DeRolph v. State

Alice Robie Resnick, J.,

concurring. I concur in the majority opinion and in the concurring opinion of Justice Douglas.

I write separately primarily to underscore the fact that this case does not seek equality of education throughout Ohio, but rather seeks a quality education for every single child in Ohio regardless of where that child resides.

The dissent contends that this case involves a nonjusticiable political question and that as a result this court should decline to address the issues presented. However, in 1979, when this court decided Cincinnati School Dist. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 383-384, 12 O.O.3d 327, 336, 390 N.E.2d 813, 823-824, this court made clear that in certain instances we would have jurisdiction to determine the constitutionality of Ohio’s system of funding public schools, and that the issue would be a justiciable question. We recognized and distinguished the propriety of judicial review from the deference we would give to the General Assembly’s determinations of policy. But that deference is not without limits. The Walter court stated:

“ ‘A thorough system could not mean one in which part or any number of the school districts of the state were starved for funds. An efficient system could not mean one in which part [or] any number of the school districts of the state lacked teachers, buildings, or equipment.’
it * * *
“This court, therefore, intimated in Miller v. Korns [(1923), 107 Ohio St. 287, 140 N.E. 773], that the wide discretion granted to the General Assembly is not without limits. For example, in a situation in which a school district was receiving so little local and state revenue that the students were effectively being deprived of educational opportunity, such a system would clearly not be thorough and efficient.” (Footnote omitted.) 58 Ohio St.2d at 386-387, 12 O.O.3d at 338, 390 N.E.2d at 825, quoting Miller, 107 Ohio St. at 298, 140 N.E. at 776.

Today, indeed, we have a number of school districts that are starved for funds. We have school districts that lack adequate buildings and equipment. In 1997, when it is evident that the citizens of Ohio are unable to declare that the General Assembly is providing a “thorough and efficient” system of public schools for all of the students in Ohio, it would be irresponsible for this court to refuse to decide this question under the guise of calling it a “nonjusticiable political question.”

I join Justice Douglas’s concurring opinion, in which he finds that education is a fundamental right. I wish to emphasize, however, that education need not be equal or substantially equal in all districts. Rather, there must be a threshold amount of funding provided by the state which affords each district in Ohio the ability to meet certain standardized requirements. It should be recognized that *261districts may provide for their students above and beyond the state’s responsibility-

The dissent notes the great strides the General Assembly has made in funding education in Ohio since Walter. Yet the General Assembly does not know the actual per-pupil cost of education in Ohio, since it has not calculated the cost of a quality education since 1973-1974. Moreover, while educational funding has increased since Walter was decided, it is no longer based on an explicit assessment of the cost of a high-quality education. Education is funded as a residual after other mandated programs are funded.

The dissent states that “evidence demonstrates that the General Assembly has discharged its constitutional duty for funding a ‘thorough and efficient’ system.” The question to be answered after reviewing all of the evidence is whether a thorough and efficient system exists in a school district where some students are taught in a former coal bin, or where there are not enough books for each child, or where the science lab has no gas valves or running water, or where handicapped children are carried up and down stairs because the buildings are not accessible to wheelchairs, or where the buildings are structurally unsafe, have inadequate plumbing, or are -without sanitary or indoor restrooms, or where the school buildings cannot be rewired for computers until an asbestos hazard has been eliminated. This is not a close question. The answer is obvious. From this list alone, it is evident that the General Assembly has failed in its constitutional duty to provide a “thorough and efficient” system of schools throughout Ohio.

It is estimated that it will take $10 billion to reestablish adequate school facilities throughout the state. But the problem is not only facilities that are inadequate or in poor condition. In addition, it is all of the other myriad deficiencies, including the lack of honors programs, language courses, and other electives in property-poor school districts, that put many of Ohio’s children at a disadvantage when they try to enter colleges.

It cannot be emphasized enough that a thorough and efficient system of common schools does not require uniformity or equality of all schools. Contrary to the dissenting opinion, equality is not the purpose of this case. Rather, the General Assembly is required by our state’s Constitution to provide a quality and adequate education for all of Ohio’s school students. It must assure every child of the right to enter a structurally safe building, which is staffed with sufficient teachers, and contains enough textbooks and equipment so that the child can develop self-esteem and intellectual abilities. Until this constitutional threshold has been met in each and every school in Ohio, a thorough and efficient school system will not exist.

The General Assembly must first determine the cost of a basic quality education in both primary and secondary schools in Ohio, and then ensure *262sufficient funds to provide each student with that education, realizing that local property taxes can no longer be the primary means of providing the finances for a thorough and efficient system of schools. Continued reliance on property taxes for the majority of school finances will simply preserve the status quo of inadequacy and deny the students in property-poor school districts a thorough and efficient education.

Douglas, J., concurs in the foregoing concurring opinion.