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Supreme Court won't hear second ECOT appeal

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COLUMBUS — What was once Ohio’s largest online school failed Wednesday to convince the Ohio Supreme Court to hear a second appeal in its ongoing battle to halt the state from clawing back nearly $80 million in past subsidies.

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In this file photo, hundreds of supporters of Ohio's largest online charter school, the Electronic Classroom of Tomorrow or ECOT, participate in a Tuesday, May 9, 2017, rally outside the Statehouse in Columbus, Ohio.

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The high court, without comment, refused to hear the Electronic Classroom of Tomorrow’s appeal in its challenge of action taken by the partly elected, partly appointed State Board of Education. ECOT claims the board violated the state’s Open Meetings Act when it sided with the Department of Education’s decision to take back money it claims was given to the school based on inflated enrollment numbers.

The 10th District Court of Appeals in Columbus had ruled against ECOT.

“Left untouched, the 10th District’s decision could open a Pandora’s box of future OMA exception litigation that turns on courts’ after the fact, ad hoc determinations regarding the ‘true’ nature of governmental action,” the school argued in its brief urging the Supreme Court to hear its appeal.

“It will also deprive citizens and public bodies of the certainty and predictability afforded by an objective, statutory-based determination of the types of governmental proceedings and actions that are and are not subject to the OMA,” it argued.

The school argued that the board proceeded to a vote on numerous objections raised by the school without holding a public hearing for discussion. It suggested that the board had discussed the matter in nonpublic session.

“Having lost its appeal and owing the state $60,350,791, ECOT is attacking the process in hopes of avoiding the results,” the State Board of Education argued in its brief urging the court not to hear an appeal.

“ECOT’s flawed strategy is to argue that an informal hearing does not mean a hearing and all that term entails,” it said.

The Supreme Court voted 4-1 not to hear the appeal with Justice Sharon Kennedy casting the sole dissent. Justices Judith French and Patrick DeWine had recused themselves from cases involving ECOT.

Last week the court ruled 4-2 against the now-shuttered ECOT’s effort to recover the state’s clawback of past subsidies because the school could not back up its reported enrollment numbers with data showing students were logged in long enough to qualify as full time.

The court agreed that the state had the right to take back the money, while the school argued it had changed its methodology for counting online students and then retroactively applied that new method to prior years.

ECOT, which opened in 2000, faced insolvency and closed in January at the halfway point of the school year. Its sponsor, the Toledo-based Educational Service Center of Lake Erie West, pulled its support.

The closing left roughly 12,000 students scrambling to find other options at the halfway point of the school year.

The appeal stems from the state’s decision to take back $60 million for the 2015-16 school year. It later determined that it was owed $19 million for the following school year.

Contact Jim Provance at jprovance@theblade.com or 614-221-0496.

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