Ohio's Public School Funding System: The Unanswered Questions and the Unresolved Problems of Derolph

• Author: Christen Spears Hignett
• Pages: 739-785

Page 739

I Introduction

The topic of educational funding has been debated for decades, yet decades later, there still seems to be no definite answer to the questions swarming about in this area. Public education and funding concerns have been present in Ohio's history for quite some time, dating as far back as the Northwest Ordinance.¹ This issue has been addressed in federal case law as well. However, because the Supreme Court has found that under the federal Constitution, education is not a federal fundamental right,² the development and regulation of public educational systems was left to the states.³

The issue of public school funding has arisen in Ohio multiple times. However, within the past decade, the issue has really come to the forefront of important state issues. The issue was revitalized in 1991 when DeRolph v. State⁴ was filed in the Court of Common Pleas of Perry County seeking declaratory and injunctive relief, to be based on a finding of unconstitutionality in Ohio's public school funding system.⁵ This case led to much controversy as well as to four Ohio Supreme Court rulings.⁶ The most recent state supreme court ruling declared the educational funding system unconstitutional.⁷ However, when the original common pleas court attempted to rehear this case and to impose a compliance conference, the Supreme Court of Ohio, upon request by the State, ruled that the DeRolph case and litigation was over and that the courts of Ohio could no longerPage 740 exercise any jurisdiction in this case.⁸ This is somewhat surprising since the court went to the trouble to hear the original dispute and continued to exercise jurisdiction in order to ensure compliance with its decisions for six years. Then, in one fell swoop, it ruled that the case was over, never to be heard again.⁹ This decision is more than just surprising - it is devastating to the plaintiffs and to the public schoolchildren of Ohio, as a whole.

This Comment will survey the individual Ohio Supreme Court DeRolph decisions and will discuss the implications of those decisions. Specifically, this Comment will focus on whether education is really a fundamental right under the Ohio Constitution. DeRolph did not address this particular issue, likely because the Ohio Supreme Court in the past had determined that education was not a fundamental right.¹⁰ However, it is still an important inquiry because it was an underlying question in the DeRolph decisions and because of its potential effect on future cases. If a fundamental right is involved, then Ohio's Equal Protection Clause¹¹ is implicated, which would shift the focus from achieving adequacy to achieving equality. This may be a better approach to the problem involved in DeRolph than the one utilized.

In addition, the implications of the two most recent DeRolph decisions, noted above, will be discussed: in DeRolph IV the Ohio Supreme Court ruled that the system still was unconstitutional,¹² but then six months later in DeRolph V, the supreme court ruled that the courts no longer have jurisdiction to hear the case,¹³ essentially leaving the plaintiffs without redress. Perhaps more importantly, this Comment will evaluate what possible solutions exist to finally make Ohio's educational funding system constitutional. Specifically, it will consider whether a constitutional amendment or an initiative by the people, as suggested by Justice Resnick of the Ohio Supreme Court,¹⁴ is really a viable option as a resolution to this problem. This is potentially the answer to rectifying the governmental crisis that exists: legislative inaction and judicial reluctance and restraint to correct the problem because of underlying separation of powers concerns.

Part II of this Comment will first provide some background into public school funding challenges, both in Ohio and at the federal level. Part III will provide a synopsis of the more recent string of educational fundingPage 741 cases heard under the DeRolph name. These cases seem to indicate a developing trend of declaring Ohio's public funding scheme unconstitutional, but many questions remain as to why it is unconstitutional and what will be done to correct it. Part IV will analyze the DeRolph decisions and address the unanswered questions and the unresolved problems created as a result of those decisions. As noted in the above paragraph, this section will consider the question of whether education is a fundamental right in Ohio and how that would affect the result of DeRolph. Part IV will also consider the possibility of voters amending the constitution by their own initiative rather than relying on the legislature and court to do so. Thus far, both have been reluctant to solve the DeRolph problem. Part V will conclude that the public school funding issue is not only controversial, but also is extremely important. Unresolved issues such as the fundamentality of the right of education, whether the equal protection clause applies to such issues, and most importantly, what will be done to rectify this unconstitutional system, still remain. Though not all of these questions can or will be resolved easily, an immediate solution is needed to make the system constitutional. The time has come for the voters of this state to take control and get the job done since the legislature seems unwilling to do so and the court seems unwilling or unable to force the legislature to correct this problem.

II Background

State and federal courts have decided many cases that concern education and educational funding. A few are particularly relevant to the issues raised by the DeRolph litigation.

A U.S. Supreme Court: San Antonio Independent School District v. Rodriguez

In Rodriguez,¹⁵ the United States Supreme Court heard a class action challenge brought against the State of Texas for allegedly violating the Fourteenth Amendment's Equal Protection Clause¹⁶ by basing its public school funding system on local property taxes.¹⁷ The United States Supreme Court reversed the decision of the district court and held that the system was not unconstitutional.¹⁸

For nearly one hundred years, Texas's Constitution and legislative acts had called for financing the public school systems through both state and local funds, which were raised by levying taxes on the property in thatPage 742 locality.¹⁹ The Court noted that the recent advent of industrialization and urbanization was responsible for "increasingly notable differences in levels of local expenditure for education."²⁰ The disparity was illustrated by comparing the most affluent district in the state, Alamo Heights, to the least affluent, Edgewood Independent School District.²¹ Edgewood was able to contribute $26 to each child's education while Alamo Heights was able to contribute $333 per child, over ten times more.²² The district court had held that "wealth [was] a 'suspect' classification and that education [was] a 'fundamental' interest," which required the state to show a compelling interest for that particular system for it to be upheld, which it could not do.²³ The Supreme Court set out to determine whether the funding system disadvantaged a "suspect class" or infringed on a "fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny."²⁴ The Court said that if neither a suspect class nor fundamental right were involved, the state need only prove that the system "rationally furthers some legitimate, articulated state purpose" to be constitutional.²⁵

The Court found that the wealth discrimination involved in this case was not sufficient to invoke a suspect classification.²⁶ The lower court had found such a classification under a much too simplistic approach; the Court noted that other issues should have been addressed such as whether the class of "'poor' [can] be identified or defined in customary equal protection terms, and whether the relative-rather than absolute-nature of the asserted deprivation is of significant consequence."²⁷ The plaintiffs offered no proof that it disadvantaged "any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level."²⁸ Additionally, the plaintiffs did not argue that the system caused "absolute deprivation" of education, but rather only argued that the quality of education was less.²⁹ For these two reasons, the Court found that no suspect class could be identified in this situation.³⁰ The Court said that the only common factor within the purported suspectPage 743 class was "residence in districts" that had lower property tax rates, which alone was not enough to support a finding of a suspect class.³¹

Even if wealth discrimination was involved (which the Court found was not), strict scrutiny is not...