THIS DOCUMENT HAS BEEN RE-FORMATTED SO THAT IT MAY BE POSTED ON OUR INTERNET PAGES. THE CONTENT OF THIS DOCUMENT IS THE SAME AS THAT WHICH WAS FILED WITH THE COURT. IN SOME CASES, ATTACHMENTS ARE NOT INCLUDED.

By today's decision, a majority of this court has given the General Assembly the opportunity to revamp the entire education system in this state just as a number of other legislative bodies in our sister states have done in recent years.¹ If all of this requires additional revenue, as it almost certainly does, then that is the price we must pay to enforce, protect and preserve constitutional rights. I would only caution those who would castigate us (as some did the trial judge) for their own purposes to remember what Abraham Lincoln said in his First Inaugural Address, March 4, 1861, in discussing the obligations of the United States Supreme Court and its decisions:

"It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes." Lott, The Presidents Speak; The Inaugural Addresses of the American Presidents, from Washington to Clinton (1994) 143.

This appeal presents a number of issues for this court's consideration. Is the right to a free public education a fundamental right guaranteed by the Ohio Constitution? Does the system of funding public elementary and secondary schools in Ohio violate the Equal Protection Clause of Section 2, Article I of the Ohio Constitution? Does the system of funding public elementary and secondary schools in Ohio violate Section 2, Article VI of the Ohio Constitution, requiring a thorough and efficient system of common schools throughout the state? Does Cincinnati City School Dist. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 12 O.O.3d 327, 390 N.E.2d 813, control the disposition of the case at bar? Resolution of these issues requires, among other things, a detailed understanding of Ohio's system of school funding. Equally important to a resolution of these issues are an understanding of the historical development of Ohio's school funding laws and an earnest appreciation of the significance that the founders of our state and nation placed on public education. However, before addressing these various matters, I find it necessary to briefly comment on this court's jurisdiction to entertain the present appeal.

The court of appeals' majority held that the courts are not the proper place to challenge the constitutionality of Ohio's statutory scheme for school funding. Despite overwhelming evidence that the state has utterly failed to establish a system of school funding that is thorough and efficient, the court of appeals' lead opinion stated that "[i]f changes are needed in the manner in which schools receive funding, this matter is properly within the discretion of the legislative branch of the government, not the judicial branch." Judge Reader reiterated these sentiments in his concurring opinion. However, I respectfully disagree with that view. Rather, I believe that Judge Gwin of the court of appeals was absolutely correct that the constitutionality of Ohio's statutory framework for school funding is unquestionably a matter for the courts to decide. To hold otherwise would be to ignore the fundamental concept of judicial review established nearly two hundred years ago in Marbury v. Madison (1803), 5 U.S. 137, 177-178, 2 L.Ed. 60, 73-74. Marbury established, beyond cavil, the inherent powers of the judicial branch of government to review the constitutionality of the acts of the other branches of government.

In Walter, 58 Ohio St.2d 368, 12 O.O.3d 327, 390 N.E.2d 813, this court entertained certain constitutional challenges to a statutory system for school funding that has since been repealed and replaced with the current statutory framework for funding public elementary and secondary education. However, the following observations in Walter concerning the power of the judiciary are as applicable today as they were at the time Walter was decided:

"We wish to state clearly at the outset that this court has the authority, and indeed the duty, to review legislation to determine its constitutionality under the Constitution of Ohio and to declare statutes inoperative. The doctrine of judicial review articulated by Chief Justice John Marshall in the landmark case of Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, establishes the judicial branch as the final arbiter in interpreting the Constitution.

"The doctrine of judicial review is so well established that it is beyond cavil. Consider this court's opinion in State v. Masterson (1962), 173 Ohio St. 402 [20 O.O.2d 36, 38, 183 N.E.2d 376, 379], which states, at page 405, in part:

"'It has long been an established principle of law that courts do not interfere in political or legislative matters except in those instances where legislative enactments violate the basic law. In those instances where enactments violate the basic law, it was determined early in our judicial history that the courts have not only the power but the duty to declare such enactments invalid.

"'One of the basic functions of the courts under our system of separation of powers is to compel the other branches of government to conform to the basic law.'

"* * *

"We find that the issue concerning legislation passed by the General Assembly pursuant to Section 2 of Article VI of the Ohio Constitution [the Thorough and Efficient Clause] presents a justiciable controversy. * * *" Walter, 58 Ohio St.2d at 383-384, 12 O.O.3d at 336, 390 N.E.2d at 823-824.

Walter makes it abundantly clear that constitutional challenges to the statutory system for funding public education are a matter for the courts to decide. Obviously, this court is not at liberty to shirk that responsibility, and we cannot simply send plaintiffs-appellants to the General Assembly to seek redress of their grievances. Judge Reader stated in his concurring opinion in the court of appeals: "The tax payers of this state should rise up in righteous indignation and tell all the parties in this case to take their truckloads of paper and solutions if any, to where it would do the most good -- the General Assembly of the State of Ohio." However, this case involves a constitutional attack on Ohio's system of funding public schools. The General Assembly is not the appropriate place to raise such a constitutional challenge.

I completely agree with the majority's astute observations concerning the jurisdiction of this court to resolve this case. Specifically, I join the majority in utterly rejecting any suggestion that this case and the constitutional issues involved herein should be left for the legislature to decide. In my view, fifteen of the most compelling words spoken at the one-and-one-half-hour oral argument of this case were spoken by plaintiffs' counsel: "We're not asking you to do their job, we're asking you to do your job." Accordingly, we have proceeded not with any glee but, rather, pursuant to our constitutional duty.

The cause is properly before this court for review and final determination pursuant to the judicial powers vested in this court pursuant to the Ohio Constitution.

The focus of this case is R.C. Chapter 3317, the School Foundation Program for the allocation of state basic aid. In Walter, 58 Ohio St.2d at 378, 12 O.O.3d at 333, 390 N.E.2d at 820, this court recognized that "[t]he history of educational funding in Ohio * * * has been an accommodation between two competing interests -- the interest in local control of educational programs and the means to fund them and the interest of the state in insuring that all children receive an adequate education." In Walter, we outlined some of the history of Ohio school funding, and a review of that history is pertinent to the discussion herein.

In 1821, the Ohio General Assembly enacted a bill making the property in the townships subject to school taxes. See 19 Ohio Laws 51, 55. This legislation was largely ineffective because the levying and collection of taxes were at the option of the local district. In 1825, the General Assembly enacted legislation directing county commissioners to levy a real property tax of one-half mill to support local public schools. 23 Ohio Laws 36, 37. At that time in history, the property tax was the primary means of support for the local public schools. See Walter, 58 Ohio St.2d at 378, 12 O.O.3d at 333, 390 N.E.2d at 820. In 1906, Ohio undertook a program calling for a large measure of state financial participation to begin assisting financially weak school districts for the purpose of providing those districts with some minimum support for education. Id. In 1935, the General Assembly enacted the first Foundation Program, providing substantial financial aid to school districts based on average daily attendance plus additional aid for poorer districts. Id. at 378, 12 O.O.3d at 333, 390 N.E.2d at 820-821. The amount of state aid was continually increased over the next twenty-one years. Id. at 379, 12 O.O.3d at 333, 390 N.E.2d at 821. However, despite the increases in the total amount of state aid, the percentage of state support dropped considerably in relation to the local school districts' total operating costs. Id. In 1956, the format of state aid was changed to provide state support based on "teacher-units" rather than average daily membership. Id. By the 1965-1966 school year, the state was providing approximately one-third of the total operating costs of the local school districts, with local property tax furnishing the remainder. Id.

In fiscal year 1975-1976, the General Assembly enacted the "Equal Yield Formula" for computing state aid. 136 Ohio Laws 475. See Walter, at 379, 12 O.O.3d at 334, 390 N.E.2d at 821. This formula was intended to provide an equal sum of combined state and local funds on a per-pupil-per-mill basis for each qualifying school district. Id.; former R.C. 3317.022, 136 Ohio Laws, Part I, 492. A qualifying school district was one that levied twenty mills for current operating expenses. Former R.C. 3317.01, 136 Ohio Laws, Part I, 487. The formula provided a two-tiered system. That is, every school district received an amount per pupil per mill for the first twenty mills and additional amounts were given to each school district with millage above twenty mills up to thirty mills. Walter at 370-371, 12 O.O.3d at 328-329, 390 N.E.2d at 816. In Walter, this court reviewed the constitutionality of the Equal Yield Formula for school funding and, in 1979, upheld that formula as constitutionally acceptable. There is a body of thought that the General Assembly created the Equal Yield Formula in anticipation of the filing of the Walter case. After Walter was decided, the General Assembly, in 1981, abandoned the Equal Yield Formula, former R.C. 3317.022. See Am.Sub.H.B. No. 694, 139 Ohio Laws, Part II, 3460, 3684. At that time, the Equal Yield Formula was replaced by the School Foundation Program, which remains in use today.

Ohio's School Foundation Program can be found in R.C. 3317.01 et seq. The School Foundation Program for the allocation of state basic aid has operated in a similar manner since 1981. Under the School Foundation Program, state basic aid is available for school districts which, among other things, levy at least twenty mills of local property tax revenue for current operating expenses. R.C. 3317.01(A). State basic aid for qualifying school districts is calculated pursuant to a foundation formula set forth by law. The version of R.C. 3317.022 that was in effect at the time this case was filed (Am.Sub.H.B. No. 298, 144 Ohio Laws, Part III, 3987, 4122) provided the following calculation for the computation and distribution of state aid to qualifying school districts:

The basic state aid calculation remains essentially the same in the current version of R.C. 3317.022. Through this formula, the School Foundation Program guarantees a minimum level of combined state and local per pupil funding.

The "formula amount" in the calculation represents a figure set by the General Assembly as part of the biennial budget process. In January 1992, at the time the amended complaint was filed, the formula amount equaled $2,817. See Am.Sub.H.B. No. 298, 144 Ohio Laws, Part III, 3987, 4122. The formula amount is currently set at $3,500 pursuant to R.C. 3317.022. The trial court found (and the evidence supports the finding) that the formula amount is determined by the General Assembly based solely on how much money is left in the budget after all other legal entitlements are funded. In other words, the amount appropriated for education represents a "budgetary residual" that has nothing to do with the true costs of educating a student. Oliver Ocasek, President of the State Board of Education at the time of trial, testified that the State Board of Education believed that a formula amount of $4,000 per pupil was necessary to even approach an adequate level of funding for Ohio's school districts. It should be noted, however, that Ocasek personally believed that the true egregious impact of the School Foundation Program was that it did not even come close to providing equalization, given the flat distributions in areas of categorical funding, etc., explained infra.

Under the state basic aid calculation, the formula amount ($2,817 in school year 1992-1993) is adjusted by a school district equalization factor or cost-of-doing-business factor. R.C. 3317.022(E). The applicable rates of adjustment for the 1992-1993 school year were contained in former R.C. 3317.02(E). 144 Ohio Laws, Part III, 3987, 4118-4120. The rates are similar in the current version of R.C. 3317.02(E). These rates of adjustment vary from county to county and apply equally to all districts within the county. The cost-of-doing-business factors assume that costs are lower in rural districts than in urban districts but, as the trial court correctly concluded, that assumption is not always true.

"ADM" stands for average daily membership, which is calculated pursuant to R.C. 3317.03. See R.C. 3317.02(A). By multiplying the formula amount, the cost-of-doing-business factor, and the ADM, the foundation formula establishes a minimum amount of combined local and state per pupil aid per district. A "charge off" is then subtracted from that figure. The charge-off is the total taxable value of real and tangible personal property in the district times a certain percentage. See R.C. 3317.022(A) (computation for state aid) and 3317.02(D) (defining "total taxable value" as the sum of the amounts certified by the Tax Commissioner under R.C. 3317.021[A][1] and [2]). At the time this case was filed, total assessed value was multiplied by .02 (i.e., twenty mills times total assessed valuation) to produce the applicable charge-off. 144 Ohio Laws, Part III, 3987, 4122. During the pendency of the litigation, the twenty-mill multiplier was increased to 20.5 mills (Am.Sub.H.B. No. 152, Section 36.12, 145 Ohio Laws, Part III, 4432-4433) and was raised thereafter. Currently, total taxable value is multiplied by .023 for purposes of calculating the charge-off. R.C. 3317.022. Subtracting the applicable charge-off results in a figure constituting the amount for basic state aid for the district in question.

In addition to the formula amount, school districts with children whose families collect Aid to Dependent Children ("ADC") receive what is called "Disadvantaged Pupil Impact Aid" or "DPIA." Am.Sub.H.B. No. 298, Section 59.02, 144 Ohio Laws, Part III, 4556-4557. This funding is calculated pursuant to R.C. 3317.023 and consists of flat distributions (distributions that are not equalized) based on ADM. Pursuant to R.C. 3317.022 and 3317.023, the aid to be provided to a local district comprises the amount the district is entitled to receive under the foundation formula plus the amount of DPIA. The state also provides appropriations to school districts for categorical programming such as vocational and special education. R.C. 3317.024. There is essentially no equalization for funding of categorical programs, so that districts receive categorical aid without regard to school district wealth. According to the testimony of Oliver Ocasek, the President of the State Board of Education at the time of trial, the flat distributions for categorical aid represent a major flaw in the system of school funding and reduce the equalization effect of the foundation formula. Ocasek testified that the "main categoricals," such as special education, vocational education, and DPIA, have "never been fully funded." Rather, funding for those categories is accomplished by essentially siphoning funds that would otherwise be available for distribution under the foundation formula. In the words of Mr. Ocasek: "[A]s you take a pot of money and you deduct from that these fine categorical programs and for [DPIA], you, therefore, are siphoning away from the total pot of funds, which I think are basic, and the more categorical money we give, the less equalization money we have. That simple. I don't think you need to be a professor of school finance to say that."

The School Foundation Program contains certain guarantee provisions to ensure that a school district receives the greater of the program amount or the guarantee amount. See R.C. 3317.04 and 3317.0212. Thus, some districts receive guarantee payments from the state under the School Foundation Program rather than payments calculated pursuant to the foundation formula described above. Oliver Ocasek testified that the guarantee provisions disproportionately benefit the wealthier districts, compromise the equalization effect of the School Foundation Program, and represent a major defect in Ohio's system of school funding.

School districts are required to levy twenty mills for current operating expenses in order to participate in the School Foundation Program. See R.C. 3317.01(A). The twenty mills comprise both "inside" and "outside" mills. Inside mills are levied without approval of the electorate. Unvoted property taxes are limited to ten mills, with the ten mills spread among the various taxing units. See Section 2, Article XII of the Ohio Constitution and R.C. 5705.02. An average local school district in Ohio manages to raise revenue from approximately 4.6 of the ten available inside mills. Theoretically, a school district can raise an unlimited amount of outside millage, with the only limitation being that outside millage must be approved by the electorate. R.C. 5705.07.

For property tax purposes, real property in Ohio is divided into two classifications: Class I property, consisting of residential and agricultural property, and Class II property, consisting of all other real property, including commercial, industrial, public utility and mineral. See R.C. 5713.041; Section 2a, Article XII, Ohio Constitution.

Complicating the system of school funding in Ohio is the effect of certain tax reduction factors originally introduced into law with the General Assembly's enactment of Am.Sub.H.B. No. 920 (136 Ohio Laws, Part II, 3182, 3194). H.B. 920 was enacted by the General Assembly as a tax reduction measure. The provisions of law enacted by the General Assembly in H.B. 920 have themselves been amended on several occasions since 1976. A product of these various amendments is the current version of R.C. 319.301, which is very similar to the version of that statute in existence at the time this case was commenced.

As pointed out by the majority, the purpose of R.C. 319.301 (like the predecessor versions of that statute, including the version of R.C. 319.301 introduced into law by H.B. 920) is to limit the effect of inflation in property values on growth of real property tax revenues. These R.C. 319.301 tax reduction factors are applied when property values increase due to reappraisal or update. Pursuant to R.C. 319.301(A)(2), inside millage is not subject to tax reduction factors. Additionally, R.C. 319.301 provides that tax reduction factors do not apply to new construction growth or tangible personal property. The effect of R.C. 319.301 is that a school district will receive the same revenue from voted tax levies after reappraisal as it did before reappraisal, notwithstanding that real property valuation in the district has increased through inflation since the time of the initial tax levy. Thus, revenue derived from effective outside mills essentially remains frozen in time -- it does not increase through the life of the levy. As a direct result of the tax reduction measures first introduced by H.B. 920, local revenues cannot keep pace with inflation. To keep abreast of costs, many school districts have been required to propose additional tax levies. However, most of these additional tax levies have failed.

Since R.C. 319.301 tax reduction factors do not apply to new construction growth, see R.C. 319.301(B)(2)(a), (b) and (D)(1), school districts with new construction growth enjoy additional revenue from an increase in valuation, while districts with growth attributable solely to inflation do not. Moreover, R.C. 319.301 sets a floor of effective tax rate reductions at twenty mills for each class of real property. School districts that have reached the twenty-mill floor of reductions do not have their effective rates reduced further. R.C. 319.301(A)(2). Consequently, even if all other things are considered equal, school districts with increases in real property valuation receive differing amounts of local tax levy revenue depending on whether the district has reached the twenty-mill floor.

Suffice it to say that the effects of tax reduction factors are complicated, including the effects of "phantom revenue" discussed in the majority opinion. The effects are varied and uneven among Ohio's school districts, depending on the amount of real versus tangible personal property, the amount of inside mills a district has, the existence and extent of new construction growth, whether the district is at or close to the twenty-mill floor in either class of real property, and the extent of increases in real property valuation.

To supplement their budgets, school districts have been forced at an increasing and alarming rate to borrow heavily against future expected revenue receipts. Under the so-called spending reserve loan program, school districts are permitted to borrow against a subsequent year's revenue with approval of the Superintendent of Public Instruction. See R.C. 133.301. There is a statutory maximum amount that can be borrowed by a school district under the spending reserve program, but the Superintendent of Public Instruction may permit excess borrowing. Id. Obviously, where a school district borrows against a subsequent year's tax receipts, the district takes away resources for operations for the next fiscal year. Thus, as the trial court found, "[a] school district can get into a spiral where it is continually borrowing and paying back the following year. A school district, therefore, is always taking away from the future. Any time a school district does such borrowing into the future, it robs future generations of children." For some school districts, borrowing has become a way of life, leading to the proverbial spiral of debt.

School districts may also borrow from commercial lenders pursuant to R.C. 3313.483 et seq., the emergency school assistance loan program. However, school districts are required to borrow under the spending reserve loan program as a condition precedent to participating in the emergency school assistance loan program. See R.C. 3313.483(B). Pursuant to R.C. 3313.483(A), school districts may determine by resolution that they are unable to remain open for instruction on all days set forth in the adopted school calendar and are unable to pay their expenses. Such a determination may also be made by the Superintendent of Public Instruction pursuant to R.C. 3313.489. In either event, the auditor of state² must determine whether such a condition exists. If the auditor finds that the board of education has attempted to avail itself of all revenue sources available, the auditor must certify that finding to the Superintendent of Public Instruction and the State Board of Education and must also certify the amount of operating deficit the district will have at the end of the fiscal year. R.C. 3313.483(B). A school district that has been certified as having a projected operating deficit must apply for an ordinary commercial loan from a commercial lender or underwriter. R.C. 3313.483(D). If the application is rejected, the school district must submit to the Superintendent of Public Instruction a plan for reducing the district's budget and must then apply for a loan from a commercial bank, underwriter or other prospective lender. R.C. 3313.483(E)(1). The superintendent is required to review each budget reduction plan. The plan must include a repayment schedule in amounts sufficient to permit repayment of the principal amount of the emergency assistance loan, but apparently does not require reductions sufficient in amount to pay the interest on the emergency loan or to repay the principal and interest on any spending reserve loan. Thus, as the trial court found, for most school districts with outstanding emergency assistance loans, subsequent borrowing under the spending reserve loan program will be required.

The superintendent routinely recommends controlling board approval of an emergency school assistance loan for a school district that has completed the application process and has a certified projected shortfall of operating revenue. If a school district receives controlling board approval, the district may obtain the loan from a commercial lending institution. See R.C. 3313.483(E). Pursuant to R.C. 3313.483(E)(3), the loan is repaid by diverting funds otherwise available to the school district under the School Foundation Program to the commercial lender for repayment of the loan. R.C. 3313.483(E)(3) also provides that "[n]o note or other obligation of the board of education under the loan constitutes an obligation nor a debt or a pledge of the faith, credit, or taxing power of the state, and the holder or owner of such note or obligation has no right to have taxes levied by the general assembly for the payment of such note or obligation, and such note or obligation shall contain a statement to that effect."

Effective December 22, 1992, if a district receives an R.C. 3313.483 emergency loan of more than seven percent of the district's general fund expenditures and has already received an emergency loan under R.C. 3313.483 within the last five years, the district is subject to state supervision. See R.C. 3313.488 and 3313.4810. The State Board of Education may also subject a district to state supervision pursuant to R.C. 3313.487. School districts subject to state supervision are prohibited from making any expenditure of money, any employment, purchase or rental contract, giving any order involving the expenditure of money, or increasing any wage or salary schedule without written approval of the Superintendent of Public Instruction. R.C. 3313.488. The so-called receivership school districts (certain heavily indebted districts that have been subjected to the provisions of R.C. 3313.488) include school districts from large urban areas in Ohio as well as property-poor rural school districts. Twenty-five school districts were receivership districts as of December 23, 1992.

The School Foundation Program contains no express provision for the construction and maintenance of Ohio's public school facilities. Rather, the construction of public elementary and secondary schools in Ohio is primarily financed through the issuance and sale of school district bonds upon approval of the electors in the district. The bonds are repaid with the proceeds of property taxes levied on the taxable property of the school district for that purpose. With stated exceptions, districts are limited by law to a maximum bonded indebtedness of nine percent of the district's total property valuation. See R.C. 133.06(B). This amount is exclusive of, among other things, any emergency school assistance loan. R.C. 133.06(D)(4). However, "special needs" districts may apply to the Superintendent of Public Instruction for permission to exceed the nine-percent limitation. R.C. 133.06(E). A district may qualify as a special-needs district if the superintendent finds that (1) the district does not have sufficient additional funds from state or federal sources to meet projected needs, and (2) the projection of the district's potential average growth of tax valuation during the next five years indicates a likelihood of potential average growth of at least three percent per year. Id.

R.C. Chapter 3318, the Classroom Facilities Act, is essentially a loan program for the construction of public school facilities. Specifically, R.C. Chapter 3318 provides a means by which qualifying school districts may "purchase" classroom facilities from the state. See R.C. 3318.02. The process of obtaining state assistance under the Classroom Facilities Act for construction of public school facilities is extremely complicated. However, in general terms, this assistance is contingent on, among other things, the existence of adequate state funds, the approval of a school district's proposed project, the passage of a proposition by the electors in the district authorizing the district to issue bonds in an amount sufficient to bring the district to a required level of net indebtedness and authorizing a local tax levy for the purpose of paying the cost of the purchase from the state, and the execution of a written agreement between the State Board of Education and the local school district. See R.C. 3318.01 through 3318.08. Based upon the evidence at trial and the stipulations of the parties, the trial court made the following relevant findings of fact concerning the Classroom Facilities Act:

"In order to participate in Classroom Facilities Act funds, a district must be included on a 'list' of eligible districts. Lists are only created at such time as funds are available. After reviewing the applicants, the Department of Education conducts a statewide survey to determine those districts most in need of additional facilities.

"Approval for participation for Classroom Facilities Act funding involves an inspection by the Ohio Department of Education officials and a determination of the number and percent of inadequately-housed pupils, as well as a prioritization of school district applicants based on the percentage of inadequately-housed pupils that need to be housed with state money.

"From 1976 to the present time, there have been three lists of districts eligible for Classroom Facilities Act funding; the initial list was prepared prior to 1976 when Dr. Phillis became Assistant Superintendent of Public Instruction. A second list was prepared in 1984 and a subsequent list in 1989. The 1989 list was revised with one additional district being included in 1991.

"Plaintiffs' Exhibit 378 is a list of the 44 school districts who have been approved for classroom facilities assistance pursuant to the provisions of Chapter 3318 of the Ohio Revised Code. The list was adopted by the State Board of Education on December 20, 1989, and updated in 1991. The list describes a total of over $114,000,000 [sic, $414,000,000 according to the exhibit and the stipulations of the parties] in value of approved facilities needs. Of these school districts, 18 have been approved for school building assistance, passed the requisite levies, and funds have been made available for school construction. Twenty-six (26) school districts remain on the approved building list, for which no funds have been appropriated by the Ohio General Assembly.

"All the pupils identified as 'improperly housed' in 1989 in districts that have not received Classroom Facilities Act assistance continue to be improperly housed unless the school district has provided facilities without state assistance.

"* * *

"Because any school district beyond [those listed in Plaintiffs' Exhibit 378] [is] at least seven to nine years down the road before help will be available to them (assuming a level of appropriations by the General Assembly), the Division of School Building Assistance of the Ohio Department of Education accepts letters of intent from school districts, indicating their interest [in being] placed upon the approved school building assistance list. Stipulation Exhibit 52 lists those 50 school districts who have filed letters of intent with the building assistance office, including Plaintiff Northern Local School District.

"It is the intent of the State Board of Education to take care of all 44 districts set forth on the approved building assistance list, Plaintiffs' Exhibit 378, before the State moves on to any more districts. These districts must pass levies and their projects must be completed before any new schools will make it on to the approved buildings list.

"Classroom Facilities Act funds do not include funds for the equipment or operation of schools, but are limited to provision of school facilities only. [See R.C. 3318.01(B).]

"The state has final approval in the design of facilities funded with Classroom Facilities Act funds. [R.C. 3318.091.]" (Citations to evidence omitted.)

The parties have stipulated that as of July 1993, only $2,006,176.83 was available from the state to fund approved classroom facilities projects, not including, among other things, fiscal year 1994 and 1995 budgeted appropriations. In 1990, the Ohio Department of Education conducted a comprehensive survey of Ohio's public school facilities. The survey identified approximately $10.2 billion in needs for repairs and improvements for Ohio's public school facilities. The trial court reviewed the Classroom Facilities Act (R.C. Chapter 3318) and found the program to be seriously underfunded. A review of the record can lead to no other conclusion.

In 1989 and 1990, the Ohio Department of Education, at the direction of the General Assembly, conducted a statewide survey of Ohio's public school buildings. The survey cost approximately $3.5 million and involved an on-site review of each public school building in the state that housed pupils. The Facilities Survey was conducted by architects. There is no dispute that the survey represents a fair and accurate report of the conditions of Ohio's schools as of 1990. The results of the survey were published and submitted to the General Assembly. The survey is contained in the record as Plaintiffs' Exhibit 14 and identified $10.2 billion in needed improvements for Ohio's public elementary and secondary school facilities.

The Facilities Survey identified the need for over $153 million to make public school buildings accessible to the handicapped. However, the evidence demonstrates that given the requirements of the Americans with Disabilities Act ("ADA"), Section 12101 et seq., Title 42, U.S.Code, the $153 million in needs identified by the survey represents a substantial underestimation of the true costs involved in complying with applicable federal mandates. The survey determined that only about twenty percent of existing public school buildings in Ohio are satisfactory in terms of accessibility to the handicapped. The state of Ohio provided grants for architectural barrier abatement in fiscal year 1990 and 1991. Between that time and the time of trial, the General Assembly had provided no additional appropriations for barrier abatement in public schools. The amounts appropriated in 1990-1991 totaled $3.38 million. School districts were permitted to apply for a maximum of three grants for architectural barrier abatement. The grants were doled out on a first-come, first-served basis, without regard to the relative wealth of the districts applying for grant money. Seventy-six school districts that applied for grants received none. As of the time of trial, there were no funds available from the state or federal government to help pay for making public school buildings accessible as required by the ADA.

The Facilities Survey identified over $328 million in funds needed for the management of asbestos hazards in public school buildings. Funds are available to public school districts on the federal level for asbestos abatement. See, generally, Section 4011 et seq., Title 20, U.S.Code. However, federal funds are scarce. In this regard, the trial court made the following relevant findings of fact. In 1993, school districts in Ohio submitted $120 million in requests for funds to abate "Class 1" asbestos hazards to conform to the federal Asbestos Hazard Emergency Response Act, Section 2641 et seq., Title 15, U.S.Code. Only twenty-nine school districts received a total of $14.7 million in grants and loans for abatement of the Class 1 asbestos hazards. For fiscal year 1990, approximately $18 million was appropriated by the General Assembly for asbestos abatement in the public schools. The funds were available on a first-come, first-served basis. More than two hundred forty school districts submitted applications totaling $140 million in requests for the $18 million in available funds. Only sixty-three districts received any funding. For fiscal year 1991, thirty-four districts received asbestos abatement grants while more than one hundred fifty-eight districts that had applied for grants received none. Between 1991 and the date of trial, no further state funds were available for asbestos abatement. Aside from the scarce federal funds, no money was available to the districts for asbestos abatement other than local school district revenue.

Each of the appellant school districts was determined by the Department of Education to have greater facilities needs than could be paid for by the districts on a local level, even if the districts had no other indebtedness and even if the districts were capable of passing local bond issues to the maximum amount permitted by law. The trial court found that in addition to the appellant school districts, sixty-one percent of the school districts in Ohio are unable to meet the amount of their identified facilities needs.

The operation of the School Foundation Program, the emphasis of Ohio's school funding system on local property tax, the effects of the R.C. 319.301 tax reduction requirements, mandated school district borrowing through the spending reserve and emergency school assistance programs, imposition of state and federal unfunded mandates, and the inability or unwillingness of the General Assembly to provide sufficient funding for, among other things, the construction and necessary maintenance of school facilities have all combined to create a severe negative impact on Ohio's public schools. A review of the trial court's findings makes clear the various causes of the deplorable conditions in which some of Ohio's public school students are educated, as well as the nature and extent of such conditions. The trial court's findings of fact in this case are four hundred forty-eight pages in length and document the inequities and fundamental weaknesses of Ohio's system of school funding. None of the findings are challenged by the parties to this appeal. For the most part, the trial court's findings of fact were premised on the joint stipulations of the parties. Some of the trial court's findings and the evidence upon which the findings were based may be summarized as follows.

The formula amount provided through the School Foundation Program does not even come close to the average expenditure per pupil in Ohio, and the average per-pupil expenditure is outpacing the formula amount at an increasing rate. The fact that the formula amount does not reflect the true costs of education represents a substantial weakness in Ohio's system of school funding.

For fiscal years 1994 and 1995, the State Board of Education requested a $1.9 billion increase in funding. The General Assembly appropriated only $625 million in additional funds. The amounts requested by the State Board of Education and denied by the General Assembly were considered to be necessary for the education of Ohio's public school students.

Categorical program allocations to school districts through the School Foundation Program are not equalized. Wealthy districts receive the same unit funding as poor districts for, among other things, vocational and special education. Further, the amounts received for categorical programs such as vocational and special education are less than the actual costs of the programs, with poor school districts having less ability to make up the difference between the state funding provided and the actual program costs.

The guarantee provisions of the School Foundation Program diminish the equalization effects of the foundation program. For fiscal year 1993, over one-third of all school districts in Ohio received payments under guarantee provisions as opposed to the formula for state basic aid. A majority of the payments under the guarantee provisions go to the wealthier districts. The operation of the guarantee provisions of the School Foundation Program is considered by the State Board of Education to be a fundamental weakness in the way Ohio funds its schools.

The formula for determining Disadvantaged Pupil Impact Aid ("DPIA") does not accurately reflect the true costs of educating disadvantaged pupils in high concentrations of poverty. There is no predictability to the DPIA system of funding, and predictability in funding is an important aspect of financial management.

The amount of charge-off in the foundation formula does not accurately measure the ability of school districts to pay their local share of the basic program.

The cost-of-doing-business factors in the foundation formula apply equally to all school districts within a county regardless of the true cost of operations in the individual districts. The factors assume that costs are lower in rural districts as opposed to urban districts, but many costs associated with running a school district are not affected by the district's location in the state. Additionally, the cost-of-doing-business factors do not fully reflect differences in costs associated with school district operations and do not adequately account for differences in costs within counties.

The tax reduction factors of R.C. 319.301 severely limit growth of local property tax revenues. Consequently, school districts must repeatedly propose local tax levies to raise necessary funds. These increased numbers of proposals have met with increasing failure.

R.C. 319.301 and the effects of phantom revenue in the state aid calculation deprive school districts of necessary funding. Phantom revenue occurs where a school district has inflationary growth in real property valuation, receives no additional local tax receipts commensurate with the increased valuations, and receives less in state basic aid since the increased valuations increase the amount of the district's charge-off.

But for tax reduction factors, a total of more than $1.176 billion in additional revenues would have been available for Ohio's public schools in 1990 alone. As a result of the tax reduction factors, school districts lost over $1.472 billion in real property tax revenue in fiscal year 1992. In fiscal year 1992, tax reduction factors reduced property taxes statewide to the tune of 26.12 percent.

Ohio's system of school funding places so much of the burden for raising required revenues on the backs of the local school districts that it invites disparities among the districts. There is a strong correlation in Ohio between assessed property valuation per pupil and total expenditures per pupil. The top two hundred school districts in Ohio (ranked by assessed value per pupil) spend over $1,000 more per pupil per year than the bottom two hundred school districts. The result is that there are rich and poor school districts in Ohio. Specifically, there are districts in which per-pupil revenue and expenditure levels far exceed the per-pupil revenue and expenditure levels of other (less fortunate) schools.

The disparities in school district revenues and expenditures are not due to the lack of tax effort of the districts or the voters in the districts. The trial court found that "[f]iscal effort between the top and bottom deciles of assessed valuation per pupil indicates that although there is a revenue and expenditure disparity, the level of effort between the rich and poor is virtually uniform." The trial court also found that "[t]aking into account both the value of assessed property and the adjusted gross income as combined measures of ability to pay taxes, the poorest 200 school districts in Ohio actually exerted a greater level of tax effort in 1990 than the wealthiest 200 school districts."

Because one mill of local tax effort raises so little in districts with low assessed valuation, those districts have extreme difficulties in passing effective millage since (1) voters can ill afford to pay the increased tax, and (2) the benefits to the school district are minimal since property valuation is low. The extent of disparities in funds available to Ohio's school districts grew over the decade of the 1980s and continues to grow.

According to the testimony and the trial court's findings, Ohio is among the states with the greatest disparities in expenditures per pupil. In 1990, Ohio ranked forty-eighth out of the fifty states in the extent of disparity of revenue and expenditure per pupil.

Predictability and reliability of income are extremely important aspects of school finance. However, the system of school funding in Ohio does not provide stability of income to local school districts and adversely affects the ability of the districts to properly manage the operation of the public schools.

The trial court found that one of the driving forces behind the financial disparities in Ohio's system of school finance is the differences in Class II real property valuation among the various districts. The growth in inequity in the distribution of Class II property (property other than residential/agricultural) among the districts grew from 1981 through 1990 at a far greater rate than the growth in inequity in Class I (residential/agricultural) real property.

There is little industry in the Dawson-Bryant School District. Thus, most of the burden of local taxation is placed directly on the backs of the residents of the district. Average income is very low compared to other districts within the state. The residents of the Dawson-Bryant School District have little or no discretionary income with which to pay additional taxes. Twenty-five percent of the district's students are ADC recipients and a great percentage of the students qualify for free or reduced-price lunch programs.

With respect to the Lima City School District, the trial court found that "[p]eople who move into [this] district tend to be people who are moving to take advantage of low income housing. As a result, the individuals who attend the Lima City Schools tend to be poor." The trial court further found that "[t]he Lima City School District has not proposed the passage of additional tax levies to its voters because it has one of the lowest tax bases and one of the lowest per capita incomes of any school district in the State of Ohio, such that the tax payers of the District are already assuming a significant burden. * * * Thus, the existing tax burden, combined with an ever increasing population living below the poverty line makes the prospect of passage of an additional tax levy unlikely."

Northern Local School District has experienced rapid increases in enrollment as a consequence of an increase in the concentration of mobile homes. These homes are taxed at lower rates than permanent structures, and the influx of mobile homes has diminished the district's tax receipts. Given the lower tax rate, an influx of mobile homes generally harms a district by bringing in many new students without adequate corresponding tax revenue. Residents moving into the district tend to be poor and the ability of the district's residents to pay additional taxes has decreased over time.

The economic situation in the Southern Local School District is grim. Jobs are scarce and large coal companies have either reduced or ceased operations in the district. Additionally, the federal government has purchased large tracts of land in the district and does not pay any taxes on the property.

The economy of Youngstown has hurt the Youngstown City School District. The combination of steel mill closings and tax abatements to draw new businesses has had a devastating impact on the future viability of the Youngstown city schools. With respect to this district, the trial court made the following relevant findings:

"The Select Committee to Review and Study Ohio's Education System heard testimony from the Superintendent of the Youngstown City Schools that the Youngstown-Mahoning Valley area lost 40,000 jobs between 1977 and 1987, resulting in income loss to employee wage earners and loss of personal tangible property value throughout the area.

"The plant closings in Youngstown have made it very difficult for the school system to function. The closings have caused tremendous unemployment, increased numbers of people on ADC, increased numbers of students on free or reduced price lunches, increased numbers of single-parent families, increased latchkey situations, increased numbers of neglected children, and many people are functioning on a survival basis with food, clothing, and shelter needs.

"The total value of abated property in the Youngstown City School District grew from $4,073,310 in [1988] to $16,928,920 in 1992. Property in the district, exempt from taxation, was valued at $159,023,950 in 1992.

"In the Youngstown City School District, between tax year 1978 and 1987, the total assessed property value fell from slightly over $1 billion to $606 million, measured in 1990 dollars. By the 1990 tax year, total assessed value had fallen to $547 million.

"In Plaintiff Youngstown City School District, 1 mill of taxes raised about $62 for each student in 1979, $41 in 1987, and only $37 in 1990.

"The average daily membership (ADM) of the Youngstown City Schools has declined by about 1,866 students from 1982 to 1992. * * *" (Citations to evidence omitted.)

Property-poor school districts and others have been forced to borrow funds to meet their needs. The trend in borrowing has grown, with a growing number of school districts entering into receivership/state supervision. For some school districts, borrowing under the state's loan programs has become a way of life. The majority of these districts have low property valuation and have been unsuccessful in passing additional tax levy millage on more than one occasion. The magnitude of borrowing under the loan programs has become staggering, and most districts have very little chance of escaping from this vicious circle of mortgaging the future of Ohio's public school students.

As a condition to receiving emergency school assistance loans, school districts must borrow under the spending reserve loan program and must drastically cut expenditures. Cutting expenditures in anticipation of having to borrow funds is common financial practice. Thus, expenditure reduction is common among financially distressed school districts -- even those that have not entered into the emergency school assistance loan program.

School district plans for expenditure reductions submitted with applications for emergency school assistance loans normally include, as the first order of business, cuts in school administrators, classroom teachers and support personnel. The next largest area of expenditure reduction comprises materials, supplies and textbooks. Next are early retirement incentives, delay in the purchase of school buses, and cuts in maintenance costs. However, cuts in textbook purchases and maintenance usually occur long before a district applies for an emergency assistance loan. As a result of the cuts that must be made to receive a loan, educational programs are less effective. Reduction of classroom teachers, textbooks and supplies adversely affects educational opportunity.

At the time the trial court issued its decision in this matter, at least four of the "big eight" city school districts in Ohio had been approved for an emergency school assistance loan. These districts were the Youngstown, Akron, Cleveland and Cincinnati city school districts. The Southern Local School District borrowed money through the emergency assistance loan program in fiscal year 1992 and had instituted many cuts in staff, supplies and materials. These cuts had devastating consequences in the district, including a large number of students not passing on to higher grade levels due, at least in part, to the lack of available staff and the lack of sufficient teaching materials. If Southern Local needs to borrow additional moneys under the emergency assistance loan program, there is very little (if anything) the district could cut from its bare-bones budget for the required expenditure reduction plan. The trial court found that as of the time of trial, appellant Northern Local School District was the only district in Perry County not to receive an emergency school assistance loan. However, while Northern Local was not a loan fund district, it was considered a "borderline" school district.

Budget cuts and lack of funding have deprived the students in the appellant school districts of the educational opportunities available to other public school students in Ohio. The trial court found and the evidence confirms that students in the appellant school districts are not being provided with adequate textbooks, a sufficient number of teachers and support personnel, an acceptable level of guidance counseling and necessary supervision, sufficient laboratory equipment, opportunities for advanced placement, acceptable levels of vocational training, and a host of other resources, items and materials necessary to ensure the students a high quality education.

The appellant school districts have lost or are in the process of losing experienced teachers to districts that are able to pay higher salaries. Property-poor districts, including some of the appellant school districts, have been required to hire less experienced school teachers because they can be paid less. Poorer school districts, including some of the appellant school districts, have had great difficulty hiring necessary personnel. The trial court found that the salary schedule for Dawson-Bryant was inadequate to attract certificated teachers and was not competitive with the pay scales of other districts within the county or the state. Thus, Dawson-Bryant was losing good teachers to neighboring school districts and was in jeopardy of losing more for the same reason. The Lima City School District's average teacher salary was lower than all the other districts of its type in the state. Northern Local has lost teachers and administrators due to a lack of competitive salaries. The district has lost other teachers and support personnel as a result of budgetary reductions. Northern Local cannot hire experienced teachers because of a lack of funding. Rather, the district has been forced to hire inexperienced teachers whose salaries are lower. The average teacher salary for the Southern Local School District is one of the lowest in the state. For average teacher's salary, Southern Local ranks five hundred fifty-seventh in the state. The district has trouble recruiting teachers in certain specialized areas. The Youngstown City School District generally hires inexperienced teachers due to budgetary constraints. The district's salary schedule is not adequate to draw needed teachers and teachers with certain training into the community. Staff development and in-service teacher training for the appellant school districts and others have been woefully inadequate.

The curricula in the appellant school districts are severely limited. For example, at the Dawson-Bryant High School, there was only one science lab, which, as of February 1993, was in a general state of disrepair. Dawson-Bryant has been unable to implement model math and language arts curricula due to a lack of necessary resources and materials. Similar problems, to a greater or lesser degree, were being experienced by each of the appellant school districts.

Generally, reductions by a school district in the number of teachers, textbooks, materials and supplies directly affect the educational opportunity available to students. At the time of trial, the appellant school districts were financially unable to purchase required textbooks, and were using texts with missing pages and with ancient copyright dates. For some classes, there were no textbooks at all. There was evidence as to the inadequacies of school libraries. There were serious shortages of materials and supplies throughout the appellant school districts. Lima City, Southern Local, and Youngstown school teachers often spend a good amount of their own money to bring supplies to work. Teachers in the Southern Local School District are issued one or two boxes of paper that must last them the entire school year, and most teachers end up buying paper to bring to work. Not only is paper rationed in the Southern Local School District, but paper clips are rationed, time on the copier is rationed, and art supplies, chalk, and even toilet paper are rationed. The paper shortage is so severe in the Southern Local School District due to the lack of adequate funding that the district does not even provide employees with paychecks in envelopes. Resources are so scarce that to receive paychecks during the summer months, teachers must provide the district with an envelope and stamp if they wish to receive their checks by mail -- otherwise, the teachers must pick up their checks in person.

None of the appellant school districts are financially able to keep up with the technological training needs of the students in the districts, which makes it highly unlikely that the children of the appellant school districts will be able to meaningfully compete in the job market against those students from richer districts who receive a sufficient level of technological training.

The trial court found that as of October 26, 1993, approximately seventeen thousand Ohio high school seniors had not passed all parts of the ninth grade proficiency exam after having at least six opportunities to do so. The trial court also found that, on the average, pupils in school districts having lower levels of taxable property have lower passage rates on the test than pupils in districts with higher levels. Moreover, the trial court determined on the basis of the information available that "[p]upils from high socio-economic backgrounds have a greater likelihood of passing the ninth grade proficiency tests. Those same pupils generally attend schools that have greater levels of expenditure per pupil." Additionally, the trial court determined that the percentage of pupils passing all parts of the ninth grade proficiency test from the appellant school districts is substantially less than the passage rates for the wealthiest quintile of school districts in the state.

As of the fall of 1993, thirty-two out of ninety-nine seniors in the Dawson-Bryant Local School District had not passed all parts of the ninth grade proficiency test. By contrast, only one out of one hundred high school seniors in the Beachwood City School District near Cleveland (a school with a large per-pupil expenditure) had not passed the ninth grade proficiency test. That one student, however, had passed all but one part of the test. Further, that student had been diagnosed as having severe learning problems. In the Lima City School District, seventy-two out of two hundred sixty-eight seniors had not passed and were in danger of not receiving a diploma. As of the time of trial, only fifty-three percent of the juniors and thirty-seven percent of the sophomores had passed all parts of the test. As of the fall of 1993, thirteen out of one hundred fifty-four seniors at Northern Local had not passed all parts of the proficiency test. As with all of the appellant school districts, the Northern Local School District does not have sufficient funds to stop the high rate of failures. Those funds that are available for intervention are expended, but that merely takes away opportunities from other students who are in need of attention. As of the time of trial, sixteen out of seventy-nine seniors in the Southern Local School District had not passed all parts of the ninth grade proficiency test. As of November 1993, three hundred of seven hundred seventy-three seniors in the Youngstown City School District had not passed all parts of the test. The trial court found and the evidence suggests that the massive test failures would result in an increased student dropout rate. Most inmates in Ohio's correctional institutions lack a high school diploma. Obviously, the lack of a high school diploma deprives individuals of a number of opportunities in life.

The evidence in this case and the trial court's findings of fact pertaining to the condition of the school buildings in the appellant school districts and others provide compelling proof of the economic despair created by Ohio's system of school funding. Some of the trial court's most disturbing findings relating to the condition of the facilities and the evidence upon which the findings are based may be summarized as follows.

At the time of trial, there were four school buildings in operation in the Dawson-Bryant Local School District: Monitor Elementary, Deering Elementary, the intermediate school building, and the Dawson-Bryant High School. Dr. Lee R. McMurren, then superintendent of the Beachwood City Schools near Cleveland, testified concerning a tour he had taken through the Dawson-Bryant School District. According to McMurren, the materials used in the classrooms were worn and outdated. He observed special education classes and testified that the types of classrooms used to educate the students were a disgrace to the state of Ohio and to all Americans.

At the time of trial, Monitor Elementary had no location for breakfast or lunch programs, no appropriate location for art and music classes, and no location for a physical education program. There were no nursing facilities in the event a child became ill. The library was small and dark, and could house only about ten children at a time, with no room for the children to sit down and browse through books. The building was not accessible to the handicapped. The electrical wiring in the building limited the use of technology. At Monitor, if more than three teachers plugged in fans at the same time, the breaker switch would kick off because the wiring cannot handle the electrical current.

Deering Elementary was not accessible to the handicapped. Handicapped students had to be carried to certain locations in the building. There were no nursing facilities at Deering. Evaluations for identifying and placing handicapped students were performed in a former closet with one light bulb hanging from the ceiling and no heating or ventilation. Part of the assessment required evaluation of fine motor activities which were extremely difficult to perform in an unheated closet in the depth of winter. The trial court found and the evidence indicates that from August 23, 1993 to August 30, 1993, the average afternoon temperature in the Deering Elementary building was one hundred degrees downstairs and one hundred fifteen degrees upstairs and in the cafeteria.

The intermediate school building was out of compliance with EPA emissions standards. The coal heating system in the building was a health hazard. Coal dust could be seen in the air within the building. The area used for a band room was a former coal bin with no ventilation and no windows. There was no kitchen or cafeteria in the building and no free breakfast program could be offered. The building had no science laboratories and technology in the school was limited. There was one shower room in the school, which was shared by boys and girls. There was no art or music room. Special education class was held in a former storage area. The Ohio Department of Education had informed Dawson-Bryant of the need to move the special education classroom; however, there was no place to move. From August 23, 1993 to August 30, 1993, the average temperature in the building exceeded ninety-five degrees.

There was no band or music room at Dawson-Bryant High School. The library was located in a modular building that was not readily accessible to students. Water and gas stations in the science laboratory were not functional. Two special education classes were held in former storage areas. The kitchen and cafeteria were insufficient to serve the students' needs. Classrooms were cramped and noisy. The high school had coal-fired boilers which emitted hazardous coal dust into the building. The only rooms in the entire building with hot water were the home economics room, the cafeteria, and the locker room. None of the restrooms had hot water.

In May 1993, the Dawson-Bryant Local School District was successful in passing a bond issue that will allow the district to participate in the public school building assistance program under the Classroom Facilities Act (R.C. Chapter 3318). At the time of trial, the new facilities were expected to be completed in 1995. The district's plans included closing Monitor Elementary and the intermediate school buildings, making renovations and additions to Deering Elementary to provide a centralized facility for kindergarten through fifth grade, modifying and renovating the high school into a middle school facility, and building a new high school. However, the trial court found that significant problems will remain even after completion of the project due to the lack of sufficient funding.

The trial court found that the Lima City School District cannot raise enough money through the passage of a construction levy to meet its facility needs. At the time of trial, the district operated sixteen school buildings that housed pupils, i.e., eleven elementary school buildings, three middle schools, a high school and an alternative high school.

Three of the elementary school buildings were built in the 1920s and contained significant amounts of asbestos in the ceilings and piping. The plumbing in the buildings was deteriorating and there was great need for updated electrical service. To provide new electrical service would be extremely costly, since running additional wiring through the floors or ceilings would disturb the asbestos, resulting in substantial effort and expense to prevent friable asbestos from escaping into the air. At the time of trial, only one of the eleven elementary schools was accessible to the handicapped.

South Middle School in Lima is an ancient building. Testimony established that its electrical problems are so bad that maintenance personnel have to wear rubber gloves and rubber vests to work on the electrical panel. In the fall of 1993, a portion of the exterior of the building collapsed onto a sidewalk. Fortunately, there were no injuries to students who used the sidewalk to enter and leave the building. Certain portions of the building that did not collapse are similar in design to the portion of the building that did collapse. Thus, the building is in great need of repair. Lima operated a total of three middle schools, none of which met ADA requirements for accessibility to the handicapped.

At the time of trial, Lima Senior High School had asbestos in every room in the facility. The facility housed approximately one thousand four hundred students. Testimony established that any structural work on the high school is difficult because it disturbs the asbestos, resulting in substantial costs connected with monitoring and encapsulation. As one extreme example of the problem, a shop teacher at the high school removed a dust collection system in a room and disturbed some friable asbestos, costing the district $15,000 to make the room safe for students.

The trial court found that the Lima City School District is unable to engage in any preventative maintenance of its school facilities and that it repairs its facilities on an emergency-needs basis. Further, the court found that the district needs only seven elementary schools as opposed to the eleven in operation, but that the district is unable to reorganize elementary programs because to do so would require a new larger school building which the district cannot afford.

At the time of trial, many of the school buildings in the Youngstown City School District were in a state of disarray with bad roofs, overcrowded classrooms, and a host of other problems. Building maintenance was performed on an emergency basis only. The 1990 Facilities Survey identified approximately $67 million in needs for the Youngstown schools. Very few of these needs had been addressed by the time of trial. All capital improvements had been put on hold due to a lack of funds. Overcrowding and high student-to-teacher ratios had become common in several of the school buildings. Asbestos removal and architectural barrier abatement needs could not be met due to lack of funds. The following findings of fact by the trial court sum up the state of affairs in many of the Youngstown city schools, and provide a unique perspective on the educational opportunities available to pupils in the Youngstown City School District:

"The John White Elementary School building has a metal building addition that * * * [i]n the summer * * * heats up during the day so the students can hardly bear to be in their rooms, and in winter it stays so cold there is often frost on the interior walls. The building also houses special education and remediation students in a portable unit. The library * * * has been divided to create more classroom space, so there is not sufficient library space. There is no computer lab[;] computers are placed on carts for intervention classes.

"* * *

"The Lincoln Elementary School has some grades which are overcrowded, computers on carts, and insufficient recreational space. The playground doubles as a parking lot for staff and a shooting gallery for the neighborhood.

"* * *

"The Martin Luther King Elementary School is beginning to have extensive roof leaks which the district has been unable to address due to lack of funds. The building is not handicapped accessible. The Martin Luther King Elementary building has security problems, and equipment has been stolen from the building.

"Taft Elementary School is overcrowded, and the first grade classes in 1992-93 school year had 33, 34 and 35 students, respectively. Some parents voluntarily agreed to allow the district to transport their students to other buildings in the district just to get the first grade classes down to a 30 to 1 ratio. * * *

"* * *

"Volney Rogers Junior High School is the only junior high in the district with a science lab. There are no science labs at the other junior high schools because they are extremely expensive to install and the district cannot afford to use the classroom space to put in science labs. At Youngstown, the first lab courses are offered as a sophomore in high school." (Citations to evidence omitted.)

In all, the record is clear that the facilities in the Youngstown school district are wholly inadequate to meet the district's needs.

Recently, the Southern Local School District was successful in obtaining funds under the Classroom Facilities Act together with the passage of the necessary tax levy and bond issue to provide new school facilities in the district. However, the need for the new facilities had existed since 1980. The Southern Local School District had over eight hundred improperly housed students identified in connection with its application for Classroom Facilities Act assistance. The trial court's findings concerning the state of the Southern Local schools prior to the completion of the renovation project are nothing less than staggering, and the fact that the schools were ever allowed to reach that point is simply outrageous. This case was commenced in 1991. Some of the trial court's findings concerning the Southern Local schools as they existed up to and during the time this case was litigated convincingly demonstrate how far some of Ohio's districts have sunk under the current system of school funding:

"When Superintendent [Carol] Spangler was employed in August 1991, elementary students were house[d] at New Straitsville Elementary, Corning Elementary, and Moxahala Elementary; junior high students were housed at Miller Junior High at Shawnee, and high school students were housed at Miller High School. The New Straitsville and Shawnee buildings were built around 1915, with Shawnee having some additions after that. Moxahala and Corning were both built in the 1920s.

"As a result of the lack of resources for comprehensive maintenance and upkeep, all of the buildings, other than the high school, were in very poor condition in 1991 when Ms. Spangler became Superintendent. The heating, electricity, ventilation, plumbing, and sewage systems in the elementary and junior high buildings needed comprehensive repair. The sewage system at New Straitsville Elementary would flood over State Route 93 on occasion. Incidents such as the temperature in Moxahala's gym being only 20 degrees were not uncommon. * * * Asbestos was a primary concern in the elementary and junior high buildings. At Shawnee, the major part of the building was constructed with asbestos in the lower layer of the plaster. Because plaster was falling, some mornings the custodian and principal at the Shawnee building would go into rooms and knock plaster off the ceilings so that big chips would not fall on students during the day. * * * At Shawnee, the roof leaked, the lighting was poor, the heating was inconsistent, and there was no hot water in the bathrooms.

"Louis Altier, President of the Southern Local Board of Education, testified that he has farm animals that are housed better than students were housed in the Shawnee building. Whereas his animals were dry and warm, that could not be said about the students in the Shawnee building.

"The district did not have the financial resources to completely replace electrical systems and plumbing systems, to remove asbestos, and to perform the comprehensive maintenance that was necessary to keep the buildings in a safe condition.

"* * *

"Chris Thompson attended the New Straitsville Elementary for kindergarten, for the two weeks he spent in 2nd grade before being advanced a grade, and for 3rd grade (1984-85 and 1986-87). The building gave Christopher 'a dirty feeling.' There was plaster falling off the walls and ceilings and cockroaches had been seen crawling on the floor in the restrooms. Chris avoided using the restrooms at all while at school; he waited the entire school day to use the bathroom at home. The gymnasium floor was warped and it was so small that Chris found it difficult to play some sports because students would run into the walls. * * * The library was very small with inadequate book supplies and with outdated books. Following a storm, the roof leaked and a large piece of the ceiling fell onto the floor and the library was closed for about two to three weeks. * * *

"In the 4th through 6th grades, Chris Thompson attended the Corning Elementary building (1987-88 and 1989-90). The building was very dirty, the bathrooms had cockroaches and other creatures crawling on the floors, possibly silverfish. A leaking roof was a real problem. In math class, water dripped like a waterfall from the ceiling into a bucket after rains. Sometimes, the students had to ask the teacher to be moved because the water was splashing on them. After a hard rain the night before, the constant drip into the bucket was very annoying. The library at Corning was very small with an inadequate supply of books and with outdated books. The science room was next to the furnace room, which made the science room very noisy, and it was hard for the students to concentrate or to hear the teacher talk. Plaster was falling off the walls at the Corning building.

"Chris Thompson attended the Shawnee building for the 1st grade (1985-86) and for the 7th and 8th grades (1990-91 to 1991-92). In the six years between his 1st grade and the 7th grade attendance, the building really had not changed much. The floors at Shawnee were warped, plaster was falling off the walls, and there were large holes in the walls in the front part of the building. * * *

"When Chris Thompson was at Shawnee, the gymnasium had a leaking roof, and at one time part of the gym was flooded due to leakage. When a ball hit the ceiling while students were playing kickball or volleyball, part of the ceiling came down. The locker rooms below the stage area and adjacent to the gym had almost no water pressure, stunk, and were unfit for student use. Students changed clothes in two storage rooms next to the stage, but had no shower facilities available.

"When Chris Thompson began to attend high school, the high school building did not have heat due to construction and renovation of the heating system in the fall of 1992 until the end of November or the beginning of December. Students had to wear coats and gloves to classes, and were subjected to fumes from large kerosene heaters when the building got very cold.

"* * * All of the pupils who attended the elementary and middle school buildings at Southern Local remained improperly housed until the fall of 1993." (Citations to evidence omitted.)

As a result of the passage of a 1990 local tax levy and state assistance provided through the Classroom Facilities Act, the district completed, in 1993, the construction of new elementary and middle school facilities. Shawnee, Moxahala, New Straitsville and Corning schools were closed. The new facilities have had a very positive effect on students and their performance. However, the new facilities have still left the district with numerous unmet facility needs. Miller High School was somewhat improved during the construction project, but the improvements were not nearly sufficient to correct the ills plaguing that facility. The district apparently does not raise enough funding to properly furnish the new facilities and will likely be unable to keep the new facilities in a state of good repair. Further, the district faced (and probably still faces) a problem as to what to do with the facilities that are no longer in use. It was estimated that to demolish Shawnee would cost the district $800,000. The district owns three other facilities that are no longer in use as schools. The district needs money to deal with these properties in a responsible manner.

The plight of the Northern Local School District is truly tragic, as reflected by the trial court's findings of fact. As of the time of trial, Northern Local was thirtieth in line to get on the list of school districts approved for Classroom Facilities Act funding. The significance of this fact should not be overlooked. If Northern Local was not immediately entitled to funding for its facilities, it makes me wonder how disastrous the situation is in other school districts across this state and how long it will take for the needs of the districts to be addressed under the current system of school funding.

In July or August 1992, the bricks were bulging out near the parapet at the north end of the Somerset Elementary School. An engineer examined the building and recommended that it be closed. The Department of Education inspected the building and observed that the bricks on the parapet walls were bowed out and represented a hazard to pupils. The Department of Education strongly recommended that the facility be closed for safety reasons. The school district sought emergency financial help from the Department of Education and others, but was told that there was no money available to aid the district in addressing its emergency situation.

In October 1992, the Northern Local School District Board of Education decided to close the Somerset school building. Before the building was closed, the district erected scaffolding around the entire building and canopies over doorways to protect students from falling bricks. When Somerset was finally closed, some of the students were required to be temporarily educated in facilities within the New Lexington School District. Busing the children to New Lexington on a daily basis resulted in the children missing part of the school day. As a result of the closing of Somerset Elementary, classes throughout the Northern Local School District had to be rearranged to accommodate the displaced Somerset school students.

At the time of trial, Glenford Elementary School was housed in two separate buildings. The windows and roofs of both buildings leaked, the lighting was bad, and the restroom facilities were deplorable. State Route 204 runs between the two buildings. The road is heavily traveled, especially by trucks transporting sand. Kindergarten through second grade students must cross the highway up to five times a day for, among other things, lunch and recess. The restrooms smell bad, look terrible, and are in need of replumbing. Because of limited class space, kindergarten students must climb three flights of stairs to use a bathroom. The roof in one of the buildings leaks even when it is not raining due to water trapped between layers in the roof. In November 1992, the Ohio EPA found high levels of arsenic in the water wells that service the Glenford school buildings. The district sought financial aid from the state to address this problem, but no aid was forthcoming.

At Thornville Elementary, the roof and windows leak continually. Particle board was placed over peeling plaster. In the summer of 1993, when a piece of particle board was removed, maggot and ant infestations were discovered. The mortar is decaying and needs to be replaced or repaired.

Recently, Northern Local was informed by an engineer employed to study the district's facility problems that if the Thornville and Glenford buildings were not renovated they would have to be closed. Given the debt limitation of R.C. 133.06, the district could not borrow enough to construct a building complex to house students in kindergarten through eighth grade. To build such a building, the district would have had to generate somewhere between $14 and $15 million. As of November 1993 the total assessed valuation in the district was approximately $90 million. The R.C. 133.06 debt limits restrict the district to nine percent of the district's total assessed valuation except under specified conditions. Thus, a new complex was not an option. Accordingly, the school board proposed to renovate Glenford, Thornville, Somerset, and the junior/senior high complex to meet the district's needs. To achieve that goal, the board put a $6.5 million bond issue before the voters in May and August 1993. The issue failed. The board placed another bond issue before the voters in November 1993 for $6.3 million (5.26 mills), which would not have been nearly enough for the district to take care of its facilities needs. That issue failed as well. The trial court found that the facilities in Northern Local "had not changed in the past 20 years."

The history of some of Ohio's constitutional provisions relating to education is simply fascinating. Some of the history is set forth below to emphasize the important role education has played in the development of our state and nation.

Following the Revolutionary War, the Confederate Congress, in the Land Ordinance of May 20, 1785, provided for the surveying and sale of lands in what was then known as the Western Territory. That territory, as described in the ordinance, included lands that would eventually become Ohio. In the Land Ordinance, Congress reserved one thirty-sixth of every township in the Western Territory expressly for the maintenance of public schools, stating: "There shall be reserved the lot No. 16, of every township, for the maintenance of public schools within the said township." 1 Laws of the United States 563, 565. Since the townships under the congressional survey were to be six miles square, this meant that a section of every township measuring one mile square would be devoted to educational use. Spayde, Lewis & Jollay, Baldwin's Ohio School Law (1984) 2, Section 1.03. "It was the intention of Congress in making this generous grant that these lands, approximately 704,488 acres in all, intelligently managed, would support the public schools of the state in perpetuity, so that there would be no need to tax the citizens for the cost of operating the public school system." Id.

Following the enactment of the 1785 Land Ordinance, a group of land speculators incorporated to form the Ohio Company of Associates. See, generally, IV Dictionary of American History (1940) 162-163. This group, represented by Reverend Manasseh Cutler, contracted with Congress for the purchase of a large section of the public lands northwest of the Ohio River. Id. The terms of the negotiated agreement stipulated support for public education, requiring that lot No. 16 of each township was to be given perpetually to the purposes stated in the Land Ordinance of 1785, i.e., the maintenance of public schools. The agreement also included a provision that not more than two complete townships of good land were to be given perpetually to the purposes of a university. See, generally, Swan, Land Laws For Ohio (1825) 15-25 (documenting provisions of law leading to the acquisition of lands by the Ohio Company of Associates). The provisions of this agreement formed the basis for other land purchases in the Ohio country. Id. at 26 et seq.

In 1787, the Confederate Congress enacted the Northwest Territory Ordinance to provide for the government of the territory and the eventual establishment of states northwest of the Ohio River. The Northwest Territory Ordinance of 1787 provided, as an article of compact between the original states and the inhabitants of the territory northwest of the Ohio River, that: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Section 14, Article III, Northwest Territory Ordinance of 1787. 1 Laws of the United States 475, 479. The means of forever encouraging the schools had been set forth in the Land Ordinance of 1785, in which lot No. 16 of every township was reserved for the maintenance of public education.

The Land Ordinance of 1785 and the Northwest Territory Ordinance of 1787 set the stage for the development of the Northwest Territory into stabilized promised lands. The plan for stabilization revolved around a means of public education. Hyman, American Singularity (1986) 23-24, states that:

"Visions of the West as a nursery of republican virtues over a vast continent whose very boundaries were still unknown in 1787 excited Confederation congressmen in New York City and the framers of the Constitution in Philadelphia. Fee-simple ownership by large numbers of smallholders would transform the frontier, where civilization was at risk, into settlements where morality and laws (including the responsibilities to repay debts) would be honored and national cohesion maintained. Publicly supported education, a topic of the 1785 and 1787 statutes, would create literate, free farmers who would staff the governments sketched in the 1787 law. Because settlers derived their titles to land and attendant property from the nation, these unservile land-busters and their children, whose right to education was also a statutory duty of government, would be linked in grateful loyalty to the nation and to the new state they had conceived.

"This goal of linkage makes understandable why the Northwest Ordinance implanted commitments to public education in the territorial chrysalis of future states. In planning the republic, most supporters of the Constitution and the ordinance espoused not-yet Federalist 'loose construction-internal improvement' doctrines and policies. In addition to advocating roads, turnpikes, canals, and forts, such supporters gave priority to various forms of public education, all aiming to make the frontier quickly interdependent with the dismayingly distant East. * * * Therefore, the 1787 Ordinance is known for its Article III, on schools: 'Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.'" (Footnote omitted.)

On November 1, 1802, delegates assembled in Ross County, Ohio, for the purpose of establishing a state government and constitution for Ohio. The delegates expressed their views on the fundamental importance of education by adopting, as part of the Ohio Constitution of 1802, two significant provisions. Specifically, Section 3, Article VIII of the Ohio Constitution of 1802 repeated the requirement of the Northwest Territory Ordinance that schools and the means of instruction must forever be encouraged. Section 3, Article VIII of the Ohio Constitution of 1802 provided, in part: "But religion, morality and knowledge, being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision, not inconsistent with the rights of conscience." (Emphasis added.) In addition, the delegates at the 1802 Constitutional Convention agreed to the following language contained in Section 25, Article VIII of the 1802 Ohio Constitution: "That no law shall be passed to prevent the poor in the several counties and townships within this state from an equal participation in the schools, academies, colleges and universities within this state, which are endowed, in whole or in part, from the revenue arising from donations made by the United States, for the support of schools and colleges; and the doors of the said schools, academies and universities, shall be open for the reception of scholars, students and teachers, of every grade, without any distinction or preference whatever, contrary to the intent for which said donations were made." Clearly, given the munificent land grants by Congress in support of public education, the framers of the 1802 Ohio Constitution had great expectations that Ohio's public school system, aided by legislative provision, would be adequate to afford an outstanding education (not just a rudimentary education) to the entire population.

Ohio's second Constitutional Convention occurred in 1850-1851. Similar to the provisions of Section 3, Article VIII of the Ohio Constitution of 1802, Section 7, Article I of the Ohio Constitution of 1851 provides, in part: "Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction." (Emphasis added.) Additionally, underscoring the importance of intellect and instruction, the delegates to the 1850-1851 Ohio Constitutional Convention devoted an entire Article of the Constitution (Article VI) to the subject of public education.

Section 2, Article VI of the Ohio Constitution, which has remained unaltered since its adoption in 1851, 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; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this State." The debates from the 1850-1851 Constitutional Convention provide some insight into the purpose of Section 2, Article VI of the Ohio Constitution.

The delegates to the 1850-1851 Ohio Constitutional Convention clearly viewed education as the duty of government and the right of all people regardless of their station in life. During the convention there were heated debates over the subject of education. For example, on Wednesday, December 4, 1850, the convention considered a report of the standing committee on education. 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 10. The report recommended adoption of three sections, one of which provided: "The General Assembly shall make such provision by taxation and other means (in addition to the income arising from the irreductible fund) as will secure a thorough and efficient system of Common Schools, free to all children in the State." Id. at 11. During the debates concerning this section of the report, William Sawyer of Auglaize County rose to propose an amendment that free public education be provided to white children only. Id. The proposed amendment did not fare well at the convention. James Taylor of Erie County rose to address the proposal. Portions of his stirring speech are entirely worthy of quotation here. Directing his comments to the racist inclinations of Mr. Sawyer, Taylor stated:

"I confess, sir, that I am surprised. I did not expect that a motion of this kind would be made by any gentleman on this floor. I did not, on the other hand, suppose that any proposition to extend the political rights of the colored citizens of Ohio would be adopted; but I had supposed that a knowledge of the law of self-preservation would have suggested to the gentleman from Auglaize [Mr. Sawyer] and to every gentleman upon the floor, that it would be good policy to give to all within the reach of our laws a good moral and intellectual training. I knew that this Convention was not prepared to increase the political rights of the black man; but I had hoped that all were willing to provide against his becoming the pest of society, by being deprived of all opportunities for education. Shall we not secure protection to ourselves and our children by relieving the colored population of Ohio, from the absolute necessity of growing up in vice and ignorance? Shall we, by the adoption of the amendment of the gentleman from Auglaize, 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. * * *

"* * *

"* * * Education will tend to make men moral and useful members of society, therefore let us provide for the education of every child in this state." Debates at 11.

William Bates of Jefferson County stated:

"View this question as you will -- as a matter of morality or of political economy, a question of right or expediency, the State would materially suffer if a provision to exclude any class of children from the benefits of common schools, should be engrafted in the new Constitution. The experience of the past has shown that morality and virtue keeps pace with education and that degradation and vice are the inevitable results of ignorance. Good policy, humanity, and above all, the spirit of the Christian religion, demands that we should provide for the education of every child in the State." Debates at 13.

Following Mr. Taylor's and Mr. Bates's statements and others, a motion was made to amend the section of the report to provide for a set amount of annual expenditures for the purpose of securing a thorough and efficient system of common schools available to all children in the state. Debates at 13. While this proposal was not adopted, it drew many statements reflecting how strongly the delegates felt about the importance of education. For example, consider the eloquent speech of Samuel Quigley of Columbiana County, a physician:

"The third section of the report directs 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 in this section is expressive of the liberality worthy [of] a great State, and a great people. That this is an age of improvement and progress is admitted by all who are acquainted with the great and important transactions of the present century. That a spirit of education is increasing in our beloved country is known from common observation, and should not only be hailed, but cherished with delight.

"Science has dispelled the darkness from our land which for ages benighted the inhabitants of the old world, and gave the tyrant power to sway an iron sceptre over their subjects, and by discouraging instruction and keeping them in ignorance, perpetuated their servitude -- continued them in degradation -- shackled with despotic chains, not knowing that they were men capable of being free and governing themselves. This condition of things has become changed -- intelligence, the truth of divine revelation -- liberty of conscience -- self-government -- freedom of the press -- free and fair discussion, together with freedom of thought, have brought our free citizens from under the dominion of tyranny, declaring and demonstrating to the world that great truth, that men are born free and equal and capable of governing themselves. Had not knowledge been shed upon the human understanding, all would have remained in the darkness of heathenism, and governed by superstition and fanaticism, our country would have still borne testimony to savage cruelty; the banks of our majestic Ohio would have been the theatre of the war dance and deeds of savage cruelty.

"* * *

"Intelligence is the foundation-stone upon which this mighty Republic rests -- its future destiny depends upon the impulse, the action of the present generation in the promotion of literature. Will we not, are we not, as patriots, bound in solemn duty to use our energies, our influence to forward this greatest of interests to present and future generations; and especially will the great State of Ohio fall short in so mighty an enterprise -- so essential and indispensable a duty? * * * Arouse, then, citizens of Ohio, to your best interests, and show that you are not only able to compete in agriculture, in public improvement, in commerce -- yes, and in the battlefield, with other States, but also in intelligence." Debates at 14-15.

One of the delegates (William Hawkins of Morgan County) provided particularly clear insight into the concept of a "thorough and efficient" system of public education. He was "opposed to too great minuteness in the detail of our Constitution" concerning the specifics of education, but observed, "[W]e are warranted by public sentiment in requiring at the hands of the General Assembly a full, complete and efficient system of public education." (Emphasis added.) Debates at 16. He stated: "Enjoin upon the Legislature the duty of establishing an efficient system [of education], and we shall have done our duty." Id.

Following these and other discussions, the report was recommitted to the standing committee on education. Debates at 18. Its revised report recommended adoption of the following:

"The General Assembly shall make such provisions, by taxation or otherwise, as, with the income arising from the school trust funds, will secure a thorough and efficient system of common schools throughout the State, and place the means of instruction in the common branches of education, for a suitable portion of the year, within the reach of all the children therein, of suitable age and capacity for learning; Provided, that no religious or other sect or sects, shall ever have any exclusive right to, or control of any part of the school funds of this State." Debates at 698.

John Larwill of Wayne County moved to amend the first line of this section by striking the word "shall" and inserting the word "may." Id. at 699. The proposed amendment was rejected without discussion. Mr. McCormick of Adams County then moved to amend the same section by striking out the words "a suitable portion," and substituting in lieu thereof the words "at least six months." Id. This and other proposals concerning the length of the school year were rejected upon a majority consensus that such matters are to be left for the legislature to determine. Debates at 699 et seq.

The eventual product of the debates was the current version of Section 2, Article VI, mandating that 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." As the Supreme Court of West Virginia recognized in reviewing the debates surrounding the adoption of Section 2, Article VI of the Ohio Constitution:

"There was no explicit definition of the words 'thorough and efficient' that appeared in the final committee report which the 1851 Ohio Convention adopted. The tenor of the discussion, however, by those advocating the entire education section as it was finally adopted, leaves no doubt that excellence was the goal, rather than mediocrity; and that education of the public was intended to be a fundamental function of the state government and a fundamental right of Ohioans." (Emphasis added.) Pauley v. Kelly (1979), 162 W.Va. 672, 685, 255 S.E.2d 859, 867.

The trial court found that education was a fundamental constitutional right and that Ohio's system of school funding violated Section 2, Article VI, requiring the General Assembly to provide a thorough and efficient system of common schools. Other constitutional provisions the trial court relied upon in striking down Ohio's school funding laws are as follows:

(1) Section 2, Article I of the Ohio Constitution, which provides that:

"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the General Assembly."

(2) Section 26, Article II, which states:

"All laws, of a general nature, shall have a uniform operation throughout the State; nor shall any act, except such as relates to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this constitution."

(3) Section 3, Article VIII, which states:

"Except the debts above specified in sections one and two, no debt whatever shall hereafter be created by or on behalf of the State."

(4) Section 4, Article XII, which states:

"The General Assembly shall provide for raising revenue, sufficient to defray the expenses of the State, for each year, and also a sufficient sum to pay principal and interest as they become due on the state debt."

While I have reviewed them, I make no comment regarding items (2), (3) and (4) immediately above because comment is not necessary in arriving at the conclusions reached herein.

In Walter, 58 Ohio St.2d 368, 12 O.O.3d 327, 390 N.E.2d 813, this court reviewed constitutional challenges to the General Assembly's enactment of the Equal Yield Formula for computing state aid. See discussion in Part II, supra. The formula was designed to provide an equal sum of combined state and local funds, on a per-mill per-pupil basis, for each qualifying school district. The formula provided a two-tiered system of funding -- every school district received an amount per pupil per mill for the first twenty mills and additional amounts were given to each school district with millage above twenty mills up to thirty mills. The court in Walter discussed the applicable test for determining whether the Equal Yield Formula violated the Equal Protection Clause of the Ohio Constitution, stating:

"Simply stated, the test is that unequal treatment of classes of persons by a state is valid only if the state can show that a rational basis exists for the inequality, unless the discrimination impairs the exercise of a fundamental right or establishes a suspect classification. * * * If the discrimination infringes upon a fundamental right, it becomes the subject of strict judicial scrutiny and will be upheld only upon a showing that it is justified by a compelling state interest. That is, once the existence of a fundamental right or a suspect class is shown to be involved, the state must assume the heavy burden of proving that the legislation is constitutional." Walter at 373-374, 12 O.O.3d at 330, 390 N.E.2d at 818.

In discussing whether education was to be considered a fundamental right guaranteed by the Ohio Constitution, the court in Walter cited San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Walter at 374, 12 O.O.3d at 331, 390 N.E.2d at 818. Rodriguez sets forth the test for determining whether education is a fundamental right under the United States Constitution. The Rodriguez test is whether the Constitution implicitly or explicitly guarantees a right to education. Rodriguez at 33-34, 93 S.Ct. at 1297, 36 L.Ed.2d at 43. Walter recognized that "if this court were to accept this test, educational opportunity would be a fundamental interest entitled to strict scrutiny." Walter at 374, 12 O.O.3d at 331, 390 N.E.2d at 818. The court in Walter rejected the Rodriguez test, however, finding a distinction between the grant of powers of the United States Constitution and the Ohio Constitution. Id. at 374-375, 12 O.O.3d at 331, 390 N.E.2d at 818-819. The court stated that "because this cause deals with difficult questions of local and statewide taxation, fiscal planning and education policy, we feel that this is an inappropriate cause in which to invoke 'strict scrutiny.' This case is more directly concerned with the way in which Ohio has decided to collect and spend state and local taxes than it is a challenge to the way in which Ohio educates its children." Id. at 375-376, 12 O.O.3d at 331-332, 390 N.E.2d at 819. The Walter court rejected the equal protection challenges to the Equal Yield Formula, finding that the per-pupil expenditure disparities in Ohio could be rationally justified on the basis of local control of education, i.e., each local school district could develop programs to meet perceived local needs. Id. at 376-382, 12 O.O.3d at 332-335, 390 N.E.2d at 819-822. The court in Walter also rejected an argument that the Equal Yield Formula violated the Thorough and Efficient Clause of the Ohio Constitution, finding insufficient proof of a violation of the standards set forth in Miller v. Korns (1923), 107 Ohio St. 287, 140 N.E. 773. Walter at 386-388, 12 O.O.3d at 337-339, 390 N.E.2d at 824-826. See discussion of Miller in Part V, infra.

The trial court found that Walter was not controlling precedent on the issues involved in the case at bar. The court of appeals disagreed, concluding that the system of educational funding had not substantially changed since Walter was decided and that, therefore, Walter dictated a finding that Ohio's current scheme of school funding is constitutionally acceptable. However, I find that Walter is clearly not controlling in the case at bar.

The Equal Yield Formula at issue in Walter was repealed shortly after Walter was decided. The case at bar involves a funding scheme entirely different from that applicable in Walter. Moreover, Walter involved a challenge to only one aspect of school funding. Conversely, the case at bar involves a wholesale constitutional attack on the entire system of school funding, including the impact of tax reduction factors, mandated programs of school district borrowing, the inadequacy of classroom facilities, etc. Further, and perhaps most important, the decision in Walter clearly indicates that the General Assembly had provided in the legislation at issue in Walter a funding level under the Equal Yield Formula of $960 per pupil at twenty mills up to $1,380 per pupil at thirty mills. Walter, 58 Ohio St.2d at 371, 12 O.O.3d at 329, 390 N.E.2d at 817. The court in Walter specifically determined that the General Assembly had enacted the legislation to ensure $960 per pupil upon the recommendation of a joint, nonpartisan legislative committee that found that a $960 guarantee at the twenty-mill level was sufficient to provide the means for an adequate educational program of high quality in each district. Walter at 371-372 and 382, 12 O.O.3d at 329 and 335, 390 N.E.2d at 817 and 822, and fn. 1. The evidence in the case at bar clearly indicates that the funding level set by today's School Foundation Program has absolutely no connection with what is necessary to ensure a high quality education. Indeed, evidence in the record clearly demonstrates that the minimum funding level of the School Foundation Program has not been adequate to ensure a high quality education in each of Ohio's public school districts. Testimony indicated that a formula amount of $4,000 per pupil was necessary at the time this case was tried, whereas the General Assembly had set the basic per-pupil funding amount at about seventy percent of that rate. Further, at oral argument, both Justice Resnick and Justice Pfeifer established by their questioning that neither the General Assembly nor the Department of Education had commenced any study or made any finding as to the cost of a minimum level of education. Likewise at oral argument, the State Solicitor of the Office of the Attorney General of the state of Ohio conceded that if funding for primary and/or secondary education fell below the level necessary to provide every student a free basic, adequate education (a "floor," he called it), that would be violative of our Constitution.

The trial court held that this court's decision in Walter "is confined to its own set of facts." I agree. The times and the law have changed since Walter was decided. In the 1970s, the system of school funding then in effect was determined to be constitutional. That system, the Equal Yield Formula was, for whatever reason, abandoned shortly after Walter was decided. Today, the record before this court leads to the inescapable conclusion that Ohio's system of school funding cannot be reconciled with the applicable constitutional mandates concerning public education.

In Miller v. Korns, 107 Ohio St. at 297-298, 140 N.E. at 776, this court stated that:

"Section 2, Article VI of the Ohio Constitution, provides as follows:

"'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. * * *'

"This declaration is made by the people of the state. It 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.

"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.

"A thorough system could not mean one in which part or any number of the school districts of the state were starved for funds. An efficient system could not mean one in which part or any number of the school districts of the state lacked teachers, buildings, or equipment.

"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, while districts underpopulated with children might represent such taxation value that their school needs would be relatively oversupplied." (Emphasis sic.)

The trial court's findings of fact document that the appellant school districts and other districts throughout this state are starved for funds. The court's findings document that the appellant districts and others lack appropriate books. Some districts, including the appellant school districts, lack appropriate buildings. This cannot be denied, given the state of the record and the identified $10.2 billion in facilities needs. The record documents that many school districts lack experienced and qualified teachers. Thus, applying the test of Miller, it is obvious that the General Assembly has failed in its constitutional obligation to ensure a thorough and efficient system of common schools.

The debates from the 1850-1851 Constitutional Convention clearly indicate that the word "thorough" in Section 2, Article VI of the Ohio Constitution was intended to mean a system of education that is full, absolute, complete, and nearly perfect. See discussion in Part III, supra. The debates make clear that the word "efficient" was intended to mean useful, effective, and working well. Id. A review of the record demonstrates that Ohio's system of public elementary and secondary education is, to a degree, neither thorough nor efficient. In its memorandum decision in this case, the trial court stated:

"This Court heard thirty days of testimony as the only individual in the State of Ohio to be present for the entire proceedings. Attorneys, bailiffs, court reporters and members of the gallery were either replaced or were absent from some sessions. 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 educate from both the Plaintiff and Defense witnesses [were] 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 [is] 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, [and] proper handicap access and many of our special education students are not receiving an appropriate public education.

"In the Walter case the Supreme Court of Ohio relied upon the State's assurances that education was thorough and efficient in part based upon the minimum standards being met. Today the new minimum standards are not even being monitored and haven't been for several years. The new standard for review is the ninth grade proficiency test. At trial time 32 of 99 Seniors from Plaintiff Dawson-Bryant had not passed; 16 of 79 Seniors at Plaintiff Southern Local; 13 or [sic, of] 154 at Plaintiff Northern Local; 300 of 773 at Plaintiff Youngstown City Schools and 27% of Lima Seniors had not passed. 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 question 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 restroom 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. * * *"

There is no question that Ohio's system of school funding violates the Thorough and Efficient Clause of the Ohio Constitution. The same could be said with respect to the provisions of Section 7, Article I of the Ohio Constitution that mandate that the General Assembly pass suitable laws to encourage schools and the means of instruction. "Suitable laws" cannot mean laws which, by their own operation or in conjunction with other laws, deprive Ohio's school children of the high quality educational opportunities to which they are entitled.

Contrary to the conclusion reached by the court of appeals, Walter, 58 Ohio St.2d 368, 12 O.O.3d 327, 390 N.E.2d 813, did not determine the question whether education in Ohio is a fundamental constitutional right. That question was not directly presented to the Walter court. Rather, Walter dealt only peripherally with the question of the fundamental right of education when it rejected the fundamental-right analysis of Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. See discussion in Part IV, supra. Today, this court is specifically called upon to determine whether education in Ohio is a fundamental constitutional right. The trial court held, and I agree, that it is.

Since Walter was decided, this court has repeatedly applied a test for determining fundamental rights consistent with the Rodriguez test, i.e., whether the right at issue is explicitly or implicitly guaranteed by the state or federal Constitution. For example, this court recently held, in Cleveland v. Arnold (1993), 67 Ohio St.3d 35, 44, 616 N.E.2d 163, 170, that "[f]undamental rights (personal liberties) are those rights which are explicitly or implicitly embraced by our Constitution and the federal Constitution. Our goal should be to preserve the existence of these sacred rights." (Footnote omitted.) Clearly, the right to a free public education in Ohio has always been considered a right of the people and a duty of government. The Ohio Constitution explicitly so provides in its various provisions addressing the subject of education. Moreover, the right to a free elementary and secondary public school education is implicit in the concept of ordered liberty. The framers of the 1850-1851 Ohio Constitution clearly acknowledged that education is the foundation upon which all other individual liberties are based. Their debates can lead to no other conclusion than that education is a fundamental right guaranteed to all of Ohio's school-age children. Further, the Land Ordinance of 1785 and Northwest Territory Ordinance of 1787 embodied the grand ideal that education was to be the cornerstone of the vast and orderly migration westward. Indeed, education is the institution upon which this great nation was built.

Accordingly, I would hold that education in Ohio is a fundamental