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.”