Electronic Classroom of Tomorrow v. Ohio Dept. of Edn. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Slip Opinion No. 2018-Ohio-3126.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2018-OHIO-3126
ELECTRONIC CLASSROOM OF TOMORROW, APPELLANT, v. OHIO DEPARTMENT
OF EDUCATION, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Electronic Classroom of Tomorrow v. Ohio Dept. of Edn., Slip
Opinion No. 2018-Ohio-3126.]
Education—Community schools—Funding of internet- or computer-based
community schools (“e-schools”)— Ohio Department of Education has
authority under R.C. 3314.08 to base funding of an e-school on the duration
of student participation—E-schools may be required to provide data
documenting the duration of a student’s participation—Judgment affirmed.
(No. 2017-0913—Submitted February 13, 2018—Decided August 8, 2018.)
APPEAL from the Court of Appeals for Franklin County,
No. 16AP-863, 2017-Ohio-5607.
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 SUPREME COURT OF OHIO

FISCHER, J.
{¶ 1} In this discretionary appeal, we address whether R.C. 3314.08
authorizes defendant-appellee, the Ohio Department of Education (“ODE”), to base
funding of an Internet-based community school, or e-school, on the duration of
student participation. We hold that it does, as the statute is unambiguous and allows
ODE to seek that data in order to calculate funding.
I. Factual Background and Procedural Posture
{¶ 2} Plaintiff-appellant, the Electronic Classroom of Tomorrow
(“ECOT”), is Ohio’s largest e-school and has been in operation since 2000.
{¶ 3} Under R.C. 3314.08(C)(1), funding for community schools, which are
commonly known as charter schools, is determined “on a full-time equivalency
[‘FTE’] basis for each student enrolled.” R.C. 3314.08(H)(3) sets forth how FTE
is measured:

The department shall determine each community school
student’s percentage of full-time equivalency based on the
percentage of learning opportunities offered by the community
school to that student, reported either as number of hours or number
of days, is [sic] of the total learning opportunities offered by the
community school to a student who attends for the school’s entire
school year. However, no internet- or computer-based community
school shall be credited for any time a student spends participating
in learning opportunities beyond ten hours within any period of
twenty-four consecutive hours. Whether it reports hours or days of
learning opportunities, each community school shall offer not less
than nine hundred twenty hours of learning opportunities during the
school year.

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A community school reports its data to ODE, and ODE then determines the amount
of public funding the school will receive based on the figures that are reported.
{¶ 4} Under R.C. 3314.08(K), ODE is authorized to review a community
school’s data and to adjust a school’s funding (by reducing or increasing future
funding, as appropriate) based on the result of its review. In an effort to make the
reviews consistent throughout the state, ODE provides reviewers with a review
manual, or handbook. ODE publishes the handbook on its website and frequently
revises it.
{¶ 5} ODE typically conducts reviews on a five-year cycle for each
community school, unless matters arise warranting a review sooner. ECOT’s last
review occurred in 2011. ECOT was therefore due for a regularly scheduled review
in 2016.
{¶ 6} For the 2015-2016 academic year, ECOT reported more than 15,000
enrolled students and received more than $106 million in public funding from ODE.
During the preliminary stage of its review, ODE requested that ECOT submit data
to demonstrate the duration and frequency of students’ participation (i.e., log-on
and log-off times) in ECOT’s online educational programs.
{¶ 7} In response to ODE’s request, ECOT provided log-on/log-off records
showing that, on average, its students spent approximately one hour per day logged
on to ECOT’s online educational platform. ODE continued to request data from
ECOT showing the duration of a student’s participation for the final FTE review.
However, ECOT did not comply with ODE’s request.
{¶ 8} Instead, on July 8, 2016, ECOT sought a permanent injunction and
declaratory judgment in the Franklin County Court of Common Pleas seeking to
bar ODE from requesting or considering data showing the duration of a student’s
participation during its review. The trial court ultimately denied ECOT’s claims
against ODE, and the Tenth District Court of Appeals affirmed the trial court’s
judgment.

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{¶ 9} ECOT appealed. On September 13, 2017, we accepted review of
ECOT’s fourth proposition of law, which argues that ODE is barred by the language
of R.C. 3314.08 from calculating funding based on a student’s participation.
II. Analysis
{¶ 10} First, ECOT argues that the Tenth District erred when it held that
R.C. 3314.08(H)(3) unambiguously “compels the conclusion that although
enrollment is a necessary predicate to funding, the amount of funding per student
is dependent on a measure of student participation.” 2017-Ohio-5607, ¶ 25. ECOT
agrees that the statute is unambiguous, but in its view, R.C. 3314.08 demonstrates
the legislative intent that funding for community schools is based on enrollment,
not on the duration of student participation.
A. Standard of review
{¶ 11} We review questions of statutory interpretation de novo. Ceccarelli
v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. When
considering the meaning of a statute, our “ ‘paramount concern is the legislative
intent’ of its enactment.” State ex rel. Steffen v. First Dist. Court of Appeals, 126
Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 30, quoting State ex rel. Steele
v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21.
Because a statute must be considered as a whole, “a court cannot pick out one
sentence and disassociate it from the context, but must look to the four corners of
the enactment to determine the intent of the enacting body.” State v. Wilson, 77
Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997). When considering the four corners
of an enactment, we “consider the statutory language in context, construing words
and phrases in accordance with rules of grammar and common usage.” State Farm
Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d
135, ¶ 25. Provided that “[t]he meaning of the statute is unambiguous and definite,
it must be applied as written and no further interpretation is necessary.” State ex

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rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545,
660 N.E.2d 463 (1996).
B. R.C. 3314.08 is unambiguous
{¶ 12} “Community schools” are public schools that are “independent of
any school district.” R.C. 3314.01(B). R.C. Chapter 3314 governs community
schools, including setting forth a formula for calculating public funding for those
schools. R.C. 3314.08(C)(1) first states that ODE is obligated to pay a community
school “on a full-time equivalency basis, for each student enrolled.”
{¶ 13} R.C. 3314.08(H) then states that ODE “shall adjust the amounts
subtracted and paid under division (C) of this section to reflect any enrollment of
students in community schools for less than the equivalent of a full school year.”
(Emphasis added.) A student is “enrolled” on the later of two dates: (1) on which
“the school both has received documentation of the student’s enrollment from a
parent and the student has commenced participation in learning opportunities” or
(2) 30 days before a student is entered into a management system that is established
according to statute. (Emphasis added.) R.C. 3314.08(H)(2). The term “learning
opportunities” must be defined in the sponsor contract, which must describe both
classroom-based and non-classroom-based learning opportunities and must “be in
compliance with criteria and documentation requirements for student
participation” established by ODE. (Emphasis added.) Id.
{¶ 14} But it is in R.C. 3314.08(H)(3) that FTE is explained; it is the
percentage calculated by dividing the learning opportunities offered by the
community school to one student by the total learning opportunities offered by the
community school to a student who attends the school for an entire year. The
calculation can be made based on either a number of hours or a number of days.
However, an e-school cannot be credited for any time a student spends participating
in learning opportunities beyond 10 hours within a 24-consecutive-hour period. By
stating that the maximum daily credit for each student is ten hours, it is apparent

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that the legislature intended that an e-school will be credited for a student’s
participation for less than ten hours in a day. This calculation can be made only by
referring to records that contain evidence of the duration of a student’s participation
in learning opportunities.
{¶ 15} As ODE notes, the plain meaning of R.C. 3314.08 is confirmed by
the language used in R.C. 3314.27. That statute provides:

No student enrolled in an internet- or computer-based
community school may participate in more than ten hours of
learning opportunities in any period of twenty-four consecutive
hours. Any time such a student participates in learning opportunities
beyond the limit prescribed in this section shall not count toward the
annual minimum number of hours required to be provided to that
student as prescribed in division (A)(11)(a) of section 3314.03 of the
Revised Code.
Each internet- or computer-based community school shall
keep an accurate record of each individual student’s participation in
learning opportunities each day. The record shall be kept in such a
manner that the information contained within it easily can be
submitted to the department of education, upon request by the
department or the auditor of state.

{¶ 16} Because the language of R.C. 3314.08 is unambiguous, we need not
look beyond its four corners for meaning. The legislature prescribed that student
participation is the relevant measure for calculating the public funding of e-schools.
C. ECOT’s arguments are unavailing
{¶ 17} To support its contrary interpretation of R.C. 3314.08, ECOT makes
a variety of arguments. We respectfully reject each of them as not persuasive.

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1. R.C. 3314.08 does not articulate an enrollment-based funding methodology
{¶ 18} ECOT argues that R.C. 3314.08(C)(1), which states that payment is
made “for each student enrolled in a community school established under this
chapter,” requires ODE to fund a community school based on the number of
students enrolled. However, R.C. 3314.08(C)(1) is only the starting point for
calculating payments to community schools. ECOT’s argument fails to
acknowledge other language in that statute: payment is based “on a full-time
equivalency basis, for each student enrolled in a community school.” Thus, ODE
is required to calculate FTE for each student enrolled in a community school. For
these reasons, ECOT’s reliance on R.C. 3314.08(C) is misplaced.
{¶ 19} ECOT also points to the legislature’s use of the words “enrolled” and
“enrollment” in R.C. 3314.08(B) to argue that enrollment is the relevant factor in
calculating payments to community schools, but that division of the statute merely
requires the state board of education to adopt rules for local boards of education
and the governing authority of each community school to annually report the
number of students enrolled; it does not address funding. While ECOT spends
considerable time discussing other divisions of the community-school statute, it is
R.C. 3314.08(H) that requires that ODE adjust funding for community schools by
calculating FTE for each student.
{¶ 20} ECOT also argues that R.C. 3314.08(H)(2) plainly provides that
ODE’s obligation to fund, and to adjust funding, is based on the commencement
and termination of a student’s enrollment. But the termination of enrollment is
merely one reason for ODE to adjust payments; ODE may adjust a school’s funding
for other reasons. Enrollment creates the potential for funding, but the amount of
funding and any adjustments to it are to be calculated based on a student’s
participation on a “full-time equivalency basis,” R.C. 3314.08(C)(1). In order to
calculate funding, ODE is authorized to consider evidence of the duration of a
student’s participation.

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{¶ 21} Second, ECOT contends that the language in R.C. 3314.08(H)(2)
requiring a sponsor’s contract to “be in compliance with criteria and documentation
requirements for student participation” established by the ODE does not mean that
a duration- or participation-based standard is to be used to determine funding.
ECOT argues that ODE never established standards based on the duration of a
student’s participation in learning opportunities or even established standards in the
enrollment context. ECOT also argues that ODE failed to enact administrative rules
under R.C. Chapter 119 setting forth minimum standards for participation. These
arguments were rejected by the trial and appellate courts, and we did not accept
review of ECOT’s proposition of law addressing these issues. Accordingly, they
are not properly before us, and we will not address them.
{¶ 22} Third, ECOT argues that R.C. 3314.08(H)(3) plainly “sets forth an
enrollment-based equation” for calculating FTE. ECOT claims that the phrase
“learning opportunities offered by the community school” indicates that the FTE
formula is based on the opportunities offered or made available to a student, not on
the hours a student participates in the learning opportunities offered by the school.
But R.C. 3314.08(H)(3) refers to “learning opportunities offered by the community
school to a student who attends for the school’s entire school year.” The statute
explicitly contemplates both that an e-school offer the learning opportunities and
that a student attend and participate in those opportunities. The term “offer” is only
one word of the operable language of the statute, which when read in full, does not
indicate that the legislature intended for e-schools to be funded merely for offering
learning opportunities. Accordingly, this argument fails to support ECOT’s
proposed interpretation of R.C. 3314.08(H)(3).
2. ECOT’s interpretation renders null other portions of R.C. 3314.08
{¶ 23} ECOT asserts that on its face, the statutory formula is designed to
calculate the percentage of funding to which community schools are entitled for a
student who is enrolled for part of a year. ECOT claims that the calculation hinges

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on the school’s calendar, during which at least 920 hours of learning opportunities
must be offered. But this interpretation fails to give effect to R.C. 3314.08(H)(3),
which limits the credit given for time a student participates in learning opportunities
to ten hours a day. ECOT’s interpretation thus would render portions of the statute
superfluous. See Stolz v. J & B Steel Erectors, Inc., 146 Ohio St.3d 281, 2016-
Ohio-1567, 55 N.E.3d 1082, ¶ 9 (“When a court interprets the meaning of a statute,
* * * the court must give effect to all of the statute’s words”). We agree with ODE
that if the length of a student’s enrollment were the only measure of FTE, that
student’s daily participation hours would not be relevant to whether a school could
claim full FTE credit, and thus obtain full funding, for that student. There would
be no need for a statutory mechanism to prevent overclaiming—an e-school would
not be able to overclaim FTE funding even if it violated the statutory limit to ten
hours per day.
3. The 105-hour rule does not support ECOT’s interpretation
{¶ 24} ECOT also relies on R.C. 3314.03(A)(6), which the parties describe
as the “105-hour rule,” to support its enrollment-based-funding interpretation of
R.C. 3314.08(H). R.C. 3314.03 provides:

(A) Each contract entered into between a sponsor and the
governing authority of a community school shall specify * * *
***
(6) * * *
(b) A requirement that the governing authority adopt an
attendance policy that includes a procedure for automatically
withdrawing a student from the school if the student without a
legitimate excuse fails to participate in one hundred five consecutive
hours of the learning opportunities offered to the student.

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Another version of the 105-hour rule appears at the end of R.C. 3314.08(H)(2),
which provides that a student who completed the prior school year in an internet-
or computer-based community school is considered enrolled in the same school in
the following school year unless the student, without a legitimate reason, fails to
participate in the first 105 consecutive hours of learning opportunities offered in
the new school year.
{¶ 25} ECOT argues that under ODE’s interpretation that an e-school
would not receive funding for any period in which a student was enrolled but not
participating, the requirement that a student is deemed withdrawn if he fails to
participate in 105 consecutive hours of learning opportunities is superfluous. But
R.C. 3314.03 and 3314.08(H)(2)(c) address only enrollment, which is the first step
necessary to obtain funding. These statutes define the period for which FTE is to
be calculated; they do not explain how FTE is to be calculated.
4. The meaning of R.C. 3314.08 is not dependent on ODE’s past practice
{¶ 26} ECOT also argues that in the past, ODE did not require evidence of
the duration of student participation in calculating an e-school’s funding. ECOT
maintains that prior to 2016, ODE based funding on annual enrollment rather than
on student participation and instructed the Ohio Auditor of State’s office to conduct
its audits accordingly. ECOT contends that ODE should be held to its past practice.
{¶ 27} ECOT’s contention is unconvincing. The trial court specifically
found that “since at least 2010, the FTE review manuals have supported ODE’s
ability to request and review durational data in connection with FTE funding
reviews.” Even though ODE did not request data documenting student
participation in the past, the statute allows ODE to use this data to calculate a
community school’s funding.
{¶ 28} ODE readily admits that it did not realize until 2013 that there was a
lack of evidence of student participation. Upon conducting reviews at several
community schools, ODE began to question the schools’ methods of measuring

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student participation. From that point forward, ODE requested data measuring the
duration of student participation from all community schools, including e-schools,
and imposed funding consequences when a community school failed to prove
student participation. ECOT has not demonstrated that ODE’s requests are not
supported by the statutory language.
III. Conclusion
{¶ 29} We determine that R.C. 3314.08 is unambiguous and authorizes
ODE to require an e-school to provide data of the duration of a student’s
participation to substantiate that school’s funding. Accordingly, we affirm the
judgment of the Tenth District Court of Appeals.
Judgment affirmed.
O’CONNOR, C.J., and GWIN and DEGENARO, JJ., concur.
O’DONNELL, J., dissents, with an opinion.
KENNEDY, J., dissents, with an opinion.
DEWINE, J., not participating.
W. SCOTT GWIN, J., of the Fifth District Court of Appeals, sitting for
FRENCH, J.
_________________
O’DONNELL, J., dissenting.
{¶ 30} Respectfully, I dissent.
{¶ 31} R.C. 3314.08 does not authorize the Ohio Department of Education
(“ODE”) to base funding of an Internet-based community school on the duration of
student participation in learning opportunities; rather, it requires that funding be
based on student enrollment.
{¶ 32} The Electronic Classroom of Tomorrow (“ECOT”) is an e-school
that began operations in 2000 and has been funded by ODE pursuant to a funding
agreement which took effect in 2002 and set forth the documentation that ECOT
needed to provide to ODE to secure funding. That agreement did not include

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durational data, and ECOT received funding from ODE following ODE audits in
2002, 2003, 2005, 2006, and 2011 based exclusively on student enrollment.
{¶ 33} In 2016, without any statutory or administrative rule changes, ODE
for the first time announced its intent to base ECOT funding on the duration of
student participation in learning opportunities and requested that ECOT provide
durational records in order to obtain funding. As a result, ECOT filed this action
seeking specific performance of its funding agreement and an injunction to preclude
ODE from violating R.C. 3314.08(H)(3) and using durational data during its full-
time-equivalency (“FTE”) review. Following a hearing, the trial court denied
relief, concluding that R.C. 3314.08(H)(3) conditions ECOT funding on student
participation. It also determined that the funding agreement applied only to the
ODE 2002 and 2003 FTE reviews and therefore, ODE could consider durational
data in its 2015-2016 FTE review of ECOT. The court of appeals affirmed the
judgment of the trial court and permitted ODE to require durational data from
ECOT as a basis for its funding, agreeing with the trial court that R.C.
3314.08(H)(3) authorizes ODE to consider durational data and that the funding
agreement applied only to the 2002-2003 funding year.
{¶ 34} The proposition of law in this case, however, does not pertain to
whether ECOT funding arises from its agreement with ODE. Here, we are
concerned with whether R.C. 3314.08(H)(3) authorizes durational funding because
the proposition of law before this court states: “ODE is barred, by the plain and
unambiguous language of R.C. § 3314.08, from imposing the challenged durational
criterion.” Plainly, the statute does not authorize the use of durational data as a
basis for funding ECOT. Rather, the statute unambiguously uses the percentage of
learning opportunities offered to a student as the basis for funding.
Law and Analysis
{¶ 35} R.C. 3314.01(B) states a community school “is a public school,
independent of any school district, and is part of the state’s program of education.”

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R.C. 3314.015(G) prohibits ODE from imposing requirements on community
schools “that are not permitted by law or duly adopted rules” in carrying out its
duties pursuant to R.C. Chapter 3314.
{¶ 36} Importantly, for purposes of the proposition of law presented in this
case, R.C. 3314.08(C)(1) mandates that ODE provide funding for community
schools “on a full-time equivalency basis, for each student enrolled.” (Emphasis
added.) Further, R.C. 3314.08(H) directs that ODE “shall adjust the amounts
subtracted and paid under division (C) of this section to reflect any enrollment of
students in community schools for less than the equivalent of a full school year.”
(Emphasis added.)
{¶ 37} R.C. 3314.08(H)(3) provides the means by which FTE is to be
calculated:

The department shall determine each community school
student’s percentage of full-time equivalency based on the
percentage of learning opportunities offered by the community
school to that student, reported either as number of hours or number
of days, is [sic] of the total learning opportunities offered by the
community school to a student who attends for the school’s entire
school year. However, no internet- or computer-based community
school shall be credited for any time a student spends participating
in learning opportunities beyond ten hours within any period of
twenty-four consecutive hours. Whether it reports hours or days of
learning opportunities, each community school shall offer not less
than nine hundred twenty hours of learning opportunities during the
school year.

(Emphasis added.)

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{¶ 38} The majority concludes that R.C. 3314.08 unambiguously authorizes
ODE to fund an e-school based on the duration of student participation. Majority
opinion at ¶ 29. In its opinion, the majority reasons:

By stating that the maximum daily credit for each student is ten
hours, it is apparent that the legislature intended that an e-school will
be credited for a student’s participation for less than ten hours in a
day. This calculation can be made only by referring to records that
contain evidence of the duration of a student’s participation in
learning opportunities.

Id. at ¶ 14.
{¶ 39} The majority fails to give effect to the plain language of R.C.
3314.08(H)(3), which provides that ODE must calculate a student’s percentage of
FTE based on the percentage of learning opportunities offered to that student—
which is dependent on the length of that student’s enrollment—of the total learning
opportunities offered to students who attend for the entire school year. If the
legislature had intended to condition funding on the duration of a student’s
participation in the learning opportunities offered by a community school, it could
have expressed that intent by using a phrase such as “based on the percentage of
learning opportunities participated in by that student,” but it did not do so. Rather,
it stated that funding is “based on the percentage of learning opportunities offered
by the community school to that student.” R.C. 3314.08(H)(3).
{¶ 40} The majority confuses the reference to a ten hour maximum daily
credit in R.C. 3314.08(H)(3) with funding based on the duration of student
participation. E-schools, unlike traditional brick and mortar schools, are able to
offer learning opportunities to students 24 hours a day, seven days a week.
Therefore, an e-school could theoretically offer an entire school year consisting of

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920 hours of learning opportunities to a student who enrolled for only 39 calendar
days. To prevent such a result, the General Assembly has precluded an e-school
that reports its learning opportunities offered as a number of hours from obtaining
credit for offering more than 10 hours of learning opportunities in a period of 24
consecutive hours, even if a particular student actually participates in more than 10
hours of learning opportunities during such period. See R.C. 3314.08(H)(3).
Notably, however, nothing in the ten hour rule expresses a legislative intent to
authorize ODE to condition funding for e-schools based on the duration of student
participation in learning opportunities. Although no such language is in the statute,
the majority finds such a funding condition in that ten hour rule and thereby
erroneously allows ODE to impose a requirement on a community school that is
not based on the plain language of the statute.
{¶ 41} The majority’s reliance on R.C. 3314.27, which also has a ten hour
rule, is misplaced because that statute contains no funding provisions whatsoever.
Rather, it merely prohibits students enrolled in e-schools from participating in more
than 10 hours of learning opportunities in any 24 hour period, states that
participation beyond this limit “shall not count toward the annual minimum number
of hours required to be provided to that student as prescribed in division (A)(11)(a)
of section R.C. 3314.03 of the Revised Code” (which governs contracts between
the governing authority of a community school and its sponsor), and requires that
e-schools track individual student participation in learning opportunities and keep
that record “in such a manner that the information contained within it easily can be
submitted to” ODE.
{¶ 42} The majority’s conclusion that R.C. 3314.08 permits ODE to require
an e-school to provide data regarding the duration of a student’s participation in
order to calculate its funding is contrary to the statute because the statute plainly
bases funding on the learning opportunities offered to students during their
enrollment and does not refer to the duration of student participation. It is a

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commonly accepted precept of statutory construction that courts cannot add words
to a statute when construing it to determine legislative intent. In re Adoption of
P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 27; State ex rel.
Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 50.
{¶ 43} To condition funding based on participation instead of enrollment
contradicts the plain language of the statute and thwarts legislative intent.
Moreover, such a condition places a burden on community schools different from
that placed on traditional brick and mortar schools, for which the General Assembly
has designated three separate days in order to calculate student enrollment and then
bases school funding on the number of students enrolled on those three days without
regard to student attendance for the rest of the year. See R.C. 3317.01, 3317.03,
and 3317.036.
{¶ 44} Today’s decision demands that the General Assembly clarify its
intent with regard to the question of funding for online community schools. More
than 10,000 students across our state have been affected by today’s singular
decision, and thousands more could be affected by the precedent set in this decision.
If in fact it is the intent of the General Assembly to fund online community schools
based on learning opportunities as R.C. 3314.08 specifies, the General Assembly
needs to clarify that intent to eliminate confusion arising from today’s decision and
the ODE’s insistence on using durational data to fund online community schools.
{¶ 45} I would reverse the judgment of the court of appeals and remand the
matter to the trial court for further proceedings.
_________________
KENNEDY, J., dissenting.
{¶ 46} Until today, the bedrock principle of school funding was that state
education money “follows the student.” State ex rel. Ohio Congress of Parents &
Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d
1148, ¶ 53. The majority, however, establishes an exception to that funding

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mechanism: state education dollars follow the student when he or she enrolls in an
Internet- or computer-based community school (“e-school”), but only for those
periods during the day when the student chooses to log on to the school’s network
and to participate online in the education opportunities offered to the student.
{¶ 47} Prior to the 2015-2016 school year, appellant, the Electronic
Classroom of Tomorrow (“ECOT”), received state education funding based on its
enrollment adjusted for each student’s full-time equivalency (“FTE”), the
percentage of the school year that the student was enrolled. ECOT verified the FTE
that it reported to appellee, the Ohio Department of Education (“ODE”), by having
teachers certify the total number of learning opportunities offered to each student.
However, beginning in January 2016, ODE requested that ECOT submit data to
demonstrate the duration and frequency of students’ participation (i.e., log-on and
log-off times) in ECOT’s online educational programs. The majority today agrees
with ODE that it may “require an e-school to provide data of the duration of a
student’s participation to substantiate that school’s funding,” majority opinion at
¶ 29, reasoning that “student participation is the relevant measure for calculating
the public funding of e-schools,” id. at ¶ 16.
{¶ 48} Because this holding disregards the plain meaning of R.C.
3314.08(H)(3), ignores the reality of how students attend and learn in e-schools,
and eviscerates the intent of the General Assembly to provide a choice of school
environments “to provide a chance of educational success for students who may be
better served in their educational needs in alternative settings,” Ohio Congress of
Parents & Teachers at ¶ 32, I dissent.
{¶ 49} The narrow question presented in this case is whether ODE has
authority to adjust state funding for an e-school, in this case ECOT, based on the
amount of time its students participate online in learning opportunities while
enrolled in the school. Rules of statutory construction require that statutes be read
as an interrelated body of law and construed in context. Riffle v. Physicians &

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Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d
983, ¶ 21. The analysis in this case should begin with examining the entire statutory
scheme in which the state of Ohio provides funding for all public schools—
traditional public schools, community schools, and e-schools, a type of community
school.
State Funding of Public Schools
Traditional Public Schools
{¶ 50} The state guarantees a minimum level of funding for each student
enrolled in a public school, Ohio Congress of Parents & Teachers, 111 Ohio St.3d
568, 2006-Ohio-5512, 857 N.E.2d 1148, at ¶ 53. That funding is called the
“formula amount.” R.C. 3317.02(F). Traditional public schools are funded with a
combination of state and local tax dollars, and the amount of state funding generally
is determined by multiplying the formula amount by “the enrollment of students
receiving services from schools,” R.C. 3317.03(A), in the district as adjusted by
ODE, R.C. 3317.017 and 3317.02(E), and then adjusting that amount further based
on the relative wealth of the school district as compared to other school districts
within the state, R.C. 3317.022. Although public-school-funding formulas are
complex, “we may summarize them by saying that state money follows the
student.” Ohio Congress of Parents & Teachers at ¶ 53. Therefore, “[s]tate funding
of school districts depends on enrollment,” id. at ¶ 36, fn. 8, and the state reduces
funding when a student moves out of the district, attends a private school, or is
schooled at home, id. at ¶ 36.
{¶ 51} The number of students enrolled in and receiving services from a
school district is counted three times a year—in October, March, and June—and
reported to ODE to determine funding levels. R.C. 3317.03(A) and (D)(1). R.C.
3317.03(A)(2) directs ODE to compile a list of all students reported to be enrolled
in a district and a list of all students entitled to attend school in the district on an
FTE basis but who receive educational services from other entities, including

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 January Term, 2018

community schools. In addition, R.C. 3317.03(E) directs every school in a district
to maintain attendance records to show the actual enrollment in each school in a
manner that no student is counted as enrolled before the student attends the school
or after the student permanently withdraws.
{¶ 52} For traditional public schools, R.C. 3317.034(B) provides that a
student is considered enrolled in the school district “on the date on which the school
has both received the documentation of the student’s enrollment from a parent and
the student has commenced participation in learning opportunities offered by the
district.” R.C. 3317.034(C) provides that enrollment ceases on the date (1) the
school district “receives documentation from a parent terminating enrollment of the
student,” (2) the school district “is provided documentation of a student’s
enrollment in another public or nonpublic school,” or (3) “[t]he student ceases to
participate in learning opportunities provided by the school.”
Community Schools
{¶ 53} In 1997, the General Assembly enacted charter-school legislation,
declaring that its purposes included “ ‘providing parents a choice of academic
environments for their children and providing the education community with the
opportunity to establish limited experimental educational programs in a deregulated
setting.’ ” Ohio Congress of Parents & Teachers, 111 Ohio St.3d 568, 2006-Ohio-
5512, 857 N.E.2d 1148, at ¶ 5-6, quoting Am.Sub.H.B. No. 215, Section 50.52,
Subsection 2(B), 147 Ohio Laws, Part I, 877, 2043. A community school is a public
school that is independent of a local school district, id. at ¶ 7; it is funded directly
by the state, id. at ¶ 37. The intent of the General Assembly in allowing community
schools was to “provide a chance of educational success for students who may be
better served in their educational needs in alternative settings.” Id. at ¶ 32. A
community school may “target and tailor programs for small student populations
such as learning-disabled students or dropouts from traditional schools.” Id. at ¶ 6.

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{¶ 54} A community school is formed as a nonprofit corporation or a
public-benefit corporation and is privately run pursuant to a contract with the
school’s sponsor. Id. at ¶ 7. R.C. 3314.03(A) specifies terms that must be included
in the contract, including that “[t]he school will provide learning opportunities to a
minimum of twenty-five students for a minimum of nine hundred twenty hours per
school year.” R.C. 3314.03(A)(11)(a). The statute does not specify what “learning
opportunities” are but rather says that they are to “be defined in the contract”; they
must be “in compliance with criteria and documentation requirements for student
participation” established by ODE. R.C. 3314.08(H)(2). Further, it is the sponsor,
not ODE, that is responsible for monitoring the school’s performance and
compliance with state standards and requirements, and in turn, a sponsor’s contract
is overseen by ODE. Ohio Congress of Parents & Teachers at ¶ 7. Because
community schools are meant to be laboratories for experimental educational
programs to reach students that traditional public schools have not, they are exempt
from many of the state laws and regulations applicable to traditional public schools,
R.C. 3314.04. And although a community school “must comply with many of the
same statewide academic standards” as a traditional public school, Ohio Congress
of Parents & Teachers at ¶ 7, ODE has no control over how a community school’s
curriculum will be delivered. See R.C. 3301.079(B).
{¶ 55} Like funding of a traditional public school, the amount of state
funding provided to a community school is calculated based on enrollment. R.C.
3314.08(C)(1); Ohio Congress of Parents & Teachers at ¶ 52 (“Community schools
are primarily funded by a per capita subsidy taken from the state’s basic aid to the
school districts that the students in community schools are entitled to attend”).
Enrollment in a community school is reported to ODE by both the school district
and the community school. R.C. 3317.03(B)(3)(d); R.C. 3314.08(B)(2). For each
student who enrolls in a community school, the state deducts the state aid that would
have been paid to the student’s school district from that district’s funding and pays

20
 January Term, 2018

those funds to the community school. R.C. 3314.08(C)(1). That is, the state
“reduces its per-pupil funding to the school district, just as it does when students
leave for private schools, for other school districts, or for home schooling.” Ohio
Congress of Parents & Teachers at ¶ 37.
{¶ 56} And as with a traditional public school, a community school receives
funding only for that part of the school year that the student is enrolled. R.C.
3314.08(H) directs ODE to adjust the amounts subtracted from the student’s school
district and paid to the community school “to reflect any enrollment of students in
community schools for less than the equivalent of a full school year.” FTE is a
“percentage of learning opportunities offered by the community school to that
student * * * of the total learning opportunities offered by the community school to
a student who attends for the school’s entire school year.” R.C. 3314.08(H)(3).
The statute provides that learning opportunities may be expressed as a number of
hours or days, and FTE may be calculated using a simple fraction:

.

{¶ 57} For example, suppose a community school offers students who
attend the entire school year 920 hours of learning opportunities spread out over
184 days, so that the school offers five hours of learning opportunities a school day.
If a student enrolls on the 93rd day of classes and continues until the end of the
school year, the school would offer 460 hours of learning opportunities to that
student (92 days times 5 hours a day). Calculating the FTE for that student would
require dividing 460 by 920, which equals 0.5 or 50 percent. To determine the
minimum state aid for that student, ODE would then multiply that percentage by
the formula amount, which was $5,800 for fiscal year 2015, former R.C.
3317.02(G), 2014 Am.Sub.H.B. No. 483. The minimum funding for the student to
be paid to the community school would be $2,900. And if that student had been
previously enrolled in a traditional public school, the traditional school would retain

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the other half of the formula amount. The same calculation can be made if the
student enrolled, attended 23 days of class, and then withdrew:

equals 0.125 (or 12.5 percent), and 12.5 percent of $5,800

equals $725 in minimum funding paid to the community school for that student.
And if the student enrolled in a traditional public school for the remainder of that
school year, the traditional school would retain $5,075.
{¶ 58} As these calculations show, R.C. 3314.08(H)(3) simply recognizes
that as in a traditional public school, students do not always enroll in and attend a
community school for the entire year—they might spend part of the year enrolled
in a traditional public school, a private school, or another community school, or
they might be home schooled. R.C. 3314.08(H)(3) therefore ensures that a
community school receives funding for a student only during the time the student
is actually enrolled in the community school, just as a traditional public school
receives state education dollars for only that part of the year that a student is
enrolled in and receiving services from the school district. R.C. 3317.03(A).
{¶ 59} Like it has for traditional public schools, the General Assembly has
indicated when a student is enrolled in a community school. R.C. 3314.08(H)
provides that a student is considered enrolled in a community school

for the period of time beginning on the later of the date on which the
[community] school both has received documentation of the
student’s enrollment from a parent and the student has commenced
participation in learning opportunities as defined in the contract with
the sponsor, or thirty days prior to the date on which the student is
entered into the education management information system.

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 January Term, 2018

Enrollment in a community school continues until the date (1) “[t]he community
school receives documentation from a parent terminating enrollment of the
student,” (2) the community school “is provided documentation of a student’s
enrollment in another public or private school,” or (3) “[t]he community school
ceases to offer learning opportunities to the student pursuant to the terms of the
contract with the sponsor or the operation of any provision of this chapter.” R.C.
3314.08(H)(2)(a) through (c).
{¶ 60} Like a traditional public school, in which a student’s enrollment is
considered to cease when “[t]he student ceases to participate in learning
opportunities provided by the school,” R.C. 3317.034(C)(3), a student’s enrollment
in a community school is affected when a student ceases to participate in learning
opportunities for an extended period of time. R.C. 3314.03(A)(6)(b) states that the
contract establishing a community school requires the school to “adopt an
attendance policy that includes a procedure for automatically withdrawing a student
from the school if the student without a legitimate excuse fails to participate in one
hundred five consecutive hours of the learning opportunities offered to the student.”
E-Schools
{¶ 61} In 2002, the General Assembly expanded a parent’s choice of
community school academic environments to include e-schools. R.C.
3314.02(A)(7), Sub.H.B. No. 364, 149 Ohio Laws, Part V, 10175, 10209. E-
schools are a type of community school, id., and most of the statutes discussed
above that apply to community schools in general also apply to e-schools.
{¶ 62} Like state funding for traditional public schools and brick-and-
mortar community schools, state funding for e-schools depends on enrollment.
R.C. 3314.08(C)(2) provides for “deducting from the state education aid of a
student’s resident district for students enrolled in an internet- or computer-based
community school and making payments to such school.” (Emphasis added.) As
with traditional public schools and brick-and-mortar community schools, because

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funding is tied to enrollment, the statutes establish detailed requirements for when
enrollment in an e-school begins and ends.
{¶ 63} Enrollment begins (1) when the e-school has received
documentation of the student’s enrollment from a parent and the student has
commenced participation in learning opportunities or (2) 30 days prior to the date
on which the student is entered into an education-management-information system,
whichever is later. R.C. 3314.08(H)(2). Enrollment continues until the e-school
receives documentation from a parent terminating enrollment, it receives
documentation that the student enrolled in another school, or it ceases to offer
learning opportunities to the student. R.C. 3314.08(H)(2)(a) through (c).
{¶ 64} Moreover, funding for an e-school continues “without interruption
at the start of the subsequent school year” for any student who completed the prior
school year at the e-school unless the student “without a legitimate excuse fails to
participate in the first one hundred five consecutive hours of learning opportunities
offered to the student in that subsequent school year.” R.C. 3314.08(H)(2). If the
student fails to participate, then he or she is not considered to have “re-enrolled in
the school for that school year and the [ODE] shall recalculate the payments to the
school for that school year to account for the fact that the student is not enrolled.”
(Emphasis added.) Id.
{¶ 65} R.C. 3314.03(A)(6)(b) requires an e-school to include in its contract
an attendance policy with a procedure for automatically withdrawing a student from
the school if the student, without a legitimate excuse, “fails to participate in one
hundred five consecutive hours of the learning opportunities offered to the student.”
(Emphasis added.) Therefore, the General Assembly has decided that a student’s
enrollment in an e-school can be affected when a student ceases to participate in
learning opportunities for an extended period of time. R.C. 3314.08(H)(2)(c)
requires ODE to recalculate payments when the student does not participate in 105
consecutive hours of learning opportunities, but no statute allows ODE to

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 January Term, 2018

recalculate payments when a student fails to participate online for less than 105
consecutive hours. The distinction is significant, because it shows that enrollment
triggers funding. An e-school receives funding for an enrolled student who fails to
participate for 105 hours up until the time that that student is automatically
unenrolled, but it does not receive funding for the student who fails to participate
for 105 hours at the beginning of the next school year, because that student is
deemed to never have enrolled. It is the lack of enrollment, not the lack of
participation, that terminates the funding for the student.
{¶ 66} As with a traditional public school or a brick-and-mortar community
school, the General Assembly has contemplated that students may attend an e-
school for less than the whole school year. R.C. 3314.08(H) directs ODE to adjust
the amounts subtracted from school districts and paid to e-schools “to reflect any
enrollment of students in community schools for less than the equivalent of a full
school year.” The same formula used to calculate FTE for community schools is
used for e-schools:

. R.C.

3314.08(H)(3).
ECOT
ECOT’s FTE Calculation
{¶ 67} It is not disputed that for most of ECOT’s existence, it was funded
based on the enrollment it reported, not the number of hours in which students
participated in learning opportunities.
{¶ 68} In January 2003, ECOT and ODE entered a funding agreement that
set forth “the documentation of student enrollment, learning opportunities, and
funding standards.” That agreement provided that “State funding for students
enrolled in the School is due and shall continue to be paid to the School until the

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student graduates, withdraws * * *, or is no longer eligible to attend the school
* * *.” It also memorialized the understanding that

[s]tate law currently requires that each student must be presented
with at least 920 hours of learning opportunities per academic year.
These learning opportunities may come from an array of different
educational opportunities, such as direct (including computerized)
instruction, participation in curriculum related activities,
assignments and events, readings, field trips, tutoring, etc.

{¶ 69} The parties agreed that ECOT would maintain documentation of
“learning opportunity hours” as verified by an appropriate certificated ECOT
employee and that “ODE shall fund the School for all students enrolled as set forth
in [the funding agreement], pursuant to the Ohio Revised Code section 3314.08,”
subject to a review of each student’s FTE.
{¶ 70} ODE verified that ECOT’s funding was consistent with its reported
enrollment pursuant to the funding agreement in reviews conducted for fiscal years
2003, 2005, 2006, and 2011. The state auditor also audited ECOT’s FTE
calculations yearly. Marnie Carlisle, an assistant chief deputy auditor, stated in an
affidavit that the office relied on ODE’s guidance that “the key was the learning
opportunities offered by eschools, as opposed to student engagement, duration, or
online hours.” She also testified:

What we were consistently informed is that community schools,
including e-schools, are funded based upon annualized enrollment
as opposed to attendance, those two concepts are different, and that
the focus of our testing should be upon enrollment and certainly
attendance impact of the 105-hour rule for withdrawal from

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 January Term, 2018

enrollment, and so we should look at documentation supporting
enrollment of students, withdrawal of students, as well as whether
or not students are complying with the 105-hour rule and are being
withdrawn timely by the schools.

She agreed that ODE had told her that the teachers’ certification of the hours of
learning opportunities offered to students was “a sufficient form of documentation
to confirm that 920 hours of learning opportunities had been offered by the school
to a student.” None of the audits revealed any material issues.
{¶ 71} Further, John Francis Wilhelm, the ODE employee who conducted
the 2011 review, testified that he would not have requested, and ECOT was not
required to provide, “documentation that would have measured the length or time
of a student’s engagement in any particular learning opportunity” nor would he
“have otherwise examined the length of time that a student was on a computer any
particular day.” He also explained that in reviewing other e-schools prior to 2016,
he did not seek records documenting participation in learning opportunities. ODE
continued funding ECOT based on the school’s reports of enrollment and hours of
learning opportunities offered to each student as certified by teachers.
{¶ 72} Only in 2016, in the middle of the school year, did ODE disregard
this established course of dealing and assert, for the first time, that state funding
depends on the duration of participation, not enrollment. However, there had been
no change in the funding statute or in ODE’s administrative rules, and ODE’s
reviewer, Wilhelm, testified that he did not think it likely that the e-schools he
reviewed would have had any records documenting the duration of participation.
The auditor’s office likewise viewed the requirement to document the duration of
participation as a changed approach and sought further guidance from ODE in
conducting its audits.

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{¶ 73} ODE justified the new requirements by pointing out that beginning
in 2010, its FTE review manuals directed its reviewers to scrutinize individual
attendance records to determine “when a student has logged on and off while
accessing learning opportunities.” Although R.C. 3314.08(H)(2) permits ODE to
establish “criteria and documentation requirements for student participation,”
neither the 2010 manual nor any subsequently issued review manuals had the force
of law, because they were not promulgated in an administrative rule pursuant to
R.C. Chapter 119. An agency cannot enforce a new legal rule against the public
until it is formally promulgated as a rule pursuant to R.C. Chapter 119. Fairfield
Cty. Bd. of Commrs. v. Nally, 143 Ohio St.3d 93, 2015-Ohio-991, 34 N.E.3d 873,
¶ 29. Further, R.C. 3314.015(G) provides that “[i]n carrying out its duties under
[R.C. Chapter 3314], the department shall not impose requirements on community
schools or their sponsors that are not permitted by law or duly adopted rules.”
{¶ 74} In any case, because the General Assembly has provided that an e-
school’s funding depends on its enrollment, ODE may not—through a manual or
an administrative rule—reduce ECOT’s funding because of a lack of
documentation that its enrolled students participated in learning opportunities. See
Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-
3554, 913 N.E.2d 410, ¶ 18 (“A rule that is in conflict with law is invalid and
unconstitutional * * *”).
{¶ 75} Accordingly, ECOT complied with the funding agreement, the
historical practice, and R.C. 3314.08 when it calculated the FTE of its students for
the 2015-2016 school year at issue here. In a September 7, 2016 letter reporting
the findings of the FTE review for 2015-2016, ODE’s reviewer, Wilhelm,
examined a random sample of student files and noted that “[e]ach file reviewed
contained student engagement logins that were accurate for beginning and ending
days for enrollment purposes.” (Emphasis added.) His final review disclosed that
each student’s file documented only when the student logged on each day and did

28
 January Term, 2018

not show when the student logged off and that “[t]here was no hourly/daily/weekly
accounting of hours in which the student accessed learning opportunities.” And
although each file had a teacher’s certification of the number of hours of learning
opportunities ECOT offered to the student, Wilhelm concluded that under ODE’s
current policy, ECOT’s attendance records could not substantiate its FTE reports
without data documenting the time students spent online. He therefore
recommended another FTE review “to check for both log-ins and log-outs of
randomly selected students as well as verify a running record of hours and minutes
of individual student participation of both computer and non-computer learning that
correlates with the stated fte.”
{¶ 76} Nonetheless, Wilhelm testified that but for the lack of records
documenting the duration of each student’s participation, ECOT had provided
sufficient documentation to support its FTE calculations and would have passed the
review based on the criteria used in prior years.
The Ten-Hour Cap in R.C. 3314.08(H)(3)
{¶ 77} ODE challenged ECOT’s calculation of FTE by relying on language
in R.C. 3314.08(H)(3) and 3314.27 that applies only to e-schools and that had
existed at the time of the prior review of ECOT’s funding in 2011. The language
in R.C. 3314.08(H)(3) was originally added to the statute in 2005 in subdivision
(L)(3) and states that “no internet- or computer-based community school shall be
credited for any time a student spends participating in learning opportunities
beyond ten hours within any period of twenty-four consecutive hours.” Former
R.C. 3314.08(L)(3), Am.Sub.H.B. No. 66, 151 Ohio Laws, Part II, 2868, 3458. In
the same act, R.C. 3314.27 was enacted:

No student enrolled in an internet- or computer-based
community school may participate in more than ten hours of
learning opportunities in any period of twenty-four consecutive

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hours. Any time such a student participates in learning opportunities
beyond the limit prescribed in this section shall not count toward the
annual minimum number of hours required to be provided to that
student as prescribed in division (A)(11)(a) of section 3314.03 of the
Revised Code.

151 Ohio Laws, Part II, at 3466.
{¶ 78} R.C. 3314.27 refers to R.C. 3314.03(A)(11)(a), which provides that
the contract between the sponsor and the governing authority must require the
community school to provide learning opportunities to a minimum of 25 students
for a minimum of 920 hours per school year. Accordingly, pursuant to R.C.
3314.08(H)(3) and 3314.27, any hours that exceed 10 hours in a 24-hour period do
not count toward the 920 hours of learning opportunities that an e-school is required
to offer to its students.
{¶ 79} ODE relies on these statutes to support its view that an e-school’s
funding depends on “the duration of a student’s participation” as documented by
durational participation data, including when each student logged in and out of the
e-school’s online educational platform. And even though ODE had previously
allowed ECOT to verify the FTE it reported by having its teachers certify the
number of learning opportunities offered to each student, ODE maintains that those
certifications are not sufficient and contends that e-schools are paid for a student’s
participation, not for the learning opportunities offered to an enrolled student.
{¶ 80} R.C. 3314.08(H)(3) and 3314.27 do not, however, make e-school
funding turn on the amount of time a student actually participates online in learning
opportunities. Rather, it is the opposite: the point of these statutes is to prevent a
student’s online participation from being the measure of FTE. The General
Assembly recognized that unlike students in brick-and-mortar schools, which have
doors and close at the end of day, students enrolled in an e-school have no physical

30
 January Term, 2018

barrier preventing them from participating in the learning opportunities offered by
their school at any hour and completing a year’s worth of work in a shorter time.
Without R.C. 3314.08(H)(3) and 3314.27, an e-school could seek funding for the
equivalent of a full school year based on the student’s participation in and
completion of 920 hours in a much shorter time period, even if the student had
attended a traditional public school for part of the year. Those hours exceeding the
ten-hour cap are therefore not included when calculating the “percentage of
learning opportunities offered by the community school to that student * * * of the
total learning opportunities offered by the community school to a student who
attends for the school’s entire school year,” R.C. 3314.08(H)(3), and therefore are
not included in calculating the e-school’s funding.
{¶ 81} Accordingly, R.C. 3314.08(H)(3) does not change the fact that in
funding all public schools—traditional public schools, brick-and-mortar
community schools, and e-schools—enrollment drives the calculation. Just as
when a student enrolls in a traditional public school or a brick-and-mortar
community school, state money follows the student when he or she enrolls in an e-
school, and funding continues until the student is no longer enrolled. R.C.
3314.08(C) and 3317.03(A) and (D)(1); see generally Ohio Congress of Parents &
Teachers, 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, at ¶ 37, 39.
{¶ 82} The majority reads much more into R.C. 3314.08(H)(3). It reasons
that

[b]y stating that the maximum daily credit for each student is ten
hours, it is apparent that the legislature intended that an e-school will
be credited for a student’s participation for less than ten hours in a
day. This calculation can be made only by referring to records that
contain evidence of the duration of a student’s participation in
learning opportunities.

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Majority opinion at ¶ 14. And from the premise that an e-school is required to keep
track of students’ online participation for purposes of the ten-hour cap, it leaps to
the conclusion that “[i]n order to calculate funding, ODE is authorized to consider
evidence of the duration of a student’s participation.” Id. at ¶ 20.
{¶ 83} This logic is dubious at best. It is true that an e-school will not
receive credit for any time that a student participates in learning activities for more
than ten hours a day, but that does not mean that an e-school will be funded only
for the amount of time that the student chooses to participate in the e-school’s
online educational platform. R.C. 3314.08(C)(2) ties state education aid to
enrollment, and no statute expressly links funding to participation in learning
opportunities or logging in to lessons online; tellingly, R.C. 3314.08(H)(3) does not
use the words “duration,” “online,” or “log in.” And had the General Assembly
intended the ten-hour cap to modify the amount of funding paid to an e-school, it
would have said so in R.C. 3314.08(C)(2) when it provided for payments to e-
schools. It did not.
{¶ 84} The majority therefore interprets R.C. 3314.08(H)(3) more broadly
than the General Assembly intended, taking a limited provision for calculating FTE
that simply caps the number of hours of learning opportunities available to a student
on a given day and inferring from it a new restriction on e-school funding that is
not based on enrollment as provided by R.C. 3314.08(C)(2) but rather is determined
by durational data documenting online participation.
{¶ 85} ODE’s argument and the majority’s conclusion that an e-school’s
funding depends on the student’s online participation in learning opportunities
cannot be squared with the plain language of R.C. 3314.08(H)(3). That statute
provides that after funding has been triggered by the student’s enrollment pursuant
to R.C. 3314.08(C)(2), it will be adjusted based upon the student’s FTE, which is
determined as a “percentage of learning opportunities offered by the community

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 January Term, 2018

school to that student * * * of the total learning opportunities offered by the
community school to a student who attends for the entire school year.” (Emphasis
added.) The word “offered” is not defined in the statute, and we therefore must
construe it according to its common usage, R.C. 1.42. “Offer” means “to present
for acceptance or rejection: hold out” and “to make available or accessible:
SUPPLY: AFFORD.” (Capitalization sic.) Webster’s Third New International
Dictionary 1566 (3d Ed.2002). The word “participate” means “to take part in
something (as an enterprise or activity) usu. in common with others.” Id. at 1646.
Nothing in the meaning of the word “offer” suggests that it is synonymous with
“participate,” and there is a difference between a school making a learning
opportunity available to a student and the student’s choice to take that opportunity
and participate in learning.
{¶ 86} Throughout the statutory scheme for funding public schools, the
legislature has used the terms “enrolled,” “enrollment,” “offered,” “participated,”
and “participation.” Contrary to the majority’s analysis today, courts generally
presume that when the General Assembly uses different words in a statute, it
intends those words to have different meanings. See Kiefer v. State, 106 Ohio St.
285, 290, 139 N.E. 852 (1922); Huntington Natl. Bank v. 199 S. Fifth St. Co., 10th
Dist. Franklin No. 10AP-1082, 2011-Ohio-3707, ¶ 18; State v. Steele, 8th Dist.
Cuyahoga No. 105085, 2017-Ohio-7605, ¶ 15. Therefore, as a matter of statutory
construction, even if R.C. 3314.08(H)(3) were somehow ambiguous, “offered”
cannot be equated with “participated.”
{¶ 87} Further, ODE’s argument and the majority’s construction of the
statute ignores how an e-school like ECOT operates. The legislature provided that
“ ‘learning opportunities’ shall be defined in the contract” between the community
school and its sponsor. R.C. 3314.08(H)(2). The General Assembly has therefore
left it to the school and its sponsor to determine how learning opportunities will be
offered to students, and ODE therefore lacks authority to dictate that all learning in

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an e-school must be completed online. And here, ECOT’s contract with its sponsor
indicates that lessons are “provided online for daily access to the rigorous and
relevant content, to be completed at the child’s pace at home.” (Emphasis added.)
Learning opportunities did not have to be completed online, and ECOT recognized
that they “include but are not limited to direct instruction, opportunity to participate
in class work/activities either electronically or through other means, readings, field
trips, participation in curriculum related activities and events, tutoring, etc.” And
ECOT permitted teachers to use various “instructional delivery methods,”
including nonelectronic course materials such as “workbooks, instructional grade-
level packets, field trips, Educational CDs, textbooks, manipulative materials and
literary materials.”
{¶ 88} Although some class content was streamed over the Internet,
assignments were not completed solely by working online for the whole school day.
Rather, ECOT’s Parent/Student Handbook instructed students to open their
assignments in Microsoft Word and save the assignments offline on their computer
hard drives. Students could then complete their assignments without being logged
onto ECOT’s educational platform and then log on again to submit their finished
work by attaching it to a message to their teacher. Some online resources were
available to students on websites not on ECOT’s educational platform or were on
applications for tablets that were not a part of ECOT’s system. Moreover, ECOT
provided each student with a printer and a scanner, which students could use to
print assignments, complete them by hand, and then scan and upload them for
grading. The majority therefore incorrectly assumes that students had to remain
logged onto ECOT’s educational platform in order to participate in the learning
opportunities the school offered them.
{¶ 89} For this reason, the amount of time a student spent logged on is
irrelevant to determining the duration of a student’s participation in learning
opportunities. Rather, like any other school, ECOT relied on its teachers to verify

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that students were participating and completing their assignments. ECOT required
teachers to conduct proctoring sessions with every student “voice to voice through
a classroom live (WebEx) session, over the phone, and/or in a face-to-face
meeting.” Teachers were also to review, comment on, and grade assignments just
as teachers in traditional public schools and brick-and-mortar schools do. And just
like parents of students enrolled in other schools, parents had the ultimate
responsibility to ensure that a child completed an assignment. For this reason,
ECOT encouraged face-to-face meetings between teachers, parents, and students at
“family nights” and parent-teacher conferences.
{¶ 90} The Parent/Student Handbook also recognized that “non-electronic
learning opportunities” can supplement and enhance a student’s education,
providing learning in a different environment and bringing community resources—
“natural, artistic, industrial, commercial, governmental, and educational”—to the
student. ECOT permitted students to earn credit for “field experience, internship,
and/or mentorship” through a course of independent-study classes as well as
through music, art, sports, community service, and tutoring. Students could even
earn high-school credit for courses taught on college campuses, as long as they
provided their own transportation. Then, at the end of the school year, ECOT’s
teachers certified the total hours of educational opportunities offered to each student
they taught.
{¶ 91} The state establishes the educational standards that students are
meant to achieve, but in light of “the experimental spirit behind R.C. Chapter
3314,” Ohio Congress of Parents & Teachers, 111 Ohio St.3d 568, 2006-Ohio-
5512, 857 N.E.2d 1148, at ¶ 32, it cannot tell e-schools how best to deliver a
curriculum to students, see R.C. 3301.079(B). And the General Assembly has
afforded e-schools flexibility in shaping the learning opportunities offered. Schools
like ECOT might be a student’s last resort in Ohio. According to an ECOT official,
students enrolled in ECOT have high rates of mobility, poverty, and special needs

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and are typically two grades behind their peers. Given these facts, it is not
surprising that, as with traditional public schools and brick-and-mortar community
schools, the statute ties state education funding to enrollment and learning
opportunities offered by the e-school rather than to other metrics such as student
participation or academic success. If student participation or academic success
were the metric for funding, one could envision that a large number of traditional
public schools would miss out on state education dollars as well.
{¶ 92} Nonetheless, the majority asserts that even though the General
Assembly used the word “offered” in R.C. 3314.08(H), that “is only one word of
the operable language of the statute, which when read in full, does not indicate that
the legislature intended for e-schools to be funded merely for offering learning
opportunities.” (Emphasis sic.) Majority opinion at ¶ 22. That attempt to read the
word “offer” out of the statute fails, because “ ‘[t]he preeminent canon of statutory
interpretation requires us to “presume that [the] legislature says in a statute what it
means and means in a statute what it says there.” ’ ” State ex rel. Lee v. Karnes,
103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 27, quoting BedRoc Ltd.,
L.L.C. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004),
quoting Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct.
1146, 117 L.Ed.2d 391 (1992). And R.C. 3314.08(H) is plain and unambiguous:
FTE is calculated by dividing the number of the hours of learning opportunities
offered (or made available) to a student by the total hours of learning opportunities
that are offered (or made available) to a student who attends for the entire school
year, limited only by the ten-hour-a-day cap.
{¶ 93} Ironically, it is the majority that fails to consider the operable
language of the statute in full; it reads one sentence in R.C. 3314.08(H)(3) in
isolation and out of context without even scratching the surface of the whole
statutory scheme of public-school funding. But a comprehensive review of that
funding scheme reveals that all public schools—traditional public schools, brick-

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and-mortar community schools, and e-schools—receive state education dollars
based on enrollment. “[S]tate money follows the student,” Ohio Congress of
Parents & Teachers at ¶ 53, because the General Assembly intended to guarantee
each public-school student a minimum level of education funding, i.e., his or her
“own per-student allocation of state money,” id. at ¶ 58. But under the guise of
statutory construction, the majority upends state education policy, separating
funding from the e-school student and rewarding the school district that failed to
meet his or her needs—state education money no longer all follows the student to
an e-school, and the school district gets the windfall of retaining part of the
student’s allocation without shouldering the burden to provide any services at all.
{¶ 94} Unmooring R.C. 3314.08(H)(3) from its context is therefore not just
a faulty exercise of statutory construction; it has real-world consequences that
arrive at the expense of the very students that the legislature sought to empower by
providing an alternative to the traditional public schools that already failed them.
There is simply no basis to believe that the General Assembly—solely by
implication—set e-schools apart from all other public schools by basing funding on
something other than the duration of enrollment, i.e., a student’s active, online
participation in learning.
{¶ 95} In the end, it is apparent that the majority believes that it is bad public
policy to pay a school “merely for offering learning opportunities.” (Emphasis sic.)
Majority opinion at ¶ 22. However, “[t]he General Assembly is the branch of state
government charged by the Ohio Constitution with making educational policy
choices for the education of our state’s children. Our personal choices are not
relevant to this task.” Ohio Congress of Parents & Teachers, 111 Ohio St.3d 568,
2006-Ohio-5512, 857 N.E.2d 1148, at ¶ 34.
{¶ 96} And the majority’s view ignores reality. The General Assembly
established community schools “to provide a chance of educational success for
students who may be better served in their educational needs in alternative

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settings.” (Emphasis added.) Id. at ¶ 32. This includes students who have already
failed in or dropped out of traditional public schools. Id. at ¶ 6. Like any school,
an e-school can offer students only the opportunity to learn. It cannot force students
to take that opportunity. Rather, it falls upon students, supported by their parents,
guardians, and custodians and their schools, to participate in the learning
opportunities offered by the school. And it is the effort of the student that will
ultimately decide whether he or she advances and graduates. Because of the
challenges that many students attending e-schools already face, such as high rates
of mobility, poverty, and special needs, the majority effectively eviscerates the last
chance for an education that many students attending an e-school will have.
{¶ 97} Given the complexities of public-school law, undoubtedly there will
be unintended consequences arising from today’s decision to give credit only for
students’ participation. For example, Ohio graduation requirements applicable to
students in all public schools—traditional public schools, brick-and-mortar
community schools, and e-schools—require a minimum number of hours of
coursework in specified fields before a public school may award a diploma. R.C.
3313.603 and 3314.03(A)(11)(f). The majority’s holding therefore casts doubt on
whether students enrolled in ECOT and other e-schools are still on track to graduate
if the school lacks data documenting when the student logged in and logged out of
the online educational platform. After all, the logical consequence of the majority’s
analysis is that an e-school can establish a student’s completion of a sufficient
number of hours of coursework only by producing the same durational data
required for funding purposes. It will be up to the General Assembly to pass new
laws to make its education policies clear and to remedy this and other unforeseen
results.
Conclusion
{¶ 98} The General Assembly authorized the creation of community
schools as a part of Ohio’s constitutionally required system of common schools.

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Cordray v. Internatl. Preparatory School, 128 Ohio St.3d 50, 2010-Ohio-6136, 941
N.E.2d 1170, ¶ 22. In establishing e-schools, the legislature sought to provide
another option to students whose traditional public school had failed them. The
majority may be correct that as a matter of policy, e-schools need to do more to
ensure that students participate in the learning opportunities offered to them. The
General Assembly, however, chose to hold community schools accountable in a
different way: through sponsors who can suspend operations and parents who can
withdraw their children from the school. Ohio Congress of Parents & Teachers,
111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, at ¶ 31.
{¶ 99} Whether other measures are needed to hold e-schools accountable
for how they spend state education funds is a matter for the General Assembly to
address as the policymaking branch of state government. But even though it
enacted legislation in 2015 requiring e-schools to “keep an accurate record of each
individual student’s participation in learning opportunities each day,” R.C.
3314.27, it has not altered the basic framework of school funding, which is
calculated based on the e-school’s enrollment according to the principle that state
education money follows the student when he or she enrolls in or withdraws from
a public school. It is telling that the legislature addressed many of the concerns
motivating this litigation—i.e., that e-schools should have to maintain records
documenting student participation—without expressly linking state education
funding to the duration of online participation.
{¶ 100} Notably, ODE previously agreed with a construction of the statute
that funded e-schools based only on the schools’ reported enrollment. It entered a
funding agreement in January 2003 providing that state aid would be paid to ECOT
based on its enrollment. Consistent with this agreement, between 2003 and 2015
ODE approved payments to ECOT based on enrollment and the hours of learning
opportunities offered to the student as certified by teachers, without asking ECOT
to report the number of hours a student had participated in learning opportunities.

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Only in 2016 did ODE reject the established course of dealing of the parties and
assert, for the first time, that state funding depends on the duration of online
participation, not enrollment. No change in the statute or in the department’s
administrative rules required this action, and tellingly a bill seeking to codify
ODE’s position in this litigation failed to pass in the General Assembly. See 2017
S.B. No. 39 (as introduced). In this court, ODE fails to justify its after-the-fact
position on how funding will be calculated.
{¶ 101} Nothing in R.C. Chapter 3314 indicates that the General Assembly
intended to set e-schools apart from traditional public schools and other community
schools and base an e-school’s funding solely on how much time during the day
that the student chooses to log onto the school’s network and participate online in
the education opportunities offered to the student. Rather, the plain language that
the legislature enacted demonstrates that an e-school’s funding depends on its
enrollment.
{¶ 102} Accordingly, I would reverse the judgment of the Tenth District
Court of Appeals and remand the case to the trial court for further proceedings
consistent with this opinion.
_________________
Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., John W. Zeiger, and
Christopher J. Hogan, for appellant.
Organ Cole, L.L.P., Douglas R. Cole, Erik J. Clark, and Carrie M.
Lymanstall, for appellee.
McNees, Wallace & Nurick, L.L.C., Karl H. Schneider, and Michael V.
Passella, urging reversal for amicus curiae Ohio Coalition for Quality Education.
Murray, Murphy, Moul & Basil, L.L.P., Brian K. Murphy, and Joseph F.
Murray, urging reversal for amici curiae former members of the Ohio General
Assembly.

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Day Ketterer, Ltd., Albin Bauer II, and Thomas C. Holmes, urging reversal
for amici curiae Akron Digital Academy, Newark Digital Academy, Phoenix
Academy Community School, and Quaker Digital Academy.
Joseph Schiavoni, Bethany E. Sanders, and Scott W. Stockman, urging
affirmance for amici curiae members of the Ohio Senate and House of
Representatives Democratic Caucuses.
_________________

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