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Published: Saturday, 11/3/2001

School-funding case resurrected

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - The decade-long lawsuit over how Ohio funds public schools took another twist yesterday.

A one-vote majority of the Ohio Supreme Court voted to reconsider its latest decision that Republican legislators said would trigger a huge tax increase or massive budget cuts - and that school districts said fell far short of overhauling the system.

Justice Deborah Cook - who has dissented in the three school-funding decisions since 1997 - joined fellow Republicans Chief Justice Thomas Moyer, Andy Douglas, and Evelyn Stratton in siding with the state's request to reconsider the court's controversial decision released Sept. 6.

Voting no were Republican Paul Pfeifer and Democrats Alice Robie Resnick and Francis Sweeney.

But the court yesterday did not include a decision on why it had voted to reconsider or what the next move would be. The end of the four-line order stated: “Decision and opinion to follow,” but nothing else was released yesterday.

In 1997 and 2000, the court declared that Ohio's funding system is unconstitutional, largely because its heavy reliance on local real-estate taxes causes inequities between property-rich and poor districts.

But in a 4-3 majority opinion which referred to its decision as a “pragmatic compromise,” the court ruled Sept. 6 that the new funding system is constitutional as long as the legislature provides more money to equalize funding among school districts and to boost per-pupil funding.

Mr. Taft has said the cost of complying with the per-pupil funding mandate is $2.4 billion over two years. He asked the court to reconsider so the price tag will be lower.

State attorneys asked the court to eliminate one of the changes it required to the per-pupil funding formula. They said the four-vote majority had used “erroneous calculations and data” offered by the state's largest teachers union, the Ohio Education Association.

Mr. Taft said he was “pleased” by yesterday's decision, but he said he would not speculate on “possible outcomes” or how the state would pay for higher K-12 funding. He said a decision to try to settle the lawsuit with the coalition of school districts that sued in 1991 would be made only after conferring with state Attorney General Betty Montgomery.

The legislature is working on a bill to eliminate what Mr. Taft says is a projected $1.5 billion shortfall in the two-year operating budget.

Justice Andy Douglas, a Toledo Republican, said the vote “brings the entire case before the court.”

But Justice Resnick said yesterday's vote reopens only the parts of the Sept. 6 decision that Mr. Taft sought for review.

“The state filed a motion for reconsideration because they objected to the mandates the court ordered. I had dissented; so there was no reason for me to reconsider that,” she said.

Justice Resnick said she still believes that the court should give the legislature more time to overhaul the funding system - not to order the legislature to approve a solution.

Shortly after the Sept. 6 decision was released, Chief Justice Moyer said the four justices in the majority thought the added cost to the current two-year budget would be $800 million.

Justice Douglas said he always knew that the Sept. 6 decision would prompt the state to increase state funding for the K-12 system by $1.2 billion totally over two years.

“I have been disturbed by some press reports that I did not know what I was doing in the original decision in regard to financial impact and that other judges have been quoted that we didn't know,” Justice Douglas said.

Yesterday's decision means all seven justices at some point have been in the majority over the past four years.

Democrats questioned whether Republican justices in the majority had conspired behind the scenes with the governor's office.

“There have been concerns that ex parte communications have taken place behind the scenes,” said House Minority Leader Dean DePiero (D., Parma). “I hope there is no connection between those concerns and the decision to reconsider the case.”

Justice Cook said she voted in favor of reconsidering the Sept. 6 decision because she believes the court should not be involved in school-funding decisions.

“I have always said the state Constitution says we are not authorized to act,” she said.

The court has released decisions on the matter by a majority, saying it can interpret a provision in the Constitution that mandates the legislature to “secure a thorough and efficient system of [public] schools throughout the state.”

Justice Cook said her vote to reconsider the Sept. 6 decision had no link to her appointment by President Bush to a federal appeals court seat - an appointment that the Democratic-controlled U.S. Senate has not acted on yet.

But state Rep. Chris Redfern (D., Catawba Island) said it won't surprise him if the court releases a decision that lowers the $2.4 billion price tag to a number that Mr. Taft desires.

The court's decision not to release an opinion fueled speculation as to which side won.

“I don't think there's any way anyone can claim victory today,” said state Sen. Randy Gardner (R., Bowling Green).

Bill Phillis, executive director of the coalition of school districts that sued the state to challenge the funding system, said it was unclear whether the court was trying to send a signal that the lawsuit should be settled in a consent decree.

“We're still waiting by the phone, if the [state defendants] would agree to have all of the issues on the table and the state would speak with one voice,” Mr. Phillis said.

But Mr. Phillis said his hope is that the court turns back the clock so the entire case can be reargued.



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