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In 1997, Ohio enacted a public charter school program, allowing parents, primarily those living in urban school districts, to choose what school their children will attend. To make the choice a more meaningful one, Ohio augmented the public school options available to parents by authorizing the creation of privately run public charter schools, called “community schools.”1 

Ohio’s school choice initiative came under legal fire in 2001, when various parties affiliated with Ohio’s traditional public schools, including two teacher unions, filed state constitutional challenges to the community school program. In support of their constitutional claims, the plaintiffs cited a string of recent opinions—known as the DeRolph litigation—in which the Ohio Supreme Court had declared Ohio’s school funding system unconstitutional. Taking a more deferential approach to the Ohio General Assembly’s education policy choices than it did in DeRolph, the Ohio Supreme Court rejected the constitutional claims aimed at the state’s community school program, allowing the program to remain in place.2

While numerous, the constitutional challenges to the community school program asserted in Ohio Congress generally can be characterized in one of two ways. First, the plaintiffs claimed that community schools are not part of the “system of common schools” required by Article VI, Section 2 of the Ohio Constitution. Second, they claimed when students leave traditional public schools for public community schools, the traditional schools lose the state funding associated with those students, depriving traditional schools of the ability to provide the “thorough and efficient” system of education also required by Article VI, Section 2.

Rejecting the “common schools” challenge, the court concluded that, from both a legal and operational perspective, community schools are “common schools” in all meaningful respects. As a legal matter, the General Assembly made clear that “[a] community school created under this chapter is a public school, independent of any school district, and is part of the state’s program of education.”3 And from an operational perspective, traditional schools and community schools, the court observed, are subject to the same regulations regarding enrollment, testing, and student safety. Each set of schools is publicly funded, may not charge tuition, must be nonsectarian, and may not discriminate in their enrollment.4 Equally true, all public school students, no matter what school they attend, must pass the same state-mandated graduation tests and must take the same state-mandated proficiency and achievement tests. Likewise, all public schools, traditional schools and community schools alike, must maintain adequate facilities and meet all health and safety requirements in accordance with the same state standards.5

Nonetheless, important differences highlight the two public school programs. As the court observed, private individuals, not public officials, run community schools; their school boards are appointed, not elected, as is the case for traditional school districts in Ohio. And unlike traditional schools, which are regulated primarily by Ohio Revised Code provisions enforced by state and local regulators, community schools are governed in large measure by the contracts they hold with authorized sponsors, which include colleges and universities, county educational service centers, school districts, and education-oriented non-profit organizations. In accordance with state law, the sponsor contracts specify, among other things, the curriculum, operational standards, and financial policies each school will utilize.6 With sponsors serving as the primary regulators for community schools, the state plays a secondary role, serving as an oversight body for both schools and sponsors.7

Equally true, community schools, consistent with the General Assembly’s intent, are allowed some measure of “enhanced flexibility” in their administration and operation.8 As a result, the standards the schools face, as set forth in their sponsor contracts and the Ohio Revised Code, are similar to, but not entirely the same as, those faced by traditional public schools. That said, other unique features of the community school program suggest that the schools are in many ways more accountable for their performance than their sister traditional schools. “[C]ommunity schools face heightened accountability to parents and sponsors. Either can threaten shutdown: sponsors by suspending operations pursuant to R.C. 3314.072, and parents by withdrawing their children.”9 “Traditional schools, on the other hand, may not be shut down no matter how poorly they perform (although they will face decreased funding).”10

In the final analysis, the two systems’ legal and operational similarities were enough that their differences did not take community schools outside the realm of “common schools” contemplated by Ohio’s constitution. Indeed, adhering to its longstanding interpretative rule that “legislative enactments are entitled to a strong presumption of constitutionality,”11 the court observed that “[r]equiring community schools to be operated just like traditional public schools would extinguish the experimental spirit behind R.C. Chapter 3314.”12

The Ohio Supreme Court also rejected the contention that the community school program, which reallocates state funding when a student leaves a traditional school for a community one, violates the Ohio Constitution’s guarantee of a “thorough and efficient” public education system.

By way of background, for over a decade the Ohio state courts had before them the DeRolph litigation, which presented a state constitutional challenge to Ohio’s school funding system. When the case reached the Ohio Supreme Court in 1997, the court declared the state’s school funding program unconstitutional, setting off a high-profile back-and-forth with the Ohio General Assembly. On three subsequent occasions, the Ohio Supreme Court was asked to reevaluate the program’s constitutionality in light of changes the General Assembly had made to the funding system. It was not until 2002 that the court relinquished jurisdiction over the case. And even then, in its fourth DeRolph opinion, the court declared again the school funding system unconstitutional and directed the General Assembly to remedy the violation through a systematic overhaul of the school funding system. This time, however, the court declared that it would no longer stay involved in the matter.

In the subsequent community school litigation, the program’s challengers, citing the court’s DeRolph decisions, contended that the community school program deprived traditional public schools of vital state funds by allowing students to leave for community schools, leading to reduced state funding for each student’s former school. In rejecting that constitutional claim, however, the court observed that “[w]henever a student leaves, for any reason, the school district’s funding is decreased and the district continues to receive state funding based on the students actually attending.”13 As a constitutional matter, the court added, the “General Assembly has the exclusive authority to spend tax revenues to further a statewide system of schools compatible with the Constitution.”14 And ”[n]othing in the Constitution,” the court explained, “prohibits the General Assembly from reducing funding because a school district’s enrollment decreases.”15

From a jurisprudential standpoint, the Ohio Congress decision signaled a shift in the court’s approach to litigation, invoking school funding and education-related public policy issues. Unlike in DeRolph, where the supreme court on three separate occasions declared unconstitutional the state’s system for funding public schools and directed the General Assembly to fix the funding system, in Ohio Congress the court took a more restrained approach in its review of public policy issues. In noting that “a court has nothing to do with the policy or wisdom of a statute,”16 the court concluded that education policy is best left in the hands of the legislature, not the courts. In the court’s words, policy matters are “the exclusive concern of the legislative branch of the government.”17 The General Assembly, the court explained, is “entrusted with making complicated decisions about our state’s educational policy,” decisions that are “entitled to deference.”18 

In addition to its jurisprudential significance, the Ohio Congress decision also had immediate practical effects. Had the court struck down the program, that decision, depending upon the remedy ordered, could have resulted in the closing of Ohio’s 305 charter schools—displacing their 72,000 students and 3,900 teachers. 

Today, Ohio, along with over forty other states, employs some type of charter school program. And state appellate courts in California, Michigan, New Jersey, and Utah have likewise rejected similar state constitutional challenges to their charter school programs.

 

Endnotes

1 See Ohio Revised Code Chapter 3314. 

2 See State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education, 857 N.E.2d 114 (Ohio October 25, 2006). 

3 Ohio Revised Code 3314.01(B). 

4 Supra note 2, at 1152. 

5 See id. 

6 See Ohio Revised Code 3314.03 (“Each [sponsor contract] shall specify the following . . . .”). 

7 Id. at 1152–53. 

8 Id. at 1158. 

9 Id. 

10 Id. 

11 Id. at 1155. 

12 Id. at 1159. 

13 Id. 

14 Id. at 1160. 

15 Id. 

16 Id. at 1155. 

17 Id. 

18 Id. at 1166.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].