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Thorough and Efficient Clause removal
By William Phillis

Public Education Privatizers would support removal of the thorough and efficient clause from the Ohio Constitution

Nick Pittner, having served as the lead attorney in the DeRolph school funding case, provides his opinion on the proposal to remove the thorough and efficient language from the Ohio Constitution (below).

If this matter is forced through all the hoops required to be placed on the ballot, plenty of money from the corporate privatizers will be available to proponents.

The Fox is Eyeing the Henhouse: Intense Scrutiny of the Ohio Constitutional Modernization Commission is Required to Protect Your Children's Right to Public Education.

Citizens of Ohio should be very concerned about proposals raised by the Education, Public Institutions and Local Government Committee of the Ohio Constitutional Modernization Commission ("Committee") to remove or modify Section 2 of Article VI of the Ohio Constitution. Those concerns are based on the impact such change would have on the educational guarantees that have been enjoyed by Ohioans since that provision was added to the Constitution in 1851. Section 2 of Article VI provides, in part "The general assembly shall make such provisions, by taxation, or otherwise, as with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State * * * ." That Section assigns responsibility to the General Assembly to ensure not only that public education opportunities will be available to Ohio's pupils, but also that the level of opportunity meets the "thorough and efficient standard". It further provides judicial authority for the courts to review whether or not the standard is being met. As noted by Justice Sweeney, in rejecting the argument that the adequacy of public education is a matter not appropriate for review by the courts, "...[w]e dismiss as unfounded any suggestion that the problems [or educational deprivation] presented by this case should be left for the General Assembly to resolve." DeRolph v. State, 78 Ohio St. 3d 193, 197,198 (Ohio 1997) (DeRolph I).

Removal of the Thorough and Efficient Clause would remove the constitutional standard by which courts have adjudicated the adequacy of public education in Ohio. As noted by Justice Resnick, "The benchmark of our inquiry remains the Thorough and Efficient Clause, as set forth in Section 2, Article VI of the Ohio Constitution: *** "A thorough system could not mean one in which part or any number of the school districts of the state were starved for funds. An efficient system could not mean one in which part or any [**998] number of the school districts of the state lacked teachers, buildings, or equipment." DeRolph v. State, 89 Ohio St. 3d 1,5 (Ohio 2000) (DeRolph II) quoting from Miller v. Korns, (1923) 107 Ohio St. 287, 297-298.

In 2003, the Ohio Supreme Court 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." DeRolph v. State, 97 Ohio St. 3d 434, 2002 Ohio 6750 (DeRolph IV). While that directive has yet to be fulfilled, the elimination of Section 2 of Article VI will virtually guarantee that it never will be fulfilled.

Removal of Section 2 of Article VI would also call into question the ability of the courts to review future deprivations of public educational opportunity. Even if the courts were to review claims of educational deprivation, the standard to be met would no longer be established by constitutional guarantee, but solely by laws enacted by the General Assembly. Without a Constitutional standard for measurement the General Assembly could, for example, decide that high school is no longer necessary, or that public education must be funded entirely by local school district revenue. The legislative dismantling of public education in Ohio would no longer be impeded by Constitutional guarantees.

One proposal being considered by the Committee would substitute language from the Michigan Constitution for the current language of Section 2 of Article VI. The proposed language states, "The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin." Note that both the legislative responsibility and the "thorough and efficient" standards from Ohio's Constitution are missing from the Michigan language. Indeed, a Michigan Court of Appeals has held that the Michigan Constitution required only that the State establish a system of public education, without any standard for the measurement of the quality of the education provided. Unlike Section 2 of Article VI, the Michigan language would impose no obligation on the General Assembly and create no constitutional standard for judicial review.

The recommendations of the Ohio Constitutional Modernization Commission will be made to the Ohio General Assembly for approval, and then submitted to the voters for ratification. It is likely that numerous changes will be recommended, some worthwhile and others, like the removal of Section 2 of Article VI, not. But, just as pertinent legislation is often buried in the thousand-plus page budget bill, the recommendations regarding Section 2 of Article VI will, likely, also be buried in a large package of changes, thus shielded from public scrutiny or debate. Well-funded public relations campaigns will trumpet the merits of the "constitutional package" without mentioning the dire consequences to Ohio's public education system. For those who believe in the merits of that system as the foundation of our State's economic and political systems and our nation's democracy, the game will be over before it has even begun. If this result is unacceptable to you, the time to ring the alarm bell is now, before the irreparable damage is done.

What can you do? Some suggestions include testimony before the Committee, as well as monitoring the meetings of both the Committee and the Commission. See, http://www.ocmc.ohio.gov/. Get the word out about this threat to fellow educators, parents and other public education supporters and, most importantly, let your legislators know that we will not tolerate the clandestine removal of our children's right to a public education in Ohio.

The next meeting of the Ohio Constitutional Modernization Commission is January 15.

William Phillis
Ohio E & A


 
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