remedy. While some students will choose from extensive course offerings in model facilities, others will suffer from an inadequate education or be forced to attend split-sessions. See Affidavit of Alan R. Hutchinson, attached hereto as Exhibit 4 at ¶5 ("The District presently has approximately 2,300 pupils housed, for education purposes in facilities other than school buildings, including portable classrooms, churches and renovated athletic facilities."); ¶7 ("The District has determined to begin split session school schedules beginning with the 1998-99 school year. Under the split session schedules some pupils will begin their school day at 7:00 a.m. and will begin their bus ride to school as early as 6:30 a.m., while other pupils will arrive home at the end of their school day as late as 7:00 p.m. The split session schedules will affect over 13,000 pupils and will impose hardship and disruption on the families of those pupils.").

          The Supreme Court's characterization of the State's funding system last March thus applies with equal force to the system the State claims as a remedy: "Although some districts have the luxury of deciding where to allocate extra dollars, many others have the burden of deciding which educational programs to cut." DeRolph, 78 Ohio St.3d at 211. Simply put, the legislation enacted by the State in response to DeRolph does not alleviate the disparities in funding denounced by the Supreme Court. Under the new legislation, as under the old, the quality of a child's education continues to depend upon the property wealth of the district in which he or she lives. Additionally, the reliance on property taxes to fund the system has not been reduced. See Affidavit of Dr. Glen P. Keifer, attached hereto as Exhibit 6. Countless children thus continue to be condemned by the State to an underfunded and inadequate education, in clear violation of the constitution.

4. The State's funding formula is irrational and unrelated to the costs of education.

                    The most fundamental flaw in the funding system declared unconstitutional by the Supreme Court was the failure to link the amount of funds to be provided for a child's education to the cost of actually providing that education.

The "formula amount" has no real relation to what it actually costs to educate a pupil. In fact, Dr. Howard B. Fleeter, Assistant Professor at the School of Public Policy and Management at Ohio State University, stated that the foundation dollar amount "is a budgetary residual, which is determined as a result of working backwards through the state aid formula after the legislature determines the total dollars to be allocated to primary and secondary education in each biennial budget. Thus, the foundation level reflects political and budgetary considerations at least as much as it reflects a judgment as to how much money should be spent on K-12 education." (Emphasis sic.)

DeRolph, 78 Ohio St.3d at 199. The failure to premise educational funding upon educational costs rendered the system reviewed by the Supreme Court unconstitutional.

          The State's remedy continues to create funding levels that are unrelated to the costs of education. In R.C. 3317.012(A), as amended by H.B. 650, the State expresses an unsubstantiated judgment that the "the base cost of an adequate education per pupil for the fiscal year beginning July 1, 1998, is $4,063." Yet, in R.C. 3317.02(B), as amended by H.B. 650, the State established for that fiscal year a base formula amount of $3851 – an amount that guarantees educational deprivation, even accepting, arguendo, the State's determination of what constitutes an adequate base amount.

          In fact, however, the State's self-serving declaration that $4063 is an adequate amount for fiscal year 1999 deserves no credence unless and until the State comes forward with evidence that this amount was derived from something other than the "political and budgetary considerations" that proved fatal to the system invalidated by the Supreme Court. At this point, the State's own expert, Dr. John Augenblick – upon whose analysis the State purportedly relies – has disassociated himself from the State's amount, suggesting that the State modified his approach solely for the purpose of creating a lower base formula amount. See Letter of Dr. John Augenblick, attached hereto as Exhibit 10 ("To attempt to modify [my methodology], especially for the purpose of simply creating a higher or lower number, would be inconsistent with the original overall approach. I will do everything I can to help people understand the methodology I used and to defend it in court if required."). See, also, Affidavit of Richard Maxwell, attached hereto as Exhibit 11 at ¶5 ("I am familiar with the recommendations and report of John Augenblick, the expert relied upon by the General Assembly in its attempt to determine a foundation support level adequate to serve the needs of Ohio's pupils. The support level adopted in H.B. 650 fails to meet even the level specified by Dr. Augenblick and is not adequate to serve the educational needs of Ohio's public school pupils.")

          As described above, in H.B. 650, the State reduced, arbitrarily, the basic funding level it declared to be the minimum amount necessary to fund an adequate education. The State then further reduced the amount available to some districts through the establishment of an artificial cap on funding. As a result of this cap, the South-Western City School District, for example, will receive $6 million less than H.B. 650's distribution formula otherwise would yield. Affidavit of Alan R. Hutchinson, attached hereto as Exhibit 4, at ¶9.

          Additional evidence of the irrationality of the State's funding formula may be found in the widely divergent calculations produced by the Ohio Department of Education and the Legislative Budget Office (LBO) using that formula. See LBO Projections vs. ODE Estimate, Attachment A to Affidavit of William L. Phillis, attached hereto as Exhibit 9. Both ODE and LBO independently calculated the amount that each school district in the state will receive under the new funding formula. The General Assembly, at the time of the vote on H.B. 650, had only the LBO estimates available to it; the ODE estimates were not prepared until long after the legislation had been passed. The discrepancies are massive and widespread, affecting every district in the state. Id. For example, using the ODE figures, Plaintiff Youngstown City School District stands to receive $1,798,930.84 less than the General Assembly assumed when it passed H.B. 650. Id. By comparison, Rossford Exempted Village School District, a relatively wealthy district, stands to receive $257,223.68 more than the General Assembly assumed when it passed H.B. 650. Id. If the data upon which the General Assembly relied in designing its system was so egregiously flawed, there can be no rationality in the resulting system.

          The irrationality of the base formula amount under the State's remedy is compounded by the State's method of funding special educational needs. The Supreme Court was greatly concerned with the long-standing inadequacy of the funds provided by the State for the education of students who have handicaps and other special needs.

The financing scheme is further complicated when special factors are taken into account. For instance, additional appropriations may be made for categorical programs, such as vocational education, special education, and transportation. R.C. 3317.024. However, no adjustment is made for the relative wealth of the receiving district. …. If the actual cost exceeds the funds received, wealthier districts are in a better position to make up the difference.

DeRolph, 78 Ohio St.3d at 200. Under the State's remedy, many districts that already were struggling to meet the special education needs of their students will find themselves with even fewer State funds to meet these needs in the future. Affidavit of Richard Maxwell, attached hereto as Exhibit 11 at ¶7 ("a greater portion of the burden of funding the required programs for these pupils will be shifted to the local revenue side of the formula and, as a result, some districts will receive less revenue for the programs for these pupils than before.") As one example, Shadyside Local School District expects to lose over half of its funding for special education under H.B. 650. Affidavit of Gerald Narcisi, attached hereto as Exhibit 3 at ¶5. The district will lose approximately $104,000 of the $197,000 it previously received from the State to cover the costs of serving 75 handicapped students. Id.

          To the extent that the State continues to underfund special education, vocational, and gifted programs, the amount available to the average student will be depleted as funds are diverted to cover the costs of these programs. Because students who are disabled have an entitlement to special education and related services, the impact of underfunding special education affects all programs. For example, the Shadyside Local School District does not have available funds to make up for the loss of funding for special education. Id. at ¶6. Since all handicapped pupils are entitled to receive a free appropriate program of special education as a matter of law, the shortfall in funding will likely require reductions in the level of programs and services for nonhandicapped pupils. Id.

          Not surprisingly, condemnation of the State's supposed remedy has been widespread – among legislators, educators, and the general public. For example, State Superintendent of Public Education John M. Goff has been reported as commenting that the State's remedy does not provide a sufficient amount for per-pupil aid and for school building repairs, and does not satisfy the mandate of the Supreme Court: "It's more money for education, but my concern is that I don't think it fundamentally redesigns the funding system." Catherine Candisky, State School Superintendent Say (sic) He'll Retire Jan. 1, Columbus Dispatch, Feb. 21, 1998, at E3, attached hereto as Exhibit 12.

          In sum, because the State has not based its funding upon the actual costs of providing for basic and special educational needs, the State has not created a constitutional system of school finance.

5.  The harm continues on a daily basis and will only intensify if a genuine remedy is not in place prior to the commencement of the 1998-1999 school year.

                    The State's assurance that H.B. 697 will result in a "promising public school system" is a false promise. In reality, H.B. 697 and the other legislative enactments of the past year represent business as usual rather than a serious response to DeRolph. And, as it has since the inception of this suit, the State continues to disregard the magnitude of the harm that flows from its failures. That harm is ongoing, irremediable, and of incalculable consequence. To date, there has been no significant remediation of the constitutional defects identified by the Supreme Court last March, and there is no possibility that the remedy proposed by the State will redress those defects in the future.

          Accordingly, Plaintiffs could not disagree more with the State's glib assertion that Plaintiffs will suffer no prejudice if the requested extension is granted. Constitutional harm willcontinue to occur until such time as a full remedy is in place. Rather than granting the requested extension of the deadline, the Court should expedite its consideration of the State’s supposed remedy in order to avert further harm to the students of this state.

          It is absolutely imperative that the state's remedy be evaluated now. As the Supreme Court recognized, "For the 1.8 million children involved, this case is about the opportunity to compete and succeed." DeRolph, 78 Ohio St.3d at 197. That opportunity, promised to Ohio's children by the constitution, must no longer be denied.

II.  THE PLAINTIFFS' CHALLENGE TO THE STATE'S REMEDY SHOULD BE HEARD BY THIS COURT AT THE EARLIEST POSSIBLE DATE, IN ACCORDANCE WITH THE SUPREME COURT'S DIRECTIVES.

          In its decision on reconsideration, the Supreme Court described the role of this Court upon remand as follows:

Our remand to the trial court is to provide a proper venue for the parties, if necessary and requested by any party, to present all evidence concerning the final enacted remedy, including measures taken since the record in this case closed and further enactments made in response to our decision.

It would then be the trial judge's responsibility to rule on the constitutionality of the enacted legislation and to render an opinion.

DeRolph v. State (1997), 78 Ohio St.3d 419, 421, 678 N.E.2d 886.

          The State has unequivocally represented to this Court that its school funding remedy is now complete. It is, however, abundantly clear to Plaintiffs that the legislation the State propounds as its "final enacted remedy" is inherently incapable of meeting the mandates of DeRolph. The stage is thus set for this Court to exercise the authority granted it by the Supreme Court. The time has come for the State to present its remedy to Plaintiffs and the Court and for the Court to "rule on the constitutionality of the enacted legislation." Unless knowledge of the truth can be characterized as harm, the State cannot be prejudiced by prompt judicial review of its asserted remedy. There is thus no reason to delay and every reason – given the risk of continuing unconstitutional deprivation of children across the state – to hear and adjudicate this challenge now.

          The Supreme Court's opinion leaves no doubt that the Supreme Court viewed the school funding status quo as constitutionally and morally intolerable and permitted it to persist for one year more only because, as a practical matter, time was required for the General Assembly to create and put into operation a new system that would be consistent with the mandates of the constitution. Notwithstanding the one-year grace period, however, the Supreme Court manifestly confirmed that, in the establishment of a constitutional system of school funding, time is of the essence. It was for this reason that the Supreme Court not only directed this Court to retain jurisdiction, but also provided for an unprecedented right of direct appeal to the Supreme Court once this Court rules on the constitutionality of the new system.

A.  The State Should Immediately Identify All Components Of Its New School Funding System, And A Hearing On The Sufficiency Of That System Should Be Scheduled.

          In view of the clear urgency of this matter, the State should immediately be ordered to identify all components of its school funding remedy. Additionally, this Court should establish a case management schedule and address related procedural issues so that Plaintiffs' challenge to the State's purported remedy may be expeditiously heard and decided.

B.  The Court Should Assign to the State Both the Burden of Going Forward and the Burden Of Persuasion With Respect to the Claimed Constitutionality of Its New School Funding System

          In the proceedings challenging the State's response to the Supreme Court's directives in DeRolph, the State, already adjudged to be a constitutional violator, should bear both the burden of going forward and the ultimate burden of persuasion as to the constitutionality of its claimed new system of school funding. See Jenkins v. Missouri, 959 F.Supp. 1151, 1157 (W.D. Missouri 1997) ("[a] controlling distinction in the burden of proof analysis is first, whether a defendant has been adjudged to be a constitutional violator").

          Last March, the responsibility for fixing the school funding system was placed squarely on the State by the Supreme Court. Now, it is appropriate to require the State to come forward and affirmatively describe to this Court how it has responded to the Supreme Court's order. The State can best describe the components of its new legislation, and only the State can explain how and when, if ever, those components will remedy the extensive defects in the system previously declared to be unconstitutional. Allocating these burdens to the State is the fairest and most efficient way to move forward with the enforcement phase of this litigation. See, United States v. Fordice (1992), 505 U.S. 717, 746, 112, S.Ct. 2727, 120 L.Ed.2d 575 ("given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion" (Thomas, J., concurring). Unless the State is required to produce evidence of its compliance with the order of the Supreme Court, a post-judgment enforcement hearing will resemble a trial de novo, and Plaintiffs will be unfairly and unjustifiably encumbered with burdens that may effectively deprive them of a timely remedy for the constitutional wrongs declared by the Supreme Court nearly a year ago.

          In similar proceedings, other courts have allocated the burdens in the manner here proposed. For example, the Arizona Supreme Court, in a recent opinion related to the school funding litigation in that state, declared as follows: "This was a post-judgment enforcement proceeding, and thus the burden was on the state to show compliance." Hull v. Albrecht (Arizona, Dec. 23, 1997) 1997 WL 792911 (copy attached hereto as Exhibit 13). Likewise, in the post- Brown v. Board of Education remedy enforcement proceedings, the defendants bore the burden of showing compliance with the Supreme Court's decision.

The District Court's treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. … Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II, 349 U.S., at 300, 75 S.Ct., at 756. The court's holding that petitioners could not establish the constitutional defect … therefore, improperly shifted the burden away from the State.

United States v. Fordice (1992), 505 U.S. 717, 738-739, 112 S.Ct. 2727, 2741. See, also, Green v. County School Bd. of New Kent County, Virginia (1968), 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed. 716 ("It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness.")

CONCLUSION

          The State has failed to provide this Court with any valid reason to extend the Supreme Court’s March 24 deadline and this Court should decline that request for two reasons. First, this Court’s remand authority is limited to the authority to enforce the Supreme Court’s decision, not to change it. The Supreme Court established the March 24 deadline and only the Supreme Court can change it.

          More importantly, however, is the fact that extending the deadline will serve no purpose other than to delay judicial review of the "remedy" that the State asserts is now complete. The question of whether that "remedy" satisfies the mandates of the Supreme Court is totally independent of the May 5 election and the passage or failure of the proposed tax levy will have no effect on the operation of the State's school funding laws. If the State truly believes that it has fully responded to the Supreme Court’s mandate, there is no need to extend the March 24 deadline. If it has not, as Plaintiffs believe to be the case, then extending the deadline serves no purpose other than to continue the harm the State inflicts on those of its children who are deprived of their educational entitlement.

          Even if H.B. 697 makes it to the ballot on May 5, the process of reviewing the "remedy" will likely not have been completed by that date. Thus, the Court need not be concerned that the consideration of the "remedy" at this stage would have any effect on the outcome of the election. All of this points to the necessary conclusion that, rather than extending the deadline, the Court should immediately begin the process of reviewing the components of the "remedy." As the foregoing demonstrates, that review will conclude that the mandates of DeRolph have not been met.

CERTIFICATE OF SERVICE

          I hereby certify that a true and accurate copy of the foregoing Plaintiffs' Memorandum in Opposition to State of Ohio's Motion for an Extension of the March 24, 1998 Deadline has been sent by regular U.S. mail, postage prepaid, this 4th day of March, 1998, to Jeffrey S. Sutton, State Solicitor, 30 East Broad Street, 17th Floor, Columbus, Ohio  43215, and Joel S. Taylor, Dinsmore & Shohl, 175 South Third Street, Suite 1000, Columbus, Ohio   43215. 

Footnotes:

18.  Simultaneously with this Memorandum, Plaintiffs have filed a motion for sanctions and to compel answers to interrogatories and requests for production of documents.

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