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 While some of the Plaintiff school districts must ration paper [and] paper clips and use out of date textbooks our wealthier districts are able to provide violin classes in the second grade and have contests through computer networking allowing their students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

A. "Locally" Dependent Revenues

B. State Funding Is Determined by State Budget "Leftovers," not by Pupil Needs

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]

II. Minimum Standards no Longer Assure Adequacy

III. Increased Pupil Needs: Handicapped Pupils and Disadvantaged Pupils

A. Handicapped Pupils

B. Disadvantaged Pupils

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)

IV. The State's $10.2 Billion Facilities Problem

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]

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)

V. State mandated school district borrowing

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."

A. Walter does not determine the constitutionality of the current funding system.

1. The current funding system differs significantly from that challenged in Walter, and the nature of the challenges is distinct.

2. The needs of Ohio's children and the significance of education are far greater today than they were at the time of Walter.

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]

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.

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.

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."

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.)

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.

B. The system of public schools produced by the challenged funding system is neither thorough nor efficient.

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."

"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]

• 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."

• 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]

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.

[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).

a. all handicapped children entitled to receive special education are provided with an appropriate public education, and

b. each public school district provides an appropriate program of special education and related services to each eligible pupil enrolled in the school district.

(Stip. 57)[111]

III. Proposition of Law No. III: Public education is a fundamental right guaranteed by the Ohio Constitution, and the rights of public school children to equal protection of law are violated by Ohio's system of funding public education because this system arbitrarily discriminates in the quality of education that it provides to children; even if public education were not a fundamental right, the wealth-based discrimination in which the State engages violates the Constitution because such discrimination is not rationally related to any legitimate state objective.

A. Public education is a fundamental right of unique societal and individual importance, expressly protected by the Ohio Constitution.

1. Historical background[118]

"Shall we *** constitute a class who will become the inmates of our poor houses, and the tenants of our jails? I think it must be clear to every reflecting mind that the true policy of the statesman is to provide the means of education, and consequent moral improvement, to every child in the State, the offspring of the black man equally with that of the white man, the children of the poor equally with the rich."

The Common School movement originated in Massachusetts through the work of Horace Mann, and was so-called because the basic idea was to give all citizens a common foundation of literacy, morality, and patriotism, regardless of their origins, through free public schools supported by taxes, with compulsory school attendance and supervision at the state level. ***
*** Conservatives saw the common schools as a civilizing influence, and liberals viewed them as the way for the poor to climb the ladder of society. By 1851 the objectives of the Common School movement had wide support in Ohio, leading to the inclusion of Article VI in the 1851 Constitution.[124]

Inherent in the Ohio Constitution's use of the phrase "system of common schools" is the requirement that the public schools of Ohio educate all students, rich or poor, at similar levels, and provide them with similar opportunities.[125]

2. Contemporary importance

[T]he sovereign people have not considered the giving of education to be a private purpose. The existence of an intelligent and enlightened people is the basis of national prosperity and political integrity, and the system by which we endeavor to educate and enlighten the coming generations is rightly made by law a matter of supreme public concern.

Miller v. Korns, 107 Ohio State at 306. More recently the long-held convictions of this Court have been mirrored in legislative findings regarding the fundamentality of education expressed by the Congress of the United States.[129] The education rights now recognized by Congress as fundamental have long been guaranteed to every Ohioan by our State Constitution.[130]

B. The disparities in educational opportunity that result from Ohio's school funding system do not serve any compelling state interest and are not rationally related to any legitimate state objective, including the asserted interest in furthering local control of the schools, and accordingly violate the Ohio Constitution.

"And when the state gives three shares of knowledge to a child in a wealthy part of the state and one share to a child in another part of the state, it owes a special reason to the people of Ohio. When the legislature malapportions its resources in order to deny knowledge, deny educational opportunity, then it owes a special reason."

In the attainment of the purpose of establishing an efficient and thorough system of schools throughout the state it was easily conceivable that the greatest expense might arise in the poorest districts; that portions of great cities, teeming with life, would be able to contribute relatively little in taxes for the support of schools, which are the main hope for enlightening these districts.

Miller v. Korns, 107 Ohio St. at 298, 140 N.E. at 776.

Could there be a more reasonable classification than that provided for in this act--that school districts should receive aid in varying proportions according to their needs; that city and exempted village school districts, which experience has shown are crippled for lack of school funds, should be preferred; and that all other school districts should then share in the balance of the fund ***?

Id. at 303, 140 N.E. at 777-778. The State has turned the logic of this Court on its head, allocating the most to those with the least needs, and inflicting deprivation upon those whose needs are greatest. In the process, the State would have the courts contribute to the polarization that threatens the fabric of our society.

Plaintiff Northern Local School District has primarily engaged in 'crisis management' during the 1990's and has been forced to forego building repairs, textbook renewal, advanced placement options and full handicapped access. (Pl. Exh. 129) Plaintiff Lima City Schools has spent over $10 million dollars since 1980 to comply with unfunded state mandates and has been unable to purchase necessary educational equipment and supplies, expand elementary guidance services or offer all­day every­day kindergarten. (Pl. Exh. 284) Plaintiff Dawson­Bryant School District has been unable to implement advanced placement courses, all­day every­day kindergarten, textbook replacement and full handicapped access to its building. (Pl. Exh. 276) Plaintiff Southern Local School District is simply reacting to state mandated regulations and deciding what programs and services to cut. They further have been unable to implement any textbook replacement schedule, advanced placement courses or cultural enrichment programs for their students. (Pl. Exh. 89) Plaintiff Youngstown City School District no longer makes proactive decisions about what programs to add and policies to implement based upon the best interest of the students. Instead, due to such mandated programs as EMIS, model curricula and proficiency testing the boards' decisions mainly regard the cutting of programs. (Taylor Depo. 150­151; Goff Depo. 116, Kolitsos Depo. 76).

(Findings at 469-470) Plaintiff districts cannot "develop programs to meet perceived local needs," as Walter envisioned, and the Trial Court correctly concluded that in Ohio local control of education is a "cruel illusion." (Findings at 469-470) Bd. of Edn. v. Walter, 58 Ohio St.2d at 380, 390 N.E.2d at 821; Dupree v. Alma School Dist. No. 30 (Ark.1983), 279 Ark. 340, 346, 651 S.W.2d 90, 93.

Due to the Plaintiff school districts being some of the poorestin the State this is not a viable option. The fact that school districts have the "ability" to determine how dollars are spent in some circumstances is a hollow argument when there are not sufficient funds to provide for the educational and facility needs of their particular school district. It should further be noted that some of the Plaintiffs in this action are minors. The State has an obligation to provide them with a thorough and efficient education. The vast majority of students in this State who have not reached the voting age are completely disenfranchised and have no ability to raise additional funds nor decide how to expend funds received by their school districts. *** As the Plaintiffs have argued in this case local control without discretionary funds is a myth and does not justify the vast disparities in educational funding and educational opportunity throughout this State.

Findings at 469-70.[141]

IV. Proposition of Law No. IV: The current system of public school funding violates limitations on deficit spending expressed in Sections 1 and 3, Article VIII, and Section 4, Article XII of the Ohio Constitution by legislatively requiring school districts to engage in borrowing on a massive scale in order to finance the provision of educational services for which the State is responsible.

Civ.R. 8(A) requires only that a pleading contain a short and plain statement of the circumstances entitling the party to relief. A party is not required to plead the legal theory of recovery or the consequences which naturally flow by operation of law from the legal relationship of the parties.

Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, paragraph six of the syllabus, 639 N.E.2d 771, 774 . The school loan programs, as integral components of the larger school funding system, always have been central to the claims litigated in this suit and have been clearly disclosed from the outset.[148] Accordingly, Plaintiffs are entitled to prevail on any legal theory supportive of their claims.

[T]he court, in an opinion by Judge Swan, held that present obligations to pay money at a future time, without revenue and appropriations provided therefor, are debts of the state in contravention of Sections 1 and 3 of Article VIII of the Ohio Constitution.

In reaching this conclusion, Judge Swan analyzed Section 4 Article XII of the Ohio Constitution, which provides for raising sufficient revenue to defray the expenses of the state for each year[.]***According to Judge Swan, the General Assembly is free in its discretion to expend funds as it deems appropriate; however, the Constitution requires that the General Assembly also provide revenue to pay all expenses and claims within the biennium.

Ohio Funds Mgt. Bd.(1990), 55 Ohio St.3d 1, 5, 561 N.E.2d 927, 930-931 (citing State v. Medbury, 7 Ohio St. at 540)[149]

V. Proposition of Law No. V: When the State deprives economically and politically unempowered children of their constitutional entitlement to a thorough, efficient and equitable public education, it is appropriate and necessary that (1) the judiciary retain continuing jurisdiction to ensure implementation of a constitutional system of public education; and (2) Plaintiff-Appellants be awarded attorney fees to compensate them for the costs of bringing suit to compel the State to do that which the Ohio Constitution commands.

A. It is the role of the judiciary to declare the unconstitutionality of the current system of public school funding; it is then the obligation of the legislature to devise a system that comports with the mandates of the Ohio Constitution.

The struggle for legislative supremacy over constitutional limitations should have ended a century ago. Formerly, there was openly asserted a doctrine *** [t]hat constitutional limitations upon the exercise of legislative power are but admonitions to the legislative department, without efficacy to annul enactments inconsistent with them. In 1803 that doctrine was completely overthrown by an authority which no one has challenged from that day to this, and upon reasoning so conclusive that it has evoked the universal approval and admiration of generations of students of constitutional law.

City of Cincinnati v. Trustees of Cincinnati Hospital (1902), 66 Ohio St. 440, 450, 64 N.E. 420, 423. This Court eloquently inveighed against the sort of deference to the legislature exemplified by the opinion of the Court of Appeals in the instant case.

Those who are charged with the exercise of judicial power in a constitutional government cannot too often advert to Marbury v. Madison[.]*** [W]ith respect to the adjudication of questions of this character, that which is sometimes urged and regarded as mere compromise or concession is in fact a dereliction of duty. Since the soundness of that doctrine is universally admitted, its effect should not be evaded.

Id. at 452-3, 64 N.E. at 424. The consequences of the instant case are great, the political attention engendered is substantial, and the appeal of "compromise or concession" is apparent. Far from justifying deference to the political process, however, these are the very reasons why it is imperative that the judiciary intervene to protect the constitutional entitlements of those who are without a voice in that process: the unenfranchised children of Ohio.[152]

Where a constitution or city charter imposes a mandatory duty upon a legislative body to enact legislation to give life to a particular provision of such constitution or charter, a court may compel the legislative body to act, but it can not direct the course of action.

City of Cleveland ex rel. Neelon v. Locher (1971), 25 Ohio St.2d 49, paragraph one of the syllabus, 266 N.E.2d 831,832.[153] The State has a constitutional duty that it no longer can be permitted to neglect--a duty to provide the children of Ohio with an education that will enable them, and all of Ohio, to move productively into the next millennium.

B. Continuing judicial oversight is appropriate in order to facilitate the timely creation and implementation of a constitutional system for funding public education in Ohio

Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. *** While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance. *** They also will consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

Brown v. Board of Education (1955), 349 U.S. 294, 300-301, 74 S.Ct. 693, 756-757, 99 L.Ed. 884, 1106. [154]

C. Having declared that the State wrongfully violated multiple provisions of the Ohio Constitution, as a consequence of which countless students throughout the state have been deprived of their constitutional right to an adequate and equitable education, the Trial Court properly awarded attorney fees and such award did not represent an abuse of diiscretion.

Nowhere in R.C. Chapter 2721 is there any provision which narrows the broad authority conferred by R.C. 2721.09. Moreover, R.C. 2721.09 does not place any legal significance on the insurer's conduct nor is the operation of the section conditioned on which party actually prevails in the underlying action. Rather, the only limitation placed on the trial court is that the relief must be "necessary or proper."

Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d at 160, 648 N.E.2d at 490.[160]

The massive inadequacies and inequities inherent in the system by which Ohio funds the provision of public elementary and secondary education are readily acknowledged by the State, which seeks to avoid responsibility for its monumental failures by invoking Walter, a case that fundamentally is inapposite. The consequences of today's failed system are far reaching, diminishing for all Ohioans the eminence of our society, and the role Ohio plays in our country and in our world. There can be no doubt that every Ohioan pays the price for the State's refusal to fulfill its constitutional obligations. Our communities are increasingly polarized, and even those who possess the wealth and have received the benefits of a quality education are impoverished by the ignorance, violence, and poverty that too often plague those who have been denied educational opportunity.

Respectfully submitted,

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

Attorneys for Plaintiff-Appellants

1. Sections 2 and 3 of Article VI and Section 7 of Article I establish the duty of the State to provide for a thorough and efficient system of public education; Section 4 of Article XII and Sections 1 and 3 of Article VII also require the State to fund that system and Sections 2 and 7 of Article I and Section 26 of Article II establish the Plaintiffs' rights to relief based on the State's failure to fulfill its constitutional obligation.

2. Section 2, Article VI of the Ohio Constitution (emphasis added).

3. The Trial Court's "Findings of Fact, Conclusions of Law, Memorandum and Order" is included in volume I of the Appendix to Appellants' Brief (referenced hereafter as "Findings"). The State does not dispute the Findings of Fact issued by the Trial Court and cited herein. In fact, the State has admitted time and again that the current funding system is obsolete and in need of reform. (Tr. 348-349; Findings at 27).