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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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