# DeRolph v. State

> Ohio Supreme Court · September 6, 2001 · 93 Ohio St. 3d 309

URL: https://www.frixlaw.com/law-library/cases/11152312

## Case

- **Court:** Ohio Supreme Court
- **Decided:** September 6, 2001
- **Citations:** 93 Ohio St. 3d 309; 2001 Ohio 1343
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Moyer
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[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.,
SUPREME COURT OF OHIO

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.
I
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

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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”).
II
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)
A
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

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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).

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B
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.
C
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.

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{¶ 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

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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

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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.
D
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.
IV
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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SUPREME COURT OF OHIO

“(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
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(n) At least seventy-five per cent of ninth graders proficient on the writing test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(o) At least seventy-five per cent of ninth graders proficient on the citizenship test
prescribed under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(p) At least seventy-five per cent of ninth graders proficient on the science test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(q) At least eighty-five per cent of tenth graders proficient on the mathematics test
prescribed under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(r) At least eighty-five per cent of tenth graders proficient on the reading test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(s) At least eighty-five per cent of tenth graders proficient on the writing test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(t) At least eighty-five per cent of tenth graders proficient on the citizenship test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(u) At least eighty-five per cent of tenth graders proficient on the science test prescribed
under Section 4 of Am. Sub. S.B. 55 of the 122nd general assembly;
“(v) At least sixty per cent of twelfth graders proficient on the mathematics test prescribed
under division (A)(3) of section 3301.0710 of the Revised Code;
“(w) At least sixty per cent of twelfth graders proficient on the reading test prescribed under
division (A)(3) of section 3301.0710 of the Revised Code;
“(x) At least sixty per cent of twelfth graders proficient on the writing test prescribed under
division (A)(3) of section 3301.0710 of the Revised Code;
“(y) At least sixty per cent of twelfth graders proficient on the citizenship test prescribed
under division (A)(3) of section 3301.0710 of the Revised Code;
“(z) At least sixty per cent of twelfth graders proficient on the science test prescribed under
division (A)(3) of section 3301.0710 of the Revised Code;

32
January Term, 2001

districts used in the base cost formula, the General Assembly introduced two factors
into the formula.
{¶ 85} R.C. 3317.012(B)(1) contains a rounding provision that permits the
inclusion of school districts that did not meet at least twenty of the twenty-seven
academic performance standards. Thus, seven school districts that had achieved
only eighteen or nineteen performance measures were included as model districts
for the purposes of calculating the base cost amount. The result was a reduction in
the base cost in the amount of $40 per student for fiscal year 2002. After reviewing
this aspect of the school-funding plan, Dr. Fleeter remarked:
“It is difficult to conclude that the addition of these marginally unsuccessful
districts to the list of successful districts occurred for any reason other than the
reduction of the total per pupil cost of an adequate education.”
{¶ 86} A second factor, income and property wealth screens, was also used
in determining the model school districts to be included in the base cost foundation
formula. The income screen excludes from consideration of the base cost
calculation those districts that were among the five percent of all districts with the
highest income and those districts that were among the five percent of all districts
with the lowest income. R.C. 3317.012(B)(2). Likewise, the property wealth
screen excludes from consideration those districts that were among the five percent
of all districts with the highest property valuation per pupil and those districts that
were among the five percent of all districts with the lowest property valuation per
pupil. R.C. 3317.012(B)(3). Previously the funding formula had excluded the top
and bottom ten percent of all districts. This change, to a five-percent wealth screen,
allows inclusion of additional successful districts with higher wealth. However,
wealth screening still excludes some two-thirds of the thirty most effective
performing school districts in the state.

“(aa) An attendance rate for the year of at least ninety-three per cent as defined in section
3302.01 of the Revised Code.”

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{¶ 87} In its brief, the state justified the removal of these districts from the
calculation of the base cost by quoting David Monk, the Dean of the College of
Education at Pennsylvania State University. He described Dr. John Augenblick’s
original recommendation by stating:
“ ‘A 5% exclusion of this kind is a well established practice within the field
of school finance given the common existence of highly atypical school districts in
the tails of wealth and income distributions.’ ”
{¶ 88} However, we agree with plaintiffs’ argument that the income and
property wealth screens were implemented “solely to eliminate high wealth
districts, since no district at the bottom of the wealth spectrum satisfied the 20 out
of 27 performance standards, while most of the districts on the high end of the
wealth spectrum easily surpassed the 20 of 27 benchmark.” The result was that,
through the introduction of wealth screens, the state was able to reduce the basic
aid amount by $110 per pupil.
{¶ 89} The state used a third and, for our purposes, final procedure for
calculating the base cost amount. This method is set forth in the last paragraph of R.C.
3317.012(B) and is referred to as the “echo effect” provision. For those school
districts that qualified as model districts in FY99 and that had also met the required
performance criteria of the statute in effect in FY96, R.C. 3317.012(B) provides that
the base cost is calculated from the expenditures per pupil for those districts in FY96
or FY99, whichever year is lower.3 The rationale behind this provision, as stated in
the statute, was that “the increased state funding may have driven the districts’
expenditures beyond the expenditures that were actually needed to maintain their
educational programs at the level necessary to maintain their ability to meet the fiscal
year 1999 performance criteria of current division (B)(1) of this section.”
{¶ 90} However, as noted by Dr. Fleeter:

3. The 1996 figures were adjusted for inflation.

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January Term, 2001

“In general, the Echo effect adjustment totally ignores the contribution
made by local taxes to the base cost amount. The data show that local revenue
increases accounted for more of the total dollar increase than that for which State
aid accounted. * * *
“By assuming that State aid may have caused districts to exceed the amount
needed to fund an adequate education, the General Assembly also tacitly assumes
the voters in those districts undertook $112 million in additional tax burden
unnecessarily. This assumption has no support in any empirical data.” (Emphasis
sic.)
{¶ 91} With the introduction of an “echo effect” provision, the General
Assembly reduced the per-pupil basic aid figure by $181.
{¶ 92} It is obvious from the foregoing that those provisions discussed above,
rounding, wealth screens, and “echo effect,” violate the Thorough and Efficient
Clause set forth in Section 2, Article VI of the Ohio Constitution. Those provisions
have “no real relation to what it actually costs to educate a pupil.” DeRolph I, 78 Ohio
St.3d at 199, 677 N.E.2d at 738. Simply stated, those provisions were inserted into
HB 94 as residual, cost-based budgeting methods designed to do nothing more than
lower the basic aid amount to a figure that is palatable to the General Assembly.
{¶ 93} This court has the power and the duty to sever those provisions of
legislation that offend the dictates set forth in our Ohio Constitution. The General
Assembly acknowledges this power in stating legislative intent in R.C. 1.50:
“If any provision of a section of the Revised Code or the application thereof
to any person or circumstance is held invalid, the invalidity does not affect other
provisions or applications of the section or related sections which can be given effect
without the invalid provision or application, and to this end the provisions are
severable.”

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SUPREME COURT OF OHIO

{¶ 94} The test for determining whether an unconstitutional provision may be
severable is set forth in Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 N.E. 28,
33:
“ ‘(1) Are the constitutional and the unconstitutional parts capable of
separation so that each may be read and may stand by itself? (2) Is the unconstitutional
part so connected with the general scope of the whole as to make it impossible to give
effect to the apparent intention of the Legislature if the clause or part is stricken out?
(3) Is the insertion of words or terms necessary in order to separate the constitutional
part from the unconstitutional part, and to give effect to the former only?’ ” Id.,
quoting State v. Bickford (1914), 28 N.D. 36, 147 N.W. 407, paragraph nineteen of
the syllabus.
{¶ 95} Those offending provisions, the last paragraph of R.C. 3317.012(B)(1)
(rounding), R.C. 3317.012(B)(2) and (3) (wealth screens), and the last paragraph of
R.C. 3317.012(B) (echo effect), and the remaining, unoffending sections of HB 94
may each be read, and each may stand, by itself. Further, the unconstitutional
provisions are not so essentially connected with the remainder of HB 94 that by
eliminating those provisions the enactment will lose its intent. Therefore, we need
only excise the constitutionally offensive sections and need not add any other
language to give effect to its remedial scheme. Thus modified, the remainder of HB
94 continues to give effect to the intent of the General Assembly, which is, of course,
to provide a thorough and efficient system of funding for public education.
{¶ 96} Similarly, the majority has also found it necessary to sever that
provision of the state’s parity aid program requiring a phase-in of the program in full
by FY06. R.C. 3317.0217(C) and (D). We have previously voiced our concern
regarding the General Assembly’s practice of phasing in certain parts of the school-
funding formula. DeRolph II, 89 Ohio St.3d at 18-19, 728 N.E.2d at 1007 (phase-in
aspect of basic aid amount). In response to the phasing-in of parity aid, Dr. Fleeter
noted:

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January Term, 2001

“The fact that Sub. H.B. 94 would phase-in Parity aid in incremental steps
further undermines the ability of the new program to achieve systematic reform.
Parity aid amounts to the major element of the legislation intended to address the
unconstitutional overreliance on the local property tax in Ohio’s school funding
system. In this context, Parity aid offers the prospect of alleviating a small part of that
overreliance initially. ‘Full’ relief would require five years to achieve.”
{¶ 97} Without striking the phase-in provision from R.C. 3317.0217(C) and
(D), the legislation drafted by the General Assembly in response to DeRolph I and II
will not meet the mandate of a thorough and efficient system set forth in Section 2,
Article VI of the Ohio Constitution.
{¶ 98} Therefore, contrary to Justice Cook’s belief, the majority is not
thrusting itself into the legislative arena. Nor is the majority by severing those
offending portions of HB 94 making public policy determinations reserved for the
General Assembly. Our actions are not in disregard of the doctrine of separation of
powers or offensive to our constitutional form of government. We are not imposing
our will on the General Assembly or the people of this great state. We are merely
performing our sworn duty of determining “whether the General Assembly has
enacted legislation that is constitutional.” DeRolph I, 78 Ohio St.3d at 198, 677
N.E.2d at 737.
Options
{¶ 99} It is important to review what options this court had before it while
deciding DeRolph III. As in every case, before finally deciding what decision the
court is to make, the question that must always be asked is, what will be the next step
and the step after that?
A. Approve the New Legislation
{¶ 100} The court could simply approve the legislation and walk away.
Without severing those offending portions as ordered in the Chief Justice’s majority
opinion, this option lacked credibility and was never supported by a court majority.

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SUPREME COURT OF OHIO

B. Declare the New Legislation Unconstitutional and Do Nothing Else
{¶ 101} Assume, as some will forcefully argue, that the funding formula
enacted by the General Assembly and signed by the Governor fails to pass
constitutional muster and a majority of the court simply declares it unconstitutional.
This option presents at least two problems. If a majority of the court would say to
the General Assembly and the Governor, “Try again,” what would that mean?
Merely declaring the statutes unconstitutional and returning the matter to the
General Assembly, without more detailed and specific direction would appear to
be an act of futility. Only one member of this court was willing to take this step.
It would leave the existing paralysis without treatment.
{¶ 102} The second problem could be even more acute. If the court were to
say that the legislation is unconstitutional, then, arguably, there would be a return to
pre-existing funding levels. Such an action would, by the state’s calculations, return
to the state’s general fund the $1,400,000,0004 appropriated by the General Assembly

4. It has been widely reported by the Governor and the General Assembly that with the enactment
of HB 94, an additional $1.4 billion has been budgeted to fund primary and secondary education.
However, despite the exuberance of these sources, I am at a loss to confirm their calculations,
especially when the state’s brief fails to cite such an enormous figure. At most, the state argues in
its brief that the current basic aid figure of $4,814 is an increase of twelve percent per student in
2001. Apparently, the state is referring to the increase of $520 between the FY01 $4,294 figure of
HB 650, and the current FY02 figure of $4,814. Yet, the state fails to credit the level at which HB
650 would have funded the FY02 budget, which would have been $4,414. Thus, the increase would
be only nine percent or $400 per pupil.
In addition, the state fails to reconcile its claims with the fact that it has reduced the
maximum cost-of-doing-business factor from eighteen percent to 7.5 percent, further eroding the
enormous gains it purports to fund. In fact, and by example, Hamilton County under HB 650 would
have received $5,084 per pupil, yet with the reduction in the cost-of-doing-business factor under
HB 94, Hamilton County will actually receive $5,175. Thus, after the reduction in the cost-of-
doing-business factor, the $520 base cost increase trumpeted by the state yields a meager $91 gain
for Hamilton County over what it would have received under HB 650. Other counties face similar
circumstances.
While this court does not set legislative policy, I do find it curious that in 1995 the
legislature allowed a maximum cost-of-doing-business factor of 7.5 percent. Former R.C.
3317.02(E), 1995 Am.Sub.H.B. No. 117, 146 Ohio Laws, Part I, 1203. But realizing that cost
disparities between some counties were as much as thirty-six percent, the legislature, through the
enactment of HB 215, decided to phase in an increase to a maximum of eighteen percent to offset
the disparity. Former R.C. 3317.02(E)(2), 147 Ohio Laws, Part I, 1214. Yet here we are, but four

38
January Term, 2001

to finance the plan now before us. These funds would then presumably be reallocated
to the other state institutions and programs so severely cut to accommodate the school-
funding plan. While one or more of us would welcome the return of support for higher
education, mental health, protection of battered women, prison security, payment of
wrongfully withheld child support, and other worthwhile and needed state
responsibilities, the negative practical effect of such an action outweighs the benefits.
{¶ 103} Each school district in this state presumably already has a budget
for at least the coming year. If we were to reject the plan before us, over the course
of the next biennium the Cleveland Municipal School District would lose almost
$34,000,000. The Columbus City School District would lose over $33,000,000.
Toledo City School District would lose $19,679,912. South-Western City in
Franklin County would lose over $17,000,000; Lakota Local in Butler County
almost $13,000,000; Akron City, over $12,000,000; Ohio Valley Local,
$9,500,000; Hilliard City, $8,700,000; Canton City, $7,384,424. Lorain City,
Dayton City, Mason City in Warren County, Pickerington Local in Fairfield
County, Parma City, Euclid City, and Dublin City would each lose between
$9,500,000 and $6,700,000.
{¶ 104} Benton Carroll Salem Local in Ottawa County would lose over the
biennium an increase of one hundred ninety-one percent; Wolf Creek Local in
Washington County, one hundred seventy-seven percent; River View Local in
Coshocton County, one hundred fifty-three percent; Three Rivers Local in
Hamilton County, one hundred forty-five percent; College Corner Local in Preble
County, one hundred thirty-four percent; Edison Local in Jefferson County, one

years later, and the legislature has decided to revert to the 7.5 percent maximum. Moreover, the 7.5
percent maximum that is reinstated in HB 94 does not assign the same cost-of-doing-business factors
to the various counties as were assigned prior to HB 650. In fact, fifty-five of eighty-eight counties
have been assigned lower cost-of-doing-business factors. In the words of Dr. Fleeter, one of the
experts in this case, “One can only conclude that the driving force behind this change is either the
desire to transfer state aid from urban areas to rural areas or simply the desire to seemingly increase
the foundation level without paying the full price for doing so.”

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SUPREME COURT OF OHIO

hundred fourteen percent; Avon Lake City in Lorain County, one hundred eleven
percent; and Woodridge Local in Summit County, ninety-seven percent. The list
goes on and on, but the increases provided by the plan (and the additional funds to
be made available by the court’s majority opinion of today) are truly significant.
Gallia County School District in Gallia County will receive over the two-year
period an increase from $5,864,774 to $10,686,054, and all of these dollar figures
and percentages are calculated before the additions that will accrue to each district
after the majority opinion is fully carried out.
{¶ 105} If a majority of the court would say that not enough has yet been
done and the Governor, the General Assembly, and the court study the matter again
for a year or two, it is fair to ask, how long would it take, even if there was a new
acceptable plan, to make up what each district would lose during the
study/discussion period? Answering our own question, there is not a court majority
willing to risk losing what has already been gained.
{¶ 106} The option of merely declaring the legislation unconstitutional and
allowing the General Assembly to enact yet another plan is not viable.
C. Special Master or Commission
{¶ 107} Appointment of a special master or commission has been
discussed. There has been little or no support for a single special master.
Appointment of an independent five-member blue ribbon commission composed
of members with specific expertise in law, finance, taxation, educational
excellence, and labor relations, for the purpose of developing a plan that meets the
requirements of both DeRolph I and DeRolph II and then submitting it to the court
for consideration and a possible order to enact it, has been seriously considered and
has engendered greater support among us. This idea has failed because, as a former
justice of this court was fond of saying during my early tenure on the court, “The
name of the game is four.” Only three members of the court supported this option.
There were never four votes for this approach.

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January Term, 2001

D. Contempt
{¶ 108} Contempt has been a widely discussed option but, I hasten to
forcefully and unequivocally state, never within the court itself. As this is being
written, I just received a call from a man identifying himself as being from Carroll
County. His message was the same as various members of the court have received
over the last four years. “Don’t cave in to the General Assembly. Find them in
contempt and put them in jail.”
{¶ 109} While that option has never been seriously discussed among us, let
us explore that option for the benefit of those who would advocate such a
malevolent course of action. Admittedly, if the General Assembly had failed to
comply with the prior court orders and craft a funding formula that passes
constitutional muster, this court (like other courts) is vested with the power to
enforce its orders. But how? Enforcement of any court order poses concerns. The
judicial branch has no concrete powers like the sword (executive) or the purse
(legislative) with which to carry its judgments into effect. Paulsen, The Most
Dangerous Branch: Executive Power to Say What the Law Is (1994), 83 Geo.L.J.
217, 219. In fact, the judicial branch has been referred to as the “least dangerous”
branch of government. The Federalist Papers No. 78 (Hamilton 1788) (Wills
Ed.1982), at 393. Courts do not possess their own army or a police department to
enforce their orders and judgments. Instead, as Hamilton observed, the judiciary is
dependent upon the executive department for the efficacy of its judgments. Id. at
393-394. See, also, Paulsen, 83 Geo.L.J. at 219.
{¶ 110} These practical problems of enforcement remain the same, and are,
in fact, exacerbated because today we live in different times. We hear from certain
members of the General Assembly that we can say whatever we want but those
pronouncements will be ignored. We hear some members of the General Assembly
saying that impeachment of one or more justices might be in order and, in fact, we
have one self-proclaimed constitutional law expert, a professor, advocating our

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SUPREME COURT OF OHIO

impeachment or removal from office and stating that the General Assembly has a
duty to ignore court orders that he says we have no right to issue, notwithstanding
that we are doing what we believe the oath means when we swear “to support the
constitution of the United States and the constitution of this state” and “to
administer justice without respect to persons.” R.C. 3.23.
{¶ 111} Are we afraid? No. We fear not for ourselves but for those who
would forget their place in our constitutional system of governance and ignore the
wisdom of our founding fathers. Are we practical? Yes. We recognize that we
have no army and no police force to send. We have only our ability to reason,
persuade, and even plead with the Governor and General Assembly to do what is
right and best for schoolchildren in Ohio.
E. Possible Solutions to Funding Inadequacies
{¶ 112} We have been criticized, sometimes by the very same people, both
for entering the fray at all and for not spelling out exactly “what you want us to do.”
We recognize this “can’t win” position, but a few comments may now be in order.
There have now been a legion of challenges in various states to the funding of
public education. To date, courts in seventeen states have found their public
education financing systems to be unconstitutional. Lundberg, State Courts and
School Funding: A Fifty-State Analysis (2000), 63 Alb.L.Rev. 1101. These
holdings have been based on state constitutional language the same as or similar to
our own. What we have done is hardly an aberration.
{¶ 113} Certainly Ohio’s schoolchildren are better off today than they were
before DeRolph I and DeRolph II. New facilities have been and are being
constructed. Learning materials, including books, have been updated and replaced.
Student-teacher ratios have been decreased. Technology has been introduced and
improved. We recognize that more must be done, but the impetus is now at work.
With the basic plan and the additional provisions spelled out in the majority opinion
and under the prodding and capable leadership of the Governor, the General

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January Term, 2001

Assembly, the Ohio Coalition for Equity and Adequacy of School Funding, and
this court have gone a long way toward rectifying school funding inadequacies. Is
the solution perfect? No. Is the solution adequate? I hope so. The constitutional
mandate is one of adequacy—not equality.
Other States
{¶ 114} It would have been appropriate for the Governor and the General
Assembly to have drawn on the experiences of other states to solve what, by any fair
observer’s review, has been a problem in our state for a very long time—inadequate
funding of public education and decrepit school buildings (a 1996 United States
General Accounting Office report points out that ninety-five percent of Ohio’s school
buildings need upgrades and repairs [U.S. GAO Report No. HEHS-96-148 “School
Facilities: Profiles of School Condition by State”]). We hope that the Governor and
General Assembly will look further at the problem and draw on the experiences of
such states as Kentucky and Vermont. In fact, we would do well to study, and perhaps
emulate, the strategy employed by our sister states of Michigan and Minnesota in
solving their school-funding inadequacies.
{¶ 115} In his recent book, The DeRolph Case: Ohio’s Struggle for a
Constitutional School Finance System (2001), Professor Richard Lucier, a Denison
University economics professor, makes the point and specifically details the
Michigan experience. Id. at 159-171. Admittedly, the initiative was bold, the
medicine distasteful, and political futures uncertain. But with strong and
imaginative gubernatorial and legislative bipartisan leadership, Michigan’s leaders
and its citizens struck a strong blow not only for schoolchildren but also themselves.
In doing so, the Michigan plan relieved the heavy burden on overtaxed owners of
real estate, many of whom were property holders trying to reconcile what had
become an oppressive burden of trying to do what was right—support local
schools—with what was financially feasible. But it was not just homeowners who

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benefited. After all, commercial and industrial real property is also taxed, and these
business interests also benefited.
{¶ 116} In 1993, Governor John Engler and Michigan legislative leaders
jointly supported a constitutional amendment designed to reduce local property
taxes by nearly fifty percent and to replace the lost property tax revenue for schools
by a corresponding state sales tax increase—a method not unfamiliar to Ohio
voters. Id. at 159. The amendment was defeated by Michigan voters by a margin
of fifty-five percent to forty-five percent. Id. at 159-160. Governor Engler’s
proposal included a state foundation grant of $4,800 per pupil—in 1993! Id. at 163.
Today, some eight years later, our base figure in Ohio is $4,814 for FY02.
Michigan’s number for FY02 is $6,300. Mich.Comp.Laws Ann. 388.1620.
{¶ 117} In any event, Governor Engler and the members of the General
Assembly in Michigan were not willing to accept the 1993 defeat. Id. at 160. The
minority leader of the senate, State Senator (and now United States Senator) Debbie
Stabenow, a Democrat, introduced legislation that, if approved, would entirely
eliminate local property taxes as a source of revenue for public education. The
legislature did not dilly-dally. Within twenty-four hours the legislation was approved
by a vote in the state senate of twenty-nine to five and in the house by a vote of sixty-
nine to thirty-five. Id. at 160 and fn. 6. In August 1993, Governor Engler signed the
bill, and the massive tax cut, $6.5 billion, became reality. Id. at 159. Suddenly, local
property taxes for school funding were reduced to zero. Id. With two-thirds of the
funding for primary and secondary education eliminated and no provision to replace
the lost revenue, decision time was at hand. Id.
{¶ 118} The Michigan General Assembly responded with courage and
dispatch. Two plans for reform were adopted. Id. at 163. The first was a ballot
proposal. It proposed a constitutional amendment increasing the state sales tax in
an amount that would, if approved, provide $10.2 billion in combined state-local
revenue and, thereby, completely change forever the method by which public

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January Term, 2001

education in Michigan is financed. No longer would there have to be an
overreliance on local real estate taxes to fund the educational system. The other
plan, a statutory plan, would automatically take effect if voters rejected the sales
tax plan. That legislation, already approved and in place, provided for the
replacement of most of the local property tax cuts with increased state income taxes
if the ballot plan failed. Id.
{¶ 119} On March 15, 1994, the voters of Michigan, having had a complete
and comprehensive program submitted to them, overwhelmingly approved the
ballot sales tax plan by sixty-nine to thirty-one percent. Id. at 165. The referendum
was on the ballot in a primary election in a nonpresidential year, yet the voter
turnout was forty-one percent, a substantial response by the Michigan electorate.
Id. at 165, fn. 23. With one master stroke, and admirable gubernatorial and
legislative intestinal fortitude, local property tax revenue funding had been reduced
to about twenty percent of the total of school funding with the state’s share and the
sales tax making up the other eighty percent of the school funding revenue.
{¶ 120} Minnesota’s experience in solving its public school financing crisis
is also worthy of comprehensive review. However, rather than detail that story, I
attach as an appendix the well-reasoned and well-presented column by Chris
Sheridan, associate editor of the Plain Dealer’s editorial pages. According to the
column, the average per-pupil spending from the state (Minnesota) for 2001-2002
“will amount to nearly $6,900.” (See ftp://ftp.sconet.state.oh.us
\opinions/2001/governor.pdf.)
{¶ 121} Some members of this court wish that we in Ohio could have gotten
together on a plan the same as or similar to those enacted in Michigan and
Minnesota. We recognize that “hope springs eternal in the human breast.” Maybe
yet there will be a brave soul or two who will step forward to propose that we
overhaul the system so that instead of just tweaking what we have, real and
substantial reform takes place and the systematic overhaul so eloquently called for

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by Justice Sweeney in DeRolph I takes place. Illustrative of the seriousness of the
overall problem is the article from the Wall Street Journal of July 18, 2001, which
is appended hereto. (See ftp://ftp.sconet.state.oh.us\opinions/2001/wsj.pdf.) I hurt
for my hometown, Toledo, and all the many other Ohio communities that find
themselves in like circumstances. Unfortunately, what the article depicts is the
rule—not the exception!
Conclusion
{¶ 122} After reviewing the specific options set forth above and a number
of other alternatives not listed, we realized that each option was not practical or
could not attract a majority vote of the court. Recognizing that it is the primary
mission of this court to accept cases that properly invoke its jurisdiction under the
Constitution, read briefs and hear arguments on those cases, decide the cases, and
then publish opinions to assist the bench, bar, and litigants of this state, a majority
of the court came to today’s conclusion knowing that a two-two-two-one or a three-
three-one or any other combination of votes short of a majority of four would not
be meeting our constitutional obligations.
{¶ 123} Certain members of the majority had to forgo their argument on
lack of jurisdiction. Other members of the majority had to overcome the feeling
that what has been presented to the court is nothing more than a massaging of the
system, that is, the funding legislation before us still looks like, walks like and
quacks like, and, therefore, is still residual budgeting; that under the plan the school
facilities problems will not be taken care of during the lifetime of a now middle-
aged person; that the overreliance on local property taxes for educational funding
has not really been solved for the long run and that there has not been a “complete,
systematic overhaul” of the educational funding system for students in the K-12
grades called for in DeRolph I. Id., 78 Ohio St.3d at 212, 677 N.E.2d at 747.
Finally, one member of the majority had to forgo insisting that in Ohio, education
is a fundamental right.

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{¶ 124} Once these chasms had been closed the more obvious problems that
could not be ignored could be met head on. Thus, today we hold that to meet the
constitutional requirements of Section 2, Article VI of the Ohio Constitution that
there be a thorough and efficient system of common schools throughout the state,
the so-called echo-effect adjustment must be eliminated, the rounding-up procedure
cannot be used, and the income and property wealth screens must be removed when
determining the base cost of an adequate education. In addition, the current phase-
in aspect of the parity aid program, which is repugnant to a thorough and efficient
system of public education, is eliminated. Finally, we urge that the Governor and
General Assembly look at other ways and means to resolve the facilities problems
that face almost every school district in our state.
{¶ 125} State Senator Jeff Jacobson is widely recognized as the architect of
the plan now before us. At a press briefing on Thursday, April 12, 2001, he said,
“I think that the court was right in what they did in DeRolph I and II.” Sunny
Senators, http://www.capitolgate.com/OH/pressroom/leadstory.asp?id=35. (or
see ftp://ftp.sconet.state.oh.us\opinions/2001/senators.pdf.) More recently, on
Friday, July 27, 2001, the Senator said, “[I]f you read their decision [DeRolph I and
DeRolph II], it was a very moderate decision. It was very wise. It was not the type
of decision that would lead by itself to a constitutional crisis and yet that’s the way
many people treated it.” Holding Out Hope,
http://www.capitolgate.com/OH/pressroom/leadstory.asp?id=109. (or see
ftp://ftp.sconet.state.oh.us\opinions/2001/hope.pdf.) Certainly Senator Jacobson
has never been known as some wild-eyed liberal, and these comments of his, in his
capacity as a father, a state senator, and a lawyer, should lay to rest the notion that
the court did something wrong in accepting jurisdiction over a legitimate case or
controversy with constitutional ramifications. It is not as if we went out to the
corner of Broad and High in Columbus and engaged in champerty. We did not ask
for the case, but when such a case arrives here it is our sworn obligation to resolve

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it based on the law, the facts, and our own personal oaths with regard to interpreting
and supporting our Ohio Constitution. We do not have any subcommittee to refer
the matter to for purposes of letting it die. We decide it as we must and should.
{¶ 126} The new majority finds that, once modified, the legislation will
meet the required constitutional standard. That is, the legislation will then not be
unconstitutional beyond a reasonable doubt. State ex rel. Dickman v. Defenbacher
(1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the
syllabus.
{¶ 127} To some, we will have done too much. To others, we will have fallen
woefully short of the ultimate goal. To those of us in the majority, we will have seen
our duty and discharged it in a manner consistent with our sworn obligations.
{¶ 128} In 1776, when John Adams was traveling to Philadelphia from his
home in Massachusetts to participate in the major issue of his day—the independence
of the Colonies—his wife, Abigail Adams, wrote to him. She said: “You cannot be,
I know, nor do I wish to see you, an inactive spectator. * * * We have too many high
sounding words, and too few actions that correspond with them.” McCullough, John
Adams (2001) 21.
{¶ 129} We entered into this enterprise knowing that our actions, whatever we
might do or not do, would be subject to much commentary, review, and criticism. We
could not and would not, however, be inactive spectators uttering high-sounding
words without corresponding actions.
{¶ 130} Accordingly, I concur. In concurring, I understand that it is the
intention of the majority that the General Assembly will, within a reasonable period
of time, make the changes set forth in the majority opinion. If the General Assembly
does not comply, any aggrieved party can return to us by reinvoking our jurisdiction.
See Harris v. Harris (1979), 58 Ohio St.2d 303, 307, 12 O.O.3d 291, 293, 390 N.E.2d
789, 792. In that event, a more comprehensive order could very well be entered, and

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we, having gone the extra mile, would seek enforcement of that order through means
available to the court.
{¶ 131} I respectfully concur.
PFEIFER, J., concurs in the foregoing concurring opinion.
__________________
PFEIFER, J., concurring.
{¶ 132} I concur in Chief Justice Moyer’s majority opinion and join the
concurring opinion of Justice Douglas. H.B. 94, fully funded, will “smooth out the
unconscionable funding inequities that exist between school districts in this state.”
DeRolph v. State (1997), 78 Ohio St.3d 193, 262, 677 N.E.2d 733, 780 (Pfeifer, J.,
concurring). Although Ohio’s school-funding scheme has thus been made
constitutional, it is legitimate to observe that the system continues to rely heavily on
local property taxes. That concern could be eased by rethinking the issue of funding
for school buildings.
{¶ 133} The General Assembly has adopted a plan to build new classrooms
and rehabilitate existing classrooms in this state. If the Governor and General
Assembly were to ask Ohio voters to approve an expansion of the state’s debt
authority for the single purpose of funding one hundred percent of school
construction and repair, it would be an enormous boost to educational opportunity
across this state. It would also serve the collateral purpose of substantially reducing
the system’s reliance on local property taxes.
{¶ 134} Well-built and well-kept school buildings say something to the
children who are in them now and say something to future generations. School
buildings are tangible evidence that we cared, that we saw an opportunity to help our
children, and that we accepted our responsibility to do so. The General Assembly has
reached for and achieved a constitutional system of common schools. There is room
to reach higher.
__________________

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LUNDBERG STRATTON, J., concurring.
{¶ 135} I respectfully concur in the judgment of the majority. I write simply
to clarify that I still adhere to my position outlined in the dissents in DeRolph I and
II, and still believe that the “Constitution requires the General Assembly to ‘make
such provisions, by taxation or otherwise, as * * * will secure a thorough and
efficient system of common schools throughout the state.’ ” (Emphasis added.)
DeRolph v. State (1997), 78 Ohio St.3d 193, 264, 677 N.E.2d 733, 782 (Moyer,
C.J., dissenting), quoting Section 2, Article VI, Ohio Constitution.
{¶ 136} The law, as recently amended by the General Assembly, increases
school funding by millions of dollars and has dramatically increased funding in
many areas. These changes, along with modifications ordered in this majority
opinion, persuaded two justices from the former majority to find that the school-
funding plan is constitutional. Had I continued to dissent, the gridlock in this case
would have continued to the detriment of all the parties, including most importantly
Ohio’s schoolchildren. Thus, my vote to join the majority is not an implicit finding
that the former plan was unconstitutional, but is rather a pragmatic compromise to
resolve an impasse that I believe has been divisive for too long and for which the
alternatives proposed by the dissents are truly unacceptable. Therefore, I
respectfully concur.
__________________
ALICE ROBIE RESNICK, J., dissenting.
{¶ 137} In its Machiavellian maneuver to halt this litigation, the majority
gives its seal of approval to a system of public education that, even with the
judicially legislated adjustments of the majority, falls well short of the system
required by the Ohio Constitution. In doing so, a majority of this court abandons
adherence to the requirements of the Ohio Constitution and puts an end to this
litigation, even while recognizing that the General Assembly’s enactments are
unsatisfactory. It is indeed ironic that one thing all the justices (both in the majority

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and in dissent) of this court agreed on in both DeRolph v. State (1997), 78 Ohio
St.3d 193, 677 N.E.2d 733 (“DeRolph I”), and DeRolph v. State (2000), 89 Ohio
St.3d 1, 728 N.E.2d 993 (“DeRolph II”), was that it was the General Assembly’s
task, not that of this court, to enact school-funding legislation. Now, a majority of
this court has determined that, for the sake of expediency, harmony, and consensus,
it is acceptable for this court to sit as a superlegislature and enact its own version
of a constitutionally acceptable school-funding plan. The majority states:
“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.”
{¶ 138} The majority’s creation of this consensus provides an uncertain
future for the children and citizens of Ohio for two reasons. The first, of course, is
that this court has no authority to order the level of spending or impose other
specific requirements that would make the state’s system of funding education
constitutional. The second is that the General Assembly must accept the majority’s
judicial mandates and enact legislation that complies with this court’s order.
Judging by past history, when will that take place?
{¶ 139} The defendants have once again resisted as too politically
unpopular the fundamental changes required to bring our public school system into
compliance with the Constitution. Instead, the defendants have merely tweaked the
system that was rejected by this court in two previous decisions. They have
stamped “new and improved” on a system that is neither, and have trumpeted that
this “revised” system, with a supposed massive infusion of cash provided by the
state, satisfies the Constitution. However, it takes much more than money to
accomplish the systematic overhaul of school funding in Ohio that a majority of

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this court in DeRolph I and DeRolph II recognized was required to bring the system
into compliance with our Constitution.
{¶ 140} Even today’s majority cannot accept the state’s transparent, self-
serving, and expedient portrayal of its inadequate response without judicially
legislating its own amendments in order to arrive at a “constitutional” funding system.
The majority has acquiesced to the desires of the defendants, and has abandoned all
pretense of objectivity, ostensibly in the spirit of creating a consensus. The majority
appears to be working hand in hand with the legislative branch of government when
it quotes Thomas Jefferson as support for its decision to impose a compromise in this
case for “the greater good.” Jefferson was a wise man, but he was certainly not
discussing the function of a supreme court when he wrote of “sacrificing our opinions
sometimes to the opinions of others for the sake of harmony.” The oath of a Supreme
Court justice is to “administer justice without respect to persons.” R.C. 3.23.
Nowhere in that oath is there any recognition of an overriding necessity of harmonious
decisions for the sake of getting along with the other branches of government or of
creating a “consensus” among the members of the court.
{¶ 141} The role of the Supreme Court is to act independently from the other
two branches of government in determining whether the laws as enacted by the
General Assembly pass constitutional muster. We are not members of the legislature,
where compromise is the order of the day and backroom deals are taken for granted.
Rather, we have taken a sacred oath to support and uphold the Constitution to the best
of our ability and understanding.
{¶ 142} The majority apparently recognizes that the state’s plan is too flawed
to meet the goals illuminated by two previous decisions of this court. However, rather
than giving the state additional time to enact a constitutional system, the majority, “for
the sake of harmony,” does its own toying with the system, adding its own layer of
legislation to that enacted by the General Assembly. The majority’s determination
that the state must revise its calculations to increase Am.Sub.H.B. No. 94’s basic aid

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amount and must move up the date for the full phase-in of parity aid will cause little
more than an ineffective addition to an inadequate plan and simply does not make the
plan constitutionally acceptable.
{¶ 143} The majority evaluates the plan not for what the plan actually
accomplishes, but what it wishes the plan would accomplish, including making its
own additions to meet that end. Ignoring the numerous deficiencies along the way,
the majority places its confidence in a General Assembly that has once again failed to
comply with the Constitution.
{¶ 144} The majority ignores the directives of DeRolph I and DeRolph II,
sets the bar lower than is justified, and then of course finds that the bar has been
cleared. Rather than building upon the analyses of previous decisions of this court,
as the majority purports to do, the majority actually weakens those precedents
beyond recognition and then proclaims that the watered-down standards allegedly
extracted from those decisions have been satisfied. Somehow, a half-hearted
response by the state is portrayed as the basis of an acceptable solution. However,
the majority imposes its own caveat—the solution is acceptable only after the
changes ordered by the majority are implemented.
{¶ 145} In order to comply, the General Assembly not only must pass
legislation to reflect the majority’s order, but accordingly must find a source of
funding to satisfy the majority’s predilection for what a constitutional level of state
support for schools must be. The majority innocuously asserts that, due to its belief
in the “good faith” of the defendants, it expects the General Assembly to comply. It
blandly states that if its order “receives less than full compliance, interested parties
have remedies available to them.” The possible consequences of a refusal to comply
are glossed over, and the majority does not specifically say what the available
remedies would be. Presumably, if the General Assembly fails to adopt the majority’s
judicially legislated amendments, the majority is prepared to hold the General
Assembly in contempt for its failure, or perhaps take even more drastic action. Since

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what the majority has done is in direct violation of separation of powers, it can do
nothing to effectively enforce its judicial mandates. Moreover, the majority abandons
precedent and enters dangerous territory in ordering that specific legislation must be
enacted to make the school-funding system constitutional. School funding is a
complicated and intricate system. Any changes to one aspect, while appearing to be
straightforward, will cause ripple effects and give rise to unintended consequences in
ways that no justice could possibly anticipate. That is why the specifics of school
funding must be devised by the General Assembly and not this court.
{¶ 146} Merely raising these concerns illustrates that the majority’s order is
ill advised. The majority, rather than limiting itself to highlighting the deficiencies in
the legislation before us as this court has been careful to do in past cases, now takes it
upon itself actually to order that specific additional legislation be enacted. What the
majority conveniently forgets is that this case has always been centered on satisfying
the Ohio Constitution. The majority now turns that consideration on its head. Instead
of satisfying the Constitution, the additional legislation must satisfy the individual
inclinations of four members of this court, and only the majority’s preferred
legislation, and no other, is acceptable. Where was this majority when DeRolph I and
DeRolph II were decided? If this type of action is legally permissible now, why not
then? This case could have been concluded in 1997 by this court merely legislating a
constitutional system from the bench. But as we all are aware, this court does not
legally possess the power to legislate.
{¶ 147} What the majority continually fails to appreciate is that our
Constitution envisions much more than a school system that barely meets the
minimum needs of its pupils. Our Constitution envisions a thorough and efficient
school system, not a system built on backroom deals and political expediency. When
the majority proclaims what is essentially a victory for the state in this case, it is
actually knelling defeat for the students and citizens of Ohio.

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{¶ 148} The majority has ignored that “ ‘[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.” DeRolph
II, 89 Ohio St.3d 1, 728 N.E.2d 993, at paragraph one of the syllabus, quoting Miller
v. Korns (1923), 107 Ohio St. 287, 297-298, 140 N.E. 773, 776. In surrender, the
majority has accepted (and allowed itself to become entangled with) a solution that,
while politically palatable, leaves a bad taste in the mouths of those of us who
recognize the state’s revised plan for what it is—a flawed and incomplete response
to the problems at hand.
{¶ 149} In this court’s opinion in DeRolph II, a majority of this court found
that Ohio’s method of funding public schools continued to violate the Thorough
and Efficient Clause of the Ohio Constitution. In DeRolph II, at paragraph three of
the syllabus, this court defined the meaning of that clause: “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.” With today’s decision, this court, while paying lip service to those
principles, places its imprimatur on a system of education that still fails to meet the
standards for thoroughness and efficiency mandated by the Ohio Constitution.
{¶ 150} Perhaps some who have been immersed in this litigation have lost
sight of where Ohio stands among the fifty states in meeting the problems in its
school-funding system. Including Ohio, the highest courts of at least sixteen states
have found that their state’s school-funding system violated the state Constitution.5

5. See, e.g., Roosevelt Elementary School Dist. v. Bishop (1994), 179 Ariz. 233, 877 P.2d 806;
DuPree v. Alma School Dist. No. 30 (1983), 279 Ark. 340, 651 S.W.2d 90; Serrano v. Priest (1976),
18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929; Horton v. Meskill (1977), 172 Conn. 615, 376 A.2d
359; Rose v. Council for Better Edn. (Ky.1989), 790 S.W.2d 186; McDuffy v. Secy., Executive Office
of Edn. (1993), 415 Mass. 545, 615 N.E.2d 516; Helena Elementary School Dist. No. 1 v. State

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In addition, several states have had lower courts call into question some or all
aspects of their school-funding system (see, e.g., lower court orders reviewed in
Opinion of the Justices [Ala.1993], 624 So.2d 107, and Bismarck Pub. School Dist.
No. 1 v. State [N.D.1994], 511 N.W.2d 247). Furthermore, some states, including
Michigan (see Section 11, Article IX, Michigan Constitution [amended March 15,
1994 by “Proposal A”] and 1993 Mich.Pub.Act Nos. 145 and 336 and related acts
cited in section 6; see, also, Mich.Comp.Laws Ann. 388.1601 et seq., M.S.A. §
115.1919[901] et seq.) and Kansas (Finance and Quality Performance Act of 1992,
1992 Kansas Session Laws, Ch. 280, Kan.Stat.Ann. 72-6405 et seq.) have
completely revised their school-funding system without a judicial order from the
state’s highest court to do so. Thus, Ohio is definitely not alone on the path it is
pursuing among the states, many of which are facing the same problems we are
facing.
{¶ 151} Furthermore, Ohio is not by any means the only state in which the
state’s high court has conducted multiple considerations of funding systems that
have bounced back and forth among lower courts, state legislatures, and the highest
court.6 In some other states, school funding has been a persistent problem for much

(1989), 236 Mont. 44, 769 P.2d 684; Claremont School Dist. v. Governor (1997), 142 N.H. 462,
703 A.2d 1353; Abbott v. Burke (1990), 119 N.J. 287, 575 A.2d 359; Tennessee Small School Sys.
v. McWherter (Tenn.1993), 851 S.W.2d 139; Edgewood Indep. School Dist. v. Kirby (Tex.1989),
777 S.W.2d 391; Brigham v. State (1997), 166 Vt. 246, 692 A.2d 384; Seattle School Dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11152312. Public record. Not legal advice.