To:     LWVO
From:   Joan Platz
Education Update for October 30, 2006

1)  Ohio Supreme Court Issues Decision on Charter Schools: 
The Ohio Supreme Court issued a 4 - 3 decision on October 25, 2006 supporting the constitutionality of Ohio's charter school law (ORC 3314) in the case State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education.  Justice Judith Ann Lanzinger wrote the majority opinion, which was joined by Justices Moyer, Lundberg Stratton, and O'Connor. Justice Resnick wrote the minority opinion, and Justice Pfeifer also dissented in part. Justice O'Donnell dissented based on his belief that the Court should not have accepted the case.  The ruling is available at http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-ohio-5512.pdf

The original lawsuit challenging the constitutionality and implementation of charter school laws enacted by the Ohio General Assembly in 1997 was filed on May 14, 2001 in the Franklin County Court of Common Pleas by several groups, including the Ohio PTA, the Ohio Federation of Teachers, the Ohio School Boards Association, the League of Women Voters of Ohio, Ohio Association of School Business Officials, Ohio Coalition for Equity and Adequacy of School Funding, Buckeye Association of School Administrators, Ohio Association of Public School Employees, Cleveland Teachers Union, Akron Education Association, Cincinnati Federation of Teachers, Columbus Education Association, Ohio AFL-CIO, Ohio Federation of Teachers, Toledo Federation of Teachers, Ohio Education Association, and Ohio Retired Teachers Association.  The complaint was filed against the State Board of Education, the Superintendent of Public Instruction, and the Ohio Department of Education.  Joining the defendants later were a number of charter schools, charter school operators, and White Hat Management, L.L.C.

This case has a complicated history.  The plaintiffs and defendants first agreed to divide the complaint into phases to be heard before the Franklin County Court of Common Pleas.  The constitutional issues were addressed first by the Court, which issued a ruling on April 21, 2003 in which several of the arguments by the plaintiffs were dismissed.  The plaintiffs appealed that decision in part to the 10th District Court of Appeals, which dismissed one of the complaints, but reinstated several of the constitutional arguments in a ruling issued on August 24, 2004.  Both the plaintiffs and defendants then appealed that decision to the Ohio Supreme Court, which heard oral arguments on November 29, 2005.  The October 25, 2006 decision issued by the Ohio Supreme Court reverses in part, and affirms the ruling by the 10th District Court of Appeals made in August 2004.  However, the plaintiffs still have complaints before the Franklin County Court of Common Pleas regarding the statutory violations of the charter school laws.  The following is a summary of the majority opinion, which was written by Justice Lanzinger:

*Section 2, Article VI Thorough and Efficient Clause - "As a body, the General Assembly has the legislative authority and latitude to set the standards and requirements for common schools, including different standards for community schools."

"Although Justice Resnick's dissent focuses on the requirements that community schools are exempted from, upon closer examination, many of these exemptions are picayune in nature."

*Section 3, Article VI governing city school districts - "This court has held that the General Assembly has the power to create and modify school districts."  "Section 3 Article VI of the Ohio constitution does not prevent the general Assembly from creating additional schools that are located within city school districts but are not part of the district."

*Section 5, Article XII limiting proceeds of taxes to their state purposes - "We are not persuaded by appellants' argument that local tax money is diverted to community schools under the funding formula."

*Sections 4 & 5, Article VIII, restricting the lending of the state's credit and the state's assumption of debt - "We have held that Section 4 Article VIII is satisfied where the state's credit is used by a public organization to advance a "public purpose." "Like traditional schools, community schools are funded by the state, cannot charge tuition, and are charged with education Ohio children.  As a result, they are not private business corporations the debt of which the state is prohibited from assuming under Section 5."

The following is a summary of the dissenting arguments:

Justice Resnick:  "Specifically, the General Assembly does not have the authority under Section 2, Article VI (of the state Constitution) to establish something other than a system of common schools."

"The constitutional 'common school' has specific meaning that must be referenced in the evaluation of school reform programs."

"Moreover, in choosing to mandate the creation of a system of common schools, the constitutional framers rejected the idea of simply subsidizing the existing diverse, parent-initiated and tuition-based schooling arrangements in favor of creating state organization and oversight. They viewed the diversity of the existing arrangements as an impediment to educational progress. The constitutional framers rejected the proliferation of diverse schools in favor of a single system. They also rejected the idea of competition among school districts and a variety of sectarian schools, viewing competition as inefficient, divisive and ineffective."

"Section 2, Article VI was intended to bring order to the chaos of individualized approaches that resulted from the nascent melange of loosely regulated and diverse schooling arrangements by mandating the creation and funding of a uniform and coherent body of governmentally controlled schools. R.C. 3314 contravenes that intent by reversing the process. It creates a jumble of ad hoc community schools that flourish on state funds otherwise inuring to the account of district schools."

Justice Paul E. Pfeifer:   "Irrespective of the noble intentions of charter-school legislation, one undeniable effect is that public schools receive less state money than they would in the absence of charter schools.  The mathematically unavoidable result is that public schools received a greater percentage of their funding from local sources, which is unconstitutional pursuant to our DeRolph decisions."

Justice Terrence O'Donnell:  "I did not vote to accept this case because I believed the record needed development, despite the entreaties from both parties to resolve the constitutional issue.   I still believe that to be the correct course for this court to follow, i.e., to dismiss this appeal as improvidently accepted, to await further record development, and to approach the entire case on a complete record."

2)  Coalition for Public Education Responds to the Supreme Court Decision: 
The following is the response issued on October 25, 2006 by the Coalition for Public Education regarding the decision of the Ohio Supreme Court in State ex rel. Ohio Congress of Parents and Teachers v. State Board of Education:

"Coalition Disagrees with Supreme Court Ruling on Ohio's Charter School Program Several Issues Remain Alive in the Case

The Coalition for Public Education is obviously disappointed in today's state Supreme Court 4-3 ruling on the constitutionality of Ohio's charter school program and we strongly disagree with the majority's decision.

The case was filed in 2001 by the Ohio PTA, and other Coalition organizations, against the state Board of Education. Today's ruling comes 331 days after final arguments were presented Nov. 29, 2005.

The majority opinion ignored the historic meaning of the terms "common schools." As Justice Alice Robie Resnick indicated in her dissent, the phrase does not mean whatever the legislature wants it to mean, but a uniform statewide system subject to common statewide standards.

The majority seems to have almost abandoned the concept of common schools as enshrined in the 1851 Constitution. Ohio's version of charter schools allows private groups to authorize other private entities, including for-profit companies, to operate schools using our tax dollars without any meaningful oversight by elected or other public officials. The majority opinion in the 4-3 ruling recapitulates the theory that was presented to the Ohio General Assembly and the public when the program was established, but doesn't take note of facts on the ground about how the program operates.

The majority may have focused on the wrong issue. Plaintiffs have never argued that the concept of charter schools is inherently unconstitutional. Other states operate charter programs that include oversight by elected school boards or other public officials. Rather, we have argued that the design of Ohio's charter school program violates our state's Constitution because they are not overseen by elected boards, local property taxes are diverted without a popular vote, and the ability of public school districts to offer a quality education has been harmed.

In our view, Justice Resnick got it right in her dissent when she wrote that "SR.C. Chapter 3314 (the statute authorizing charter schools) recreates much of the mischief that the (common schools) clause was intended to avoid."

"Moreover, in choosing to mandate the creation of a system of common schools, the constitutional framers rejected the idea of simply subsidizing the existing diverse, parent-initiated and tuition-based schooling arrangements in favor of creating state organization and oversightŠThey also rejected the idea of competition among school districts and a variety of sectarian schools, viewing competition as inefficient, divisive, and ineffective."

Justice Resnick's dissent suggests that the current charter school program takes us back to an inconsistent and divisive system of education, and the Coalition agrees.

We also disagree with the majority finding that local property taxes are not diverted to charter schools in many districts, particularly for things like special education. Clearly, charter schools receive far more per pupil funding than many school districts receive in state aid. Although the state may be writing the checks to charter schools, we believe it is clear that they dip into local property taxes that citizens voted to send to their public school district, governed by elected officials.

We also continue to believe that the negative impact on many public school districts is evident and that, while the composition of the court has changed since the initial DeRolph ruling that found Ohio's education funding system unconstitutional, this ruling moves the state further away from compliance with the court's ruling.

There are several issues that remain alive in the case including whether many privately owned schools managed by private for-profit companies are really non-profit entities as required by state law. We contend that management companies like White Hat so dominate and control the schools they manage that the state is in fact funding private corporations. This and other issues remain before the Franklin County Court of Common Pleas.

The Coalition for Public Education will have more to say about the future of the litigation after reviewing this decision with legal counsel.

Despite this ruling, there appears to be a growing consensus that Ohio's charter school program has fundamental flaws, has failed to educate or even assess the learning of many students, lacks financial accountability, undermines traditional public schools and misuses scarce education tax dollars. The court's decision places even greater emphasis on the need for a governor, legislature and other elected officials to address these problems through new legislation and much better enforcement.

The Coalition for Public Education is a statewide alliance of education, parent and civic organizations interested in improving public education for Ohio's children and increasing accountability to taxpayers.

Member organizations include: Ohio PTA, League of Women Voters of Ohio, Ohio Association of School Business Officials, Ohio School Boards Association, Ohio Coalition for Equity and Adequacy of School Funding, Buckeye Association of School Administrators, Ohio Association of Public School Employees, Cleveland Teachers Union, Akron Education Association, Cincinnati Federation of Teachers, Columbus Education Association, Ohio AFL-CIO, Ohio Federation of Teachers, Toledo Federation of Teachers, Ohio Education Association, Ohio Retired Teachers Association."

3)  The Ohio Collaborative Issues Report on Charter Schools: 
The Ohio Collaborative, Cynthia K. Buettner, director is a policy research center at The Ohio State University dedicated to meeting the educational policy research needs of Ohio by bringing together education experts from across Ohio colleges and universities.  The Collaborative released in October 2006 a policy brief entitled "Weighing the public-private balance of charter school governance" by Ann Allen and Dwan Robinson.

According to the brief, "Public charter schools are designed to offer choice to public school students, but the governance of these schools often lacks in public oversight and accountability.  This lack of public oversight and consequently the absence of information made available to the public may be jeopardizing the potential of public charter schools to provide choice and innovation for the benefit of all students."

"Given that the spectrum of public-private governance for Ohio's charter schools is broad, policymakers are left to consider how private is too private for a public school. Research indicates that when public charter schools are run by private organizations, practices that typically keep the public informed disappear (Miron & Nelson, 2002; Fiske & Ladd, 2000). Instead, practices such as conducting closed school board meetings (Oplinger & Willard, 2005) or not reporting information to the state occur, making it "impossible to conduct" comparisons with other public schools (Progressive Policy Institute (PPI), 2005, p. 31) and keep the public uninformed about these schools."

"Research also indicates that the lack of oversight for public charter school boards is likely to lead to insular boards that tend to operate in their own self-interests, and consequently, placing program goals over public goals (Allen, 2006). Charter school boards that do not operate in the public eye may protect themselves against public scrutiny that should lead to a greater responsibility for addressing such public interests as equity in educational access and opportunity."

"After 10 years of national experimentation with public charter schools, there is little to suggest that autonomy has led to the kind of innovation that supports increased achievement. In fact, the lack of regulation may have created the opposite effect: a system of schooling in which poor performing charters remain open and continue to draw state financing away from district schools."

The Collaborative makes the following recommendations:

* Reverse the decision to allow private sponsorship of public charter schools and create a system of public authorizers to monitor public charter school boards. Authorizers should be close enough to the schools to provide effective oversight but far enough away to allow for autonomy. County-level public authorizers or district boards may provide such a mix.

*Establish criteria for charter school boards that include an expectation of diverse representation to protect against these boards serving singular and insular interests.

*Increase access to public meetings and thereby increase opportunities for expression by enforcing laws that oblige all public charter school boards to conduct meetings in open and accessible buildings.

*Require board training for public charter school board members to ensure all board members have at least an initial understanding of their public responsibilities.

*Increase the flow of information to the larger community by requiring the regular reports be published and distributed to the community at-large.  Increasing information flow between public school academies and local neighborhoods will provide citizens the opportunity to examine what benefits these provide the community and how citizens can contact the schools' public authorities for questions or concerns.

For information about the Ohio Collaborative please visit http://www.ohiocollaborative.org/default.asp?editpage=home

4)  Report on Tax Reform from the Ohio Business Roundtable:
According to a report dated October 9, 2006 and issued by the Ohio Business Roundtable called "Ohio Tax Reform:  Year 1 in Review", the tax reforms adopted by the 126th Ohio General Assembly are working.  The Ohio Business Roundtable is a partnership of the chief executive officers of the state's major business enterprises, and was established in 1992.  John F. Barrett is currently the chair.

The report reviews the changes in Ohio's tax structure made by the General Assembly in 2005, and includes comments from business leaders in Ohio about the impact of the changes on the business climate in Ohio.  One of the major changes in tax laws was the adoption of the Commercial Activity Tax (CAT).  According to the report:

"Since July 1, 2005, over 285,000 business entities have registered for the CAT. Based on the first two quarters of CAT quarterly tax returns, actual tax collections are running ahead of the revenue estimates by 25%. The following factors are the keys to the CAT's proven success:

* Low rate of 2.6 mills,

* Broad base with no special interest carve outs,

* Simplicity and ease of compliance, and

* Revenue controls."

For more information about the report, please visit,

http://www.ohiomeansbusiness.com/linked%20files/OBDC/user%20added/BRTTaxReformYr1Review.pdf

5) Dropout Crisis

*The National Education Association announced on October 3, 2006 its Action Plan to address the number of students who are dropping out of school before graduation.  The 12 point plan includes strategies for parents, educators, business leaders, community leaders, and lawmakers to implement to help keep students in school.  The NEA has also included on its web site a Dropout Fact Sheet and tips for policy makers, parents, and educators about the dropout crisis.  To view the 12 Dropout Action Steps please visit http://www.nea.org/presscenter/actionplan1.html

*The Pew Partnership for Civic Change launched a campaign in October 2006 called Learning to Finish, which focuses on strategies to prevent students from leaving school before graduation.  The Pew Partnership is currently working with two communities, Shreveport, LA and Jacksonville, FL, on measures to increase graduation and literacy, and expects to add up to 25 communities to the project by 2008.

The Pew Partnership has also published a discussion guide called "Learning to Finish:  The School Dropout Crisis" by Keith Melville, which includes community based strategies to help keep kids in schools.  According to the report,

"Our emphasis is on dropout prevention as a community-wide concern and a community effort.  For this reason, we have not featured the kinds of initiatives that are primarily or exclusively school based, or those that do not permit or invite much community involvement.  We salute the key role of teachers, researchers, and professional educators in dealing with the dropout problem, and we recognize the success of autonomous initiatives.  However, we believe more must be done. Our distinctive emphasis is on what successful communities can do when concerned citizens, local employers, and civic groups work together."

A sample of the report is available online, but the full report must be ordered from the Pew Partnership at http://www.pew-partnership.org/whatsnew.html

6)  News from the ODE:

*The Ohio Educational Service Center Association is currently working with ESCs across the state to coordinate the initial meetings of the Regional Advisory Councils created in HB 115.  The roles and responsibilities of the Regional Advisory Councils and the appointments of the remaining members of the councils will be decided at these first meetings, and a chair and vice chair will be selected for each Regional Advisory Council.  Also, these councils will each select a representative to the State Regional Alliance Advisory Board.

*The ODE has created a new electronic notification for teachers to keep them informed about important announcements, professional development opportunities, awards and grant opportunities, and the latest instructional and assessment information.  To register for this service please visit http://www.toolsforteachers@ode.state.oh.us