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Possible Changes to Ohio Constitution Create Stir in K-12 Community

A commission weighing proposed changes to the Ohio Constitution could soon consider whether to eliminate the language requiring a "thorough and efficient" system of public schools, a possibility that could generate a great deal of controversy in the state.

The proposal comes from Chad Readler, a Columbus attorney who is chairman of the education committee at the Ohio Constitutional Modernization Commission, which was created to consider changes to the state's constitution. Readler says that his intention isn't to eliminate the guarantee a statewide system of schools accessible to everyone, or to create a "certain system" of public schools. Instead, he said he wants to eliminate the judicial system's power over issues such as K-12 school finance.

"I think education policy is better set by educators and legislators than judges," Readler told me in an interview.

The current language dates from 1851, when the state constitution was approved and when many communities did not provide any access to public schools, Readler said. But the language has been misused by those who have failed to get their way in other branches of state government, he said. 

One of the examples he cites is the DeRolph v. State of Ohio court case. Although perhaps not as famous as the series of Abbott school funding cases in New Jersey, DeRolph began with a 1991 lawsuit alleging that the state's system for funding public schools was inadequate due to insufficient state support, an accusation that the state Supreme Court agreed with in its initial ruling. However, the court and the legislature continually butted heads over what the consequences of that ruling should be, leading to four DeRolph rulings. Ultimately, the court relinquished jurisdiction over the case. 

In the Ohio Constitution, the language requiring a "thorough and efficient" system of schools is in a section regarding school funding. Readler wants to eliminate that language as well as any other reference to K-12 funding in the relevant portion of the constitution. 

His proposal still has a ways to go before it's even close to being done. If his committee approves it, the change would need to be approved by two-thirds of the full modernization commission. Then it would have to be approved by the General Assembly. Finally, the voters would have their say. Readler says the change is at least a year away from being approved by voters, and stressed that changing the constitution is appropriately a "slow process."

But some see something much more nefarious behind Readler's idea, as StateImpact NPR reports: the chance for officials to scrap the state's public school system entirely. 

Charlie Wilson, the former head of the Ohio School Boards Association, told StateImpact that courts have ruled that education is not a fundamental federal right and have left it to the states. Therefore, without protection in the state's constitution that the court can use to exercise oversight, Wilson argued, "then it's very easy for the General Assembly to ignore the constitution, and then you get to the question of why even bother having a constitution."

And one teacher, Maureen Reedy, thinks that the existing language needs to be enhanced, not stripped away, with further guarantees about the use of public money for instructional purposes. 

Different States, Different Language

There are sections of the Ohio Constitution that deal specifically with loans for higher education. But other states' constitutions are more specific with respect to K-12.

A 2011 study by Molly Hunter of the Education Law Center, a Newark-based group that represents plaintiffs in school funding lawsuits, found that 11 states have constitutional requirements to make "thorough and efficient" provisions for public schools, while eight states require a "general and uniform" system of schools. 

Florida not only makes it "a paramount duty" of the state to make "adequate provision" for educating all students, it also caps class sizes at different levels for different grades. (See Article 9 at the link). A ballot initiative to alter the language to make it refer to average class sizes in each school was rejected by Florida voters in 2010, but the legislature subsequently exempted a large number of classes from having to adhere to these caps. Florida's class size requirements remain controversial.

And in Washington state, the constitution states that it is "the paramount duty" of the state to make "ample provision" for public schools—note the linguistic difference from Florida, where that provision must be "adequate" but not "ample," and where it is not the paramount duty of the state. That language in Washington state has been highlighted by state Superintendent Randy Dorn and others in the state's ongoing school funding fight in the wake of the 2012 McCleary v. State of Washington decision. Dorn and others say the constitution makes it clear that lawmakers, in failing to fund schools adequately, are failing at the most important job they have.

You can compare the Ohio Constitution and Readler's proposed changes below:

Current Ohio Constitution 

Article VI, Section 1

The principal of all funds, arising from the sale, or other disposition of lands, or other property, granted or entrusted to this State for educational and religious purposes, shall be used or disposed of in such manner as the General Assembly shall prescribe by law.

Article VI, Section 2

The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, [as] will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.

Article VI, Section 3

Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.

New Sections Proposed by Chad Readler To Replace Sections 1-3

Article VI, Section 1

The General Assembly shall provide for the organization, administration and control of the public school system of the state supported by public funds, without discrimination as to race, color, national origin, sex or religion. No religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.  

Article VI, Section 2

Where established by the General Assembly, each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.  

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