100 Ohio School Districts File a Lawsuit Declaring EdChoice Vouchers Deprive Ohio’s Public School Districts of Essential Revenue

On Tuesday, 100 Ohio public school districts and the Ohio Coalition for Equity and Adequacy of School Funding filed a lawsuit challenging the legality of Ohio’s EdChoice Scholarship Program under the provisions of the Ohio Constitution. EdChoice is Ohio’s rapidly growing, publicly funded school voucher program.

The Cleveland Plain Dealer‘s Laura Hancock reported: “A coalition of 100 school districts sued Ohio over private school vouchers Tuesday, saying that the hundreds of millions of public dollars funneled away from public schools have created an educational system that’s unconstitutional.”

The lead plaintiffs are Columbus City Schools, Cleveland Heights-University Heights City Schools, Richmond Heights Local School District, Lima City Schools, Barberton City Schools, Cleveland Heights parents on behalf of their minor sons—Malcolm McPherson and Fergus Donnelly, and the Ohio Coalition for Equity and Adequacy of School Funding. The Cleveland law firm of Walter Haverfield is representing the plaintiffs.

In their lawsuit, plaintiffs declare: “The EdChoice Scholarship Program poses an existential threat to Ohio’s public school system. Not only does this voucher program unconstitutionally usurp Ohio’s public tax dollars to subsidize private school tuitions, it does so by depleting Ohio’s foundation funding—the pool of money out of which the state funds Ohio’s public schools… The discrepancy in per pupil foundation funding is so great that some districts’ private school pupils receive, as a group, more in funding via EdChoice Vouchers than Ohio allocates in foundation funding for the entire public school districts where those students reside. This voucher program effectively cripples the public school districts’ resources, creates an ‘uncommon’, or private system of schools unconstitutionally funded by taxpayers, siphons hundreds of millions of dollars of taxpayer funds into private (and mostly religious) institutions, and discriminates against minority students by increasing segregation in Ohio’s public schools. Because private schools receiving EdChoice funding are not subject to Ohio’s Sunshine Laws or most other regulations applicable to public schools, these private facilities operate with impunity, exempt from public scrutiny despite the public funding that sustains them.”

The Ohio Legislature incorporated a new “Cupp-Patterson” Fair School Funding Plan into the current biennial budget last June, but plaintiffs charge that the simultaneous expansion of EdChoice vouchers in that same budget has blocked the phase-in and full funding of that school funding plan: “The Ohio Department of Education funds EdChoice Program Vouchers from the budget appropriation designated for public schools. Because public funds are finite, funding EdChoice Program Vouchers out of the foundation funding designated for public school districts inevitably depletes the resources designated by the legislature for educating Ohio’s public school students. H.B. 110 (the state budget bill) initially incorporated the salient features of the Cupp-Patterson Fair School Funding Plan, a bipartisan effort to fund Ohio’s public schools adequately and equitably as required by the Ohio Supreme Court in DeRolph v. State…. However, due to the ballooning effects of the EdChoice program, the enacted version of H.B. 110 funded only up to one-third of the increases required by the proposed Fair School Funding Plan over the next two fiscal years.”  “(T)he Fair School Funding Plan was not fully funded due to the ballooning costs of the EdChoice Program. Only 16.67% of the Fair School Funding Plan is being funded through Fiscal Year 2022 and 33% of the Fair School Funding Plan will be funded through Fiscal Year 2023, as specifically delineated in H.B. 110.  This means the General Assembly will meet only a fraction of its constitutional obligation, by the standards it has adopted, to provide a thorough and efficient system of common schools for Fiscal Year 2022.”

The new lawsuit charges that the Fair School Funding Plan had been formulated to address inadequate state funding of public schools over recent years: “Over the last decade, the formulas implemented by the General Assembly for funding Ohio’s public schools reflected the amount the General Assembly was willing to spend on public education, rather than the realistic cost of providing a thorough and efficient education to all of Ohio’s students. Due to budget freezes or minimal increases over the last decade, state funding to Ohio’s public school districts has not even kept pace with inflation since Fiscal Year 2011. Additionally, because the funding formula was frozen in Fiscal Year 2020-21 at the 2019 level, but vouchers and “community schools” (which is what Ohio calls charter schools) were funded by way of deductions from total school funding,  affected public school districts lost approximately $193 million in state funding during these formula freezes. In contrast, the per pupil EdChoice Program Voucher payments rose by 15% for a grade 1-8 voucher and by 25% for a grade 9-12 voucher for Fiscal Year 2022 alone.”

The lawsuit delineates the losses in public school funding for one of the plaintiff districts: “The Cleveland Heights-University Heights City School District, for example, is expected to receive from the state of Ohio a total of approximately $5.6 million in foundation funding for Fiscal Year 2022 to educate the 5,000 students who attend its schools. The state of Ohio, however, will pay out over $11 million for private school tuition to the approximately 1,800 EdChoice Voucher recipients residing within the Cleveland Heights-University Heights City School District in Fiscal Year 2022. In other words, approximately twice as much public funding will be paid in Fiscal Year 2022 for private school tuition for CH-UH residents as the foundation funding allotted to the entire student body of the Cleveland Heights-University Heights District.”

The Complaint names five counts:

  1. “Creation of one or more systems of uncommon schools in violation of the Ohio Constitution, Article VI, Section 2.”
  2. “Failure to secure a thorough and efficient system of common schools in violation of the Ohio Constitution, Article VI, Section 2.”
  3. “Segregation in violation of the thorough and efficient system of common schools as provided in Article VI, Section 2 of the Ohio Constitution.”
  4. “Diversion of funding in violation of the “No Religious or Other Sect Shall Ever Have Any Exclusive Right To or Control Of, Any Part of the School Funds of the State” clause of Article VI.”
  5. “Declaratory Judgement—Violation of Ohio Constitution, Article I, Section 2 (asserted by Malcolm McPherson and Fergus Donnelly only).” This section continues: “No compelling or legitimate state interest can account for this discriminatory treatment of Plaintiff Students in comparison with their private school counterparts. No valid government explanation can justify spending two to ten times more per pupil to subsidize private school tuition than the per-pupil amounts paid by the state to educate Ohio’s public school students… Based on the foregoing, Plaintiff Students are also entitled to permanent injunctive relief barring further EdChoice Program payments to subsidize private school tuition made from the state’s foundation school fund.”

At the press conference where the lawsuit was announced, a member of the Richmond Heights Local Schools Board of Education, Nneka Jackson addressed the third count, that EdChoice Vouchers have illegally exacerbated racial segregation in Ohio’s public schools: “If someone tells you this is about helping poor minority children, hook them up to a lie detector test ASAP and stand back because the sparks are going to fly… About 40 percent of Richmond Heights residents are white. Before the EdChoice private school voucher program, about 26 percent of the students in the Richmond Heights School District were white and 74 percent were students of color. Today, after EDChoice, Richmond Heights is three percent white and 97 percent students of color. Private schools are allowed to discriminate, plain and simple, based on disability, disciplinary records, academic standing, religion and financial status. These are often proxies for race and other protected characteristics. Ohio is essentially engaged in state-sponsored discrimination in admissions and retention. You know who can’t do this? Public schools. Common schools.”

Small Local Group Uncovers Widespread Opposition to Confirmation of DeVos as U.S. Education Secretary

On Tuesday, January 3, as everybody crawled out from under holiday cooking, gifting and celebrating, leaders of our local Heights Coalition for Public Education met to consider mounting some kind of local response to the existential threat of a Betsy DeVos-led U.S. Department of Education. President-elect Donald Trump’s nomination of Betsy Devos alarms us because her only connection with public schools has been a lifelong commitment to using her billionaire philanthropy to privatize education. We’ve all personally sent letters or signed petitions to protest Trump’s nomination of Devos to be our next education secretary, and we looked for a way to expand our advocacy to include our broader community.

We crafted a sign-on letter for organizations and assigned different people to reach out to leaders they knew to see of their organizations would consider signing on. On Wednesday, we learned there was some time pressure: DeVos’s hearing before the Senate Health, Education, Labor and Pensions (Senate HELP) Committee had now been scheduled for January 11.

Everything sped up. When some organizations lacked a way to meet formally to consider our letter, they polled their members. People responded by telling leaders of their organizations their own stories and their concerns about the danger of losing democratically controlled public schools whose mission it is to serve all children.  One person complained: “Betsy DeVos has refused to pay a $5.3 million fine for campaign violations by her PAC in Ohio. She’s not only an anti-public education ideologue but also a scofflaw and a deadbeat to boot.” Another sent his dismay as a former longtime resident of Michigan: “Thanks for this letter. We spent most of our lives in Michigan and are very well acquainted with the anti-government, anti-public education beliefs and advocacy of Betsy DeVos.  Trump could not have picked a worse person to head public education in his administration.” As they rejected the idea of expanding a school choice marketplace, many declared their commitment to improving access and opportunity in our public schools.

We discovered this week that a mass of people from across our community, across Greater Cleveland, in surrounding counties, and across Ohio were delighted their organization had been given an opportunity to weigh in on this important matter that will affect our public schools, our communities, our state, and our society.

On Monday, with members of the organizations that signed on, we will deliver our letter personally to the Cleveland offices of our U.S. Senators, Sherrod Brown and Rob Portman. While neither of our senators serves on the Senate HELP Committee, we are putting them on notice that we expect both of them to pay attention to next week’s Senate HELP Committee hearing on the DeVos nomination. We are asking them both to oppose the DeVos nomination when it comes before the full Senate.

Here is our letter:

Ohio Organizations Oppose Confirmation of Betsy DeVos as Education Secretary

January 9, 2017 — President-elect Donald Trump has nominated Betsy DeVos as Secretary of Education. As local and state Ohio organizations committed to protecting and improving one of America’s primary civic institutions, our public schools, we oppose confirmation of Ms. Devos.  Based on her record, it is clear that Ms. DeVos is not an advocate of public education and would use her position to undermine this essential democratic institution to the detriment of children, communities, our economy and our democracy.

Every human being is valuable. We are committed to the principle that our public school system, regulated by law and overseen through democratic governance, is the institution most able to serve the needs and protect the rights of all of our nation’s children. Public schools are also the best way to ensure that valuable public resources achieve public purposes.

Traditional public schools serve 90 percent – approximately 50 million – of our nation’s children and adolescents, yet Betsy DeVos has no experience with public education. She has never attended a public school, nor did she educate her own children in public schools. Neither is she a public school teacher. She lacks relevant expertise, never having served in a school or studied pedagogy, or school administration, or school psychology, or the philosophy of education.

Betsy DeVos is explicitly hostile to public education. She has said that public education is “antiquated and frankly embarrassing” — “a dead end.” In a speech last year she declared: “Government really sucks.” (Valerie Strauss, Washington Post, To Trump’s Education Pick, the U.S. Public School System is a ‘Dead End,’ December 21, 2016)

Betsy DeVos is a billionaire whose only experience with public schools is her extensive philanthropy that has underwritten lobbying to privatize public education. Ms. DeVos has used her position to promote the expansion of private school vouchers and to oppose responsible regulation of charter schools. The American Federation for Children––the organization founded by Ms. DeVos and the organization on whose board she served until her nomination as Secretary of Education—helped design Donald Trump’s plan to create a $20 billion federal block grant to states to incentivize them to expand vouchers for children to pay private and parochial school tuition and to expand charter schools. The Great Lakes Education Project, a Michigan lobbying group founded by and supported by Ms. DeVos and her husband, blocked legislation in the Michigan House to responsibly regulate charter schools, a plan that had already been agreed upon as part of the Detroit City Schools bailout. 

Marketplace competition, by definition, creates winners and losers. Turning over education to a privatized education marketplace would abandon our commitment to all children. It would leave behind children likely to score low on the tests by which our society now judges schools, children with special needs, and children whose parents are unable to participate in or are not interested in school choice.

We support public schools that are required by law to serve all children and protect their civil rights, principles that we fear would be lost under the leadership of Betsy DeVos.

  • Central Ohio Friends of Public Education
  • Cleveland Caucus to Reclaim Our Schools
  • Cleveland Heights Teachers Union, Local 795, American Federation of Teachers
  • Cleveland Teachers Union, Local 279, American Federation of Teachers
  • Cuyahoga County Educator Summit
  • Cuyahoga County Progressive Caucus
  • Heights Coalition for Public Education
  • Lorain County Parents Supporting Our Children and Teachers
  • Northeast Ohio Branch, American Association of University Women
  • Northeast Ohio Education Association, Board of Directors
  • Northeast Ohio Friends of Public Education
  • Northwest Ohio Friends of Public Education
  • Ohio BATS
  • Ohio Coalition for Equity and Adequacy of School Funding
  • Ohio Education Association
  • Ohio Federation of Teachers
  • Orange Teachers Association
  • Public Education Partners Ohio
  • Reaching Heights
  • Refuse of Cuyahoga County
  • Roxboro Middle School PTA
  • Roxboro Orchestra and Band Organization
  • Summit County Progressive Democrats, Board of Directors

Competitive Grants: Winners and Losers? or A Just System for All?

Bill Phillis is the Executive Director of the Ohio Coalition for Equity and Adequacy of School Funding. Bill was Assistant Superintendent of Public Instruction when I met him over twenty-five years ago.  I have always known him to be a champion for justice for Ohio’s children.

The Ohio Coalition for Equity and Adequacy of School Funding is the coalition that brought the DeRolph School funding case back in the early 1990s. In DeRolph v. State, the Ohio Supreme Court ruled four times that Ohio’s school funding is inadequate, inequitably distributed, and overly reliant on local property taxes. Then just over ten years ago, new members were elected to the Ohio Supreme Court, and the Court released jurisdiction in the case, in essence telling the legislature it was not required to produce a remedy.

This morning Bill critiques the idea of competitive grant programs as part of school funding.  At this time when our federal education policy emphasizes competition in programs like Race to the Top, Bill advocates for making the school funding system work to provide education as a civil right for all children.  He emphatically rejects the path we seem to be following instead—creating competitions by which some schools or school districts can qualify for public funding, while others are the losers.

I like to quote the Rev. Jesse Jackson on this subject because his formulation is so pithy and so profound: “There are those who would make the case for a race to the top for those who can run.  Instead ‘lift from the bottom’ is the moral imperative because it includes everybody.”

But this morning, I urge you to read the post I am reprinting from Bill Phillis below.  He opposes Ohio’s “Straight A” fund, our statewide Race to the Top.

Competitive Grants:  Winners and Losers?  What About Constitutional “Thorough and Efficient” for All?

William Phillis, Ohio Coalition for Equity and Adequacy of School Funding,  10/30/2013

The Straight A Fund–a state (Ohio) version of Race to the Top (RTTT)–attracted over 550 proposals seeking over $800 million. $100 million will be awarded in FY 2014. Competition for grant awards is momentous for the winners. For those students who attend districts that have no or limited art, music, AP courses, transportation and technology, the funds could be better used for basic programs and services via the school foundation program. For those districts that have students struggling with the 3rd Grade Guarantee, most assuredly, those funds could be better used across the board for that purpose. Funding for pre-school children would definitely be a better use of that funding. (Early childhood education, including the coaching of parents is the best vehicle available for breaking the poverty cycle.)

When a level playing field is accomplished, when a thorough and efficient system is provided throughout Ohio, when a uniform set of high quality educational opportunities are in place in every zip code, then and only then, would competitive education grants be justified. A thorough and efficient system of public common schools is the most urgent responsibility of state government. The Straight A Fund might be a rational scheme down the road after the state’s constitutional responsibility is met.

Incidentally, both the Economic Policy Institute and the U.S. General Accounting Office report that Race to the Top provides little solace for RTTT advocates. Among other things, RTTT is falling short of expectations. It would have been more rational to put the funds into the basic programs and services and level the education playing field; likewise, with the Straight A Fund.
William Phillis
Ohio E & A