Nearly a year ago, this 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 Court stayed the effect of its decision for twelve months and remanded the case to the trial court. Id. at 213.

    Two months later, on May 28, 1997, Plaintiffs sought a scheduling order that would ensure that the State met the 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.¹  It was.

    Today, more than eight months after the State's facile representation 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 deadline. Indeed, in the State's motion to this Court, it is hard to discern any proffered reason.

    Perhaps the clearest (but nonetheless unpersuasive) explanation of the State's desire for an extension appears in its Reply in Support of its Motion for Extension of the March 24 Deadline, filed in the trial court on March 9, 1998 (hereinafter "State's Trial Court Reply") at 1: "First, an extension is necessary to keep the schools open for the remainder of this school year. Second, an extension will allow this Court to defer hearing plaintiffs' challenge until after May 5^th, which will allow the debate over the sales tax increase to occur in the proper forum, the realm of public debate, without distraction from proceedings in this forum." The first-described rationale has since been abandoned by the State, and the second does not logically or legally justify the requested extension. Moreover, because the legislation touted by the State does not constitute an adequate remedy, any delay in the judicial evaluation of the State's response to DeRolph jeopardizes yet another generation of Ohio's children.

    As noted above, the State's counsel has argued that, absent an extension, school funding will come to a halt on March 24, forcing schools to shut down. This argument has been vehemently disavowed by Ohio's legislative leaders and abandoned by the State's counsel, and, accordingly, merits no consideration by the Court. Indeed, Senate President Richard Finan has characterized the suggestion that schools will close unless an extension is granted as a "blatant scare tactic." Catherine Candisky, Schools to Continue to Get State Money, Columbus Dispatch, March 12, 1998, attached hereto as Exhibit 14. Agreeing with Senator Finan, House Speaker Jo Ann Davidson stated as follows: "What Sen. Finan and I are saying is the schools will stay open. Money will flow to the schools for the balance of the year." Id. Similarly, reversing the position it argued to the trial court two days earlier, on March 9, the State's counsel now has represented to this Court that "[o]f course, in the absence of clarification from the Court on this point, the State will continue to allocate school funds (which indeed have already been allocated, though not yet distributed) through the end of this fiscal year." The State Of Ohio's Motion For An Extension Of The March 24, 1998 Deadline (hereinafter, "State's Motion") at 6. The State's legislative leaders thus have expressed unqualified confidence in their ability to continue to distribute school funds notwithstanding the deadline established by this Court a year ago. In short, the State no longer takes the position that an extension is needed in order to maintain school funding through the end of the current school year, and that argument should be accorded no weight in connection with the instant motion.

II.    THE STATE'S REQUEST FOR AN EXTENSION, PREMISED ON
        H.B. 697, DEFIES LAW AND LOGIC.

    The sole remaining argument in favor of the State's request for an extension is that the extension is needed in order to avoid impairing the public's ability to vote in May on H.B. 697 free from the "distraction" of judicial proceedings concerned with the constitutionality of the State's reform package. The State's fear of an informed electorate cannot, however, justify extension of the deadline established by this Court a year ago.

    The State maintains that its remedy is now complete.²  Yet it asks the Court to extend the deadline for compliance with the Court’s order until July 1 – more than three months past the 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. The State is not asking the Court for more time so that it can continue to work on a remedy. Rather, the State is merely seeking to delay judicial scrutiny of existing legislative enactments. The State premises 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.    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 review of the constitutionality of the "new system" should not be commenced until July.

    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.³  The formula and mechanism are fixed by other laws, including H.B. 650. But neither the funding formula contained in H.B. 650, nor any other legislation identified in the State's Motion as a component of the State's system for distributing funds for education, is contingent upon voter approval of H.B. 697.

    Similarly, from a practical standpoint, 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," State's Motion at 1, H.B. 697 is not part of the school funding puzzle at all. Indeed, the State appears to concede this when it represents to the Court that on July 1, 1998, "the remedial package already passed by the Ohio General Assembly will be fully effective and implemented" (State's Motion at 2) – evidently with or without voter passage of H.B. 697.

    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 judicial review of Plaintiffs' challenge to that remedy.

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

    If, as the State has suggested both to this Court (in its Motion for Extension and again in its Complaint in Prohibition and Mandamus filed on February 20, 1998,) and to the trial court (in its February 18, 1998 Motion for an Extension) 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 this Court's DeRolph decision. The State either fails to understand the order of this 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.⁴

    The decision of the Court simply cannot be reconciled with the State's contention that "[i]t is both fitting and appropriate that the last piece of this remedial package – whether a sales tax increase should accompany the legislation – has been left to the people of Ohio" as the "ultimate arbiters of the wisdom of legislation." State's Motion at 1. The State's unyielding insistence on the electorate's "right to vote on the proposed remedy" (State's Trial Court Motion at 8) disregards the fact that the State is charged both constitutionally and specifically by this Court with the protection of the educational rights of unenfranchised children. The State violates that charge when it continues to subordinate the constitutional entitlements of Ohio’s children to politics.

    On March 24 of last year, this 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 proposes to condition its compliance with the order of this 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 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 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 long-standing practice of relegating school funding reform to the political arena was emphatically rejected by the Court last March, and it should be emphatically rejected by the Court once again at this time.

C.    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.⁵ Nonetheless, even a cursory comparison of the Court's opinion with the legislation enacted since March of last year reveals that constitutional inadequacies found by the court last March have not been cured.⁶

1.    The State has not solved the facilities problem.

    Last March, the Court established the following standard for school facilities:

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 Court noted the dismal conditions in many of the State's 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 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 $720 million the State claims it has allocated to solve the school facilities problem (State's Motion at 2) pales in comparison to the needs of Ohio's schools.⁷  Yet, incredibly, the State makes no commitment to alleviate the facilities problem in the future. While the State proclaims that its remedial school funding package signals a commitment to "a public school system that ranks among the best in the nation" (State's Motion at 1), Ohio's school buildings continue to rank among the worst in the nation. For many of Ohio's school children, the bleak daily reality stands in sharp contrast to the self-congratulatory rhetoric of the State.

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

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

    In DeRolph, this Court described the massive foundation of debt upon which our school system rests:

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 202.⁸

    The State's reliance upon forced borrowing continues.⁹ 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 Court).

    But borrowing is borrowing, and, in trading one form of borrowing for another, the State has not remedied the evils inherent in forcing districts to reduce educational programs in order to repay debt. 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 because of the same fund-borrowing already found to be unacceptable by this suit. 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. And the State's remedy will not "bring about any significant improvement in the circumstances of the pupils in the District." Id.

    For districts required to finance their operations through borrowing, programmatic improvements – or the avoidance of programmatic cuts – will remain out of reach, regardless of changes in the basic aid formula. 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.¹⁰

    At the beginning of 1998, Ohio's school districts owed, collectively, over $300 million in state-mandated debt for school operations. The State's "remedy" has not solved and is incapable of solving the problem. The borrowing problem is the State's problem, and unless and until the State seriously addresses this problem, it has not created a school funding remedy that complies with the mandates of DeRolph.

3.    Disparity continues.

    Last March, the Court expressly identified the glaring inequities produced by the State's funding system as one 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, this 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 204-205.¹¹

    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 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 group of legislation changes 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 4.¹² While those fortunate enough to reside in property-rich districts will have meaningful opportunities to utilize state-of-the-art technology, their counterparts in property-poor districts will lack such experiences and will be at a competitive disadvantage upon graduation.¹³

    The declaration of unconstitutionality applied by the Court to the State's funding system last March thus applies with equal force to the system the State now claims as a remedy. Now, as then, "[a]lthough 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 that critically and discrepantly determine the opportunities that will be available to each of Ohio's public school students. 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. 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 Court last March was the State's failure to link the amount of funds 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 State's funding system unconstitutional.¹⁴

    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 more substantial than the "political and budgetary considerations" that proved fatal to the system invalidated by the Court last March. The State's own expert, Dr. John Augenblick – upon whose analysis the State purportedly relies – has disassociated himself from the State's figure, 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 arbitrarily reduced 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. This 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. Defendant 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, the State has not based its funding upon the actual costs of providing for basic and special educational needs, and they cannot claim to have 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 legislation thus far enacted signals the State's commitment to "a public school system that ranks among the best in the nation" is, at best, illusory. 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 Court last March, and there is no possibility that the remedy proposed by the State will redress those defects in the future.

    As the State itself acknowledges, judicial review of the State's asserted remedy may be a time-consuming endeavor. State's Motion at 4-5. Delaying the commencement of this process concomitantly delays the creation and implementation of a real remedy, increasing the likelihood of unconstitutionality persisting into the 1998-1999 school year.

    Accordingly, Plaintiffs could not disagree more with the State's glib assertion that Plaintiffs will suffer no prejudice if the requested extension is granted. In contrast, the State cannot be prejudiced by prompt judicial review of its asserted remedy – unless knowledge of the truth can be characterized as harm. There is thus no reason to delay, and every reason to expedite, the hearing the State would defer.

CONCLUSION

    The State has failed to provide this Court with any valid reason to extend the March 24 deadline, and the Court should decline that request. Despite the State's assertion that it is "eager to have the courts review the school funding remedy" and "stands prepared to defend the remedial legislation at the earliest opportunity," (State's Motion at 5), the sole purpose and effect of the requested extension is to delay judicial review of that legislation.

    As the foregoing analysis has demonstrated, the question of whether such legislation satisfies the mandates of the Court is totally independent of a 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 Court’s mandate, there is thus no need to extend the March 24 deadline. If, on the other hand, the State has not fully responded to that mandate, extension of the deadline and concomitant delay of judicial review will needlessly perpetuate the harm that the State inflicts on those of its children who are deprived of their educational entitlement.

    For all of the above-stated reasons, Plaintiffs respectfully submit that the State's request for an extension should be denied by this Court.

 CERTIFICATE OF SERVICE

    I hereby certify that a true and correct 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, on this _____ day of March, 1998, to Jeffrey S. Sutton, State Solicitor, 30 East Broad Street, 17^th Floor, Columbus, Ohio 43215, and Joel S. Taylor, Dinsmore & Shohl, 175 South Third Street, Suite 1000, Columbus, Ohio 43215.

Anyone paying the least bit of attention knows that the legislature has not sat still since the Ohio Supreme Court's March 24 decision. Without any impetus from the courts or plaintiffs, the legislature and Governor have already imposed a rigorous schedule on themselves for responding to the DeRolph decision…. Whether the General Assembly enacts remedial legislation this summer [of 1997], decides to go to the November [1997] ballot in order to approve a remedy, or engages in some combination thereof, that will still leave the lawyers and courts plenty of time (if need be) to challenge any remedy. Under these circumstances, there is no conceivable justification for imposing a court schedule on the legislature…. In short, our representatives – democrat and republican – are already hard at work; we should simply let them do their job.