A COMMENT ON DEROLPH'S IMPACTS ON OHIO'S SCHOOL-FINANCING SYSTEM, TWENTY-FIVE YEARS LATER.

• Author: Ice, Jessica
• Position: Response to Morris L. Hawk, Case Western Reserve Law Review, vol. 45, p. 679, 1995 and Shadya Yazback, Case Western Reserve Law Review, vol. 57, p. 671, 2007

CONTENTS INTRODUCTION I. HISTORY OF OHIO EDUCATION FINANCE LITIGATION A. The Right to Education in Ohio B. History of Ohio Education Financing Before Board of Education v. Walter C. Board of Education v. Walter (1979) D. The School Foundation Program E. DeRolph I (1991-1997) F. DeRolph II (2000) G. DeRolph III & IV (2001-2002) II. OHIO'S SCHOOL FUNDING LEGISLATION AFTER DEROLPH A. Building Blocks Model (2003-2009) B. Evidence Based Model (2009-2011) C. Bridge Formula & Achievement Everywhere Model (2011-2019) D. Current Ohio Education-Funding System E. Ohio Fair School Funding Plan III. IMPACT OF DEROLPH TWENTY-FIVE YEARS LATER CONCLUSION "Even though the legislature has done quite a bit ... there are still problems about how Ohio funds its schools. We'll probably say the same thing in 10 years. This is not an issue that you can solve once and for all." (1)

--Paul Marshall

INTRODUCTION

Twenty-five years ago, Mark Hawk commented in the Case Western Reserve Law Review (2) on an interesting Ohio case recently concluded in the Perry County Court of Common Pleas: DeRolph v. State. (3) There, the trial court struck down Ohio's education-financing system as unconstitutional because it did not provide a "thorough and efficient system of common schools" as required by Article VI, Section II of the Ohio Constitution. (4) Hawk opined that Ohio appellate courts should uphold that ruling and officially recognize a fundamental right to education in Ohio. (5) He noted that the trial court's decision was "the first act in a three-act drama that will not conclude until the Ohio Supreme Court rules." (6) Looking back, we now know that DeRolph''s drama unfolded in five cases over thirteen years, concluding with a murky holding that left litigants--and virtually everyone else--unsure of the future for Ohio's education funding.

Twelve years after Hawk's comment, Shadya Yazback, another Case Western Reserve Law Review contributor, provided an overview of the DeRolph litigation saga. (7) Yazback attempted to clearly define what the multiple decisions meant for Ohio's ability to provide a "thorough and efficient" system of education; she also analyzed whether current legislative proposals had lived up to this standard. (8) Yazback described an education-financing system that was strikingly similar to both the one held unconstitutional in the first DeRolph trial and to the one that exists today. (9)

This Comment continues Hawk's and Yazback's project, and attempts to describe DeRolph's impacts on Ohio's education financing more than twenty-five years after the Perry Common Pleas Court provided its initial holding in the matter. This Comment focuses primarily on the long-term legislative and funding outcomes of the DeRolph litigation. Part I addresses the legal framework around the right to education in Ohio, and provides an overview of the history of education-financing litigation in Ohio. Part II reviews legislative attempts to address education funding since DeRolph, noting the similarities of each system. And Part III outlines both the temporary and lasting impacts DeRolph has had on Ohio's education-financing system.

1. HISTORY OF OHIO EDUCATION FINANCE LITIGATION

   To fully understand the DeRolph cases, they must be put into context of the constitutional framework that protects education in Ohio, the history of Ohio school financing, and the Ohio Supreme Court's earlier school-funding decision in Board of Education v. Walter. (10)

   1. The Right to Education in Ohio

      Unlike the United States Constitution, most state constitutions include provisions guaranteeing the right to at least some level of education. (11) Ohio is no exception: Article VI, Section II of the Ohio Constitution provides that "ft]he General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state." (12) Ohio's Constitution also grants equal protection of the laws to its people. (13) These provisions served as the basis for challenges to the education financing system in DeRolph, as litigants alleged that, by underfunding schools, the state breached its duty to provide a thorough and efficient system of common schools. (14)

   2. History of Ohio Education Financing Before Board of Education v. Walter

      Historically, the primary means of financing local public schools came through local property taxes. (15) "In 1825, the General Assembly enacted legislation allowing county commissioners to levy a" tax on real property through units known as "mills." (16) A "mill" equates to one-thousandth of one dollar ($0,001) and is used to determine the amount of money raised through property taxes. (17) In 1935, the Ohio General Assembly enacted the first School Foundation Program to provide state aid to local school districts to supplement the amount raised by property taxes. (18) The amount of aid provided by the state increased over time. (19) In the 2018 fiscal year, 45.8% of all education funding statewide came from local sources, and 48.8% came from state sources. (20) The question of determining the correct composition of state versus local aid necessary to provide a "thorough and efficient system of public schools" was key in Ohio school-financing litigation.

   3. Board of Education v. Walter (1979)

      In 1979, the Ohio Supreme Court upheld as constitutional a school-financing system in Board of Education v. Walter. (21) Thus, understanding the differences between the education-financing system in Walter and the system addressed in DeRolph offers some insight into what constitutes a "thorough and efficient system of common schools."

      Only a few years before Walter, the state legislature reconfigured Ohio's school-funding system into two key parts: an Education Review Committee and an Equal Yield Formula. (22) The Education Review Committee recommended a "minimum amount of funding necessary" for each student to receive a "general education of high quality." (23) The Equal Yield Formula guaranteed that a specific amount of funding per student per mill of the first twenty mills assessed by the local school district went to schools. (24) The state would make up any deficiency between the amount generated by local taxes and the amount designated by the Educational Review Committee. (25) Thus, under the Equal Yield Formula, no school district would receive less than the amount that the Educational Review Committee determined was necessary for each student to receive a "general education of high quality." (26) If school districts wanted to raise additional funds above the state-determined "minimum amount necessary," then local school districts could levy additional millage on top of the first twenty mills taxed at the local level. (27)

      In Walter, the Cincinnati School District, along with parents and students, challenged Ohio's school-funding system, claiming that it violated both the Equal Protection and Education Clauses of Ohio's Constitution. (28) Applying a rational-basis test, the Ohio Supreme Court held that the funding system complied with both constitutional clauses (29) because the system served the state's legitimate interest in local control of schools. (30) In addition, the court based its decision on the existence of the Education Review Committee and its determination of the amount of funding necessary for each student to receive a "general education of high quality." (31) Because every district received at least the minimum amount determined by the Educational Review Committee, the state fulfilled its Constitutional duty. (32)

   4. The School Foundation Program

      Just three years after the Walter decision, the General Assembly abolished both the Education Review Committee and the Equal Yield Formula. (33) The Ohio legislature implemented a new school-funding program called the School Foundation Program. (34) The base amount provided by the School Foundation Program comprised three key components: the foundation amount, the cost-of-doing-business factor, and the average daily attendance. (35) The foundation amount was the base per-student dollar amount set by the General Assembly. (36) The cost-of-doing-business factor varied from district to district based on assumptions about the cost of running schools in various localities. (37) Finally, the state would also subtract an amount known as a "charge off" equal to 2% of the district's taxable real and tangible property. (38)

   5. DeRolph I (1991-1997)

      In an effort to combat low funding levels and inadequate facilities, a group of superintendents in southeast Ohio established a coalition (39) to lobby members of the Ohio General Assembly. (40) Seeing little success in their lobbying efforts, the coalition refocused and decided to litigate the constitutionality of Ohio's educational-funding system. (41) In 1991, the coalition, through several of its member school districts, students, and other interested individuals, brought suit in the Perry County Court of Common Pleas, alleging that Ohio's current system of school funding violated the Equal Protection and Education Clauses of the Ohio Constitution. (42) This litigation, kicking off what is known as the DeRolph cases, turned into a thirteen-year-long legal battle to determine the adequacy of Ohio's school-funding system. (43)

      In the first DeRolph challenge (DeRolph I), after a long and complex trial, the trial court issued a 478-page opinion containing extensive findings of fact and law. (44) The factual findings regarding the state of Ohio's schools painted an abysmal portrait of the educational environment. For instance, in the Southern Local School District, students would not use the bathroom because they were infested with cockroaches, and the schools had no heat "from the beginning of the fall of 1992 until the end of November or beginning of December." (45) Teachers and administrators had to reuse old textbooks and ration...