Wednesday, August 13, 2014

Ohio Commission Considering Weakening Constitution's Education Clause

An extremely troubling movement is brewing in Ohio.  The Ohio Constitutional Modernization Commission is considering changes to the state constitution's education clause.  In particular, it is considering eliminating the language that requires the state to provide a "thorough and efficient" system of public schools.  According to Chad Readler, the chairman of the education committee at the Commission, his intent is not to undermine education or reduce services, but to eliminate the courts' ability to intervene and enforce the education provision.  He claims that the current education clause has been used by advocates to get their way in court when they cannot get it through the legislature.  He is, of course, referencing the DeRolph v. State of Ohio line of cases, in which the state supreme court found the state's financing system unconsitutional based on its irrational distrubution of funds and the wildly unequal results it produced.  

For those who have not read the DeRolph cases, I recall--without rereading--state policies that forced school districts to take out loans to cover the budget shortfalls they incurred every year and repay the loan the following year, which caused a vicious cycle of underfunded and debt-strapped school districts.   The court identified, at least, five other irrationalities and flaws in the

funding system.  I also recall details of teachers falling through rotting floors in classrooms and janitors cleaning the soot off of children's desks each morning because of archaic heating and ventilation systems.  When the legislature permits conditions such as these to exist in schools, the legislature is not doing its constitutional job, and those districts harmed lack the political clout to "get their way" in the legislature. When they turn to the courts, they are not trying to bypass the legislature; they are asking the courts to enforce a constitutional right that the legislature refuses to respect.

That the Commission is considering changes to the constitution is even more ironic given that the state supreme court eventually prevented lower courts from even hearing new complaints in the DeRolph.  The court had enforced students' rights for several years, but after a new set of justices were elected to the court, they immediately withdrew jurisdiction over the case, which many commentators saw as lacking in reason.  If the Commission wants to ensure the proper balance of powers between the branches and that education works properly in the state, it would be better served to strengthen the education clause than weaken it.  

To be clear, the proposed changes are at a very early stage and would have to go through several more votes to become law, but that they are even under serious consideration suggests a problematic climate.

More on the story here.

https://lawprofessors.typepad.com/education_law/2014/08/ohio-commission-considering-weakening-constitutions-education-clause.html

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