Opinion

DeRolph v. State

93 Ohio St. 3d 309
2001 Ohio 1343

Court: Ohio Supreme Court
Filed: Sep 6, 2001
Status: Published
On the bench: Moyer
Cited by: 1 cases
Authority: More cited than 47.4%

The opinion

[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 309.]

DEROLPH ET AL., APPELLEES, v. THE STATE OF OHIO ET AL., APPELLANTS.

[Cite as DeRolph v. State, 2001-Ohio-1343.]

Constitutional law—Education—Schools—School-funding formula adopted by

General Assembly modified by Supreme Court to meet test for constitutionality

created in DeRolph I and DeRolph II.

(No. 99-570—Submitted June 20, 2001—Decided September 6, 2001.)

Common Pleas Court of Perry County, No. 22043.

DECISION AND ORDER on Exercise of Continuing Jurisdiction.

__________________

MOYER, C.J.

{¶ 1} Since it was first docketed in this court in 1995, this dispute has

produced from this court no fewer than three signed majority opinions, a per curiam

opinion, eleven separate concurrences and dissents, and a number of rulings on

motions filed by plaintiffs and defendants. Every justice of the court has expressed

her and his views regarding the constitutional issue that once again is presented for

our disposition nearly six years after the court exercised its discretionary

jurisdiction to review the merits. The written opinions of the justices reflect deeply

held beliefs regarding the responsibility of the court as an institution and the

principles that define the framework by which each justice decides issues brought

to the court. The informal and formal discussions among the justices regarding the

jurisdictional and merit issues have been of an intensity and duration unmatched by

any other case.

{¶ 2} The range of the opinions that reflect the decisional process is broad.

For instance, some of us believe that the court exceeded its proper role in addressing

the merits of this case, DeRolph v. State (1997), 78 Ohio St.3d 193, 264-283, 677

N.E.2d 733, 782-795 (“DeRolph I”) (Moyer, C.J., Cook and Lundberg Stratton, JJ.,

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dissenting), and thereafter in continuing jurisdiction of this matter, DeRolph v. State

(1997), 78 Ohio St.3d 419, 423-424, 678 N.E.2d 886, 889-890 (Lundberg Stratton, J.,

concurring in part and dissenting in part). One of us has characterized the “bedrock

constitutional challenge” presented by this case as being quite simply the “horrible

funding inequities that persist between school districts in Ohio due to the state’s heavy

reliance on local property taxes in formulating the school foundation formula.”

DeRolph v. State (2000), 89 Ohio St.3d 1, 46, 728 N.E.2d 993, 1028 (“DeRolph II”)

(Pfeifer, J., concurring). One of us has expressed the belief that the court should

expressly declare education to be a fundamental right afforded to each Ohio child

pursuant to the Equal Protection Clause of the Ohio Constitution. DeRolph I, 78 Ohio

St.3d at 255-257, 677 N.E.2d at 776-777 (Douglas, J., concurring).

{¶ 3} Despite our differences, however, we all agree upon the fundamental

importance of education to the children and citizens of this state. Educated, informed

citizens sustain the vitality of our democratic institutions. We differ little in support

of the desired ends so trenchantly recited by Justice Sweeney when he observed that

our forefathers, in drafting our state Constitution, “carried within them a deep-seated

belief that liberty and individual opportunity could be preserved only by educating

Ohio’s citizens,” DeRolph I, 78 Ohio St.3d at 197, 677 N.E.2d at 736, and by Justice

Resnick when she so incisively counseled that the goal of funding primary and

secondary public education should be to assure “a quality education for every single

child in Ohio regardless of where that child resides” so that every child may “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,” DeRolph I, 78 Ohio St.3d at 260 and 261, 677 N.E.2d at 779

and 780 (Resnick, J., concurring). We agree regarding the goals of public education;

we have vigorously disagreed with respect to whether the legislature or the judiciary

has the ultimate authority to determine if the goals have been achieved.

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{¶ 4} The current plan for funding public primary and secondary education

adopted by the General Assembly and signed by the Governor1 is probably not the

plan that any one of us would have created were it our responsibility to do so. But

that is not our burden, and it is not the test we apply in this decision. None of us is

completely comfortable with the decision we announce in this opinion. But we

have responded to a duty that is intrinsic to our position as justices on the highest

court of the state. Drawing upon our own instincts and the wisdom of Thomas

Jefferson, we have reached the point where, while continuing to hold our previously

expressed opinions, the greater good requires us to recognize “the necessity of

sacrificing our opinions sometimes to the opinions of others for the sake of

harmony.” 16 Papers of Thomas Jefferson (Boyd Ed.1961) 598 (letter to Francis

Eppes, July 4, 1790).

{¶ 5} A climate of legal, financial, and political uncertainty concerning

Ohio’s school-funding system has prevailed at least since this court accepted

jurisdiction of the case. We have concluded that no one is served by continued

uncertainty and fractious debate. In that spirit, we have created the consensus that

should terminate the role of this court in the dispute.

Controlling Law

{¶ 6} Pursuant to the doctrine of the law of the case, the “decision of a

reviewing court in a case remains the law of that case on the legal questions involved

1. Since DeRolph II, the General Assembly has enacted, e.g., 2000 Am.Sub.S.B. No 272, which

enhances the Classroom Facilities Assistance Program and otherwise addresses school facility

deficiencies; 2000 Am.Sub.S.B. No. 345, which addresses statutory provisions previously

characterized as imposing unfunded mandates, and establishes procedures to prevent fiscal problems

in school districts; 2000 Am.Sub.H.B. No. 94, the biennial budget bill, which prescribes formulas

for determining the amount of state funds to be distributed to the various school districts; and 2001

Am.Sub.S.B. No. 1, which establishes a new system of academic standards and testing to gauge the

success of Ohio students and schools.

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for all subsequent proceedings in the case at both the trial and reviewing levels.”

Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 OBR 1, 2-3, 462 N.E.2d 410, 412.

{¶ 7} On March 24, 1997 a majority of this court held, as syllabus law:

“Ohio’s elementary and secondary public school financing system violates

Section 2, Article VI of the Ohio Constitution, which mandates a thorough and

efficient system of common schools throughout the state. The following specific

provisions are unconstitutional:

“(a) R.C. 133.301, granting borrowing authority to school districts;

“(b) R.C. 3313.483, 3313.487, 3313.488, 3313.489, and 3313.4810, the

emergency school assistance loan provisions;

“(c) R.C. 3317.01, 3317.02, 3317.022, 3317.023, 3317.024, 3317.04,

3317.05, 3317.051 and 3317.052, the School Foundation Program;

“(d) R.C. Chapter 3318, the Classroom Facilities Act, to the extent that it is

underfunded.” DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733,

syllabus.

{¶ 8} The court admonished the General Assembly to create a new school-

funding system. Id. at 213, 677 N.E.2d at 747.

{¶ 9} In April 1997, this court advised that the General Assembly may well

retain local property taxes as a funding source for Ohio schools, but that “property

taxes can no longer be the primary means of providing the finances for a thorough

and efficient system of schools.” DeRolph v. State (1997), 78 Ohio St.3d 419, 678

N.E.2d 886, 887. We also held that debt obligations incurred prior to DeRolph I

remained valid beyond the date of DeRolph I. Id. at 420, 678 N.E.2d at 887.

{¶ 10} In September 1998, we made it clear that only the Thorough and

Efficient Clause of the Ohio Constitution, and not the Equal Protection Clause,

remained at issue in this case. DeRolph v. State (1998), 83 Ohio St.3d 1212, 699

N.E.2d 518. The court further held that the state would be required to “show by a

January Term, 2001

preponderance of the evidence that the constitutional mandates have been satisfied”

in order to justify dismissal of the proceedings against them. Id.

{¶ 11} A year ago, the majority established further law of this case. The

syllabus to DeRolph v. State (2000), 89 Ohio St.3d 1, 728 N.E.2d 993 (DeRolph II),

provides:

“1. ‘[T]he sovereign people made it mandatory upon the General Assembly

to secure not merely a system of common schools,’ but rather a thorough and

efficient system of common schools. Miller v. Korns (1923), 107 Ohio St. 287, 297-

298, 140 N.E. 773, 776, approved and followed.

“2. ‘The attainment of efficiency and thoroughness in that system’ of

common schools is ‘expressly made a purpose, not local, not municipal, but state-

wide.’ Id., approved and followed.

“3. A thorough system means that each and every school district has enough

funds to operate. An efficient system means one in which each and every school

district in the state has an ample number of teachers, sound buildings that are in

compliance with state building and fire codes, and equipment sufficient for all

students to be afforded an educational opportunity.”

{¶ 12} The court in DeRolph II retained continuing jurisdiction to provide

additional time for the state to further refine the school-funding system. We

acknowledged, however, that significant improvements in Ohio’s system of

common schools had been achieved in the time that elapsed between DeRolph I and

DeRolph II.

{¶ 13} Most recently, we recognized that, in order to decide whether the

state’s funding system now is constitutional, we must examine Ohio’s statutory

school-funding system as designed by defendants as of June 15, 2001, and

determine “the likely effects that the legislation enacted in response to [DeRolph

II] will produce.” DeRolph v. State (2001), 91 Ohio St.3d 1274, 1276, 747 N.E.2d

823, 824.

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{¶ 14} It is the law contained in the syllabi to DeRolph I and DeRolph II and

the principles established by court entry in the case at bar by which we are required

to evaluate the constitutionality of the school-funding system now statutorily in

place. See Thackery v. Helfrich (1931), 123 Ohio St. 334, 336, 175 N.E. 449, 450

(this court “announces the law only through the syllabi of cases and through per

curiam opinions”); S.Ct.R.Rep.Op. 1(B) (“The syllabus of a Supreme Court opinion

states the controlling point or points of law decided in and necessarily arising from the

facts of the specific case before the Court for adjudication”).

Adequacy of Funding; Assurance of “Ample Number of Teachers, Sound Buildings

in Compliance with State Building and Fire Codes, and Equipment

Sufficient for All Students to be Afforded an Educational Opportunity”

(DeRolph II, Paragraph Three of the Syllabus)

Adequacy of Funding—Base Cost Formula

{¶ 15} As defined in DeRolph II, a “thorough system means that each and

every school district has enough funds to operate.” 89 Ohio St.3d 1, 728 N.E.2d

993, paragraph three of the syllabus. To this end, the General Assembly has been

charged with determining the amount of funding that is adequate to establish a

“constitutionally required foundation of basic educational opportunity.” Id. at 47,

728 N.E.2d at 1029 (Pfeifer, J., concurring). Unlike the formula determined to be

problematic by this court in DeRolph II, the General Assembly has offered a new

funding formula to arrive at the base cost of providing for an adequate education.

{¶ 16} Under 2001 H.B. No. 94, the General Assembly recalculated the cost

of providing an adequate education to be $4,814 per student in fiscal year 2002.

R.C. 3317.012(A). This figure is increased by 2.8 percent per year to account for

rising costs, resulting in a base cost per student of $5,527 in fiscal year 2007. R.C.

3317.012(A)(1). A most significant aspect of H.B. 94 is that the base cost amount

January Term, 2001

of $4,814 is funded in the full amount immediately without a phase-in period.

Removal of the phase-in period addresses a key concern of DeRolph II that the state

was “funding below the level that the General Assembly deemed to be the base

amount for an adequate education,” 89 Ohio St.3d at 18-19, 728 N.E.2d at 1007,

and the statement that the “phase-in aspect of the basic aid amount should be

reconsidered.” Id. at 37, 728 N.E.2d at 1021.

{¶ 17} The formula adopted by the General Assembly has changed in other

significant ways. To determine the base cost of an adequate education, the new

formula uses the unweighted average cost per student of educating students enrolled

in selected districts. Under the new law, this selection began with one hundred

seventy school districts that, in fiscal year 1999, met at least twenty of twenty-seven

performance standards established by H.B. 94. R.C. 3317.012(B)(1)(a) through

(aa). Districts in the top and bottom five percent of income and property wealth

bases are deleted to adjust for anomalies within those districts, leaving one hundred

twenty-seven model districts.

{¶ 18} The H.B. 94 methodology for determining state aid considers the

following factors: base cost, the district’s cost of doing business, the districts’

average daily membership (“ADM”), property valuation, and the charge-off rate of

twenty-three mills ($0.023) per dollar of valuation. The formula is ADM x base

cost x cost-of-doing-business factor – 0.23 x property valuation = state aid to a

school district for basic education costs. R.C. 3317.022.

{¶ 19} H.B. 94 adopts a charge-off rate of twenty-three mills per dollar of

valuation. R.C. 3317.022. Additionally, H.B. 94 continues to provide a charge-off

supplement, termed “gap aid,” to account for districts that are not able to fund their

local share of the base cost amount. H.B. 94 applies gap aid not only to base cost,

special education costs, and vocational education costs, but also to transportation

costs. R.C. 3317.0216(C)(1). H.B. 94 also eliminates the phase-in of state funding

increases. Greater gap aid addresses the problem of “phantom revenue” by assuring

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that the state will contribute more funding to districts where the tax base does not

increase at the same rate as the increase in the base cost amount.

{¶ 20} As an additional measure to ensure that no district is unable to fund

programs because of its small local tax base, the General Assembly has enacted

legislation that requires districts to pay no more than an additional three mills of

local tax revenue to provide for their share of special education, vocational

education, and transportation. R.C. 3317.022(F). H.B. 94 restructures the manner

in which the state contributes to such programs.

{¶ 21} The state has also reassessed the manner in which it approaches

transportation costs. Under H.B. 94, the state’s share of transportation costs is the

greater of sixty percent or the same percentage that the state pays for the district’s

base cost. R.C. 3317.022(B)(2), (D)(3). According to the state’s experts, this

greater level of funding will benefit rural, property-poor districts that have greater

transportation needs.

{¶ 22} H.B. 94 further adds six weights to determine the method by which

special education is funded. R.C. 3317.013(A) through (F). In part as a result of

the new weights, the state projects that state special education funding will increase

18.6 percent from fiscal year 2001 to fiscal year 2003. The percentage of the state’s

share increases automatically once a district’s cost of serving a special education

student exceeds $30,000 in category six of the special education categories and

$25,000 for categories two through five. R.C. 3317.022(C)(3). The state funds one

hundred percent of half the costs above the applicable threshold, plus the calculated

state share percentage of the other half. R.C. 3317.022(C)(3)(a)(i) and (ii).

January Term, 2001

Parity Aid

{¶ 23} In addition to modifying the base cost formula, the General

Assembly has also enacted another form of aid termed “parity aid” by the state.

Parity aid addresses disparities between wealthier districts and poorer districts and

provides additional funds to the latter. As designed by the General Assembly,

parity aid is intended to give low-wealth districts the opportunity to spend funds on

discretionary items in the same manner as wealthier districts. The General

Assembly determined that in fiscal year 2001, school districts in the seventieth to

ninetieth percentile in valuation per pupil collected an average of 9.5 mills beyond

the millage necessary to fund their calculated local share of the base cost amount,

special education, vocational education, and transportation funding. R.C.

3317.0217(C)(2). With parity aid, eligible districts will receive funding to make

up the difference between what they can raise on 9.5 mills and what the district at

the eightieth percentile in income-adjusted wealth can raise ($1,300). R.C.

3317.0217(C). The amount of parity aid distributed, therefore, will vary on a

district-by-district basis depending upon how far below the eightieth percentile a

district falls. Defendants estimate that parity aid will provide an additional $100

million to eighty percent of school districts in fiscal year 2002 and an additional

$500 million per year when the program is fully phased in by fiscal year 2006.

{¶ 24} Parity aid is designed to address disparities in tax bases even after

ensuring full funding of the base cost, special and vocational education, and

transportation costs. The ability to receive parity aid, however, is not dependent

upon local effort. If a district is unable or unwilling to generate additional funding,

it will still receive parity aid if it falls below the eightieth percentile. For example,

the state estimates that New Lexington City School District in Perry County would

receive an additional $774 per student this year if parity aid were fully phased in,

for a total $1.4 million per year, and the Cleveland City School District would

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receive an additional $601 per student, for a total of $43,873,307 per year. All of

the money provided under the parity aid program is paid above the base cost amount

and equalizes disparities in the amount needed to address the adequacy concerns of

DeRolph II.

{¶ 25} Additionally, H.B. 94 incorporates a “stabilizing” function to ensure

that the “state share percentage of base cost and parity aid funding” (defined in R.C.

3317.012[D][5]) does not vary by more than 2.5 percent between the current year

and the last year in which a calculated base cost amount took effect, i.e., the “update

years” (defined in R.C. 3317.012[D][1]). If the General Assembly estimates that

the state share percentage will vary by more than 2.5 percent from the preceding

update year, it must bring the state share back within the allowable variance by any

means it determines to be necessary. R.C. 3317.012(D)(4).

{¶ 26} Parity aid and gap aid are significant, expansive aspects of the new

legislation that reflect defendants’ genuine efforts in complying with the rulings of

this court.

Facilities

{¶ 27} This court in DeRolph II held that an efficient system of common

schools is one in which school districts throughout the state have “sound buildings

that are in compliance with state building and fire codes.” Id., 89 Ohio St.3d 1, 728

N.E.2d 993, paragraph three of the syllabus. Plaintiffs argue that many deficient

school buildings are still in use today. But in deciding whether the school-funding

system created in the legislation under review is constitutional, we must determine

only whether, when fully implemented, the legislation enacted in response to

DeRolph II will likely have the effect of bringing these facilities into compliance

within a reasonable time. When determining what is a reasonable time, we must

realize that construction and renovation are necessarily lengthy and complex

processes and are not amenable to a one-year or even a five-year deadline.

January Term, 2001

{¶ 28} There is a well-documented need for many of Ohio’s school

buildings to be renovated, repaired, or replaced, or for completely new facilities to

be constructed, in order to meet the standards established by DeRolph II.

Construction of this magnitude will necessarily be complex and time-consuming.

{¶ 29} The state of Ohio has dedicated a large amount of its budget to

constructing and repairing school facilities. Since 1998, the General Assembly has

allocated nearly $2.7 billion to this effort. The Ohio School Facilities Commission

directs this funding to local school districts, and as of May 2001 was distributing

an average $1.5 million dollars daily—a number that continues to grow.

Additionally, the Facilities Commission provides management oversight and

technical assistance to the local school districts for construction and renovation.

Building Our Future, Ohio School Facilities Commission FY 2000 Annual Report,

at 3.

{¶ 30} The state has devised multiple interlocking programs that address

different aspects of the school facilities problem. For example:

● Since 1997, the Classroom Facilities Assistance Program has funded

replacement and renovation projects in seventy-three school districts, expending

over $1.8 billion in state funding. Building Our Future, at 8.

● The Exceptional Needs Program provides immediate assistance to

districts of below average wealth with exceptional needs for classroom facilities.

R.C. 3318.37.

● The Expedited Local Partnership Program allows school districts to fund

repair or construction through local monies before their state funding becomes

available through the Classroom Facilities Assistance Program. R.C. 3318.36.

Once funds from the program become available, the school district receives credit

for their required local contribution. Eligibility for the program was recently

expanded by amendment of R.C. 3318.36 by 2000 Am.Sub.S.B. No. 272.

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● The “Big 8” and Accelerated Urban School Building Assistance

Programs target urban school districts for major renovations and repairs. 1997

Am.Sub.S.B. No. 102, Section 7, 147 Ohio Laws, Part IV, 7416; R.C. 3318.38,

enacted by 2000 Am.Sub.S.B. No. 272; Building Our Future, at 10. The Big 8

Program is authorized to provide up to $120 million in matching funds, and

includes the larger districts in the state, such as the Akron, Toledo, Dayton,

Cincinnati, Columbus, and Cleveland city schools. Building Our Future, at 10. As

of the end of calendar year 2000, these districts had spent over fifty percent of the

funds available to them. Id.

● The Extreme Environmental Contamination Program provides assistance

for any classroom facility that needs to be replaced or relocated due to extreme

environmental contamination. H.B. No. 94, Section 186.

● The School Building Emergency Assistance Program provides assistance

to all school districts to reconstruct, repair, or renovate classroom facilities

damaged by an act of God. R.C. 3318.351(A)(2).

{¶ 31} Significant progress has been made to date. The Facilities Commission

has provided facilities funding to three hundred sixty-four school districts. OSFC: All

District Summary, Ohio School Facilities Commission. As of May 2001, the

commission was administering projects that will provide for over three hundred

additional buildings, and will complete fifty full building fixes by the end of 2001.

{¶ 32} In addition, S.B. 272 requires the state to make a facilities assessment

within two years of a request by the school district. R.C. 3318.022. Complete facilities

assessments will have been performed on four hundred and fifty districts by the end

of 2001. These facilities assessments are crucial to determining what needs remain to

be addressed in terms of repair and construction.

{¶ 33} Plaintiffs argue that the state is not doing enough to remedy the

facilities problem. First, plaintiffs argue that the state’s timetable for fixing these

problems is too slow. As we have observed above, however, to pass constitutional

January Term, 2001

muster the state must have in place legislation that will be likely to bring school

facilities into compliance within a reasonable time.

{¶ 34} Plaintiffs also argue that future funding for school facilities remains

uncertain. We acknowledge that there is no legislation currently in place that

guarantees funding for the programs outlined beyond the current biennium. However,

this concern is inherent in a democracy where public policy is never stagnant, and in

a state that operates on a biennial budget. As was noted in DeRolph II, the duration

of any legislative appropriation is “limited by the prohibition of Section 22, Article II

of the Ohio Constitution, which prohibits the General Assembly from appropriating

for more than a two-year period.” DeRolph II, 89 Ohio St.3d at 24, 728 N.E.2d at

1011. Were it necessary to guarantee funding in the future, this court would be

required to retain jurisdiction in this cause in perpetuity.

{¶ 35} Plaintiffs argue that in the current system, local school districts are

required to contribute to financing of the repair, renovation, and construction of

school buildings, and that this necessarily violates the strictures set down in

DeRolph II. However, nothing in the Ohio Constitution or any of the controlling

law of this case precludes the state from insisting on joint state-local support of

primary and secondary schools.

{¶ 36} Plaintiffs also argue that the state has not performed a comprehensive

survey to determine whether school buildings are in compliance with building and fire

codes. However, as discussed earlier, S.B. 272 requires the state to make a complete

assessment within two years upon receiving a request from a local school district.

R.C. 3318.022. This method of assessing the schools is reasonable, given the

practicalities of such a project.

{¶ 37} The Ohio School Facilities Commission has developed

comprehensive guidelines for the design and construction of commission-funded

buildings. Building Our Future, Ohio School Facilities Commission FY 2000

Annual Report, at 7. Plaintiffs maintain that these guidelines require schools to

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accept buildings that are inadequate for educational needs. Specifically, plaintiffs

assert that the guidelines provide for inadequate numbers of rooms if the twenty-

five-to-one student-teacher ratio is to be maintained. Inadequacies in School

Facilities: A Review of the State’s Program, Ohio Coalition for Equity & Adequacy

of School Funding, at 2. They note that the twenty-five-to-one ratio dictates the

size of the room, and that school districts that wish to have a lower student-teacher

ratio will find themselves forced to add additional rooms at their own expense.

{¶ 38} The state’s funding initiative for school districts with a substantial

portion of families living below the poverty line, Disadvantaged Pupil Impact Aid

(“DPIA”), has reduction in classroom size as one of its primary goals. The class-

size-reduction portion of DPIA requires districts to focus their efforts on reducing

the student-teacher ratio in kindergarten through third grades. The target student-

teacher ratio for individual districts is calculated through use of a complicated index

based on the concentration of students in the district living below the poverty line.

R.C. 3317.029(E). Options available to the school districts are not limited to

reducing the number of students in a classroom taught by a single teacher but

include the use of teacher’s aides, team teaching, and extending the length of the

school day or school year. R.C. 3317.029(F)(3).

{¶ 39} The Legislative Office of Education reported in October 2000 that

the average number of students in kindergarten through third grade in five selected

districts receiving DPIA varied from eighteen to twenty-four students. Barriers to

achieving a reduced student-teacher ratio do exist, including the uncertainty of

sustained funding of additional teachers and lack of classroom space. These are

serious concerns. However, the commission conducts a ten-year projected

enrollment analysis prior to beginning design work for a district, and designs

facilities based on the highest enrollment figure in that ten-year period, or

enrollment in the third year if enrollment is declining. If something occurs later to

change this figure, the commission works with the district to make any necessary

January Term, 2001

adjustments. Currently, more than half of those districts reporting a need for more

space are working with the Ohio School Facilities Commission to resolve the

problem. On balance, we find that the problem of student-teacher ratio as it relates

to facilities can be improved through state and local collaboration within the

existing legislative framework, and we do not find that the admittedly imperfect

current situation is grounds for striking down the legislative framework as

unconstitutional. We decline to find that the guidelines as promulgated by the Ohio

School Facilities Commission result in inadequate buildings.

Adequacy of Funding for Teachers and Supplies

{¶ 40} The majority in DeRolph I concluded that the record contained

exhaustive evidence that “the appellant school districts were starved for funds,

lacked teachers, buildings, and equipment, and had inferior educational programs,

and that their pupils were being deprived of educational opportunity.” DeRolph I,

78 Ohio St.3d at 205, 677 N.E.2d at 742. That record demonstrated that some of

the poorest school districts in the state at that time were forced to ration even basic

supplies: “paper, chalk, art supplies, paper clips, and even toilet paper.” Id. at 208,

677 N.E.2d at 744. The evidence revealed instances of schools where textbooks

were not available to every student, id. at 259, 677 N.E.2d at 778, and classes were

held under leaking roofs and in former coal bins, id. at 241, 255, 677 N.E.2d at

766, 755 (Douglas, J., concurring).

{¶ 41} The record before us today is very different. The plaintiffs now

assert that “educational deprivation” exists because, e.g., within the one hundred

twenty-seven districts used to calculate the base amounts, one district has the “least

number of teachers allowable to operate a district,” not all high schools offer

advanced placement classes, some elementary schools lack space for science labs,

and art and music classes in some districts must share the same room. These

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complaints simply do not equate to deprivation of an opportunity to receive a basic

education.

{¶ 42} The second paragraph of the syllabus to DeRolph II, 89 Ohio St.3d

1, 728 N.E.2d 993, establishes the legal proposition that efficiency and

thoroughness in Ohio’s system of common schools is a statewide goal rather than

a local one. In April 2000, Governor Taft created the Governor’s Commission for

Student Success, whose members included parents, educators, community leaders,

and legislators. The commission conducted sixteen focus group discussions, polled

one thousand Ohioans, and met with twenty-eight constituent groups to better

understand Ohioans’ thoughts and concerns about public education. In December

2000, the commission issued its report, entitled “Expecting More: Higher

Achievement for Ohio’s Students and Schools.” The report contained thirty-one

recommendations to create a statewide system of academic performance standards,

student and school assessments, and school accountability. In January 2001,

legislation incorporating recommendations from the report was introduced as

Senate Bill No. 1. The bill was enacted and signed into law on June 12, 2001.

{¶ 43} In adopting and signing this legislation, the General Assembly and

the Governor have adopted public policies consistent with the commission’s view

that, while “the state has a clear and important role in establishing statewide

academic standards, * * * local flexibility in the design and implementation of

instructional programs and other services to help children learn” should be retained.

In the words of the commission’s report, it “is appropriate for the state to say what

should be learned in key subjects; it is much less appropriate for the state to

determine how local schools should teach students to meet these standards.”

(Emphasis sic.)

{¶ 44} In its report, the commission stated that it “subscribes to a

philosophy that keeps the state’s interest as narrow as possible and gives flexibility

to local school boards, administrators and teachers. But, while flexible, the

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Commission recommendations are oriented toward action: Where students are in

danger of falling behind or not meeting key state academic standards, the

Commission expects local schools to act aggressively. In some cases, we actually

require action. The state will provide help—additional resources, technical

assistance, training and examples of strategies that work—but local educators must

be the ones who provide the necessary instruction to make sure students reach the

standards.”

{¶ 45} Accordingly, the commission recommended that “schools be

expected to provide intensive instruction and intervention services to students

whose diagnostic assessments show they are unlikely to reach the academic

standards. The nature of these services should be determined locally but could

include summer school, extended time in school, tutoring assistance or smaller class

size.”

{¶ 46} This legislative plan just enacted reflects a public policy decision

that local school districts and boards of education ultimately are responsible for

managing and allocating their financial resources so as not only to achieve the

constitutionally mandated, statewide goal of providing all students a basic

educational opportunity, but to achieve a second goal as well—the goal of helping

individual students take advantage of that opportunity and thereby receive the

lifelong benefits of education.

{¶ 47} The current statutory system contemplates that the districts of the

state will themselves determine, at least initially, on a district-by-district basis, how

to allocate their resources to provide enough teachers and sufficient equipment to

achieve satisfactory performance results as measured by school district and student

assessments. Failure to achieve satisfactory educational results will, however,

trigger state review and assistance. The commission has acknowledged that

districts found to be falling short may need additional funding from the state in

order to ensure that their schools are able to improve.

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{¶ 48} Indeed, the evidence before us demonstrates that Ohio schools are

already improving. In school evaluations issued in 2001 pursuant to R.C. 3302.03,

thirty-six districts, including three urban districts, improved their designation from

“academic emergency” to “academic watch.” The number of school districts in

“academic emergency” declined from sixty-nine to thirty-five, a reduction of nearly

fifty percent. A fifteen percent increase was realized in the number of school

districts rising to the status of “continuous improvement” from lower designations.

For the first time, all Ohio schools met state standards for science in grades nine,

ten, and twelve.

{¶ 49} Assessments show improvement at the student level as well. In

comparing proficiency test results from 2001 to those from 2000, preliminary

findings show that sixty percent compared to forty-nine percent of fourth graders

passed the mathematics test, fifty-six percent compared to forty-eight percent

passed the science test, and sixty-one percent compared to fifty-five percent of sixth

graders passed the mathematics and science tests. While not all categories of test

results show such striking improvements, the overall trend in the 2001 proficiency

test results is one of improving performance.

{¶ 50} The new statutory framework has made positive changes in the base

cost amount. The plan also restructures gap aid and introduces parity aid, as

described above, to assist poor districts. The plan is designed to ensure that an

adequate number of teachers and supplies will exist in every district, thereby

affording every child an opportunity to receive a basic education.

III

Avoidance of Primary Reliance on Property Tax

{¶ 51} In DeRolph I, this court’s primary concern with the state’s funding

system was that it relied too heavily on local property taxes to fund a statewide

system. 78 Ohio St.3d at 212, 677 N.E.2d at 747. The problem this creates, as

articulated in DeRolph II, is that a system overly reliant on local property taxes will

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result in disparities between districts because the same tax effort in two different

districts will produce different results. 89 Ohio St.3d at 26, 728 N.E.2d at 1013. In

defining overreliance, we stated that local taxes need not be totally abandoned,

because equality is not constitutionally mandated. DeRolph I, 78 Ohio St.3d at 211,

677 N.E.2d at 746. Rather than completely rejecting property taxes, the majority

stated that “property taxes can no longer be the primary means of providing the

finances for a thorough and efficient system of schools.” (Emphasis added.) 78

Ohio St.3d at 419, 678 N.E.2d at 887. Thus, some use of local property taxes is

constitutionally permissible.

{¶ 52} Therefore, disparity caused by a school-funding system that rests on

the dual foundations of state support and local property tax revenues is

unconstitutional only if the disparity is so dramatic that children in the poorest of

our school districts are deprived of a basic educational opportunity, and a thorough

and efficient distribution of funds need only ensure that each Ohio school district

is financially able to offer an adequate education.

{¶ 53} In general, property taxes are less sensitive to economic cycles than

are taxes based on income or sales. Property values tend to remain stable over time,

whereas income and spending are affected by movements in the economy. Property

taxes, therefore, give school districts a stable and reliable source of local revenue

through both good and bad economic times. The problems that arise from property

taxes, however, are the continuing need for school districts to raise revenue through

voted local levies that are subject to the limitations of R.C. 319.301 and the unequal

distribution of property wealth throughout the state. Districts that have more

property wealth generate more local revenue than do poorer districts. Overreliance

on property taxes, therefore, has led to disparate educational opportunities in these

property poor districts. H.B. 94, however, has altered the funding structure to

address the concerns of this court through three major changes.

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{¶ 54} The first method by which the General Assembly has reduced the

reliance on local property taxes is by altering the charge-off supplement system,

known as gap aid. As previously described, gap aid supplements funding in

districts that cannot produce their local share of the base cost.

{¶ 55} Second, H.B. 94 limits any district’s local share of special education,

vocational education, and transportation to three mills. R.C. 3317.022(F). Limiting

the local share of these costs to three mills reduces the amount of local revenue a

district must generate. As a consequence, and assuming that the district raises more

than three mills, the limiting function raises the amount of funds available to poorer

districts for discretionary spending that the district would not have if forced to pay

more for its share of these programs. This, in turn, reduces the concern of a district

in providing merely an adequate education and allows it to focus its spending efforts

on providing more than just the basics.

{¶ 56} Third, the parity aid program contributes additional funds to poorer

districts. It gives those districts the spending power of wealthier districts without

requiring a district to levy any additional funds at the local level.

{¶ 57} Additionally, local contributions for construction of new school

facilities are no longer contingent upon local property taxes. S.B. 272 authorizes

several different options for local funding sources other than a local property tax.

For example, to pay their local share required by R.C. 3318.05, districts may now

apply the proceeds of an existing tax levy for general ongoing improvements or a

school district income tax. R.C. 3318.052. Districts may also apply locally donated

contributions toward their portion of the basic project cost. R.C. 3318.084. Two

or more districts may also enter into an agreement with the Treasurer of State to

pool bonds to finance their respective projects with the facilities commission. R.C.

3318.085. Finally, districts may credit as part of their local share any bonds issued

for classroom facilities within eighteen months before being notified that they are

eligible for state assistance, so long as the facilities supported by the bond measure

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meet design specifications of the facilities commission. R.C. 3318.01(L); 3318.03;

3318.033; 3318.05; 3318.08.

{¶ 58} As we recognized in DeRolph I, no system of school funding could

address every inequality associated with reliance on local property taxes as a basis

for school funding. 78 Ohio St.3d at 211, 677 N.E.2d at 746. While this court

found in DeRolph II that the system then in place did not meet this court’s prior

mandate, we recognize that the General Assembly has made significant changes to

the prior structure in order to reduce reliance on local property taxes. Through

changes in gap aid, millage caps, changes in base cost formulation, and the parity

aid program, for example, the current system established by H.B. 94, when fully

implemented in accordance with this opinion, will reduce reliance on local property

taxes to a constitutionally acceptable level by providing substantially more state aid

to districts less able to generate local revenue.

Conclusion and Order

{¶ 59} We have thoroughly reviewed the plan now in place and are

convinced that the defendants are committed to improving primary and secondary

education. That commitment has operated, and can be expected to further operate,

to ameliorate the undesirable educational conditions shown in DeRolph I.

{¶ 60} In their amicus curiae briefs, both Governor Bob Taft and the current

majority leadership of the General Assembly have reaffirmed their commitment to

staying the course of progress we have seen in the period between DeRolph I and

today. We believe that the leaders of this General Assembly, Governor Taft, and

Superintendent Zelman intend to fully implement the school-funding plan for

which they have so earnestly argued.

{¶ 61} Despite the extensive efforts of the defendants to produce a plan that

meets the requirements announced by this court, changes to the formula are

required to make the new plan constitutional:

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{¶ 62} Base Cost Formula: H.B. 94 recalculates the cost of providing an

adequate education to be $4,814 per student in fiscal year 2002. The base cost formula

uses one hundred twenty-seven model school districts as a basis for determining base

cost support. That number of school districts is achieved by screening out districts in

the top and bottom five percent of all Ohio districts based on income and property

wealth from the state’s pool of the one hundred seventy top-performing districts. Also

included within this number are several districts that did not meet twenty of twenty-

seven performance standards, but were included regardless because of a rounding

procedure included within H.B. 94. R.C. 3317.012(B)(1), last paragraph. As the

plaintiffs note, rounding and wealth screens include districts that should not be

considered in the base cost formula and exclude districts that should be considered.

Plaintiffs’ arguments and our review of the record convince us that the formula must

be modified to include the top five percent districts and the lower five percent districts,

and by considering only those districts that actually meet twenty of twenty-seven

performance standards without rounding. We make no determination regarding the

time in which the state must calculate and implement actual changes in the amount of

funds distributed to each district pursuant to today’s order, but the new calculations

must be applied retroactive to July 1, 2001, and to the subsequent years designated in

R.C. 3317.012. Moreover, in determining future biennial budgets through fiscal year

2007, the rate of millage charged off as the local share of base cost funding under

divisions (A)(1) and (2) of R.C. 3317.022 may not be changed from twenty-three

mills, irrespective of the language of R.C. 3317.012(D)(4) suggesting such a

methodology.

{¶ 63} The H.B. 94 model calculates its base cost amount using spending

data for FY96, adjusted for inflation, or actual FY99 expenditure data, whichever

is lower. R.C. 3317.012(B), last paragraph. The state uses the lower of the two

figures to compensate for what it terms an “echo effect,” or to adjust for districts

that spent more than what was actually needed at the base level, due to line-item

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expenditures, other state funding outside of the foundation formula, and local

enhancement revenues. The model districts subject to lowering of their base cost

are those that the state determined to be model districts in 1996. As the plaintiffs’

experts observed, there has been insufficient evidence presented by the state to

justify lowering the base cost amount to adjust for this supposed echo effect. ETPI

Report, at 6. Accordingly, we are persuaded by the plaintiffs that choosing the

lower of FY96 expenditures or FY99 actual expenditures is unsupported by the

evidence and should not be used to lower the base cost amount figure.

{¶ 64} Parity Aid: The parity aid program is a salutary attempt to provide

poorer districts with funds similar to those available to wealthier districts that are

used to substantially enhance the educational experience of each student. The plan

as adopted would fully fund the parity aid program by fiscal year 2006. We have

concluded that the parity aid program must be fully funded no later than the

beginning of fiscal year 2004.

{¶ 65} To summarize, we observe that the state has chosen to retain a

foundation program of funding primary and secondary public education. We find

that, having so elected, it must, in order to meet the requirements of DeRolph I and

DeRolph II, formulate the base cost of providing an adequate education by using

all school districts meeting twenty of twenty-seven performance standards as set

forth by the General Assembly in R.C. 3317.012(B)(1)(a) through (aa), without

adjustments to exclude districts based on wealth screens, without rounding

adjustments to include additional lower-spending districts, and without use of the

“echo effect” adjustment, beginning effective July 1, 2001. In addition, the parity

aid program established by the General Assembly must be fully funded no later

than July 1, 2003.

{¶ 66} With full implementation of these modifications to the funding plan

adopted by the General Assembly the plan will meet the test for constitutionality

created in DeRolph I and DeRolph II. While the changes will have a fiscal impact,

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they will not require structural changes to the school foundation program set forth

in R.C. Chapter 3317.

{¶ 67} One final observation is in order. Historically, the construction and

maintenance of school facilities have been considered the responsibility of local

school districts. By 1989, the General Assembly had begun addressing school

facilities needs and committing funds to construction and repair of school buildings.

We have described previously the substantial commitment of the state to the

availability of adequate school buildings for every student enrolled in public

education. However, the unmet needs are enormous and the time in which it is

feasible to meet them is lengthy. We urge the General Assembly to review and

consider alternative means of funding school buildings and related facilities.

{¶ 68} The state is hereby ordered to implement the changes described

above. Because we have no reason to doubt defendants’ good faith, we have

concluded that there is no reason to retain jurisdiction of the matter before us. If

the order receives less than full compliance, interested parties have remedies

available to them.

So ordered.

DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.

DOUGLAS and PFEIFER, JJ., separately concur.

PFEIFER, J., separately concurs.

LUNDBERG STRATTON, J., separately concurs.

RESNICK, J., separately dissents.

RESNICK and F.E. SWEENEY, JJ., separately dissent.

COOK, J., separately dissents.

__________________

DOUGLAS, J., concurring.

{¶ 69} As this case involves principles of great importance and may have

an enduring influence on the institutions of our state, I embrace the high privilege

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of stating distinctly my opinion on several of the difficult matters before us. Today

a new majority decides a case to be known as DeRolph III. In creating this new

majority, each member of this majority takes a position that substantially deviates

from a previously held determination on the issues before us. Our coming to the

conclusion we now reach does not mean that any one or all of us hold less dear

those principles that we have expressed before. Because of the inevitable criticism

of each of us individually and all of us collectively that is sure to follow, I take the

time to write separately to memorialize a few thoughts.

History

{¶ 70} On March 24, 1997, this court decided DeRolph v. State (1997), 78

Ohio St.3d 193, 677 N.E.2d 733 (“DeRolph I”). In DeRolph I, we held that certain

provisions of Ohio’s elementary and secondary school-financing system then in

effect violated Section 2, Article VI of the Ohio Constitution, which mandates a

thorough and efficient system of common schools throughout the state. Id. at

syllabus.

{¶ 71} On May 11, 2000, the court decided DeRolph v. State (2000), 89

Ohio St.3d 1, 728 N.E.2d 993 (“DeRolph II”). In DeRolph II, we held that the

state’s method of funding elementary and secondary schools drafted in response to

our decision in DeRolph I fell short of providing for a thorough and efficient system

of public schools throughout this state. Id. at 35-36, 728 N.E.2d at 1020. Further,

we retained continuing jurisdiction over DeRolph II in order to provide the state

additional time in which to comply with the constitutional requirements set forth in

Section 2, Article VI. Id. at 38, 728 N.E.2d at 1022.

{¶ 72} Now before us is DeRolph III. The same issue under consideration

in DeRolph I and II is again before this court. That issue is whether the current

method of funding primary and secondary education in Ohio complies with Section

2, Article VI of the Ohio Constitution by providing a thorough and efficient system

of common schools throughout the state. The Chief Justice has impressively set

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forth the contents and structure of the legislation now before us. I concur in the

well-reasoned decision of the majority that with the additional initiatives therein

ordered, the state will have in place a statutory school-funding framework that

withstands scrutiny under the Thorough and Efficient Clause of the Ohio

Constitution as previously interpreted by this court in DeRolph II. I write further

for the purpose of detailing several of the numerous issues that I and the other

members of the court have examined throughout this litigation.

Separation of Powers

{¶ 73} Throughout the DeRolph litigation, we, as a court and individually,

have been presented with an abundance of concerns. One of the primary concerns has

been the doctrine of separation of powers. “Separation of powers” is a misnomer.

There is no explicit declaration concerning separation of powers in either the federal

Constitution or our state Constitution. Both Constitutions separate government into

three branches while fusing certain functions and powers of those bodies. For

instance, a president’s or governor’s veto protects the executive branch against

legislative encroachments. The power of appointment protects the executive branch

from judicial assault, and executive officers and administrative bodies exercise

functions that belong to other departments. In addition, state and federal courts have

the power to pass on the constitutionality of legislation, and federal judges are

protected by life tenure. Further, although the courts do not legislate in the strict sense

of the word, their decisions may be regarded from a realistic point of view as a form

of lawmaking. Finally, the legislative branch controls the purse upon which the

executive and judicial departments depend. Mason & Stephenson, American

Constitutional Law: Introductory Essays and Selected Cases (8 Ed.1987) 76.

{¶ 74} The doctrine of separation of powers defines the very character of

this country’s political system of governance. Wood, The Creation of the American

Republic 1776-1787 (1998 Ed.) 151. As James Madison explained in Federalist

Paper No. 47, the sharing of powers through a system of checks and balances

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complemented the principle of separation of powers by acting as an additional

restraint on government. This blending of powers not only limits government itself,

it also provides mechanisms by which each branch can defend its place in our

constitutional system. The Federalist Papers No. 47 (Madison 1788) (Wills

Ed.1982), at 243-246. See, also, Mason & Stephenson, American Constitutional

Law, supra, at 76. Thus, the doctrine is viewed as serving a dual purpose. On one

hand, it is said that “[t]he doctrine of the separation of powers was adopted by the

convention of 1787 not to promote efficiency but to preclude the exercise of

arbitrary power.” Myers v. United States (1926), 272 U.S. 52, 293, 47 S.Ct. 21, 85,

71 L.Ed. 160, 242 (Brandeis, J., dissenting). On the other hand, the principle is

construed as a facilitator of responsible governance. “While the Constitution

diffuses power the better to secure liberty, it also contemplates that practice will

integrate the dispersed powers into a workable government.” Youngstown Sheet &

Tube Co. v. Sawyer (1952), 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153,

1199 (Jackson, J., concurring). See, also, Entin, Separation of Powers, The Political

Branches, and the Limits of Judicial Review (1990), 51 Ohio St.L.J. 175. Thus, it

is clear that the concept of the separation of powers is a political doctrine rather

than a technical rule of law.

Meaning of the Separation-of-Powers Doctrine to the DeRolph Litigation

{¶ 75} The doctrine of separation of powers has played a paramount role

throughout our history in ensuring that interbranch conflict never reaches a

constitutional crisis. Conflicts between the three branches of government are

inherent in our political system. Interbranch conflicts are “natural byproducts of

the separation of powers principle.” Hatch, Avoidance of Constitutional Conflicts

(1987), 48 U.Pitt.L.Rev. 1025, 1027-1028. Thus, it is inevitable that conflicts will

arise. The framers of the federal Constitution foresaw friction between the branches

of government and sanctioned those conflicts as “the means of keeping each other

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in their proper places.” The Federalist Papers No. 51 (Madison 1788) (Wills

Ed.1982), at 261.

{¶ 76} From a practical standpoint, the judicial branch is not the only branch

of government that engages in constitutional interpretation. In this respect, the

DeRolph litigation was sure to spawn conflict between the branches of government.

“In the performance of assigned constitutional duties each branch of the

Government must initially interpret the Constitution, and the interpretation of its

powers by any branch is due great respect from the others.” United States v. Nixon

(1974), 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039, 1061. See, also,

R.C. 1.47. Concerning DeRolph, interbranch conflict has existed not only between

the judicial and legislative branches but also between the judicial and executive

branches and between the General Assembly and the Governor. It is indeed

unfortunate that some persons and segments of the print media have chosen to

convert the DeRolph litigation into a contest between the General Assembly and

the court, the court and the Governor, or, more recently, the General Assembly and

the Governor. The litigation has not been about which branch of government is

stronger, which branch would blink first, or which branch should be the dominant

force. It is about the proper education and future of Ohio’s 1,800,000 public

schoolchildren and those generations of children who will follow. Obviously, at

some point the questions before each of the branches of our government must be

resolved—and this must be accomplished while preserving the independent role of

each branch without the actual or perceived subjugation of one branch to another.

{¶ 77} That is not to suggest that we, as elected officials, should forgo our

duties and responsibilities. All elected officials take an oath of office to uphold the

Constitution. Section 7, Article XV, Ohio Constitution. See, also, Clause 3, Article

VI, United States Constitution. Clearly, when a case is properly before the court

for review and final determination, we as judges are not at liberty to ignore our

obligations. “Under the long-standing doctrine of judicial review, it is our sworn

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duty to determine whether the General Assembly has enacted legislation that is

constitutional.” DeRolph, 78 Ohio St.3d at 198, 677 N.E.2d at 737, citing Marbury

v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. Deference to the

corresponding branches of government does not mean abdication. See United

States v. Nixon, 418 U.S. at 704-705, 94 S.Ct. at 3106, 41 L.Ed.2d at 1062

(“Notwithstanding the deference each branch must accord the others, the ‘judicial

Power of the United States’ vested in the federal courts by Art. III, [Sec.] 1, of the

Constitution can no more be shared with the Executive Branch than the Chief

Executive, for example, can share with the Judiciary the veto power, or the

Congress share with the Judiciary the power to override a Presidential veto. Any

other conclusion would be contrary to the basic concept of separation of powers

and the checks and balances that flow from the scheme of a tripartite government.

The Federalist [Papers] No. 47, p. 313 [S. Mittell ed. 1938]”). Thus, the propriety

of our review of this matter is well established and should no longer be under attack.

The judicial branch is the final arbiter in interpreting the Constitution. Marbury v.

Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. While it is the duty of the

legislative branch to draft laws, it is the duty of the courts to say what the law is.

Id. at 177, 2 L.Ed. at 73.

{¶ 78} While deference should be accorded each branch of government, we

must all remember that the primary rationale behind the separation-of-powers

doctrine is preservation of the public trust. The will of the people is of paramount

concern, and special interests should not be allowed to prevail over public ones.

The Federalist Papers No. 51 (Madison 1788) (Wills Ed. 1982), at 264.

{¶ 79} The will of the people in regard to public education has been

declared by the citizens of this state through Section 2, Article VI of the Ohio

Constitution. Miller v. Korns (1923), 107 Ohio St. 287, 297, 140 N.E. 773, 776.

Accordingly, respect for separation of powers has led us to scrupulously avoid

crafting a school-funding remedy in DeRolph I and II. Out of deference to the

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General Assembly, as well as to the Governor, we have recognized that the scope

of our review is limited to determining whether the funding method meets the

educational mandate of the Ohio Constitution. We have indicated our belief that

the crafting of a new funding formula is clearly a legislative function. Thus, we

have previously declined to instruct the General Assembly regarding the specifics

of the legislation that it should enact. DeRolph I, 78 Ohio St.3d at 212-213, 677

N.E.2d at 747. See, also, DeRolph II, 89 Ohio St.3d at 33-38, 728 N.E.2d at 1019-

1022.

Justice Cook’s Dissent

{¶ 80} The dissent of Justice Cook criticizes the majority for “order[ing] the

General Assembly to make specific changes that are ‘required’ before the current

funding plan will be constitutional: adjusting the base cost formula and accelerating

by two years the full funding of the ‘parity aid program.’ By ordering particular

legislative action—based on its own concept of what is necessary to guarantee

educational quality—the majority has made an initial policy determination that the

judiciary is ill equipped to make and that is characteristic of nonjusticiability.” With

all due respect to the dissenter, the majority does no such thing.

{¶ 81} In DeRolph I, a majority of this court recognized that a school-

financing system based on residual budgeting was flawed. DeRolph I, 78 Ohio St.3d

at 199, 677 N.E.2d at 738. See, also, id. at 261, 677 N.E.2d at 780 (Resnick, J.,

concurring). We found that public education was then funded with the residue after

other mandated government programs had been funded. Id. at 199, 677 N.E.2d at 738.

Therefore, we indicated, the base cost of an adequate education as determined by the

General Assembly had “no real relation to what it actually costs to educate a pupil”

because, according to one expert, that amount was “ ‘a budgetary residual, which is

determined as a result of working backwards through the state aid formula after the

legislature determines the total dollars to be allocated to primary and secondary

education.’ ” Id. We noted in DeRolph I that “[o]ur state Constitution was drafted

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with the importance of education in mind” and that a formula that establishes the base

cost of an adequate education after determining the total dollars to be allocated to

primary and secondary education “contravenes the clear wording of our Constitution

and the framers’ intent.” Id. at 209, 677 N.E.2d at 745.

{¶ 82} In DeRolph II, we commended the Governor and the General

Assembly for recognizing that “education can no longer be funded as a residual in the

state budget.” Id., 89 Ohio St.3d at 36, 728 N.E.2d at 1020. However, we noted that

we could not totally discount evidence that residual budgeting methodology remained

in the funding system under review therein. Id. at 19-20, 728 N.E.2d at 1008. Thus,

we held that the “basic aid formula has structural deficiencies and may not in fact

reflect the amount required per pupil to provide an adequate education.” (Emphasis

added.) Id. at 37, 728 N.E.2d at 1021.

{¶ 83} We are again faced with the same concerns, outlined in DeRolph I and

II, regarding the basic aid amount. The General Assembly’s determination of the

basic aid amount has a substantial effect on the entire funding formula. Thus, the

computation of the base cost per pupil of an adequate education is, in the words of

expert witness Dr. Howard B. Fleeter, “a crucial step in defining the funding needs of

the entire system.”

{¶ 84} As indicated by the majority, the formula for determining the base cost

of an adequate education is based on the average amount spent per pupil in fiscal year

1999 by “model” school districts. R.C. 3317.012. One hundred twenty-seven model

school districts were used as a basis for calculating the base cost. The model school

districts are those school districts that in fiscal year 1999 had met at least twenty out

of the twenty-seven performance standards established in H.B. 94. See R.C.

3317.012(B)(1)(a) through (aa).2 In order to arrive at the number of model school

2. The twenty-seven performance standards set forth in R.C. 3317.012(B)(1) are:

“(a) A ninety per cent or higher graduation rate;

“(b) At least seventy-five per cent of fourth graders proficient on the mathematics test

prescribed under division (A)(1) of section 3301.0710 of the Revised Code;

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“(c) At least seventy-five per cent of fourth graders proficient on the reading test prescribed

under division (A)(1) of section 3301.0710 of the Revised Code;

“(d) At least seventy-five per cent of fourth graders proficient on the writing test prescribed

under division (A)(1) of section 3301.0710 of the Revised Code;

“(e) At least seventy-five per cent of fourth graders proficient on the citizenship test

prescribed under division (A)(1) of section 3301.0710 of the Revised Code;

“(f) At least seventy-five per cent of fourth graders proficient on the science test prescribed

under division (A)(1) of section 3301.0710 of the Revised Code;

“(g) At least seventy-five per cent of sixth graders proficient on the mathematics test

prescribed under division (A)(2) of section 3301.0710 of the Revised Code;

“(h) At least seventy-five per cent of sixth graders proficient on the reading test prescribed

under division (A)(2) of section 3301.0710 of the Revised Code;

“(i) At least seventy-five per cent of sixth graders proficient on the writing test prescribed

under division (A)(2) of section 3301.0710 of the Revised Code;

“(j) At least seventy-five per cent of sixth graders proficient on the citizenship test

prescribed under division (A)(2) of section 3301.0710 of the Revised Code;

“(k) At least seventy-five per cent of sixth graders proficient on the science test prescribed

under division (A)(2) of section 3301.0710 of the Revised Code;

“(l) At least seventy-five per cent of ninth graders proficient on the mathematics test

prescribed under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;

“(m) At least seventy-five per cent of ninth graders proficient on the reading test prescribed