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Keeping the 'Public' in Public Education

By Marianna Brown Bettman · December 13th, 2006 · Legally Speaking
We all know the money we have for public education is limited. So what are we doing with these limited dollars? Giving them away to alternative educational programs -- first to finance school vouchers, then to fund community schools (popularly called charter schools).

In both cases, groups of parents, teachers and taxpayers filed lawsuits challenging the constitutionality of the programs. In both cases, the challenges were unsuccessful.

In 1995 the Ohio Legislature enacted the school voucher program, originally as a small pilot program for a small number of students in the failing Cleveland City School District. Students could use voucher money to attend adjacent public schools or registered private schools. No adjacent public schools signed up, and nearly all the schools that did participate were religious schools.

But the Ohio Supreme Court and ultimately the U.S. Supreme Court said it was ok to use our public dollars to send children to private religious schools, because the money went to the parents to make their own choices. The state wasn't forcing anyone to go to any school or endorsing any school.

Now the Cleveland voucher program has been expanded to more students in more grades, which means more dollars out. The idea of using public dollars for private school tuition has been expanded. A new law, the Educational Choice Scholarship Program, will provide 14,000 students in failing schools across the state public funds to attend private schools.

In 1997 the legislature passed the Ohio Community Schools Act as another alternative to traditional public schools. Like the voucher program, it started small. Not any more.

Ohio now has about 300 charter schools. According to the Ohio Education Association (O.E.A.) one out of every 25 public school students attends a charter school. For the 2005-06 school year charter schools received nearly half a billion dollars.

Unlike the schools participating in the voucher and educational choice programs, the legislature expressly defined community schools as public schools. But what does "public" mean? Does just saying something is public make it so?

The statewide coalition of education, parent and civic organizations that challenged the constitutionality of the Community Schools Act really pushed the Ohio Supreme Court to decide what the word "public" means. The case is State ex. Rel. Ohio Congress of Parents and Teachers v. State Board Of Education. This challenge failed by a vote of 4-3. The vote was not as close as it sounds. Justice Terrence O'Donnell dissented strictly on procedural grounds.

When Ohio first became a state in 1803, education was not required. Schools were private. Some were free, some charged tuition.

In the 1830s Horace Mann of Massachusetts started the common school movement, which was to provide universal, free, non-sectarian, compulsory, state-supported, centrally run public education.

At the 1851 Ohio Constitutional Convention, the common schools movement was championed. The state constitution was amended to add a clause requiring the General Assembly to establish a "thorough and efficient system of common schools throughout the state." In their brief, the plaintiffs quoted this passage from a Cleveland State Law Review article by Molly O'Brien and Amanda Woodrum, discussing the debates of the 1851 convention:

"In adopting the provision for a 'thorough and efficient system of common schools,' the delegates rejected the patchwork of diverse schooling arrangements that existed across the state in favor of the common school vision. ... The new educational provisions abandoned competition among sects and among a variety of small districts in favor of a single statewide system."

The plaintiffs argued that the Community Schools Act violated the "thorough and efficient" clause of the Ohio Constitution because, as Justice Alice Robie Resnick put it in her dissent, the act "produces a hodgepodge of uncommon schools financed by the state."

What else doesn't seem "public" about the charter schools?

Charter schools are increasingly being managed as for-profit enterprises by private education management firms that charge hefty fees. These fees come from taxpayer dollars.

What about accountability? Local schools are accountable to local boards of education, which are elected by the people. Charter schools operate independently of any school district. They have their own governing authorities not elected by the people, and they are accountable to their sponsors, with whom they contract.

When the law was first passed, sponsors had to be either a local school board or the Ohio Board of Education. But recent amendments allow charter schools to be sponsored by private companies. Charter schools are exempt from dozens of state standards that regular public schools must meet.

As bad as all this is, the worst problem is with that ever-shrinking public education dollar. As parents of public school children everywhere know, public schools are subject to public financial oversight. The electorate retains a certain direct control over public schools by voting on local tax levies. But charter schools don't have to rely on local property taxes or on passage of levies for their money.

They get their money from state dollars first and get it whether levies pass or not. Traditional schools, which get local dollars first, are forced to rely even more on the broken-down system of local property taxes.

In 2005-06 traditional school districts received $3,329 per student from state funding, according to the O.E.A. Charter schools got $6,734 per student. In Cincinnati, this disparity was even more pronounced. What public school wouldn't like to trade places with charter schools on this? After all, the Ohio Supreme Court has previously said in its DeRolph decisions that excessive reliance on local property taxes to finance schools is unconstitutional, a crucial point the majority in this case seems to ignore.

As Justice Paul Pfeifer wrote in his dissent in this case, "One undeniable effect is that public schools receive less state money than they would in the absence of charter schools. The mathematically unavoidable result is that public schools receive a greater percentage of their funding from local sources, which is unconstitutional pursuant to our DeRolph decisions."

Where is the majority of the court in all this? One sentence by Justice Judith Lanzinger, author of the majority opinion, says it all: "The General Assembly is the branch of state government charged by the Ohio Constitution with making educational policy choices for the education of our state's children." No question, that's true. But as Justice Resnick rejoined, it is still the court's job to make sure what the legislature passes is constitutional. Legislative deference is one thing. Judicial abdication is quite another.

The majority in this case utterly failed to come to grips with the educational, political and particularly the fiscal accountability issues raised by the plaintiffs. As Justice Resnick eloquently put it in one of her last dissents before she leaves the bench at the end of the year, the Community Schools Act "effects a schismatic educational program under which an assemblage of divergent and deregulated privately owned and managed community schools compete against public schools for public funds."

Call me old-fashioned, or call me a state constitutional originalist. I think public dollars should all go to traditional public schools. Despite all the breaks, according to the O.E.A., for the 2004-05 school year, 71 percent of charter schools were placed in either academic watch or academic emergency.

Students in traditional public schools continue to outperform charter school students in each of the state's proficiency and achievement tests. Think of what could happen if our traditional public schools had that extra half billion a year.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.


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