Yesterday, Franklin County Judge Karen Held Phipps delayed a scheduled October 4 hearing, which might have clarified what will happen with the lawsuit filed recently to block the state budget’s provision to move most of the responsibilities of the Ohio State Board of Education to a new Department of Education and the Workforce under the control of the governor. Late yesterday afternoon, the Columbus Dispatch‘s Anna Staver reported: “Who controls the direction of public education in Ohio won’t be decided this week after a Franklin County judge decided to give both sides more time to make their cases. Judge Karen Phipps extended the due date for filings from Wednesday to October 16, according to her staff attorney. And she extended a temporary restraining order blocking the law from being enacted until Oct. 20.” Staver adds that, despite that Governor DeWine has interpreted the limits of the temporary restraining order differently, the attorneys for the plaintiffs insist there are to be “no changes to the state of public education in Ohio until further notice.”
Who Is In Charge of Ohio Public School Governance and What Is Today’s Fight About the State Board of Education?
On September 19, seven elected members of Ohio’s state board of education filed a lawsuit in Franklin County Common Pleas Court to stop the Legislature’s plan—embedded in the state budget passed in June—to eviscerate the power of the State Board of Education by transferring most of its responsibilities to a Department of Education and the Workforce under the more politicized control of a cabinet officer appointed by the Governor. While seven elected State Board members filed the current lawsuit, it was later amended—with the named plaintiffs now listed as: Christina Collins and Michelle Newman, both current members of the State Board of Education as well as parents of children currently enrolled in Ohio public schools; Stephanie Eichenberg a parent of a current Toledo public school student; and the Toledo Board of Education.
The plaintiffs have declared that they seek to protect democratic control of public school governance as it was guaranteed in 1953 in an Ohio constitutional amendment passed by the voters (now Article IV, Section 4 of the Ohio Constitution), which moved public school governance under the control of an independent board and removed more politicized control of public education by the governor’s office. Under the 1953 constitutional amendment, the independent state board of education is charged with appointing the superintendent of public instruction.
This year, Ohio Governor Mike DeWine and his legislative supporters have made it clear that they want to take back control of the state’s governance of public education. After the court’s first hearing on the lawsuit on Monday, October 2, Governor DeWine held a late afternoon press conference where the Governor declared, in what felt like a power grab, that he is taking over control of the state’s public schools—despite a temporary restraining order last week from a Franklin County judge intended to prevent his doing just that. At his press conference, DeWine declared that, despite the temporary restraining order, we can’t wait for the court’s decision, because the children of Ohio need the new Department of Education and the Workforce to be operational in order to protect children’s right to an education. He described his own top priority: ensuring that Ohio’s teachers are prepared to implement his favorite curriculum for the Science of Reading, an educational methodology that has now also been mandated in state law. It seemed apparent to me from the Governor’s remarks on Monday afternoon that he does not trust the education professionals across Ohio’s 610 school districts to know what they are doing.
Last spring, the legislature inserted the evisceration of the State Board into the omnibus state budget, passed in June, after its own failure after months of debate, to pass a stand alone bill to accomplish the takeover. Moving the functions of the State Board of Education into a cabinet department reporting to the Governor was proposed in the 134th General Assembly. The bill passed the Senate, but was never voted on by the House of Representatives before the session ended in December. In the new 135th session of the General Assembly, which began in January, the takeover was again introduced as Senate Bill 1. Later in the spring, SB 1 was again passed by the Ohio Senate, but when it had not been brought to a vote of the Ohio House, Ohio Senate leadership inserted the plan to give the Governor control of the operation of the state’s public schools into the omnibus state budget bill.
The Plain Dealer‘s Jake Zuckerman sorts out what has happened in the two weeks since the lawsuit to block the shift in governance was filed: “Late last month, Franklin County Common Pleas Judge Karen Held Phipps partially granted the plaintiffs a temporary restraining order, which pauses the law and signals she thinks the plaintiffs are likely to win in a final ruling. Her order states that the defendants—which include the state and Gov. Mike DeWine—are blocked from ‘enforcing, implementing, complying with’ or acting under the new law. That includes ‘creating’ the new department, appointing its director, or transferring the Board of Education’s powers to the Department of Education and Workforce.” The first hearing was on Monday, October 2, and after that hearing the Governor held his press conference.
Zuckerman recounts exactly how DeWine tried to explain that he will move to take control of the functions of the State Board of Education—which include control of the Ohio Department of Education— without, he claimed, actually violating the temporary restraining order: “’The old department dies at midnight (90 days after Governor DeWine signed the budget bill),’ he said Monday. ‘There is certainly a potential for chaos.’ He said while the court’s order prohibits him from ‘creating’ the new department, he isn’t creating anything – the state law already did that. Were he to follow the letter of the court’s order, he asked, who will send checks to public schools?… He left the matter somewhat vague, noting that J. Christopher Woolard, the interim schools superintendent, still would be at work Tuesday. He told a reporter that Ohio Department of Education employees will still be paid for their work, even if that requires additional legislation from the General Assembly down the line.”
The Columbus Dispatch‘s Anna Staver also sorts out exactly what DeWine said he plans to do, according to the provisions in the state budget: “DeWine told reporters Monday night that, legally speaking, ODE (the Ohio Department of Education) ‘dies at midnight’ along with its ability to pay local school districts and approve voucher applications. If the new Department of Education and the Workforce wasn’t created, then he wasn’t sure how those important tasks would continue… So, he and his legal team looked at their options and decided the new department could start Tuesday so long as he didn’t appoint a director or transfer the board’s powers to that new cabinet appointee. ‘We believe based on what our lawyers tell us that the new department can, in fact, function.'”
There is considerable irony here. At the press conference, DeWine explained that J. Christopher Woolard the current, and, he said, fully competent interim Superintendent of Public Instruction will continue to run the operations of the new Department of Education and the Workforce, and all of the current employees will do their jobs and be paid. This is despite that Governor DeWine and Senate Education Committee Chair, Andy Brenner, have persistently condemned the current State Board for not replacing Woolard, their interim appointment, with a permanent state superintendent. Most of us, of course, wonder how the State Board could possibly have found someone to take a so-called “permanent” job whose very existence has been threatened all year by the legislature.
On Monday night, following DeWine’s remarks, plaintiffs filed a motion to push back against the Governor’s understanding of the authority he described at his news conference. The Ohio Capital Journal‘s Megan Henry reports: “Plaintiffs are arguing that the temporary restraining order in the lawsuit that seeks to block a transfer of power over Ohio K-12 education should have stopped that transfer from starting… The plaintiffs in the lawsuit filed a motion Monday night to clarify the temporary restraining order. ‘This is not a good-faith reading of the Order,’ the motion reads. ‘In the interest of avoiding harm to students, teachers, parents, school boards, state employees, and citizens across Ohio, Plaintiffs respectfully request that the Court intervene before Defendants put the executive branch of Ohio into direct conflict with the judicial branch.'”
Henry quotes Skye Perryman, the President and CEO of one of the plaintiffs’ attorneys, Democracy Forward, condemning Governor DeWine’s recent comments: “In our view, if Gov. DeWine removed any power from the State Board of Education while this matter was pending before the court is able to rule in the preliminary injunction, then we believe the governor would be held in contempt of court.”
Some History About Attempts to Politicize the Work of the Ohio State Board of Education
There have been previous attempts by Ohio’s legislature and governor to politicize the work of the independent State Board of Education. It began after the legislature granted the Governor eight appointed seats out of a state board of 19 members. Most of these problems are themselves the result of political meddling by powerful Ohio Republican leaders. For example, after the State Board passed an anti-racism resolution in 2020, and then in 2021 rescinded it and substituted a bill to ban discussion of divisive topics, Governor DeWine forced the resignation of his appointed members who had voted for the original anti-racism resolution.
Then, as the Plain Dealer‘s editors reminded us in December, “Last January (2022) Gov. Mike DeWine redistricted State Board of Education districts in ways that appeared to target some of the elected board members who’d opposed him on last year’s repeal of the board’s anti-racism resolution. Voters then turned around and elected three new board members who campaigned on returning the board to educational policy pursuits. That expression of the voters’ will shouldn’t have prompted a frontal assault on the State Board of Education itself, supported by Gov. DeWine. But it appears it has.” “A curious thing happened on Nov. 8 (2022). Amid a stampede of Republican victories in Ohio, voters in state education board districts ousted two GOP incumbents in favor of Democrats and elected another Democrat in a contested district previously held by a Republican. While the races were officially nonpartisan, the outcome gave board members who’d campaigned to take culture-war issues off the table at the State Board of Education a much larger voice… In response to this clear expression of voter concern that the State Board of Education needed to refocus on the nuts and bolts of educating Ohio children, a substitute bill gutting the board and transferring most of its key powers to an extensively revamped state education bureaucracy emerged in the Senate Primary and Secondary Education Committee.”
The judge’s decision yesterday to give attorneys for both sides more time—until October 16, 2023—to file their arguments will perpetuate the confusion and political wrangling for another couple of weeks. Staver reassures us, however that Judge Phipps, “extended a temporary restraining order blocking the law from being enacted until October 20.”
In the meantime, we owe thanks to the current board members, educators, and parents who are standing up to call our attention to the importance of democratic governance of public education—protected by elected citizens and educators from the imposition of any one political party’s ideology.
janresseger 
Thank you, Jan, for un-packing all the moves and confusions of the current debacle that the Ohio Senate Republicans and Governor DeWine have enacted upon the citizens and children of Ohio. (The House Republicans seem a bit more distant from it.)
It’s hard to say anything that is respectful. But I’ve become accustomed to government failure even to present a veneer of respect (a more accurate word than ‘civility,’ I believe) for others – other citizens, other children, other leaders. It undermines the idea that we are actually all unified, even when we disagree. That is, we are unified on some basic principles, e.g., acknowledge and follow the Ohio Constitution, and that we follow the law.
Yet it seems, or not just seemingly, but indeed ‘is,’ demonstrated that it is about ‘power’ and its arbitrary use, not limited, informed, by ‘justice’ and respect, the rule of law [all that keeps us violence]. Our common bond is eroding because those in power (whether Republican or Democrat) wield power in an abusive way; it seems that is what ‘power’ tends to, almost naturally. That is how I see it at the local level, both city-wide, and neighborhood-wide, and state-wide and nation-state wide (USA).
So, I have hope in those who push-back, the State Board of Education, and all the rest, carving out small arenas of respect and calls/demands for justice. This is ‘good work.’ And the daily work of education goes on by all, whether it means ignoring this kind of farce/power-grab that our leaders seem to be enthralled by. Because the actual work of educating, care, for children, while demanding, is such good work!
Thank goodness members of the SBE filed this lawsuit. I find it curious that the Governor did so little to set up his education board, and hope the Judge stops the implementation of DEW. If there is to be a DEW, it seems to me the people have a right to know to whom DeWine is giving the power. Who would be on HIS DEW? Who would sit on his cabinet representing Ohio public education…or will it be someone who really represents only the parents who get vouchers for their children’s private education?
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