It’s Time to Watch for the Next Step in Ohio State Board of Education Lawsuit

Update: On Friday, October 20, 2023, politicization of education governance in Ohio moved forward.  A Franklin County Common Pleas Court judge allowed the Governor immediately to begin overseeing public education and administering the work through a new cabinet Department of Education and the Workforce. The Governor appointed an interim director of the new department. Plaintiffs may continue to pursue their lawsuit challenging the takeover.

Perhaps by tomorrow we will all have a better idea about where the Ohio State Board of Education lawsuit stands.

In late September, seven of the Ohio State Board of Education’s 11 elected members filed a lawsuit to stop the legislature’s attempt to relocate the governance of Ohio’s public education policy to a cabinet department under the political control of the governor. The lawsuit challenges a provision of the new state budget which allows the state board to continue to exist and appoint a state superintendent, but the members would lose most of their power. The state superintendent would merely advise the governor’s appointee who would run the governor’s new cabinet Department of Education and the Workforce.

The provision to eviscerate the power of the Ohio State Board of Education was included in the state budget, passed in June, after the legislature was unable, in 2022 or 2023, to enact the proposal in an independent piece of legislation. The original plaintiffs—all current State Board members—were Christina Collins, Teresa Fedor, Kathleen Hofmann, Tom Jackson, Meryl Johnson, Antoinette Miranda and Michelle Newman.  In the lawsuit the plaintiffs declared the budget’s transfer of the governance of public education to be unconstitutional.

In an October 2 court hearing, Franklin County Common Pleas Court Judge Karen Held Phipps imposed a temporary restraining order, valid through tomorrow, October 20, to prevent any further action by Ohio’s governor or legislature to move forward in their attempt to eviscerate the power and function of the state board of education.

The 19 member Ohio State Board of Education is currently made up of eleven non-partisan members elected by Ohio voters and eight appointees of the governor. In the 1990s, Governor George Voinovich and the legislature changed the makeup of the 19-member state board by reducing the number of non-partisan elected seats to 11, and giving the governor 8 appointees, a situation which has in recent years already increased the politicization of Ohio education policy. Plaintiffs in the current lawsuit argue that the transfer of most of the essential functions of the state board of education to the governor’s office would further politicize education policy, something the voters of Ohio rejected when they passed a constitutional amendment in 1953 to create a politically independent state board.

Many of us wondered why, by the time the first hearing was held in this case, on Monday, October 2, the list of plaintiffs had suddenly changed. The reason for the change was definitely not because the seven original plaintiffs had changed their minds. Instead, unethical behavior in the Ohio Attorney General’s office had become a worry.

What happened? The Ohio Capital Journal’s Megan Henry reports that because the original plaintiffs were members of the State Board of Education, the Chief Counsel and ethics Officer for the Attorney General, Bridget Coontz, “filed a motion on September 27 to substitute the Attorney General as counsel for the original seven plaintiffs.” The Attorney General’s office was now representing Governor DeWine, the defendant in this case, and at the same time representing the plaintiffs.  We now know that the plaintiffs’ attorney—again Bridget Coontz—later sent information intended to undermine the plaintiffs’ case to the attorney defending the Governor.  The judge in the case, Franklin County Common Pleas Court Judge Karen Held Phipps has responded by entirely disqualifying Bridget Coontz from participating in this case.

Megan Henry explains further: “An Ohio Attorney General lawyer for state school board members in their ongoing lawsuit to stop a massive transfer of power over K-12 education from the board to the governor’s office was found by the court to be giving legal advice to the defense counsel, also a member of the Attorney General’s Office…  Chief Counsel and Ethics Officer for the Ohio Attorney General, Bridget Coontz has been disqualified from participating in the lawsuit anymore after sending an email on Oct. 3 that included legal advice to the counsel for defendants, Julie Pfeiffer, the section chief at the Ohio Attorney General’s Office, according to new court documents in the Franklin County Court of Common Pleas. ‘In the email, Coontz offered legal advice to Counsel Pfeiffer clearly related to this case,’ Franklin County Common Pleas Court Judge Karen Held Phipps wrote in an order disqualifying Coontz on Monday. ‘Coontz offered legal advice to Counsel Pfeiffer, which was directly adverse to Plaintiffs (Christina) Collins and (Michelle) Newman, who Coontz represented in this case.'”

The ethics violation was discovered only because plaintiffs’ attorney, Bridget Coontz’s e-mail to defense attorney Julie Pfeiffer was accidentally copied to a Franklin County Court staff attorney.  Megan Henry describes what happened in an emergency hearing on October 3: “Coontz assured the Court that there was no danger of a conflict-of-interest in this situation because the Office of the Attorney General maintained a complex screening process in order to eliminate any such conflict of interest.” But, “According to Judge Phipps, Coontz told the court the ethics screen ‘did not become necessary because she determined that a conflict of interest did not exist.’ ‘Coontz’s argument in this regard is absurd on its face,’ Judge Phipps wrote. ‘The Court strongly disagrees that Coontz personally gets to determine when a conflict of interest has arisen.'”

Not only did Judge Phipps remove Bridget Coontz—the plaintiff’s attorney and the Attorney General Office’s ethics officer—from further participation in the case (because of her unethical behavior), but the original plaintiffs also felt compelled to withdraw.  A substitute set of plaintiffs, who also had standing as parents and as an elected school board, replaced the original seven members of the State Board of Education. On October 1st, the lawsuit was amended, to name the current plaintiffs: Christina Collins and Michelle Newman, members of the State Board of Education and also parents of children enrolled in public schools; Stephanie Eichenberg, a parent of a current Toledo public school student; and the Toledo Board of Education. Legal representation for the plaintiffs is being provided by a national organization, Democracy Forward and by Ohio attorneys, Ulmer & Berne, LLP.

To make the situation even more confusing, after the first hearing of the court on October 2, Governor DeWine held a press conference stating that despite the temporary restraining order and because the provision in the new state budget was set to become law on October 3, the Department of Education would go out of existence on October 3, and the new executive cabinet Department of Education and the Workforce would come into existence.  He added that he would respect the temporary restraining order by refraining to take any affirmative steps to put his stamp on the new cabinet department while the court case proceeded. DeWine’s move seemed a clear attempt to install himself as Ohio’s education leader and to make it harder for him to be removed in the upcoming weeks from a role in education governance. Many saw the Governor’s press conference as a power grab.

In a recent blog post, the former chair of the Ohio Democratic Party and an attorney, David Pepper commented on the ethical problems in the Ohio Attorney General’s office: “First, the incident I’m going to describe involves a big case, with huge implications. A battle over democracy itself, not to mention the education of Ohio’s future generations… (T)o their great credit, parents and school board members have taken Ohio Gov. DeWine to court to stop the power grab from happening. A court in Franklin County already issued a restraining order to stop any action on the power grab pending the litigation… Because the original plaintiffs suing were state school board members, they were represented by a lawyer from the Ohio Attorney General’s Office. And of course, the Governor as defendant is also represented by a lawyer from the Ohio Attorney General’s office… And the Attorney General lawyer representing the plaintiffs in the case (who also happens to serve as the ‘Ethics Officer’ of the entire Attorney General’s Office) assured the judge that these potential conflicts arise from time to time, and the Office has a policy of  ‘screening off’ the attorneys involved from  one another so there is no conflict… Despite the ‘screen’ that was assured by that AG’s plaintiffs lawyer/”Ethics Officer” the e-mail was sent directly to the AG lawyer for the defendants/DeWine who was supposed to be walled off from the lawyer sending the e-mail. That’s a pretty see-through screen. More like a window with no screen at all!” (emphasis in the original)

Judge Phipps’ temporary restraining order expires tomorrow, October 20th. Attorneys for both sides were ordered to submit all briefs by Monday, October 16th.  Please do watch for news today or tomorrow to learn what will happen with the lawsuit to preserve democratic, and non-politicized, governance of public education in Ohio.