There is one old joke told and retold about school finance lawsuits. I’ve heard it for twenty-five years as keynote speakers begin their remarks. It isn’t very funny, but I suppose it would be hard to make a really funny joke about the constitutional protection of public education. Yesterday afternoon as I sat in a meeting of the Education Committee of the Ohio Constitutional Modernization Commission, I wondered if a lot of the people in the room were drifting away—pretty much along the lines of the old joke: “School finance is like a Russian novel. It’s long, and it’s boring, and in the end everybody gets killed.”
A lot of the people observing the hearing were more likely worrying about the grand larceny—as schools designated “dropout recovery” cyber-charter schools suck money from the K-12 state education budget even as the dismal graduation rates of many of these schools are themselves driving up Ohio’s overall dropout rate. And many of the other observers were likely more worried about the impact of high-stakes testing in their classrooms or the layoff of teachers as funds are cut and even more funds follow children to charters. Lots of others were probably wondering whether this discussion might somehow affect whether they can pass a local school levy on the November ballot. School finance itself seems too long and too boring. We know that even after more than a decade of the DeRolph school funding litigation, which included four supreme court decisions that found Ohio school funding unconstitutional, our supreme court released jurisdiction in the case and never required the legislature to design a remedy. Nobody really looks forward to starting that all over again.
But that’s what this hearing was all about: the right of citizens to bring a lawsuit to challenge the way we fund our schools in Ohio. The Ohio General Assembly has established the Constitutional Modernization Commission to update a 163-year-old document for the twenty-first century. According to the Commission’s website, Ohio’s constitution has not been updated since 1970. The Commission is made up of legislators and public members appointed by the General Assembly.
At yesterday’s meeting of the Education Committee of the Commission, we were treated to two-hours of expert testimony—a theoretical presentation on the history and meaning of Article VI, Section 2 of our state constitution—from Charles Wilson, a professor emeritus of constitutional law at the Ohio State University. As Professor Wilson shaped what I soon realized was a sophisticated argument and as he entertained questions from members of the Commission, I began to take notes. This was an important conversation.
Wilson began with some history. Ohio’s 1851 constitution included the education clause that stands today, “The General Assembly shall provide and fund a thorough and efficient system of common school throughout the state.” Ohio was the first state to write this particular clause into its constitution, though 14 states picked up the words “thorough” or “efficient”; today 6 state constitutions include both words. “No state has ever deleted the ‘thorough and efficient’ clause from its constitution,” declared Professor Wilson. The language itself, according to Wilson, came from a report by Calvin Stowe, husband of Harriet Beecher Stowe, who had been sent by the General Assembly to study European education systems. Stowe preferred the Prussian system, which he described as “thorough” and “efficient.”
Wilson, who studied dictionaries of the mid-nineteenth century as part of his preparation for yesterday’s testimony, surmised that in 1851 “thorough” was taken to mean “complete,” and “efficient” to mean “the degree to which the system achieved its goals.” Wilson explained that Ohio’s earlier 1802 constitution had recognized the importance of public schools and prohibited discrimination due to poverty. However, funding of schools had soon become vulnerable to fraud and diversion by the General Assembly. The stronger education clause in Article VI, Section 2 of the 1851 constitution was influenced by years of work by advocates of Horace Mann’s Common School movement.
As members of the Commission’s Education Committee began to question Professor Wilson, the politics of today’s constitutional modernization process became clear.
“Do you think the framers intended the courts to set the level of education funding?” asked Chad Readler, a Columbus attorney, and the appointed chair of the Committee. Readler has in recent meetings of the Committee suggested removing the “thorough and efficient” clause from the state constitution. Wilson replied that the concept of judicial review of legislation was well established prior to the mid-nineteenth century, although he could not be certain the complexity with which that concept was understood by 1851. “But today the concept of judicial review and the rule of law has become well accepted as a way to challenge legislative actions. Checks and balances are part of the wisdom of our system.” Wilson added that across the states, when school funding litigation has demanded unequal systems be remedied, the courts have almost always left it to the legislatures to determine the actual level of expenditure. Wilson concluded, “I’m not sure I’d want to live in a society where there weren’t checks and balances. It would open the door to tyranny.” Readler pushed back again and again, clearly intent on taking the “thorough and efficient” clause—that guarantees the provision of well-run and adequate schools for children in all the communities in our state—right out of the state constitution.
The education committee’s vice-chair, an Akron attorney, wondered if the constitution shouldn’t protect the rights of children to the same education in East Cleveland (Ohio’s very poorest urban district) and Worthington (a well-off Columbus suburb). “We have to have courts willing to play an active role when the legislature doesn’t do its job to protect the rights of our children. That’s why we have to have checks and balances.” Professor Wilson agreed: “Sometimes we need a check on the tyranny of the majority.”
Professor Wilson then presented, as the committee had requested in advance, two examples of revised language for Article VI, Section 2 that he would find acceptable as alternatives to the current language. In both alternatives, he keeps Ohio’s strong education clause: “The General assembly shall provide and fund a thorough and efficient system of common schools throughout the state.” In both he inserts an additional clause, “education being a fundamental right.”
Although the conversation in the committee room centered on some other issues in his two examples, with little open discussion of this addition, the proposed change is very significant. By adding language to guarantee education as a fundamental right, Wilson agreed with the Committee vice-chair’s declaration that the constitution should ensure the right of all children to equality of educational opportunity as a matter of due process and equal protection. Wilson would add to Ohio’s constitution an additional level of protection over and above our constitution’s current “thorough and efficient” education clause.
In Ohio today, we are, in the language of Professor Wilson, currently one of the states experiencing the tyranny of the majority. One party dominates both houses of Ohio’s General Assembly and the governor’s office and the elected state supreme court. We are watching to see if a Constitutional Modernization Commission appointed by our current legislature will recommend the opinion of the Commission’s Education Committee’s chair, that the “thorough and efficient” clause—and thereby the state’s constitutional protection of public education—be removed from our state’s constitution. Or will this Commission courageously consider the recommendation of its expert witness, Charles Wilson, that Ohio will add constitutional language to protect equal opportunity in public education as a fundamental right?