DeRolph v. State

Moyer, C.J.,

dissenting. The sole issue now before us, as it was in DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733 (“DeRolph I”), is whether the Ohio General Assembly has violated the words and intent of the Ohio Constitution that require it to “make such provisions, by taxation or otherwise, as * * * will secure a thorough and efficient system of common schools throughout the State.” Section 2, Article VI of the Ohio Constitution. In DeRolph I a majority *48of this court held that Ohio school-financing laws then in place did not comply with this constitutional provision.

I, along with Justices Cook and Lundberg Stratton, dissented, recognizing that the General Assembly had in fact established a statewide school system in which schools were open, teachers were teaching, buses were running, and all Ohio children had available to them an opportunity to learn. Our dissent was based on our conviction that resolution of issues of the level and method of school funding is dependent upon judgments regarding the quality of education to be provided' by the state. It was further grounded on our firm belief that constitutional history, precedent, and logic warrant the conclusion that those qualitative judgments should be committed to the will of the people as expressed in the election of representatives to the General Assembly and local school boards and in the determination of voted taxation issues to support the schools. In short, the determination of what constitutes minimum levels of educational opportunity to be provided to Ohio’s children is committed by the Ohio Constitution to legitimate policy makers — not the courts, whose proper role is interpretation and application of law.

The wide divergence of opinion between the majority and the minority members of this court as to proper interpretation of the Thorough and Efficient Clause, as manifested in the various separate opinions in DeRolph I, remains. I continue to believe that decisions regarding the level of educational quality to be made available to Ohio school children are dependent upon policy decisions— political, budgetary, and value judgments — that require a balancing of interests that is not appropriately struck in the Supreme Court of Ohio. “The judicial branch is simply neither equipped nor empowered to make these kinds of decisions.” DeRolph I, 78 Ohio St.3d at 269, 677 N.E.2d at 785-786 (Moyer, C.J., dissenting).

Today the majority, having examined the current statutory school-funding system, acknowledges that significant steps have been taken since our decision in DeRolph I by the General Assembly, as well as by two Ohio Governors, to improve public elementary and secondary education in our state. The majority summarizes a multitude of initiatives adopted by the executive and legislative branches in recent years to improve school quality in Ohio, and specifically • recognizes that the General Assembly has taken steps to “formulate a viable plan to fund the construction of new school facilities and to repair” physical deficiencies in Ohio school buildings. The majority recognizes the complexity of the educational system, and describes the task of reforming that system as one of “unparalleled magnitude.”

What the majority fails to fully recount is the magnitude of the state’s monetary commitment to education. Pursuant to the Classroom Facilities Act, *49from 1990 to May 1998, twenty-three new construction projects had been completed and fourteen more were under construction. The General Assembly has earmarked $1.6 billion for the School Facilities Commission for classroom facilities improvements since DeRolph I. Funding for technology improvements in the schools totaled $256 million at the time of trial before the common pleas court in 1998, 1997 Am.Sub.S.B. No. 215, Section 69, with additional funding of $196 million appropriated in 1999, Am.Sub.H.B. No. 282, Section 11. The General Assembly has provided a $50 million textbook subsidy for all but the wealthiest school districts, 1997 Am.Sub.H.B. No. 215, Sections 50 and 50.16. Since fiscal year 1991, the Department of Education has received the largest increase in state dollars of any agency, totaling approximately $1.7 billion, and receives more state money than any other agency or department in the state.

Nevertheless, although the majority acknowledges progress in achieving the criteria set in DeRolph I, including significant initiatives and developments, it concludes that “a great deal of work has yet to be done before Ohio can be said to have a constitutional thorough and efficient system of public schools.”

The majority retains jurisdiction of this case for at least another year, after which it will again scrutinize the public school statutory framework in light of its own unpredictable and indefinite concepts of educational thoroughness and efficiency. In the interim, the General Assembly and the executive branch of government are asked to further improve the system, in accordance with direction created by the majority which remains vague and generalized. In so doing, and while recognizing that the coequal executive and legislative branches of government have acted in good faith to comply with DeRolph I, the majority in effect claims veto power over policy determinations made by the General Assembly, thereby reserving to itself ultimate authority over public educational policy within the state.

In DeRolph I, our joint dissent expressed the view that the majority had failed to provide the General Assembly with sufficient guidance for creating a constitutional school-financing system and noted that “[ajspirational phrases urging that state financing of educational systems enable citizens to ‘fully develop their human potential,’ and afford ‘high quality educational opportunities’ are no more amenable to judicial interpretation or enforcement than is the term ‘thorough and efficient.’ ” 78 Ohio St.3d at 268-269, 677 N.E.2d at 785. This criticism applies to today’s majority opinion as well. The majority still has not clearly told the General Assembly what “thorough and efficient” means, or what “overreliance” on property tax is, or what would constitute the kind of educational opportunity it. believes the Ohio Constitution guarantees to every Ohio child. Instead, the majority today tells the General Assembly once again to go back to the drawing *50board, while not describing in a meaningful way what the final design must look like.

Today the majority elevates two statements from Miller v. Korns (1923), 107 Ohio St. 287, 140 N.E. 773, to syllabus law. Paragraph one of the syllabus provides that the General Assembly must secure not merely a system of common schools but rather a thorough and efficient system of common schools. The second paragraph of today’s syllabus provides that the attainment of efficiency and thoroughness in that system is a statewide purpose, that is, efficiency and thoroughness throughout the state are goals toward which the General Assembly should strive. I do not object to adoption of these principles, although I remain committed to the proposition that determination of whether Ohio’s public school system is thorough and efficient is committed by the Constitution to the General Assembly itself.

The third paragraph of the syllabus constitutes an attempt to define the phrases “thorough system” and “efficient system.” The majority defines a thorough system as one in which each and every school district has “enough” funds to operate, and an efficient system as one in which each and every school district has “ample” teachers and equipment, “sufficient for all students to be afforded an educational opportunity,” as well as buildings compliant with building and fire codes. However, in attempting to clarify the ambiguous phrase “thorough and efficient,” the majority merely substitutes additional ambiguous and subjective criteria. Whether a district has “enough” funds, or an “ample” number of teachers, is in the eye of the beholder.

Moreover, I take issue with the majority’s conclusion that an efficient system is dependent upon “each and every school district” in the state meeting the criteria. The majority thereby shifts its focus from analysis of the educational system to case-by-case analysis of individual school districts, and presumably individual schools themselves. One can only infer that the majority intends to retain jurisdiction of this case until it finds every school in the state to be thorough and efficient, even though the Constitution requires, by its own terms, only a thorough and efficient system — not a system in which every school is thorough and efficient.

This inference is reinforced by the majority’s recitation of instances of deficiencies in individual schools, e.g., schools with mold-infested bathrooms, or schools plagued by sewage problems. But problems in individual schools do not in and of themselves demonstrate a failure of the statewide system of common schools as a whole. For instance, William L. Phillis, executive director of the Ohio Coalition for Equity and Adequacy of School Funding, testified at trial that he walked through a “stream of water” and smelled the odor of sewage at Park Street Middle School, in the South-Western City School District, where a section of a *51locker room in the school’s basement had to be sealed off due to a sewage backup. However, in November 1998, voters in the South-Western City School District approved a 4.92-mill bond issue to build seven new schools and improve others. See South-Western City Schools web site, http://unuw.swcs.kl2.oh.us/construction.htm. Park Street Middle School is to be demolished following the scheduled opening in 2001 of a new intermediate school, now under construction. See id. at http://unuw.swcs.kl2.oh.us/psms.htm. The statewide system of common schools in effect in 1998 thus appears to have been adequate to correct the problem described by Phillis’s anecdotal evidence.

One need not have served on a board of education to know that the condition of the physical facilities, the quality of school learning materials, the salaries of teachers and employees, and the efficiency of school administrators are determined, in large measure, by decisions made in each local school district. The majority opinion takes no account of that significant reality.

Nor do I agree that the mandate of the Constitution to the General Assembly to establish a thorough and efficient system of common schools is equivalent to a mandate that the General Assembly establish a state-funded system of common schools. Even accepting the proposition that Ohio’s system of public education is to be a “statewide system,” I disagree with the majority’s statement that the “state is responsible for funding an adequate education for all primary and secondary students who attend public schools.” (Emphasis added.) What words of the Constitution preclude a system in which local school districts are held even partially responsible for funding a basic education at local schools? An overriding state obligation may be desirable, but the issue before us is the interpretation of a constitutional mandate, not the desirability of a particular legislative policy.

Furthermore, such a construction is totally inconsistent with the history of education in Ohio as well as the circumstances surrounding public education at the time the Thorough and Efficient Clause was adopted. See DeRolph I, 78 Ohio St.3d at 280, 677 N.E.2d at 793 (Moyer, C.J., dissenting) (“While it is true that the framers of our Education Clause envisioned educational opportunity for all, the framers contemporaneously acknowledged and approved of. a statewide educational system in which local districts were primarily responsible for providing educational opportunity to their children. When the Education Clause was adopted, determination of adequacy was dependent upon the resources available at the local level and the amount local residents were willing to spend on educating local children.”).

The majority includes a list of seven major areas that it asks the General Assembly to scrutinize, and presumably change, before the majority will relin*52quish jurisdiction of this case. However, the list raises questions with no answers.

For instance, the majority finds fault with continued “reliance” on local property taxes as a “primary” means to fund Ohio’s schools. Each member of this court may hold an opinion regarding the appropriateness of the real property tax versus other more uniform or statewide forms of taxation, but that has never been the test for determining the constitutionality of statutory law. The majority notes that statewide, state funding constitutes forty-four percent of the total, excluding federal funds, versus fifty-six percent from local funding, and implicitly finds that proportion to be constitutionally deficient as a primary reliance or an overreliance on local property tax, even though the majority has already conceded that property tax may be continued as a legitimate source of school funding. DeRolph v. State (1997), 78 Ohio St.3d 419, 419-421, 678 N.E.2d 886, 887.

Today the majority says the General Assembly has not gone far enough in increasing the proportion of state funding to local funding, noting that “this aspect of the former system [overreliance on local property tax] persists in the state’s current funding plan, wholly unchanged.” (Emphasis sic.) It makes this statement despite the fact that the poorest Ohio school districts now receive roughly ninety percent of new construction costs in state aid, with a ten-percent local contribution. “Reliance,” however, remains undefined, let alone “overreliance.” If the percentage of local to state funding were inverted would that be sufficient, or is the majority seeking only a fifty-one-percent reliance on state funds? In stating that the General Assembly must establish a state-funded system of common schools, the majority hints, without expressly saying, that it intends to retain jurisdiction until the property tax component of school funding is significantly changed, or eliminated, despite its earlier ruling that local property taxes could be part of a constitutionally acceptable revised funding plan. DeRolph v. State, 78 Ohio St.3d at 419, 678 N.E.2d at 887. But ultimately one can only guess as to the meaning of these terms.

Moreover, reliance on property tax has very little, if anything, to do with thoroughness and efficiency. The majority explicitly observes that the flaw in dependence on local property tax is the creation of “vast disparities among Ohio’s six hundred eleven public school districts,” noting that it puts “property-poor districts at a disadvantage.” But these are statements directed not to the adequacy of funding of the public schools, but rather to the equity of the system. Indeed, the majority opinion more than once suggests that the fundamental problem with property tax funding is that it creates inequities. Yet this court has previously expressly rejected the contention that the Ohio Constitution *53mandates equal educational opportunity throughout the state. DeRolph I, 78 Ohio St.3d at 211, 677 N.E.2d at 746.

Even while claiming not to be retreating from its prior mandate in DeRolph I that the General Assembly make a “complete systematic overhaul” and “create an entirely new school financing system,” id., 78 Ohio St.3d at 212 and 213, 677 N.E.2d at 747, the majority asks the General Assembly to give further attention to the basic aid formula and the phenomenon of phantom revenue attributable in part to 1976 Am.Sub.S.B. No. 920, 136 Ohio Laws, Part II, 3182, and to 1998 Am.Sub.H.B. No. 650, both of which affect local, ie., property-tax-based school funding. In view of the majority’s earlier position that property tax need not be eliminated as a source of school funding, it remains unclear whether the General Assembly can eliminate overreliance on property tax by simply fine-tuning the underlying formulas of the current school-funding method or must instead eliminate it.

This court has still not provided a positive definition of a thorough and efficient system of common schools or outlined its constituent elements in a meaningful way. The majority again today reiterates its standard for a thorough and efficient system by quoting Miller v. Korns, 107 Ohio St. at 298, 140 N.E. at 776: “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.” (Emphasis added.) But although hypothesizing as to what would not be thorough and efficient, neither the Miller court nor the majority has defined that phrase positively, except to say that an “ample” number of teachers and “sufficient” equipment affording all students “educational opportunity” must be provided, in buildings compliant with state building and fire codes.

Similarly, the majority notes that this court in Cincinnati School Dist. Bd. of Edn. v. Walter (1979), 58 Ohio St.2d 368, 387, 12 O.O.3d 327, 338, 390 N.E.2d 813, 825, determined that the state’s educational system would not be deemed thorough and efficient if school districts received so little funding from all sources that students were “being deprived of educational opportunity.” (Emphasis added.) But again, this phrase is inherently ambiguous and is left unclarified by the majority. Does it mean deprivation of all educational opportunity, such as described in Miller, ie., where children have no schools, no teachers, no books? If so, such a situation simply does not currently exist in Ohio, nor did it exist at the time of DeRolph I.

I believe that the majority instead means that students in a thorough and efficient system must be provided educational opportunities that meet a level of quality that it, rather than the people of the state speaking through their elected *54representatives, finds satisfactory. The majority is really saying'that it does not think that the minimum educational standards now in place are high enough, thereby substituting its own judgment of educational sufficiency for constitutional analysis.

For example, the majority implies that a thorough and efficient system of common schools providing educational opportunity to its students now includes as a required element the provision of sufficient computers to allow students nearing graduation to be computer-literate. Some members of the General Assembly may share this view, along with Governor Taft, as demonstrated by his 2000 State of the State Address. But that fact is of no legal relevance and does not change the fact that decisions as to the universal provision of computers, or advanced placement courses, or multiple foreign language offerings remain decisions of educational policy that are appropriately made only by the legislative and executive branches of government.

I am additionally dismayed by the majority’s apparent expansion of its view of thoroughness and efficiency beyond the issues of school financing and improvement of physical school facilities, which was the focus of DeRolph I, as reflected in its syllabus.

The majority cites with approval a March 1999 report of Achieve, Inc. That report acknowledged that state education funding has increased by approximately fifty percent, with the greatest increase in low-wealth school districts, and recounted other “substantial new investments” in education. The report then opines that remedying funding and spending disparities and facilities deficiencies might not be enough, stating that other requirements of a thorough and efficient system of education must be developed. The Achieve Report further advised that “clear and rigorous academic standards, challenging assessments designed to measure progress against those standards, and an accountability system that rewards success and takes action against persistent failure” constitute the heart of education reform.

But the experts who developed the Achieve Report were reporting to legitimate policymakers, members of the legislative and executive branches — not judges. Indeed, Achieve, Inc. describes itself as existing to provide advice and assistance to state policy leaders on issues of academic standards, assessment, and accountability. The opinions contained in its report were not intended to constitute a legal or constitutional analysis, nor are the members of the organization necessarily competent to provide one. Nevertheless, with this report as its underpinning, the majority expands the constitutional concept of a thorough and efficient system beyond DeRolph I and suggests that student success is yet another criterion by which the thoroughness and efficiency of Ohio schools is to be judged.

*55The majority concludes that “thoroughness and efficiency embrace far more than simply adequate funding” and that “[e]ven if the system were very generously funded, if other factors are ignored, it might still not be thorough and efficient.” It states that “much more is involved in this process than merely providing funds” before it will find Ohio’s public education system to be thorough and efficient. Moreover, the majority states, “If students have access to the latest technology but cannot take advantage of it, then our state has failed them. If students have the most up-to-date textbooks but cannot comprehend the material in those books, then our state has failed them.”

The majority’s suggestion that Ohio policymakers must establish criteria of academic success and then assess the performance of Ohio students against those criteria in an attempt to demonstrate accountability in order to meet the constitutional mandate of a “thorough and efficient system,” while perhaps well intentioned, is not constitutionally required. It thus hints that the ultimate criterion of thoroughness and efficiency is whether some undefined percentage of Ohio students are achieving academically.

Measurement of academic achievement is a goal we can all support, but it is not a reasonable criterion against which the thoroughness and efficiency of Ohio’s system of providing public schools should be judged. In my view, it is neither appropriate nor fair to hold the educational system ultimately responsible for failings that may be attributable to individuals, or the greater society, rather than to the educational system itself. As noted in the joint dissent to DeRolph I, proficiency test results are not necessarily correlated to expenditures, and external socioeconomic factors may be more significant. 78 Ohio St.3d at 279, 677 N.E.2d at 792. See Rodgers & Rodgers, Centralized Wisdom? DeRolph v. State and the Rise of Judicial Paternalism (1997), 45 Cleve.St.L.Rev. 753, 765-766, citing various research findings supporting this conclusion, including a Cleveland Plain Dealer analysis concluding that “factors related to families and economic opportunity' — not school districts — most influence how well students perform on standardized tests.” See, also, Traub, What No School Can Do, New York Times Magazine (Jan. 16, 2000) 52, 54-55 (“[M]oney does not buy educational equality. Although the premise of many a crusading volume, including Jonathan Kozol’s ‘Savage Inequalities,’ is that ghetto schools have been allowed to rot, many of the most catastrophically failing school districts, like Newark’s [New Jersey], spend far more money per student than do middle-class communities nearby. Labor economists have had a field day proving that school spending is not correlated with school achievement.”).

I also take issue with the majority’s discussion of the process and possible motivations by which the General Assembly arrived at the figure of $4,063 for FY99 as the base cost of an adequate education. It is of no consequence to this *56court or to its constitutional analysis how the General Assembly produced the legislation we review. It is our responsibility to examine only the final result in light of the Constitution. Laws adopted by the General Assembly need not be perfect, nor is the method or motives by which they are created of any judicial concern.

Even assuming that they are of our concern, why is the majority so averse to placing its confidence in a Governor who has dramatically and effectively expressed his deep commitment to improving public education in Ohio and in a General Assembly that has increased public expenditures at record levels? The work is their work to do. I have confidence in their will and in their ability to do it.

Conclusion

In DeRolph I the majority placed itself in the constitutionally uncomfortable position of ordering the General Assembly to pass remedial legislation. Today’s majority opinion oversteps the bounds of appropriate judicial review of legislative enactments, going so far as to decree that the General Assembly give its “undivided attention” to realizing the majority’s vision of constitutionally adequate public education, even while purporting to give deference to the principle that it is this court’s role to “decide issues of constitutionality — not to legislate.” Such an admonition of a supreme court to a legislature is not appropriate. So long as the majority reserves ultimate veto power over any new funding system, its protest that it is not retaining control over educational policy in Ohio should convince no one.

The majority states that “educators, lawmakers, businesses, parents, and students must all work together to strengthen Ohio’s system of public schools.” No person who cares about education, and I and my fellow dissenting justices do indeed care deeply about education, is likely to disagree with this expression of such a laudable goal. However, in the final analysis, that declaration constitutes the expression of the majority’s estimation of good public policy; it has nothing to do with constitutional law.

The majority’s disposition of this case is legally unwarranted and inappropriate. See Rodgers, supra, 45 Cleve.St.L.Rev. at 753-754 (stating that this court’s decision in DeRolph I is “dangerous precedent, inasmuch as it dispirits the sacrosanct role a legislature assumes in a democratic society and overtly legitimizes judicial policymaking” and its “vision of a thorough and efficient school system, via more economic parity, ultimately undermines the General Assembly of the State and will not extricate Ohio schools,” while further predicting that the decision will “markedly fail to advance the quality of the Ohio public school system”).

*57Our fear as dissenters in DeRolph I, 78 Ohio St.3d at 270, 677 N.E.2d at 786, that the judicial intervention in development of state educational policy that the majority began would necessitate deeper judicial involvement over time is unfortunately being realized. This case is now over eight years old, with no end in sight. The likelihood of protracted judicial supervision over public education by this court for many years to come appears certain. The majority’s failure to define educational thoroughness and efficiency, while taking the position that it will know it when it sees it, only makes it more likely, if not certain, that judicial involvement will continue indefinitely.

The appellees did not demonstrate a violation of the Ohio Constitution in 1997 when DeRolph I was decided, nor have they in the record before us. I therefore respectfully dissent.

Cook and Lundberg Stratton, JJ., concur in the foregoing dissenting opinion.