Board of Education v. Walter

Locher, J..

dissenting. I dissent from the judgment of 1he majority, holding that Ohio’s statutory system for the financing of elementary and secondary education does not violate the Ohio Constitution. In my view, the present system violates both the Equal Protection and Benefit Clause •of Section 2 of Article I, and the “Thorough and Efficient Clause,” Section 2, Article VT of the Ohio Constitution.

I.

First, I respectfully disagree with the majority’s conclusion to the effect that educational opportunity is not a fundamental right and, therefore, not entitled to strict judi-•ci'al scrutiny under Equal Protection analyses. The Supreme Court stated, in San Antonio School Dist. v. Rodriguez (1973), 411 U. S. 1, 33, that:

<<* * * [T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education * * ®. Rather, the ■answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.'

The right to an education is implicitly mandated by 'Sections 2 and 3 of Article VI of the Ohio Constitution, ■as follows:

“The general assembly shall make such provisions by ■taxation, or otherwise, as, with the income arising from *390the 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.” (Emphasis added.) Section 2, Article YT.
“Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds; provided, that each school district embraced # * # within any city shall have the power * * * to determine # * * the number of members and the organization of the district board of education * * V’ Section 3, Article VI.

Applying the “Rodrigues test,” it follows that, in Ohio, educational opportunity is a fundamental interest entitled to strict scrutiny under Ohio's Equal Protection Clause. California, Connecticut, and Wisconsin have found educational opportunity to be a fundamental interest under the “Rodriguez test.” Serrano v. Priest (1976), 18 Cal. 3d 728, 557 P. 2d 929; Horton v. Meskill (1977), 172 Conn. 615, 376 A. 2d 359; Buse v. Smith (1976), 74 Wis. 2d 550, 247 N. W. 2d 141.15

Over and above the Rodrigues test, I would find educational opportunity to be a fundamental right because of its nexus to the right to participate in the electoral process and to' the rights of free speech and association guaranteed by the First Amendment.

Finally, the provision of public education is the single most important function of our state. Education is at the very foundation of our democracy and “it is doubtful that any child may reasonably be expected to- succeed in life if he is denied the opportunity of an [adequate] educa-*391lion.” Brown v. Board of Education (1954), 347 U. S. 483, 493. In this sense, the fundamental right to equal educational opportunity is the American Dream as incarnate as constitutional law.

The American Dream is thwarted by the archaic and unconstitutional statutory system of financing elementary and secondary education. Evidence abounds that Ohio’s beleaguered schools are overwhelmed by problems of such magnitude that the basic needs of pupils go unfulfilled1. The majority opinion flies .square in the face of reality, not to mention the findings of fact and legal conclusions of the trial court and the Court of Appeals.

In determining whether unequal educational opportunity exists among Ohio’s school age children, this court is constrained by the nearly 400 page findings of fact of the trial court. These findings were adopted in their entirety by the Court of Appeals. This court has stated on many occasions that the court will not weigh the evidence to determine whether correct conclusions as to facts were reached by the court below. State, ex rel Pomeroy, v. Webber (1965), 2 Ohio St. 2d 84, 86, citing State, ex rel. Kobelt, v. Baker (1940), 137 Ohio St. 337, 340; accord, G. S. T. v. Avon Lake (1976), 48 Ohio St. 2d 63, 65, at fn. 2; In re Estate of Duiguid (1970), 24 Ohio St. 2d 137, 141. The only exception to this rule is where there is no evidence in the record of probative value to support them. Gillen-Crow Pharmacies, Inc., v. Mandzak (1966), 5 Ohio St. 2d 201, 205; Gates v. Board of Edn. of River Local School Dist. (1967), 11 Ohio St. 2d 83. At no time has the appellant alleged that any of the approximately 400 page findings of the trial court are unsupported by the 7,500 page record.

There is a clear connection between the meager financial resources and the general malais of many schools, particularly those located in urban areas of the state.16

*392Problems associated with discipline; inadequate salaries; lack of textbooks; cramped facilities and outmoded equipment;17 vandalism; low teacher morale; ebbing parental concern; demoralized non-teacher employees; payless pay days: absenteeism and truancy; consistent failures of school tax levies and bond issues;18 record teacher resignations: desultory pupil achievement and many others arc directly traceable to Ohio’s inequitable system of funding. The voluminous trial record is replete with evidence substantiating the ills that threaten to engulf the schools and the linkage between those symptoms and the emaciated proceeds of Ohio’s funding statutes.19

The defendants, acknowledging that wide disparity in educational funding exists among Ohio’s 617 school districts, argue that, even if this court finds educational opportunity to be a fundamental right, “local control” is a *393compelling state interest justifying the grossly unequal treatment of Ohio’s school age children. Although local control may be a rational basis justifying the present system, it is clearly not compelling. Whatever may be said about “local control,” the evidence shows that the present system has actually eroded such control; i. e., poorly funded districts are not even able to offer adequate programs required by the state’s own “minimum standards,” let alone design programs to meet the individualized needs of the ehilcTren within their district. Many experts testified that increased state funding would enhance local control.

Repeated allusions by the majority to the foresight of the legislators who framed our laws establishing local control of the pnblie education process is scant solace to the pupil, teacher or administrator in the embattled schools. Indeed, many who feel that local control of the operations is necessary to accomplish a viable school system fear that the growing difficulties attacking the schools may bring about the demise of our educational system as we know it. Surely, desperate pleas for financial transfusion will go out to the federal bureaucratic establishment. When, and if, the calls for help are heeded, the strings that accompany the federal largesse will erode the cherished ideal of district control. Better the General Assembly shore up the disadvantaged school and, in the process, save the expressed community interests of our people.20

More importantly, Section 2, Article VI, places the primary responsibility for the education of our school age children upon the state of Ohio, not the local school district. Local control, therefore, cannot be utilized to justify the present system which creates: (1) vast disparities among Ohio’s school districts in (a) total state and local support per pupil and (b) expenditures per pupil for instruction, and (2) the quantity and quality of educational services pro*394vided. The fact that many districts were forced to close their schools, for varying periods of time, in 1976,1977 and' 1978, and that many districts which avoided closing in 1978 were unable to deliver better than austerity levels of education, is a deplorable situation which cries out for a remedy. A loss of a day of instruction can never be recaptured.

n.

Second, while the General Assembly must be afforded broad discretion in establishing a “thorough and efficient system of common schools, ’ ’ in my view, it abuses that discretion where many school districts are so “starved for funds ’ ’ that they are unable to comply with the state 7s own “minimum standards,” and are unable to remain open for the entire .school year without interruption.21 The trial court specifically held that “[t]he significance of the evidence of non-compliance by schools with state minimum standards is that the General Assembly has established a system of common schools throughout the state in which the overwhelming majority of schools are substandard as measured by the state’s own criteria.” Findings of Fact and Conclusions of Law, at page 56.

Therefore, to the extent that some children are forced to attend schools which are so poorly funded that they cannot meet state “minimum standards,” they are being-deprived! of educational opportunity. Such a system is not “thorough and efficient.”

In Robinson v. Cahill (1973), 62 N. J. 473, 303 A. 2d 273, the New Jersey Supreme Court, although not applying the “Rodriguez test,” went on to find their system of financing education in New Jersey unconstitutional because it violated the “Thorough and Efficient Clause,” a provision identical to Ohio’s “Thorough and Efficient Clause.” On rehearing to determine a remedy, however, the court stated that the right of children to a thorough and efficient education is a fundamental right guaranteed by the .state constitution and, therefore, must he administered equally. Robinson v. Cahill (1975), 69 N. J. 133, 351 A. 2d 713.

“(G) Conditions in Urban Districts

. . “(1) The same conditions of educational deprivation existing in the audit districts, which, with the .exception of Toledo, are essentially rural, also exist in the principal urban, inner-city districts. * * *” Findings of Fact and Conclusions of Law, at page 93.

“(E) Educational Conditions in Closing Audit Districts

<i* * *

“ (4) The physical plants in a school district are substantially educationally significant. Obsolete, poorly lighted, inadequately maintained school buildings impair teaching and learning efficiency and have a negative effect upon student morale and motivation.” Findings, of Fact and Conclusions of Law, at page 72.

“ (3) The evidence that the local property tax component of the system has utterly failed is overwhelming. Superintendent after superintendent of school districts which have been driven to closing or to-the brink of closing schools for lack of funds testified to histories of consistent failures of school tax levies and school bond issues.”' Findings of Fact and Conclusions of Law, at page 186.

“(9) Many of the districts have been forced to borrow from commercial banks and from bond retirement accounts, and have had to. defer the payment of bills until the next school year.

“(10) The superintendents anticipate that the financial problems, of their districts will become even worse in 1977 than they were in. 1976, that the deficits will become larger and that their schools will have to be closed for longer periods in 1977 than they were in 1976.

“(11) School closings place districts in deeper financial holes because they incur additional costs for unemployment compensation, interest and make-up days.

“(12) The additional cost to the Toledo-City District in unemployment compensation alone as a result of the 1976 closing was $1.6-million.” Findings of Fact and Conclusions of Law, at page 62. •

(3) The failure of the General Assembly to make provisions for the plants and facilities of the school districts represents an omission to provide for one of the essential elements of the public educational system.” Findings of Fact and Conclusions of Law, at page 204.

In 1976, 17 of Ohio’s school districts were forced to apply to the State Auditor for closing audits, pursuant to R. C. 3313.483. Seven ‘‘audit” districts actually closed.

In 1977, 61 school districts were forced to apply for closing audits under R. C. 3313.483, and the results of the audits showed that 33 of the districts would have had deficits if they completed the school year.