Bricker & Eckler LLP: DeRolph v. State: Text of Ohio Supreme Court Dissenting Opinion

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Moyer, C.J., dissenting. Only infrequently are the members of this court required to balance our appreciation for the principle of separation of powers among the three branches of government against our desire to use the considerable powers of this court to mandate action to improve the imperfect. The issue in this very important case is not whether education in Ohio should be better. All seven members of this court would agree that in an ideal school setting, all children would be taught in well-maintained school buildings by teachers with high salaries and would read from the latest-edition school books. Rather, the question presented is whether specific financing statutes adopted by the Ohio General Assembly violate the words and intent of the Ohio Constitution. By its words, the Constitution requires the General Assembly to "make such provisions, by taxation or otherwise, as *** will secure a thorough and efficient system of common schools throughout the state." Section 2, Article VI, Ohio Constitution. We find that the statutes withstand plaintiffs' constitutional challenge because, rather than abdicating its duty, the General Assembly has made provisions by the challenged statutes for funding a system of schools with minimum standards throughout the state. The issues of the level and method of funding, and thereby the quality of the system, are committed by the Constitution to the collective will of the people through the legislative branch.

One cannot disagree with the aspirations of the majority to provide a school system that enables children to "participate fully in society," that provides "high quality educational opportunities," and that "allows its citizens to fully develop their human potential." However, the majority relies upon the phrase "thorough and efficient" to declare Ohio's education financing system unconstitutional despite the fact that our Constitution commits the responsibility for ascribing meaning to the phrase "thorough and efficient" to the General Assembly and not to this court. The majority of this court, moreover, apparently interprets the Constitution as requiring that all schools be of the same undefined level of high quality without relying on any supporting text of the Constitution, and equates imperfect schools with an unconstitutional system of funding. We disagree with these conclusions.

We must apply well-established standards before declaring statutes unconstitutional. Among those established standards is a strong presumption that enactments of the General Assembly are constitutional. State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St. 2d 159, 161, 38 O.O.2d 404, 405, 224 N.E.2d 906, 908-909. It is not the function of this court to assess the wisdom or policy of a statute or statutory scheme. Rather, we are limited to determining whether the General Assembly acted within its legislative power in enacting that statute. Austintown Twp. Bd. of Trustees v. Tracy (1996), 76 Ohio St.3d 353, 356, 667 N.E.2d 1174, 1175-1177.

It has also been recognized that evidence of a long-standing legislative practice "goes a long way in the direction of providing the presence of unassailable grounds for the constitutionality of the practice." United States v. Curtiss-Wright Export Corp. (1936), 299 U.S. 304, 328, 57 S.Ct. 216, 224, 81 L.Ed. 255, 267. Local property taxes have funded Ohio schools since 1825 -- before the adoption of the Education Clause. Walter, 58 Ohio St.2d at 378, 12 O.O.3d at 333, 390 N.E.2d at 820. Local property taxes were the sole source of funding until 1906. Id. Nonetheless, the majority dispenses with the state's¹ reliance on this historically based method of funding, thereby usurping the authority of the General Assembly.

A fundamental question in this case is which branch of government shall decide the issue of what level of funding of public education satisfies the constitutional standard of "thorough and efficient." To answer this question we rely upon common-law tests that have guided the courts in this country since the first state constitution was adopted over two hundred years ago. For the reasons that follow we respectfully, and jointly, dissent from the opinion of the majority.

I
Separation of Powers/Justiciability

In Federalist Paper No. 47, James Madison stressed the importance of judges refraining from lawmaking: "Were the power of judging joined with the legislative *** the judge would then be the legislator." The Federalist Papers (1961) 303.

In Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73, the court established that "[i]t is emphatically the province and duty of the judicial department to say what the law is." The court also pronounced, however, that the judicial branch does not have the authority to answer "[q]uestions in their nature political, or which are, by the constitution and laws, submitted to" another branch of government. Id. at 170, 2 L.Ed. at 168.

We conclude that the question of what level of funding satisfies the constitutional standard of a "thorough and efficient" system of education is a question of quality that revolves around policy choices and value judgments constitutionally committed to the General Assembly. We conclude that defining a "thorough and efficient" system of education financing is a nonjusticiable question.

We do not maintain that this court is without jurisdiction over this case. Rather, we conclude for the reasons stated infra that we are restrained by the fundamental principle of separation of powers and the related doctrine of nonjusticiability from deciding what level of educational quality a "thorough and efficient" system of public schools requires.

Such restraint should be exercised only after the court has decided a threshold justiciable issue, that is, whether the General Assembly has made provision by taxation or otherwise to secure a thorough and efficient system of schools. In view of the clear intention of the delegates to the Constitutional Convention of 1851, the words of the Constitution and the agreement among the parties to this case that all plaintiff school districts have met the minimum standards set by the State Department of Education, we conclude that the justiciable question has been answered in favor of the defendants.

Beyond the threshold question, the term "thorough and efficient" is a question of quality, which is a political question that the Ohio Constitution leaves to the legislature to determine.

The nonjusticiability of a political question is a function of separation of powers. Baker v. Carr (1962), 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682.^{2 "}The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of [the legislature] or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as 'courts are fundamentally underequipped to formulate national [or state] policies or develop standards for matters not legal in nature.'" Japan Whaling Assn. v. Am. Cetacean Soc. (1986), 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166, 178, quoting United States ex rel. Joseph v. Cannon (C.A.D.C. 1981), 642 F.2d 1373, 1379.

The fact that this lawsuit implicates other branches of government, or has political overtones, does not automatically invoke the political question doctrine. A political question is one that requires policy choices and value judgments that have been expressly delegated to, and are more appropriately made by, the legislative branch of government. Japan Whaling Assn., 478 U.S. at 230, 106 S.Ct. at 2866, 92 L.Ed.2d at 178. The doctrine is one of political questions, not political cases. The doctrine was not designed so that courts might evade their responsibility to interpret the Constitution and we do not apply it here as a means of avoiding our constitutional responsibility. Rather, it was designed "to restrain the Judiciary from inappropriate interference in the business of the other branches of Government." (Emphasis added.) United States v. Munoz-Flores (1990), 495 U.S. 385, 394, 110 S.Ct.1964, 1970, 109 L.Ed.2d 384, 396.

The words of the Ohio Constitution commit to the General Assembly, not the courts, the responsibility to fund a "thorough and efficient" system of public schools. The General Assembly has exercised that power, as Ohio unquestionably has a system of public schools that is designed and funded to meet the educational guidelines established through the Department of Education. The level and method of funding beyond those minimum standards constitute, however, a nonjusticiable political question.

In Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686, the United States Supreme Court identified the characteristics of a political question: "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion ***."

In Nixon v. United States (1993), 506 U.S. 224, 228, 113 S.Ct. 732, 735, 122 L.Ed.2d 1, 8-9, the court, in examining the text of the Constitution, outlined the procedure to follow to determine if an issue was nonjusticiable: Courts "must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed [in this instance, to the legislative branch]. *** [T]he concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch."

In accordance with the Nixon test, our Education Clause commits to the General Assembly the power to define a "thorough and efficient" system of schools. Section 2, Article VI states: "The general assembly shall make such provisions, by taxation or otherwise, as *** will secure a thorough and efficient system of common schools throughout the state ***." (Emphasis added.) Once the constitutional threshold has been met, the Education Clause commits to the General Assembly the responsibility and authority to determine the financing necessary for the level of the quality of education.

Moreover, the constitutional debates demonstrate that the framers of the Education Clause believed that establishing specific criteria for constitutionally required financing of education was best left to the General Assembly. Delegate J. McCormick, dissatisfied with the amount of money previously appropriated by the General Assembly, argued in support of an amendment to require a minimum amount of monetary support in the Constitution. That amendment was rejected. II Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850-51 (1851) ("Debates") at 17. Delegate Charles Reemelin envisioned that "all attempts to create a system would be left to the General Assembly." Id. at 17. Delegate Van Brown believed that the Education Clause was of a limited general purpose, that being that "there should be schools; and that the means for supporting them should be provided; and that the details should all be left to the General Assembly." Id. at 703.

Consistent therewith, this court has held that the General Assembly's power over public schools is "plenary." Hancock Cty. Bd. of Edn. v. Moorehead (1922), 105 Ohio St. 237, 244, 136 N.E. 913, 915. We have also recognized that the court has "no responsibility and no authority" over the "wisdom or the policy of [education] legislation." State ex rel. Methodist Children's Home Assn. of Worthington v. Worthington Village School Dist. Bd. of Edn. (1922), 105 Ohio St. 438, 448, 138 N.E. 865, 868.

This finding of a textual commitment to the General Assembly of the quality of education is further bolstered by a lack of judicially demonstrable or manageable standards for determining what constitutes a "thorough and efficient system of common schools." Such standards "forestall reliance by [courts] on nonjudicial 'policy determinations.'" Immigration & Naturalization Service v. Chadha (1983), 462 U.S. 919, 942, 103 S.Ct. 2764, 2780, 77 L.Ed.2d 317, 339.

For example, it is significant that the plaintiffs themselves offered neither a constitutional definition of a thorough and efficient system nor direction regarding constitutional funding of such a system. The majority opinion provides the General Assembly with minimal guidance in developing a constitutional school financing system. Aspirational phrases urging that state financing of educational systems enable citizens to "fully develop their human potential," and afford "high quality educational opportunities" are no more amenable to judicial interpretation or enforcement than is the term "thorough and efficient."

As succinctly stated by the Illinois Supreme Court, "[w]hat constitutes a 'high quality' education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The Constitution provides no principled basis for a judicial definition of high quality. *** Nor is education a subject within the judiciary's field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather the question of education quality is inherently one of policy involving philosophical and practical considerations that call for the expertise of legislative and administrative discretion." (Emphasis added.) Commt. for Educational Rights v. Edgar (1996), 174 Ill.2d 1, 28-29, 672 N.E.2d 1178, 1191.

The Rhode Island Supreme Court similarly recognized inherent problems when the judiciary undertakes to decide education matters. "What constitutes an appropriate education or even an 'equal, adequate, and meaningful' one, is 'not likely to be divined for all time even by the scholars who now so earnestly debate the issues." Pawtucket v. Sundlun (R.I. 1995), 662 A.2d 40, 58, quoting San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 43, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16, 49.

Plaintiffs' own expert acknowledged the policy-based nature of education decisions when he said that "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 added in part.)

These policy decisions -- political, budgetary and value judgments -- are inextricable from education matters, requiring a balancing of interests that are textually and traditionally committed to the General Assembly, and the General Assembly, not this court, is the proper forum in which competing taxation, budgetary and spending decisions are made. The judicial branch is simply neither equipped nor empowered to make these kinds of decisions.

The language of the Education Clause, the history surrounding its adoption, and our precedent (including Miller v. Korns, supra, 107 Ohio St. 287, 140 N.E.2d 773, upon which the majority relies) all uniformly suggest that determination of educational funding adequacy is the responsibility of the General Assembly. In both Miller and Cincinnati School Dist. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 387, 12 O.O.3d 327, 338, 390 N.E.2d 813, 825, the court left the terms "thorough" and "efficient" undefined in deference to the principle that the Ohio Constitution entrusts the definition of those terms to the General Assembly.

Although we may personally favor it, it is not this court's place to order the General Assembly to give education "high priority" in its budget allocations, any more than it is our place to set policy or prioritize the allocation of funds to other state programs. Members of the legislative branch represent the collective will of the citizens of Ohio, and the manner in which public schools are funded in this state is a fundamental policy decision that is within the power of its citizens to change. Under our system of government, decisions such as imposing new taxes, allocating public revenues to competing uses, and formulating educational standards are not within the judiciary's authority. As noted by the United States Supreme Court in Rodriguez, "the ultimate solutions [to perceived problems associated with school funding systems] must come from the lawmakers and from the democratic pressures of those who elect them." Id., 411 U.S. at 59, 93 S.Ct. at 1310, 36 L.Ed.2d at 58.

Moreover, we find it unlikely that the public is "willing to turn over to a tribunal against which they have little if any recourse, a matter of such grave concern to them and upon which they hold so many strong, though conflicting views. If their legislators pass laws with which they disagree or refuse to act when the people think they should, they can make their dissatisfaction known at the polls. *** The court, however, is not so easy to reach *** nor is it so easy to persuade that its judgment ought to be revised." Seattle School Dist. No. 1 of King Cty. v. State (1978), 90 Wash.2d 476, 563-564, 585 P.2d 71, 120 (Rosellini, J., dissenting).