Ohio Parents Plan Lawsuit if Severe Cuts to Internet-based Public eSchools Remain

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Did you know that the State of Ohio had something called “eSchools”, which are computer- or Internet-based public charter schools?

Aunty didn’t know, until this came across her eDesk:

COLUMBUS, Ohio, June 13 /PRNewswire/ — Despite a comprehensive
legislative study that says public eSchool funding is reasonable and should
not be cut, Ohio’s legislative leaders still are considering severe cuts to
Ohio’s public eSchools.

As a result, eSchool parents are preparing legal action to protect their
children and their public schools from arbitrary, unconstitutional cuts that
would lead to the reduction in programs and potentially even school closures.

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Public eSchools in Ohio already are funded significantly lower than
traditional public schools. Yet, the proposed budget, being considered by a
legislative conference committee, cuts funding to Ohio’s public eSchools by as
much as an additional 30 percent.

These reductions would lead to cuts in programs like kindergarten,
supplemental and tutoring services, and much more. It’s entirely possible that
a cut this deep could shut down quality eSchools in the state, leaving
thousands of families without a quality public school option.

“We’re outraged that our public schools and our children are unfairly
being singled out for dramatic cuts that would harm, or even close, our
schools and the quality public education our children receive,” said eSchool
Parent Lee Dayton. “No other public school children in Ohio are facing such a
threat to their schools and their future.”


These unfair cuts remain despite eSchool support of increased
accountability, and a report form the nonpartisan Legislative Committee on
Education Oversight (LOEO) that recommended no cuts. The LOEO ensures that
state-funded education activities are effectively and efficiently meeting
their intended purposes. The LOEO concluded that “spending was reasonable and
the state should provide the same amount of funding as other charter and
school districts.”

“It’s frustrating that our legislators have forced us to take legal action
to protect our children,” said eSchool parent, Paula Nipper. “We’ve tried to
communicate with them through letters, emails, office visits, phone calls and
even a statehouse rally, but our children continue to be ignored and treated

Charles “Rocky” Saxbe of Chester Wilcox and Saxbe LLP is preparing for
legal action on behalf of several parents in the event that the cuts remain.
“If this budget becomes law, I’m confident that Ohio courts will find the
eSchool cuts to be unconstitutional,” Saxbe said. “eSchool students deserve
state funding equal to that of other Ohio public school students and the Ohio
constitution requires it.”

eSchools are public charter schools run by nonprofit boards, educators,
and parents and are accountable under rules established by Ohio law. Families
and children work with state-certified teachers and use technology to provide
a quality, public school option.

The following memorandum from Chester Wilcox and Saxbe LLP, Attorneys and
Counselors at Law is attached for background information.

TO: eSchool Families
c/o Mark R. Weaver, Esq.
Communications Counsel, Inc.

FROM: Charles R. Saxbe
DATE: June 10, 2005
RE: Constitutionality of Proposed Funding Cuts to eSchools

This memorandum discusses whether the General Assembly’s proposed cuts in
funding for eSchools violates the Ohio Constitution, and in particular,
Section 2, Article VI of the Ohio Constitution, which mandates a thorough and
efficient system of common schools throughout the state. In short, the
proposed cuts raise serious constitutional questions. Specifically and as
further explained below, the cuts are inconsistent with the Ohio Supreme
Court’s mandates set forth in the school-funding litigation, the DeRolph case.
Failing to provide an adequate and sufficient funding of eSchools could well
violate the General Assembly’s obligation under the Ohio Constitution to
ensure a thorough and efficient system of common schools throughout the state.

Internet or computer-based community schools (i.e., “eSchools”) are a type
of “community school” specifically established and authorized under R.C.
Chapter 3314. See R.C. 3314.02(A) (7), 3314.031 through 3314.034. As you are
aware, the amount per pupil that each eSchool currently receives is the sum of
the: (1) base-cost formula amount, adjusted by the student’s resident
districts cost-of-doing business factor, (2) any special education weighted
amounts, (3) any vocational education weighted amounts, (4) any per pupil
amount of disadvantaged pupil impact aid (“DPIA”), and (5) the per pupil
amount of state parity aid. See generally R.C. 3314.08 & 3314.19.
As currently proposed, the state budget bill would eliminate the DPIA and
parity aid components for eSchools. It is estimated that these cuts would
result in a 10 percent reduction in funding for eSchools in the first year of
the biennial budget and a 20 percent reduction in funding for eSchools in the
second year. Students of eSchools are the only public school students in the
state whose funding is being cut.

Like any community school, an eSchool is a “public school” and “is part of
the state’s program of education.” R.C. 3314.01(B). Because eSchools are part
of the comprehensive state public school system, the General Assembly’s
funding of eSchools is part and parcel of whether the General Assembly is
complying with its obligations under Section 2, Article VI of the Ohio
Constitution, which mandates a thorough and efficient system of common schools
throughout the state. See generally, DeRolph v. State (1997), 78 Ohio St.3d
193 (“DeRolph I”).
In DeRolph I, 78 Ohio St.3d at 197, the court recognized the mission of
the state’s public educational system:

The mission of education is to prepare students of all ages to meet, to
the best of their abilities, the academic, social, civic, and employment
needs of the twenty-first century, by providing high-quality programs
that emphasize the lifelong skills necessary to continue
learning, communicate clearly, solve problems, use information and
technology effectively, and enjoy productive employment.

The General Assembly’s adoption of the legislation authorizing eSchools
and other community schools was a direct response to the DeRolph litigation
challenging the constitutionality of Ohio’s public school system, as well as,
part of a trend by legislatures throughout the nation to provide greater
choice by parents in the educational options for their children. The U.S.
Supreme Court, in its decision approving Ohio’s pilot voucher program
specifically recognized that the community schools program (which includes the
eSchools) was one part of “a broader undertaking by the State to enhance the
educational options” of Ohio’s school-age children. See Zelman v. Simmons-
Harris (2002), 536 U.S. 639, 647.
It cannot be disputed, therefore, that how eSchools are treated in the
state’s budget contributes to a thorough and efficient system of education by
offering more choice to public school students and their parents.
In decisions spanning over 5 years, the Ohio Supreme Court in the DeRolph
case repeatedly chastised the General Assembly for its failure to live up to
its constitutional obligations with regard to school funding.
In DeRolph I, 78 Ohio St.3d 193, syllabus, the Court held that Ohio’s
elementary and secondary public school financing system violated Section 2,
Article VI of the Ohio Constitution, which mandates a thorough and efficient
system of common schools throughout the state. In so doing, the Court
admonished the General Assembly to create a new school-funding system. Id. at
213. Three years later, after the General Assembly had enacted various changes
to the school-funding system, the Court again determined that the school-
funding system was unconstitutional. DeRolph v. State (2000), 89 Ohio St.3d 1,
(“DeRolph II”).
Finally, in its last substantive decision, DeRolph v. State (2002), 97
Ohio St.3d 434 (“DeRolph IV”), the Court reiterated that the system in place,
which is essentially the system that exists today, still failed to comport
with the constitution. According to the Court, the General Assembly has still
not focused on the core constitutional directive of DeRolph I, i.e., “a
complete systematic overhaul” of the school-funding system. Id. at 435. Thus,
the Court again directed the General Assembly to enact a school-funding scheme
that is thorough and efficient, as explained in DeRolph I, DeRolph II, and the
accompanying concurrences.
Significantly, in DeRolph IV, the Court recognized that financially
difficult times do not excuse the General Assembly of its constitutional
obligations to ensure a thorough and efficient system of common schools. As
the Court stated, “[t]he Constitution protects us whether the state
is flush or destitute.” Id. at 437.
In short, the DeRolph decisions make it clear that even as currently
designed, Ohio’s school funding system fails to comport with the Ohio
Constitution. Given this backdrop, it is easy to conclude that any cut in
education spending would only exacerbate the unconstitutionality that exists
and increase the likelihood of future successful litigation challenging the
funding system.
Moreover, the consistent and general theme throughout the DeRolph
decisions is that material disparity in student funding based solely on where
a student attends school is a violation of the constitution. See e.g., DeRolph
I, 78 Ohio St.3d at 204 (recognizing that school system would not be thorough
and efficient if a school district was receiving so little local and state
revenue that the students “were effectively being deprived of educational
opportunity”); see also DeRolph II, 89 Ohio St.3d at paragraph 3 of the
syllabus (“A thorough system means that each and every school district has
enough funds to operate.”)
As such, any reduction in the funding of eSchools that threatens their
ability to adequately serve their students likewise raises serious doubts as
to whether the General Assembly’s is ensuring a thorough and efficient system
of common schools throughout this state.
These concerns are especially heightened with regard to funding of
eSchools since the state is their sole source of funding. See R.C. 3314.08(H)
(prohibiting community schools from levying taxes or issuing bonds) & (I)
(prohibiting community schools from charging tuition). Unlike traditional
public schools, eSchools’ viability depends solely upon the state.

As set forth above, the proposed cuts to the funding of eSchools and
eSchool students raise serious constitutional questions. Specifically, the
proposed cuts could well violate the General Assembly’s obligation under the
Ohio Constitution to ensure a thorough and efficient system of common schools
throughout the state.

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