Court Power Grab in Ohio

Court Power Grab in Ohio
July 1, 2000

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)



According to a slim state supreme court majority, Ohio's system of funding its public schools depends too much on local property taxes. On May 11, in a 4-3 decision, the court found the state’s education funding formula unconstitutional.

The court assumed authority to veto further action by state lawmakers on education funding. To clarify the court's new role, the author of the majority opinion, Justice Alice Robie Resnick, called for an unprecedented summit meeting with Governor Bob Taft and leaders of the state legislature to develop legislative proposals that would satisfy a majority of the court.

Clearly impatient with the slow pace and unpredictable outcomes of the deliberative political process in representative government, the four-justice majority gave lawmakers one year to follow the court’s recipe for a "thorough and efficient" school funding system. (See sidebar, "Ohio School Funding Recipe," on page 17.) The court intends to review the results of the legislature’s efforts and determine their constitutionality.

With this ongoing monitoring, the Court in effect asserted veto power over education funding decisions made by the state legislature. The court also ordered lawmakers to "immediately" fund the unfunded mandates it has imposed on school districts.

"Significant changes had to be made in the way primary and secondary public education is funded, and if it took a judgement of this court to make those changes happen, then so be it," wrote Resnick.

The court’s ruling came in DeRolph v. Ohio, an education funding case focused on the meaning of the provision in the Ohio Constitution that authorizes the General Assembly to "make such provision by taxation, or otherwise" to "secure a thorough and efficient system of common schools throughout the state."

Two years ago, the court found unconstitutional the state's system of funding public schools with local property taxes. The court had ruled, "Property taxes can no longer be the primary means of providing the finances" for the state's public schools. According to the court, property tax funding leads to disparities in per-pupil spending, which in turn cause disparities in educational outcomes.

In response to the court’s 1997 decision, lawmakers increased state spending on K-12 education from $3.9 billion in 1997 to $5 billion this year. But 51 percent of spending on Ohio public schools still comes from local property taxes, down only slightly from almost 52 percent in 1997.

In the year following the court’s 1997 decision, state legislators could not muster the votes needed to raise the state sales tax by even one-half percentage point to raise funds to meet the court order. A ballot initiative that would have raised the sales tax by a full one percentage point was rejected overwhelmingly by voters in May 1998.

Despite praising the efforts of state officials and Governor Taft to improve education funding in the wake of its 1997 ruling, the court nevertheless concluded in May that the state's system for funding public schools remains unconstitutional.

"The most glaring weakness in the state's attempts to put in place a thorough and efficient system of education is the failure to specifically address the over-reliance on local property taxes," wrote Resnick. "If this problem is not rectified, it will be virtually impossible for the revised school funding system to be characterized as thorough and efficient."

The court presented a list of seven "major areas" for lawmakers to address, including over-reliance on local property taxes and funding needs for school construction, state mandates, and basic aid. But the list also included a demand that "Strict, statewide academic standards must be developed and rigorously followed throughout all of Ohio's public school districts."



Separation of Powers

David Zanotti, president of the Ohio Roundtable, regards this latter demand as "a clear case of the judiciary making law from the bench."

"The Court now wants control over what schools teach and how students are evaluated," said Zanotti, noting this is an arena that "has for years been the exclusive domain of parents, teachers, local boards, and the General Assembly."

The court's ruling also concerns David N. Mayer, a law professor at Capital University in Columbus, Ohio, who said "a majority of the court doesn't understand the principle of the separation of powers."

While the constitutional doctrine of the separation of powers gives the courts the power to determine whether laws are constitutional, that power is limited, explained Mayer. The limitation obliges courts not to exercise the lawmaking powers vested in the legislature or the law-enforcement powers vested in the executive.

"Under the guise of constitutional interpretation, the court has usurped the authority of the legislature to determine public policy and to make law, and the court may have violated the rights of the people," said Mayer. He suggested the legislature regard the court ruling itself as unconstitutional and not binding.



A Comparable Ruling

To illustrate his point, Mayer described a comparable situation at the federal level. Imagine, he said, the U.S. Supreme Court ruling the defense budget unconstitutional because Congress had failed to "provide for the common defense"--and then ordering Congress to allocate funds for a missile defense system the justices deemed necessary for the nation's security.

In such a situation, constitutional experts would agree the court had overstepped its authority by ruling on a "nonjusticiable" issue--a political issue that lacks satisfactory criteria for a judicial determination. In the DeRolph case, the court is improperly ruling on a nonjusticiable question, said Mayer. In fact, according to the dissenting opinion written by Ohio Chief Justice Thomas J. Moyer, the central question addressed in the DeRolph case is a nonjusticiable question.

"Decisions regarding the level of educational quality to be made available to Ohio schoolchildren are dependent upon policy decisions--political, budgetary, and value judgements--that require a balancing of interests that is not appropriately struck in the Supreme Court of Ohio," he wrote.

Quoting from his dissent in the 1997 DeRolph I ruling, Moyer added, "The judicial branch is simply neither equipped nor empowered to make these kinds of decisions." Judgements on the quality of education "should be committed to the will of the people as expressed in the election of representatives to the General Assembly and local school boards and in the determination of voted taxation issues to support the schools," he wrote.

"The majority in effect claims veto power over policy determinations made by the General Assembly, thereby reserving to itself ultimate authority over public educational policy within the state," concluded Moyer, saying this "oversteps the bounds of appropriate judicial review."

In her dissent, Justice Deborah L. Cook said the majority was "not abiding by the American form of government." She regarded the court's "ill-conceived foray outside its legitimate role to be a most serious affront to individual freedom and democratic ideals."

Mayer agreed, raising the same concern about activist judges making law that Heather MacDonald recently raised about activist lawyers making law. (See sidebar, "Lawyers Find Politics, Really, Really Hard.")

"The really dangerous precedent that this court is setting is that when special interest groups can't get what they want from the Legislature through the normal political process, they can get a second shot from the courts by framing their preferences in constitutional terms," said Mayer. "This is by-passing the legislative process and undercutting representative democracy."


George A. Clowes is managing editor of School Reform News.

George A. Clowes

George Clowes is a Heartland senior fellow addressing education policy. He served as founding... (read full bio)