Today, Ohio stands at a crossroad. This Court's decision ultimately
will determine whether Ohio will give meaning to the constitutional
entitlement of each child to a "thorough and efficient"
system of public education or will turn its back on the future
of its children and the well-being of our State. Rarely does a
matter of such magnitude and long-term effect come before this
Court. The Court's decision in this case will determine the future
of our State.
STATEMENT OF FACTS
The undisputed facts in this case establish beyond question that
the State has abdicated its constitutional duties.[3]
The Trial Court found:
- Throughout this case this Court heard from school children, teachers,
principals, superintendents, school board members, legislators
and other state personnel. The sincerity and conviction to education
from both the Plaintiff and Defense witnesses was evident. This
Court saw grown men and women cry as they explained the conditions
and situations in which some of the youth of this State are educated.
They deserve better and the State as their bridge builders to
the future are duty bound to provide them with better tools for
a successful life. The law requires the same. Some students in
the Plaintiff school districts lack equipment, supplies, textbooks,
technology, proper handicap access and many of our special education
students are not receiving an appropriate public education. ***
- Can a system that has nearly 17,000 Seniors who have not as yet
passed the ninth grade proficiency test consider itself thorough
and efficient? The same questions can be asked of a system whose
equality of funding ranks it the third worst in the country behind
Missouri (declared unconstitutional) and Alaska. ***
- Some of our students are being educated in former coal bins in
Mt. Gilead. In Flushing the students have no rest room in the
school building itself. In Brown County the only library is an
abandoned library truck; the band practices in the kitchen and
plays in the cafeteria during lunch. In Nelsonville the building
is slipping down a hill. At Plaintiff Northern Local children
are educated in modular units situated outside the school with
no running water. At Plaintiff Southern Local students recently
completed their entire school careers in buildings that for the
most part were determined to be improper housing in 1981. ***
- [Plaintiff] Southern Local's financial situation is evidenced
by their request to have the SEOSERRC office save colored paper
for them from their trash and Southern Local's policy that requires
teachers to either pick up their checks in the summer months at
the school or provide the school with a stamp. While some of the
Plaintiff school districts must ration paper [and] paper clips
and use out of date textbooks our wealthier districts are able
to provide violin classes in the second grade and have contests
through computer networking allowing their students to compete
directly against children from Finland, Germany and other American
cities.
(Findings at 474-75)
I. Overview of The Current System
of Public School Funding
All funds for public elementary and secondary education are provided
under state laws and are state funds.[4] However, the terms "state"
funds and "local" funds have come into use because some
of the state's funds for education are generated through "local"
levies of taxes on real and personal property in each school district.
The amount of revenue available to a school district is a combination
of "state" revenue, most of which is provided through
the State's school foundation program, and "local" revenue,
which primarily consists of locally voted school district property
tax levies.[5]
A. "Locally" Dependent Revenues
The wide disparity in value of taxable property among Ohio's school
districts is the cause of the disparities in funding and educational
opportunity among districts. Over the last decade, disparities
between rich and poor districts have increased. (Tr. 1095; Findings
at 71-72) Ohio is currently one of the most poorly equalized
state funding systems in the nation. (Tr. 3728; Findings
at 86-87) For example, while each child in Plaintiff Northern
Local Schools received an average of only $3,205 for his education
in 1990-91 (fiscal year 1991 (FY91)), each child in Beachwood
received over $11,409 in that year.[6] (Stip. Exh. 6; Pl. Exh. 270)
Indeed, the uncontroverted testimony revealed that the wide disparities
in educational opportunity in Ohio today are not the result
of differing degrees of effort by school district residents to
pass local levies, but rather are the result of the funding system's
overreliance on the tax base of individual school districts. Tax
effort is nearly identical between rich and poor school districts
and in some instances, greater in poor districts. (Tr. 1105-06;
Findings at 64-65) For example, one mill of property tax levied
in the Plaintiff Dawson-Bryant School District in FY91 generated
$29,083, while that same one mill generated $1,064,321 in the
Beachwood City School District.[7] Thus, Dawson-Bryant would need to levy 318.6 mills of local property tax to match the
expenditure per pupil of the Beachwood Schools.[8] (Plaintiffs' Exh.
3; Supp. 356) Because the current system of funding is
so dependent upon the value of property in each school district,
today many districts could not possibly levy even enough millage
to provide the state average expenditure per pupil, which was
$4,585 in FY91.[9] (Pl. Exh. 381)
Over the decade from 1980 to 1990, the disparities became even
worse as poor school districts got even poorer in two ways: (1)
real (adjusted for inflation) income of residents was lower
by 1990 and (2) the majority of business property had shifted
to the rich districts.[10] The move of business property is critical,
because in today's society businesses pay property taxes with
money earned from customers who live outside of school district
boundaries where the business is located.[11] This shift permits wealthy
districts to pass a greater percentage of their tax burden to
those outside their districts. (Tr. 1073; Supp. 369)
From 1976 to 1981, Ohio's school funding system--the "equal
yield"[12] formula--contained a "power equalizing"
tier by which additional state revenues were provided to districts
to equalize the wide variation in amounts generated from each
mill between 20 and 30. (Tr. 2822-23; Findings 33-34)[13] The equal
yield formula with its "power equalizing" tier was never
fully funded, however, and it was abandoned in 1981. Id.
Today's formula provides no such equalizing of revenue realized
from a mill. Id.
Further restricting local revenue today is Amended Substitute
House Bill 920 ("H.B. 920"). That statute prevents growth
in tax revenues when property values increase due to inflationary
growth. (Stip. 14) Thus, school districts have experienced rising
costs without corresponding increases in tax revenues.[14] As a direct
result of H.B. 920, over 3,700 additional local tax levies have
been proposed to local electors (Findings at 57), but the passage
rate of school district operating levies has steadily declined
(Stip. Exh. 9). Voters in wealthy districts are better able to
pay additional school taxes and are more inclined to approve additional
tax levies. Id. At the same time, school districts with
high concentrations of poverty and low property values (which
yield proportionately less revenue per mill of tax) find it increasingly
difficult to pass additional tax levies. "[15] Importantly, no
other state has a tax rollback or limitation measure which is
this extreme in its effects. Every other state allows inflationary
growth in the property tax base beyond inside millage."
(Pl. Exh. 344, p. 25 (emphasis in original))[16]
B. State Funding Is Determined by
State Budget "Leftovers," not by Pupil Needs
As noted above, "State" funding for education is provided
primarily through the State's foundation formula program. The
State foundation program includes a "basic aid" amount
which is a minimum level of per-pupil funding determined by the
legislature each biennium. Today, the basic aid amount bears no
resemblance to any amount determined necessary to provide an adequate
educational program for pupils in the state.[17] One of the many
studies of the legislature regarding school funding recommended:
"The foundation's per pupil level should have some reasonable
relationship to the cost of a quality basic program efficiently
provided and some objective method of determining it should be
developed."[18] Neither the State nor any legislative committee
has determined the cost of providing an educational program meeting
today's minimum standards. State funding for public elementary
and secondary education is simply a "budgetary residual"--the
amount left over after all other state programs have been funded,
divided by the number of pupils in the state.[19] Stanley Aronoff,
President of the Ohio Senate, admitted: "When you have a
healthy Ohio economy, education does significantly better than
when the economy slows down or revenue doesn't come in as expected."
(Tr. 4824-25) The State has also admitted that the state basic
aid level is inadequate ($2817 per pupil in FY93) and that many
Ohio school districts do not have enough money to cover ongoing
operations.
The gap between the State's foundation level and the amounts necessary
to educate students has been expanding[21] (Pl. Exh. 140 p. 19; Supp.
212):
The level of basic aid provided through the school foundation
program does not approach the average expenditure per pupil in
Ohio. In 1980, basic aid represented 59% of the average expenditure,
[and] in 1989, the gap had grown to 70%. The average expenditure
per pupil is out-pacing the foundation level at an increasing
rate.[22]
Additionally, the percent of the state's budget devoted to public
elementary and secondary education has decreased steadily over
the last 16 years.[23] The percent of the state budget directed to
public and secondary education decreased from 30 percent in 1984
to 22 percent in 1994--more than a 25 percent decrease in education's
share of the state budget. (See Tr. 4397) Although the State has
admitted the relationship between the number of high school dropouts
and the size of the prison population, prison spending rose 33
percent[24] in the 1994-95 biennium budget over prior years, while
the funding for education received only an 8.5 percent increase
over the biennium period.[25]
II. Minimum Standards no Longer Assure
Adequacy
The State Board of Education is required to "Formulate and
prescribe minimum standards to be applied to all elementary and
secondary schools in this state for the purpose of requiring a
general education of high quality. " R.C. Section 3301.07(D).
Prior to 1983, these minimum standards contained very specific,
objective requirements.[26]
The minimum standards underwent complete revision and were replaced
by an entirely new set of standards in 1983. The 1983 standards
no longer contained specific requirements regarding school facilities,
equipment and supplies and, instead, imposed more subjective "policy"
requirements for Ohio's schools. (See Ohio Adm. Code 3301-35,
in Appendix at 607) Superintendent Sanders criticized the 1983
standards as "factory model" standards unsuited to the
educational needs of the 90's and ones which measured school districts
more by the "eloquence of their policies" than by the
quality of education provided students.[27] Until March of 1992 school
districts were reviewed for "compliance" with the 1983
minimum standards on a five-year rotating schedule. That "evaluation"
was simply a cursory checklist review and offered no assurance
that any of the programs offered substantive educational benefit.
(Findings at 284-88) A pupil could graduate from high school in
a program complying with the "minimum" standards and
lack the skills to move into the world of work or go on to higher
education. (Russell Depo. 45-46; Findings at 288)
In March of 1992, faced with massive 9th grade proficiency test
failures,[28] State Superintendent Sanders eliminated the compliance
reviews and reassigned all of the staff formerly involved in that
activity to assist school districts in improving proficiency test
passage rates.[29] No school district has been subject to minimum
standards compliance review since that time. (Tr. 399-401; Findings
at 289; Stip. 98) Thus, Ohio's seniors graduating in 1996 have
not had any compliance review of their schools or programs
during their entire high school years, and one-fifth of those
seniors have not had any such review since those seniors were
in grade 3 or 4.
Efforts to again completely revise minimum standards to focus
on defined outcomes rather than policies began in 1992 and are
not yet completed. Although the 1983 minimum standards remain
"on the books" as regulations of the State Board of
Education, the lack of enforcement renders them essentially meaningless.
See, Ohio Adm. Code 3301-35.[30] Months before trial in 1993 (and
yet today), the State can give no assurance whether
the Plaintiff school districts are currently in compliance with
minimum standards. (Drummond Depo. 166)
The rapid growth in technology and its increasing importance in
our society further demonstrates the failure of the 1983 minimum
standards as any meaningful measure of educational quality. Our
state's education leaders acknowledge: "The growth in technology
has resulted in the need for an education system that supports
an information age society, not a manufacturing society."
(Tr. 292; Findings at 269) At the same time, under the 1983 minimum
standards, a pupil can progress through grades K-12 in Ohio's
public schools and never touch a computer. (Drummond Depo at 185;
Findings at 287) For many pupils in some of the Plaintiff districts,
that bleak prospect may well represent reality. (Tr. 1264; Findings
at 276)[31]
Even if the 1983 standards were meaningful criteria for public
education, Plaintiff school districts, and many others, lack sufficient
funds to comply with those standards and do not meet them today.[32]
Students in the Plaintiff school districts are subjected to inadequate,
substandard educational programs that jeopardize their economic
and political well-being for the remainder of their lives.
III. Increased Pupil Needs: Handicapped
Pupils and Disadvantaged Pupils
During the past generation public schools have been required to
respond to an ever-increasing mixture of pupil needs. Significant
among these are the needs of handicapped and disadvantaged pupils.
Since 1976, Ohio law has mandated a program of free appropriate
public education and related services for all handicapped pupils.
The number of identified school aged handicapped pupils
(5-21 years of age) in Ohio receiving required special education
and related services has steadily grown from 159,245 in FY77 to
approximately 200,848 in FY93. (Stip. Exh. 30) Today, high concentrations
of those pupils are in low-wealth rural and large urban school
districts, such as the Plaintiff school districts. (Tr. 3675;
Supp. 1328; Stip. Exh. 29)
Handicapped pupils have a substantially higher education cost
than non-handicapped pupils because of State mandates of small
class sizes and because of required related services such as transportation,
occupational therapy, physical therapy, aides, and assistive devices.
(Tr. 556-66; Findings at 325)[33] The types of programs and services
required to be provided by school districts and the cost of those
programs have increased substantially since 1976.[34]
State funds for special education, when available, are provided
through a "unit funding" mechanism that allocates essentially
a flat grant amount to serve a defined "unit" of handicapped
pupils.[35] The amount of funds provided by a funded unit are significantly
less than the costs of the program and poor school districts are
less able to make up the difference. In addition, there are not
enough units to serve the needs of all handicapped pupils. The
number of unfunded units in operation grew from 614 in
FY89 to 848 in FY93. (Stip. Exh. 31) Further, state funding
does not follow pupils. If a handicapped pupil moves into a school
district, there is no assurance that any State funding will be
available to serve that pupil.[36] Plaintiff Youngstown City Schools
has had increasing special education expenditures that are not
reimbursed by the State, and in FY94 those expenditures totaled
$5 million.[37] (McGee Depo. 35; Tr. 3204; Findings at 359) The Plaintiff
school districts do not have units available to serve students
as they progress through grade levels. (Tr. 518-19; R. Miller
Depo. 44; Findings at 343-362). Low wealth and urban school districts
such as Plaintiffs have disproportionately large percentages of
handicapped pupils and thus have greater financial obligations
and fewer resources to meet those obligations than high wealth
districts. (Findings at 363-364) Perhaps the best indicia of the
impact of special education on school funding is the ever-widening
gap between the amounts requested by the State Board of Education
for special education and the amounts actually appropriated by
the General Assembly.[38] In short, handicapped students in Plaintiff
districts are often not identified as handicapped or not provided
with aides, proper services, or computers because of the lack
of funding.[39]
School districts with high concentrations of poverty have students
with greater educational needs.[40] The percent of pupils receiving
Aid to Dependent Children (ADC)[41] has increased statewide, from
10 percent in 1980 to 16 percent in 1992. (Stip. Exh. 2) Each
of the Plaintiff school districts' ADC rate has increased substantially
in recent years, and Plaintiff Youngstown City School District's
ADC rate grew from 30 percent in FY82 to 54 percent in FY92.[42] The
vast majority of ADC pupils reside in large urban centers or poor
rural school districts. Thus, again, the school districts with
the lowest level of resources are required to provide for pupils
with the greatest needs. (Tr. 3644-48; Pl. Exh. 301; Supp. 394-397;
408-415)[43]
High concentrations of poverty bring problems such as hunger,
lack of self-esteem, high rates of student mobility,[44] and pupil
pregnancy[45] into the Plaintiff Schools. Plaintiffs Youngstown and
Lima City Schools have further problems of violence,[46] gang activity,
drug abuse, and weapons in schools.[47] Personnel and programs to
deal with these problems are lacking. The dropout rate at Plaintiff
Lima Schools is 30 percent.[48] All-day, every-day kindergarten, guidance
counseling at all levels, attendance programs and intervention
for academic progress are simply inadequate in all of the Plaintiff
School Districts.[49]
Many children in the Plaintiff school districts come to school
with the language development typical of a two or three year old,
without exposure to books, and without knowing the alphabet.[50] Large
numbers of elementary students in the Plaintiff school districts
are identified as requiring remedial services, based on nationally
standardized tests and federal guidelines, in the areas of math,
reading and language arts.[51] In the Plaintiff school districts,
65 to 92 percent of these identified needs of
pupils go unmet.[52] The Plaintiff School Districts do not have
funds to provide students with materials and equipment to implement
the State-mandated model curricula or to provide teacher training
to implement State-mandated curricula.[53] Implementation of model
curricula is essential for achievement on the 9th grade proficiency
tests, because the curricula are directly related to the parts
of the test.[54]
The State has determined that the ninth grade proficiency test
"provides evidence that students have achieved a minimum
level of education."[55] Yet, the Trial Court observed:
At trial time 32 of 99 Seniors from Plaintiff Dawson-Bryant had
not passed; 16 of 79 Seniors at Plaintiff Southern Local; 13 or
154 at Plaintiff Northern Local; 300 of 773 at Plaintiff Youngstown
City Schools and 27% of Lima Seniors had not passed. *** Due to
poor test scores Superintendent of Public Instruction Dr. Ted
Sanders identified forty-eight school districts that qualified
for intervention from the Department staff. Those school districts
included some of the largest districts in the State including
Columbus, Cleveland, Cincinnati and Dayton as well as Plaintiffs
Youngstown and Southern Local. The total pupil population for
those districts is over 380,000 pupils.
(Findings at 473-74)
The State Board of Education admitted, "minority students'
scores [on the 9th grade proficiency tests] were shockingly low
and totally unacceptable to us meaning that the system has failed
these students and must make substantial changes." (Pl. Exh.
21)[56]
IV. The State's $10.2 Billion Facilities
Problem
In testifying about the poor condition of school buildings in
Plaintiff Southern Local School District, Louis Altier, President
of the Southern Local Board of Education, stated:
And we opened up classrooms that hadn't had classes for years.
We went in and replastered some and painted and got them where
that they were half decently safe in them, but the roof was --
the roof still leaked .... I told somebody the other day -- and
this is the truth if I am sitting in this chair -- is that I got
a farm up there and I got a few animals, cows and horses. My animals
are housed better than our children was. I mean, at least they
were dry and warm and we couldn't say that in Shawnee schoolhouse.
(Tr. 1293; Findings at 185)[57] Unfortunately, as shown
by the uncontradicted evidence in this case, Southern Local's
experience with deteriorating school buildings is not unique.[58]
The deplorable state of school facilities in Plaintiff and other
public school districts was conclusively shown in the facilities
study commissioned by the General Assembly and conducted by the
State Department of Education. The 1990 Ohio Public Schools Facilities
Survey identified $10.2 billion in facilities needs for public
primary and secondary schools in Ohio.[59] This is the amount required
to bring public school facilities, including Plaintiffs', up to
minimum building code standards. (Findings at 158)[60] The unmet facilities
needs expose children in Plaintiff and other school districts
to a clear and present danger which the State knowingly has allowed
to persist. Robert Franklin, Building Assistance Supervisor for
the State Department of Education, testified as follows:
My main concern is that I'm afraid that before we get the buildings
that are in real bad shape fixed, that maybe one of our kids will
get hurt or maimed. And I can foresee that, if we don't take some
action and -- and get some newer school buildings in place. So
how many $25 millions [of yearly appropriations by the General
Assembly] will go by before we can get [school buildings] up to
standard?
(Franklin Depo. 33, 239; Supp. 940, 975; Findings at 160)[61]
Immediate health dangers to Plaintiffs and children in other
school districts are caused by the presence of asbestos, coal
dust, extreme heat and cold, and inadequate wiring, windows, and
roofs. Further, Plaintiff Districts and all other school districts
must comply with the mandates of the Americans with Disabilities
Act (ADA).[62] Although these dangers and needs have been recognized
by the State, and some meager funds were made available by the
State to a few school districts in the past for asbestos abatement
and removal of architectural barriers, no more such aid is forthcoming.[63]
(Findings at 161-167) Further, the State has appropriated no
funds for emergency building problems and no funds specifically
for building maintenance.
Testimony in this case starkly contrasted the facilities of Plaintiff
Districts with those of wealthy school districts. An elementary
school building in Plaintiff Northern Local was ordered closed
for fear that it was about to collapse on pupils,[64] arsenic has
appeared in the District's drinking water, raw sewage permeates
its athletic fields, and its buildings are not handicapped accessible.
Beachwood School District, on the other hand, enjoys elementary
school classrooms, each with separate computer, science, art and
reading centers, and facilities all of which are handicapped accessible.
While the science labs at Northern Local do not have working gas
jets, Hilliard City Schools have the latest in laboratory technology.
Whereas Northern Local's locker rooms are deplorable and fungus
grows on non-working showers, locker rooms at Granville School
District are carpeted, with individual showers.[65] The stark contrast
between rich and poor was made evident by Dr. Lee McMurrin, superintendent
of Beachwood City Schools, who testified about his tour of facilities
in Plaintiff Dawson-Bryant School District:
I saw children that were basically healthy, well groomed.... [T]hey
came to school, I think, with dignity and self-respect .... In
the classrooms, the materials are old and worn out and dated,
and the laboratory material, the materials are not there for the
children or the teachers. The special education classes were in
cubbyholes that don't meet my standards, and I think they're a
disgrace to the State of Ohio and probably to all of us in America
that you'd have special education children in this day and time
in those types of classrooms.
(Tr. 2544-2545; Findings at 167)
Fifty percent of Ohio's school buildings were built before World
War II.[66] The facilities needs of Ohio's schools have reached such
immense proportions that sixty percent of Ohio's public
school districts, if they had no other debt, could not raise sufficient
funds to meet their individual facility needs even if voters approved
the maximum level of debt permitted by law.[67]
V. State mandated school district
borrowing
The combination of increasing levels of poverty in poor rural
and urban districts combined with increased costs of mandated
programs and increasing numbers of pupils in need of those services
has come together to form the crisis now facing Ohio's public
schools.
School districts are now by statute prohibited from closing their
doors due to lack of funds (R.C. 3313.483),[68] and instead districts
that anticipate a shortfall of operating revenue at the end of
a fiscal year are required to seek the approval of the Superintendent
of Public Instruction to borrow funds.[69] School districts forced
to borrow funds to operate are required to reduce educational
expenditures in order to be approved for an emergency school assistance
loan. Most school districts in financial distress have attempted
to reduce expenditures by all available means before applying
for such a loan. The reductions create a direct, adverse impact
upon the levels of program and services available to the pupils
in those districts.[70] The majority of emergency assistance loan
fund districts are those with low property valuation (Brown Depo.
221; Tavakolian Depo. 139; Findings at 143), which widens the
educational differences between rich and poor districts in Ohio.[71]
Many districts are forced to incur repeated
emergency assistance loans simply to keep their doors open and
some are unlikely to ever get out of debt. (Brown Depo. 192, 216-217;
Findings at 143-144) Receivership districts are those that have
had more than one emergency school assistance loan, with the current
loan being for seven percent or more of the district's general
fund. Districts under receivership are prohibited from entering
into any new program, contract or expenditure without the written
permission of the Superintendent of Public Instruction. For such
school districts "local control" by any definition is
meaningless. In FY 93, twenty-five school districts were subject
to receivership. (Stip. Exh. 25; Findings at 148)
The magnitude of borrowing is shown by the chart below (Pl. Exh.
148; Findings at 76).
| STATE AVERAGES: COMPARISON OF
TOTAL REVENUE PER PUPIL AND
TOTAL EXPENDITURES PER PUPIL
|
| TOTAL REVENUE PER PUPIL GENERAL FUNDS
| TOTAL EXPENDITURES PER PUPIL GENERAL FUNDS
| DIFFERENCE |
| FY1983
| $2,452.47 | $2,289.41
| +$163.06 |
| FY1984
| 2,714.37 | 2,551.80
| +162.57 |
| FY1985
| 2,803.47 | 2,747.19
| +56.28 |
| FY1986
| 3,011.90 | 2,975.33
| +36.57 |
| FY1987
| 3,251.30 | 3,177.01
| +74.29 |
| FY1988
| 3,454.10 | 3,379.00
| +75.10 |
| FY1989
| 3,733.31 | 3,694.66
| +38.65 |
| FY1990
| 4,009.41 | 3,961.04
| +48.37 |
| FY1991
| 4,152.37 | 4,159.20
| -6.83 |
The Legislature simply has not and does not raise the revenues
to meet expenses. In short, on a state-wide basis the school
funding system has become bankrupt.
The State has admitted that the funding system is inadequate,
in need of reform, and "not morally right."[72] The substandard
educational programs offered in the Plaintiff and other poor school
districts mark these pupils for life by limiting the range of
opportunities available to them as adults, and will cost the state
in payments for social welfare and prisons many times over the
funds by which their education was neglected.
Faced with this massive record of educational neglect, deprivation
and disparity the Trial Court concluded that Ohio's school funding
system fails the test of constitutional review. Consistent with
the clear language of the Constitution and current rulings of
this Court, the Trial Court specifically found that education
is a fundamental right in Ohio and that the system of education
provided by the General Assembly is neither thorough nor efficient.
(Findings at 469, 475) The Trial Court also found that the statutorily
enforced debt for school district operations violates the State's
constitutional debt limitation provisions and that the State's
failure to adequately fund the mandated programs for handicapped
pupils violates both due process and equal protection of law.
(Findings at 472, 476)
The majority of the Court of Appeals reversed each of the Trial
Court's findings of constitutional violations and ignored the
comprehensive, undisputed Findings of Fact. Relying solely on
Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 390 N.E.2d
813, the majority, in a decision strongly suggesting that Courts
have neither the right nor the duty to review constitutional issues
of great societal importance, held that education is not a fundamental
right and that "local control" was sufficient to justify
the disparities in educational opportunity. Only Judge Gwinn,
in dissent, acknowledged the massive record of educational neglect
and deprivation, the Court's duty to give deference to the trier
of fact, and the constitutional significance of education today.
Judge Gwinn properly recognized both the fundamentality of education
and the fatal defects in the current system.
ARGUMENT
I. Proposition of Law No. I: This constitutional
challenge to the current system of public school funding is distinct from
that in Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368,
390 N.E.2d 813, because the challenged funding statutes, the operation
of those statutes, and the educational needs of Ohio's public
school pupils are significantly different from those before this
Court in that case.
"The issue is the world and the country has changed much
more dramatically than schools have changed. And, therefore, what
was good enough 30 years ago is not even close to being good enough
now, but we haven't changed the system in public schools to make
it much different than it was 30 years ago."
Then-Deputy State Superintendent of Public Instruction, John M.
Goff[73]
A. Walter does not determine the constitutionality of the current funding system.
The Trial Court correctly held that Walter has no application
to the school funding system challenged in this case because all
of the funding statutes there challenged have been substantially
amended or repealed, and because the circumstances of public education
in Ohio have changed radically. The Court of Appeals, on the other
hand, relied exclusively on Walter to uphold the constitutionality
even of statutes not yet enacted when Walter was decided.
The State has argued from the inception of this suit that this
challenge to the current system of school funding is subject to
summary rejection on the basis of Walter. However, as the
Trial Court recognized, this case presents distinct issues and
has no material fact in common with Walter. No jurisprudential
doctrine supports the State's effort to use Walter as a
means of avoiding full judicial scrutiny of the current operation
of school funding in Ohio.
1. The current funding system differs significantly from that
challenged in Walter, and the nature of the challenges
is distinct.
Walter solely considered the constitutionality of statutes
that no longer exist, each since having been amended or repealed.
The statutory scheme that now comprises the funding system differs
in critical respects from the system approved in Walter.[74]
(Tr. 1836, 2822-2823; Supp. at 238-239; Findings at 34)
The newly enacted "equal yield" funding system evaluated
in Walter was characterized by the Court as follows: "Its
objective is to equalize the property wealth base upon which the
school districts raise operating revenue through the levy of voter-approved
taxes so that school districts receive the same number of dollars
per pupil in basic state aid."[75] Bd. of Edn. v. Walter,
58 Ohio St.2d at 371, 390 N.E.2d at 816.
The Court found this system consistent with the limitations on
legislative discretion announced in Miller v. Korns
(1923), 107 Ohio St. 287, 304, 140 N.E. 773, 778. Id. at
386-87. Miller had approved a system
that embodied "an effort to equalize education and raise
its standard throughout the state." Miller v. Korns,
107 Ohio St. at 304, 140 N.E. at 778. Walter's finding
that the equal yield system, then in its infancy, was intended
to address the problem of inequity was essential to the holding
of that case. Regardless of the impact of the equal yield funding
system during the short time that it was in effect, at the time
of Walter the Court had every reason to believe that the
legislative objectives of wealth equalization and funding stability
would be accomplished.[76]
Ohio no longer has an equal yield system of distributing school
foundation payments. The equal yield funding system never was
fully funded by the General Assembly and was abandoned completely
by 1981 when the State returned to the "foundation"
formula for the distribution of state aid. The system here
challenged, in effect for more than fifteen years, is perpetuated
by the State with the knowledge that it creates extreme and unacceptable
disparities among Ohio's school districts.
The State's history of deliberate indifference to
the gross inequities inherent in today's system of public school
funding clearly distinguishes this case from Walter. The State
argues that a system it acknowledges to be "not morally right"
nevertheless is constitutionally adequate.
(Tr. 415, 4556; Pl. Exh. 40, p. 5; Supp. at 229; Findings at 26)
This Court, however, never has endorsed so minimalist a view
of the Ohio Constitution, and Walter offers no support for
the funding scheme now before this Court.
In addition to its equalization objective, two significant aspects
of the equal yield funding system before the Court in Walter
clearly distinguish that system from the one in place today. First,
the Court had reason to believe that the level of funding
provided by the equal yield funding system was adequate. That
system reflected a decision by the legislature to establish a
minimum funding level of $960 per pupil (with state participation
in funding extending to a potential maximum of $1,380 per pupil).
Walter, 58 Ohio St.2d at 371-372, 390 N.E.2d at 817. Walter
noted that this level of funding was based upon the recommendation
of the Education Review Committee, a joint, nonpartisan legislative
committee created to analyze Ohio's school funding system and
consider alternative distribution schemes. Id. at 372,
fn. 1, 390 N.E.2d at 817, fn. 1. The Committee had found that
the cost for a district to operate at "the state minimum
standards which define a general education of high quality was
$715 per pupil." Id. at 372, 390 N.E.2d at 817. The
equal yield funding system evaluated in Walter thus guaranteed
minimum per pupil funding at $960, which was 134% of the level
determined by the nonpartisan legislative committee to be sufficient
to support a "high quality" education.
Today, neither the Ohio General Assembly, the Ohio Department
of Education, nor the State Board of Education has determined
the amount of money required to provide an educational program
of high quality--or even one meeting any defined level
of educational benefit.[78] Indeed, in shocking contrast to the State's
understanding of its obligations at the time of Walter,
the State apparently no longer believes that it is constitutionally
obligated to provide an education of "high quality."
The State now insists that the Constitution requires only that
the State provide a "modest" education to Ohio's children.
State's Memorandum in Opposition to Jurisdiction at 7. Amounts
now appropriated for the funding of public elementary and secondary
education are a "budgetary residual," consisting of
whatever funds remain after provision has been made for other
programs.[79] Id. There no longer is any assurance that educational
funds are adequate to ensure any level of quality, and the massive
record of educational deprivation before this Court establishes
beyond question that the funding system established by the State
is inadequate and inequitable.
Second, the "minimum standards" relied upon by Walter
as assurance of at least a "floor" of educational opportunity
have long since been substantially amended and now are abandoned.[80]
Today, the true standard by which public education in Ohio
must be measured is the passage rate on the state-mandated proficiency
tests. Measured by this standard, Ohio's educational system fails
miserably.
Walter characterized the issue before it as one "more
directly concerned with the way in which Ohio has decided to collect
and spend state and local taxes than it [was] a challenge to the
way in which Ohio educates its children." Bd. of Edn.
v. Walter, 58 Ohio St.2d at 375-376, 390 N.E.2d at
819. Erroneously likening the instant case to Walter, the
Court of Appeals concluded: "In the Walter case, as
in the case sub judice, we are reviewing the method used
by the state to collect and spend state and local taxes."
Opinion at 7-8. Unfortunately, the claims in this case are far
more significant and the potential consequences far more perilous
than the Court of Appeals' characterization reflects.[81] The State's
1981 abandonment of the equal yield formula and its continued
neglect of the guarantee that each public school child in Ohio
receive an education of high quality clearly require that this
suit be treated as the "challenge to the way in which Ohio
educates its children" that the Court believed Walter
was not. Because the guarantee of adequacy which undergirded
the Walter decision no longer exists, and because the perpetuation
of inequity is a direct consequence of the current funding system,
the Court of Appeals' reliance upon Walter is misplaced.
That case absolutely cannot be read to endorse the admitted inadequacies
and disparities that pervade the current system.
2. The needs of Ohio's children and the significance of education
are far greater today than they were at the time of Walter.
The foregoing comparison of the significant facts in this case
and in Walter demonstrates that the two cases have little
in common beyond the educational theme of the claims. In comparing
the cases, it also is critical to note that the content and significance
of the "high quality" education endorsed by Walter
inevitably is different today compared to the time of Walter.
As the United States Supreme Court recognized in Brown v. Bd.
of Edn. of Topeka (1956), 347 U.S. 483, 492-493, 74 S.Ct.
686, 691, 98 L.Ed.873, 880:
In approaching this problem, we cannot turn the clock back to
1868 when the [Fourteenth] Amendment was adopted, or even to 1896
when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation.***
Today, education is perhaps the most important function of state
and local governments. Compulsory school attendance laws and the
great expenditures for education both demonstrate our recognition
of the importance of education to our democratic society. It is
required in the performance of our most basic public responsibilities,
even service in the armed forces. It is the very foundation of
good citizenship. Today it is a principal instrument in awakening
the child to cultural values, in preparing him for later professional
training, and in helping him to adjust normally to his environment.
In these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of
an education.
The importance of education, and the characteristics of a constitutionally-adequate
education, were no more fixed for all time by Walter than they
were by Plessy v. Ferguson (1896), 163 U.S. 537, 16 S.Ct.
256, 41 L.Ed. 256. Just as the Supreme Court in Brown reflected
on the evolving significance of education, so it is appropriate
that this Court recognize that a "high quality" education
within the meaning of Walter must be measured in terms
of contemporary needs.[82]
In short, the funding system must be evaluated as it now exists
and in light of the needs of our children and of our society today.
As noted by the Trial Court:
Everyday education becomes more and more important and the connection
between education and the rights guaranteed by Art. I § 1
becomes greater and greater. Today we live in a high tech world. A world that is becoming more technologically advanced at a rapid pace. The measure of education never has been
viewed as a static measure.
(Findings at 468-69)[83] After thorough analysis, the Trial Court
correctly held that Walter's review of a different funding
system, as it existed almost two decades ago, does not compel
a conclusion of constitutionality here. The Court of Appeals erred
in failing to uphold the Trial Court's thoughtful and proper conclusions.
B. Walter cannot be construed to approve the current system of funding public education, and stare decisis does
not require adherence to its archaic analysis.
The substantial differences between the circumstances of public
education today and those before the court in Walter negate
any suggestion that Walter can be read to endorse the pervasive
educational neglect that is the inevitable consequence of today's
inadequate funding system. To the extent that the State argues
to the contrary, it is imperative that this Court expressly overrule
Walter. At the conclusion of this case it must be unmistakably
clear to the State that it cannot continue to deprive Ohio's schoolchildren
of the education to which the Ohio Constitution entitles them.
As this Court well understands, the doctrine of stare decisis
does not require that this or any other court immortalize an understanding
of the Constitution that may or may not have been correct at the
time that it first was announced, but that clearly is inconsistent
with a contemporary understanding of the Constitution.
The doctrine of stare decisis generally is viewed as primarily
protecting private reliance interests in property and in contracts,
and as having only marginal application to questions of constitutional
interpretation. "While it is true that stare decisis is a
rule that judges should observe with some reverence, it is also
true that when constitutional issues are at stake, the rule is
less compelling." City of Rocky River v. SERB (1989),
43 Ohio St.3d 1, 539 N.E.2d 103. See, also, Payne v. Tennessee
(1991), 501 U.S. 808, 828, 111 S.Ct. 2597, 2609-2610, 115 L.Ed.2d
720, 737.[84] This Court reaffirmed in Rocky
River the duty of every judge to reexamine constitutional
precedent.
A judge looking at a constitutional decision may have strong feelings
to revere the past and accept what was once written. *** "
***Should we, for whatever reason, be denied the right to reexamine
constitutional precedent which, after all, is a personal matter
for each judge who assumes these responsibilities? If the answer
to these questions is "yes," would we not then be letting
persons, who may be long dead and gone and unaware of the problems
of our age, do our thinking for us? Can we afford to live with
such hidebound, slavish adherence to the past when, in fact, we
live in an ever-evolving society that requires innovative thinking
and even change to cope with problems of the present and future?
Just to ask these questions answers them.
Id. at 6-7, 539 N.E.2d at 108.
As this Court recognized in Miller v. Korns (1923), 107
Ohio St. 287, 140 N.E. 773, and as the analysis in subsequent
sections of this Brief will confirm, funding for education traditionally
has been viewed as fundamental to our society, its fundamentality
well reflected in the history and the language of our Constitution.
Walter did not determine otherwise.[85] If the State were correct
in its mistaken assertion that Walter denied the fundamentality
of education, then Walter would be the aberration and overruling
it would be both necessary and consistent with any view of stare
decisis. See, Zoppo v. Homestead Ins. Co. (1994), 71 Ohio
St.3d 552, 555, 644 N.E.2d 397, 400. We reject appellee's
contention that under the doctrine of stare decisis, we must adhere
to our decision in Said. The Said decision was an aberration that
failed to follow clearly established precedent."). Accord,
Payne, 501 U.S. at 835, 111 S.Ct. at 2614, 115 L.Ed.2d at
742.
II. Proposition of Law No. II: The current system of
public school funding fails to satisfy the State's duty to provide
a thorough and efficient system of common schools throughout Ohio
as required by the Ohio Constitution, and additionally violates
the Due Process and other clauses of the Constitution.
A. The Ohio Constitution assigns to the General Assembly the responsibility for the creation and funding of a system of
common schools, and that body cannot divest itself of ultimate
responsibility for that system.
"[T]he General Assembly, not the local school district, bears
full responsibility for providing an education system."
Appellee State Board of Education December 10, 1990[86]
There is but one system of public education in Ohio. It is a statewide
system, expressly created by the state's highest governing document.
Section 2, Article VI of the Ohio Constitution provides:
The general assembly shall make such provisions, by taxation,
or otherwise, as, with the income arising from the school trust
fund, will secure a thorough and efficient system
of common schools throughout the state.
(Emphasis added.)[87] According to this Court: "This declaration
calls for the upbuilding of a system of schools throughout the
state, and the attainment of efficiency and thoroughness in that
system is thus expressly made a purpose, not local, not municipal,
but state-wide." Miller v. Korns, 107 Ohio St. at
297, 140 N.E. at 776. The duty to upbuild
this system expressly is assigned to the General Assembly both
by the constitutional provision quoted above, and by Section 7,
Article I, Ohio Constitution, which
provides: "Religion, morality, and knowledge, however, being
essential to good government, it shall be the duty of the
general assembly to pass suitable laws *** to encourage schools
and the means of instruction." (emphasis added.)
As the massive record in this case and the Statement of Facts
demonstrate, the State unquestionably has failed to perform its
constitutional duty to "secure a thorough and efficient system
of common schools throughout the state" and to ensure sufficient
revenue to fund that system.[88] In much of the State,
the education provided to Ohio's school children is qualitatively
inadequate, and substantial portions of the system are bankrupt.[89]
There can be no doubt that the State is responsible for these
inefficiencies and inadequacies. Certainly, the State cannot legislatively
divest itself of its constitutional duty merely through the interposition
of local school districts between itself and the children it is
mandated to serve. The State fundamentally misunderstands the
nature of delegation if it believes that, having created local
districts, it can relieve itself of ultimate responsibility for
the school system by pointing a finger of blame at those districts.[77]
The Ohio Constitution clearly places the responsibility for public
education upon the State of Ohio. Because local school boards
initiate school levies for local voters' consideration, expend
funds locally, and generally exercise administrative control over
local schools, many people may well believe that such local boards
of education have primary responsibility for the maintenance and
operation of the public schools in Ohio. In fact, the state remains
primarily responsible. This mandate has been our law since the
adoption of the 1851 Ohio Constitution
Penick v. Columbus Bd. of Edn. (S.D. Ohio 1977), 429 F.Supp.
229, 262, affirmed in part, remanded in
part (C.A. 6, 1978), 583 F.2d 787, stay granted (1978), 99 S.Ct.
24, 439 U.S. 1348, 58 L.Ed.2d 55, stay vacated (1978), 99 S.Ct.
3107, 443 U.S. 916, 61 L.Ed.2d 879, certiorari granted 99 (1978),
S.Ct. 831, 439 U.S. 1066, 59 L.Ed.2d 31, affirmed (1979), 99 S.Ct.
2941, 443 U.S. 449, 61 L.Ed.2d 666, rehearing denied (1979), 100
S.Ct. 186, 444 U.S. 887, 62 L.Ed.2d 121, on remand (S.D. Ohio
1981), 519 F.Supp. 925.[90] It is self-evident that the legislature
cannot delegate authority it does not possess, and any suggestion
that the State can empower local districts to violate the constitutional
entitlements of school children is without legal support.
Because local districts are agents of the State, and because the
Constitution allocates to the State the responsibility for securing
a thorough and efficient system of common schools, the outcome
of this challenge to Ohio's funding system does not depend upon
whether the State or local districts are the source of any faulty
decisions regarding the use of resources. If significant resources
are being mismanaged--for any reason--the State
has failed to provide a thorough and efficient system.[91] Ultimate
responsibility for the creation of a thorough and efficient system
of common schools remains where the Constitution placed it: with
the State of Ohio.
B. The system of public schools produced by the challenged funding system is neither thorough nor efficient.
The constitutional mandate that "[t]he general assembly shall
make such provisions, by taxation, or otherwise, as, *** will
secure a thorough and efficient system of common schools throughoutthe state" draws its origins from the historic belief that
an educated citizenry is necessary both for the political and
economic survival of the state. The delegates to Ohio's 1851 Constitutional
Convention, at which the thorough and efficient clause was adopted,
understood the clause to direct "the Legislature to make
full and ample provision for securing a thorough and efficient
system of common school education, free to all the children in
the state. The language of this section is expressive of the liberality
worthy a great State, and a great people."[92] The clause was
intended to remedy what was widely perceived as legislative neglect
of education. As one delegate to the 1851 Constitutional Convention
observed: "Our system of common schools, instead of improving
in legislative hands, has been degenerating and I think it is
time that we should take the thing in hand ourselves."[93] Another
stated: "We are warranted by public sentiment in requiring
at the hands of the General Assembly a full, complete and efficient
system of public education."[94] Having extensively reviewed
the history of our Constitution (Findings at 28-31, 442-445),
the Trial Court made the following observation (Findings at 464):
In that the State is bound to provide a thorough and efficient
education it is helpful to note how the delegates to the 1851
Constitutional Convention defined these terms. Statements made
by delegates show that "thorough" was intended to mean
"complete, absolute and exact" while "efficient"
was intended to mean "effective and working well."
This Court in Miller acknowledged the critical importance
of the thorough and efficient proclamation: "With this very
state purpose in view, regarding the problem as a state-wide problem,
the sovereign people made it mandatory upon the General Assembly
to secure not merely a system of common schools, but a system
thorough and efficient throughout the state." Miller,
107 Ohio St. at 297-98, 140 N.E. at 776. See, also, Bd. of
Edn. v. Walter, 58 Ohio St.2d at 386, 390 N.E. 2d at 825 (recognizing
the Miller test).
Contrary to the clear command of Section 2, Article VI,virtually any system of education short of total deprivation:
"[T]he trial court in employing [the Miller test of
thorough and efficient] failed to take into account the Supreme
Court's admonition in Walter that the lack of teachers,
buildings, or equipment must be associated with the receipt of
so little local and state revenue that there is an absolute deprivation
of education." Appellants' Brief (State's) to Court of Appeals
at 59.
The State's argument that this Court has so construed the plain
language of the education clauses is outrageous, and rests upon
a misreading of Walter. Walter stated that a funding
system clearly would not be thorough and efficient if, "for
example, *** a school district [were] receiving so little
local and state revenue that the students were effectively being
deprived of educational opportunity." Walter, 58 Ohio
St.2d at 387, 390 N.E.2d at 825 (emphasis added). In the quoted
passage, this Court was describing a worst- and clearest-case
scenario -- not, as the State has claimed, establishing a constitutional
standard for education. The footnote in Walter for this
one extreme example cited to San
Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S.
1, 25, 93 S.Ct. 1278, 1292, 36 L.Ed.2d 16, 38. Rodriguez
discussed whether wealth could be a suspect classification so
as to invoke strict scrutiny under the Equal Protection Clause
of the United States Constitution, but that discussion had
nothing whatever to do with the thorough and efficient clause
found in the Ohio Constitution. The State's "total deprivation"
argument is irreconcilable with all of the education provisions
of the Ohio Constitution and represents a distortion of this Court's
analysis in Walter.[95]
In contrast to its position in response to this suit--that it
satisfies the Constitution so long as it does not totally deprive
children of an education--the State in other contexts has stated:
"A practical test for 'thorough and efficient system of common
schools' is the question, 'Would I, as a parent, be willing to
have my children educated in any of the 612 school districts in
Ohio?' If the answer is 'no,' the system would appear to be suspect."
Restructuring the Common School in Ohio: The Path to Educational
Progress, Policy and Budget Recommendations of the State Board
of Education to the Governor and 119th General Assembly, Plaintiff's
Exhibit No. 140 at 2.
Indeed, this Court has described a scenario where a school funding
system would not satisfy the thorough and efficient clause:
[A] thorough system cannot mean one in which part or any number
of the school districts of the state were starved for funds. An
efficient system cannot be one in which part or any number of
the school districts of the state lacked teachers, buildings or
equipment.
Miller v. Korns, 107 Ohio St. at 298, 140 N.E. at 776.
The record of this action is replete with evidence that the Plaintiff
school districts are starve for funds and lack teachers, buildings,
and equipment.[96]
Judged by these--or by any other reasonable standard--the system
of education administered by the State clearly is not thorough
and efficient. No responsible parent would choose to send a child
to a school where students are exposed to the risks of friable
asbestos (Findings at 164); carbon monoxide (id. at 149);
coal dust (id. at 169); raw sewage (id. at 182);
collapsing floors (id. at 149); poor lighting (id.
at 181); leaking roofs and windows (id).; excesses of heat
and cold (id. at 195); a building sliding down a hillside
(id. at 150); or collapsing walls (id. at 174).
A parent likewise would not choose to send a child to a school
that suffers from deficient curricula (id. at 226, 228,
233-35, 237-38, 241, 243-44); overcrowded classrooms and unacceptable
student/teacher ratios (id. at 192, 196, 204, 206-213);
inadequate and outdated books (id. at 257-67);[97] antiquated
laboratories lacking educational and safety equipment (id.
at 271, 276, 281-82); lack of art and other supplies;[98] and lack
of access to computer technology (id at 272-82). No parent
would select an elementary school that lacks indoor plumbing (id.
at 149), and no parent of a child with a state and federally-created
entitlement to special education services would knowingly permit
that child to be underserved or unserved.[99]
The manner in which a state provides funds for its school facilities
is an essential consideration in determining whether that state
has met its educational obligations. In Ohio, the State has identified
over $10 billion in school facilities needs, yet provides funding
for less than one percent of these needs. (Findings at 158, 160)
The State additionally imposes debt limits that prohibit over
sixty percent of school districts from raising enough local funds
to satisfy their own facilities needs. (Tr. 1706; Findings at
155) Similarly, the State has identified millions of dollars in
emergency school facilities needs and costs associated with asbestos
abatement and removal of architectural barriers, but provides
no funds to respond to those needs.[100] (Findings at 161-167)
While asserting that the system of public education is both "thorough
and efficient," the State, in its legal arguments and
in practice, neglects the real-life deprivations that afflict
Plaintiffs. For example, Plaintiff Northern Local School District's
facilities problems are immediate and, in some cases, life-threatening:
- Upon recommendation from the State, the District was forced
to close its Somerset Elementary School Building due to unsafe,
bulging structural walls, the constantly leaking roof and windows
leaking so badly that sand particles from deteriorating masonry
blew onto students' desks. .
- After closing Somerset, modular classrooms had to be leased
at a cost of $13,000 each month, paid for out of the District's
general funds.
- The total cost to the District due to the building closing
was $120,000, all of which was paid from the District's general
funds.
- Arsenic was found in the District's water supply. Potable
water had to be trucked into the schools, and a new well dug.
The total cost to the District for the arsenic problem was $20,000.
Again, this was paid out of the District's general funds.
(Findings at 175-83) In each of these instances the District sought
assistance from the State. In each instance the State refused,
and failed to offer any financial assistance; it was left to the
District to allocate precious dollars to address these problems,
at the expense of other student needs. Id. Once again,
State inaction invites the question of whether any system that
places such a burden on local school districts, at the risk of
physical harm to students, can be either "thorough or efficient."
As has been found by the highest courts of Arizona and Wyoming,
facilities deficiencies alone are sufficient to invalidate
a state's system of funding education. Roosevelt Elementary
School Dist. No. 66 v. Bishop (Ariz. 1994), 179 Ariz. 233,
877 P.2d 806 holding that facilities disparities
among the state's school districts violated Section 1, Art. XI
of the Arizona Constitution, guaranteeing a "general and
uniform" public school system); Campbell v. Wyoming
(1995), 907 P.2d 1238, 1275 ("Safe
and efficient physical facilities with which to carry on the process
of education are a necessary element of the total educational
process. *** We hold deficient physical facilities deprive students
of an equal educational opportunity and any financing system that
allows such deficient facilities to exist is unconstitutional.")
Beyond the massive neglect of Ohio's school facilities, the inefficiencies
that pervade the system established and maintained by the State
are innumerable, and the consequent harm to students is incalculable.
The following list presents only the tip of the State's destructive
iceberg:
- The State provides "equity funds" purportedly to
enhance educational programming in poor school districts and then
requires that those funds be used to repay loans from private
lenders, so that the districts derive no net benefit.[101]
- The State mandates the identification of gifted pupils, but
provides no gifted services to over 60 percent of the pupils
so identified.[102]
- The State mandates the provision of special education services
to handicapped pupils aged 3 through 5, but provides no funds
to some districts for those services.[103]
- The State mandates the identification of pupils at risk for
school failure, but provides inadequate funding to serve the needs
of those pupils.[104]
- The State prohibits receivership school districts from spending
any money without the prior approval of the State Superintendent
of Public Instruction, and yet requires those school districts
to engage in collective bargaining with employee unions.[105]
- The State mandates that school districts implement model curricula
that require teacher training, and additional textbooks and technology,
but provides no additional funding to provide these services and
materials.[106]
- The State permits the largest school district in the state
to become so inefficient that the State is ordered by the federal
district court to "take over" and directly manage that
school district. [107]
Judged by any standard, the State's system fails to fulfill the
constitutional promise of thoroughness and efficiency. Years of
legislative neglect have left us today with a bankrupt system
that would appall the framers of the Ohio Constitution. Clearly,
the system found to exist by the Trial Court and accurately characterized
by the State Superintendent as "not morally right" is
inconsistent with the intent of the framers and with the express
language of our Constitution.
C. The system of schools produced by the challenged funding system violates the liberty and property interests of students,
and neglects the heightened statutory entitlements of handicapped
students
Courts consistently have held that constitutionally protected
property rights are created not only by constitutions but also
by the nature and extent of legislative and regulatory recognition
of those rights.[108] Section 2, Article VI of the Ohio
Constitution unequivocally states that the Ohio General Assembly
shall provide a thorough and efficient school system
for the children of the State. The General Assembly has chosen
to carry out its constitutional duty by empowering the State Board
of Education to "[f]ormulate and prescribe minimum standards
to be applied to all elementary and secondary schools in this
state for the purpose of requiring a general education of high
quality." R.C. 3301.07(D). Ohio requires
that all school-aged pupils, under penalty of law, attend either
a public school or a school meeting minimum standards prescribed
by the State Board of Education. R.C. 3321.03. Taken
together, these laws create on behalf of the children of this
state an absolute property and liberty interest in education,
and an affirmative duty on the part of the State to provide such
education in a through and efficient manner. The rights thus created
are common to all of Ohio's children, regardless of where they
may happen to reside.
When, as in the instant case, mandatory property and liberty interests
are granted by statute, the substantive component of the Due Process
Clause prohibits the impairment of that interest in a fashion
that is inconsistent with the statutory grant. Nicoletti v.
Brown (N.D.Ohio 1987), 740 F.Supp. 1268, 1286-1287.
Several courts have recognized that school children have substantive
due process property and liberty interests with respect to public
education, which interests emanate from state constitutional provisions
obligating state legislatures to establish public school systems
and from state compulsory school attendance laws. See,
e.g., Goss v. Lopez (1975), 419 U.S. 565, 573-574, 95 S.Ct.
729, 735-736, 42 L.Ed.2d 725, 734; Alabama Coalition for Equity,
Inc. v. Hunt (1993), 19 IDELR 810, 839;
Debra P. v. Turlington (C.A. 5, 1981), 644 F.2d 397,
404. A succinct explanation of such protectable
property interest was provided by the Fifth Circuit Court of Appeals:
[O]nce a state establishes a system of education and requires
school attendance, an "understanding" is created between
the state and the student "that secures certain benefits
and that supports claims of entitlement to those benefits."
Debra P. v. Turlington, 644 F.2d at 404. (citations omitted).
As both the Trial Court's extensive findings of fact and the analysis
in the foregoing section of this brief demonstrate, the record
is replete with examples of how Ohio's school funding system fails
to satisfy the constitutional obligation to provide a high quality
education for the children of this State. (Findings at 454-58)
The Trial Court correctly determined that the State's failure
adversely affects students' future economic well being and unconstitutionally
deprives them of their substantive property and liberty interests
arising under Section 16, Article I, Ohio Constitution. (Findings
at 476)
The State also has violated the substantive due process rights
of handicapped students by neglecting the significant statutory
entitlements of these students.[109] Pursuant to federal law (20 U.S.C.
1401 et seq.) and state law (R.C. Chapter 3323 asrevised),
the State is obligated to "[a]ssure that all handicapped
children three to twenty-one years of age in this state shall
be provided with an appropriate public education." R.C.
3323.02.[110] The State of Ohio, in conjunction with its request for
and receipt of federal funds for the education of pupils with
disabilities, is required to submit a plan for special education
to the United States Department of Education every three years.
(Stip. 55; Supp. 15; Findings at 320) The State's plan includes
representations to the United States Department of Education that
the State will ensure that:
(Stip. 57)[111]
The State has further strengthened the entitlements of handicapped
pupils through the extensive regulations found at Ohio Adm. Code
3301-51. These regulations require smaller
classes, specially trained teachers and specialized educational
materials and supplies, in order to implement the individualized
education programs required for each handicapped pupil. Notwithstanding
the State's statutory and regulatory assurances of educational
entitlement for eligible handicapped pupils, the evidence before
the Trial Court demonstrated the stark reality of neglect and
deprivation of these pupils in the Plaintiff school districts
and the surrounding areas.[112] For example, pupils are transported
by school bus for as much as three hours per day because no special
education programs are available locally (Herner Depo. 119-120;
Findings 322); orthopedically handicapped pupils are carried up
and down stairs because their school buildings are not handicapped
accessible (Tr. 2355; Findings at 343);[113] pupils purposely are not
identified as handicapped until they have failed one or more grades,
because earlier identification would required the school districts
to provide programs for which no funds are available (Tr. 2684;
Supp. 1336; Findings at 339); special education pupils are educated
in trailers and in basements (Tr. 2726; Findings at 342); classes
limited by regulation to twelve pupils balloon to as large as
twenty-one (Ohio Adm. Code 3301-51-04(G)(3);
Tr. 1952; Findings at 352); educational materials, required to
be "current" and related to the needs of the handicapped
pupils, are out-of-date, if present at all. (Supp. 1353-1355)
Three circumstances have combined to cause the extensive deprivation
of the rights of handicapped pupils. First, although public school
enrollment generally has declined over the last decade, the number
of handicapped pupils attending public schools has steadily increased.
The more severely handicapped (who also tend to be more costly
to educate) increasingly tend to be located in urban and poor
rural school districts.[114] At the same time, the admittedly flawed
"unit funding" method by which the State provides funds
for special education operates to increase the extent of deprivation
because the amount of money provided by a "funded unit"
falls far short of actual program costs. Moreover, the lack of
adequate numbers of State "funded units" increasingly
casts the entire burden of special education programming on the
school district. Poor school districts, such as the Plaintiffs,
have a more difficult time generating the funds to "make
up the difference" than their wealthy counterparts.[115]
The Trial Court's undisputed findings of fact demonstrate that
handicapped children in the Plaintiff school districts are being
denied appropriate special education programs and related services
because of a lack of funds. The denial of programs and services
mandated by both Ohio a